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“Undergraduate Notes of Paley’s Cambridge lectures”

These notes are of the moral philosophy lectures only.  A second set of notes, of Paley’s Cambridge lectures on systematic theology, are to be found in the same manuscript volume.

Moral Philosophy

 

Moral Philosophy is that Science which teaches men what they are obliged to do & why.

 

It is distinguished by the following titles, viz: Morality, Casuistry, Natural Law, & Ethics.

 

The use derived from it is this, that, without its assistance, the rules of life which man ordinarily follow might oft mislead then, either thru a defect in the rule or in the application of it.

 

In order to explain this it will be necessary first to enquire how men would act if left to themselves.

 

The rules principally attended to are three, viz: the Law of Reputation, the Law of the Land, & the Scriptures.

 

The Law of Reputation; or in other words, of Honour, labours under two Capital defects.

1st It prescribes duties only amongst equals or such as in the common intercourse of life are esteemed such. It takes no cognizance of our duties either towards our superiors or inferiors. ‘Tis no breach of Honour for a man of high rank to defraud a Tradesman, insult his Tenants, deny relief to the poor, neglect divine worship, nay what is more, affront it with prophaneness &c. & for this reason, Honor [sic] is no other than a system of rules instituted by people of high rank to facilitate their intercourse with one another, that is, to render their society among themselves as convenient & easy as possible, consequently such things as do not tend to obstruct this intercourse, are taken no notice of by it. Thus neglect of divine worship is not inconsistent with honour, because a man is not on that account the less agreeable or entertaining companion.

 

For the same reason the rest of the crimes above mention’d are overlook’d by Honour. On the contrary faults trifling when compared to those, such as rude behaviour &c are severely censured by it, because if those were allowed of their Society could not subsist.

 

2ndly Honour is too partial & favourable to the natural passions. This also is easily accounted for, because the rules concerning it are framed by people the business of whose lives is pleasure. Hence Adultery, Fornication, Drunkeness, Duelling are no breaches of honor.

 

The only question that now remains is, whether a law which countenances adultery, Fornication, Duelling & such like, is to be the guide of our conduct.

 

There are a far more numerous & perhaps more respectable set of men, who having never heard of the word Honor, make it their sole care to keep within the verge of the Law of the Land.

 

Now the Law of the Land, in this view, viz: as a private role of life, omits many duties as not objects of Compulsion, but which must in their nature if performed be voluntary. The Law never speaks, but to command; & therefore those duties which must be voluntary do not come under its lash. No Act of Parliament was ever made to command Devotion, Bounty to the Poor, Forgiveness of injuries, Education of Children; or Gratitude; because all these cease to be Duties when they cease to be voluntary.

 

Again the Law is constrained to allow of many crimes, because it is unable to define them, & consequently to punish them, & it is particularly carefull in defining them, because if crimes were not exactly marked out it would be matter of uncertainty whether a crime came within the definition of it or not.

 

Thus Treason was formerly undefined, & therefore it lay wholly in the power of the prince to pardon or condemn it. In the 25th of Edward the third. Again a man was acquitted for stealing a Cow because it did not come under the definition of Cattle; & even to this day the law cannot punish partial voting at Elections, unless it is absolutely proved that it be bribery, because it is impossible to enumerate the various which may constitute partiality.

 

After what has been said of the law of the Land no one surely can say that it deserves our observance in the light in which we have consider’d it, viz: as a private rule of Life.

 

But granting that neither the Law of Honor nor the Law of the land are to be trusted as the sole guides of our conduct; still have we not the Law of God? Does that need the assistance of moral philosophy?  -- It does & for this reason. The Scriptures in order to be usefull to every part of mankind must necessarily be short & compendious, & consequently other precepts must be general. Now as they are general they must be often misapplied & therefore stand in need of morality to point out the applications of them. Had they not been compendious, but had descended to particulars, they would have been so infinitely voluminous as to be out of the reach of the greater part of the world. Thus our Statutes at large containing only a few particular duties make up 26 Folio Vols.

 

The next things to be consider’d are moral Approbation, Human Happiness, & Human Virtue. The first great question among moralists is whether the approbation of Virtue be natural & instinctive or acquired by habit, reasoning, fashion &c.

 

The Question as it stands at present is Nonsense as it only asks whether the Approbation of what is approved is innate. The real meaning of it is, whether or no the approbation of any particular Virtue, as Gratitude, Fidelity &c is natural. When we read the story of Inkle & Yarico in the Spectator, or hear of a Sons murdering his Father, or any such crime, who is the man that can help expressing his indignation. Who ever read the parable of the Good Samaratan without feeling a sentiment of approbation & pleasure?

 

The question then rests upon this, “Whether a Savage taken from the woods would express the same approbation of virtue, the same abhorrence of vice”, if he does we may affirm I to be instinctive, if not acquired.  But as it would be impossible (did we get such a savage) to make him understand the question under a considerable time, we must content ourselves with a candid Examination of the argument on each side the question. Those who maintain that it is instructive call that instinct the moral Sense, & the first argument that they bring in support of it is “ that we often approve of a virtuous action & disapprove of a vicious one in which we have no interest” – 2ndly  We often do the same without being able to give any reason for it. 3dly  These sentiments are universal.  In opposition to these arguments ‘tis said 1st “That the Sentiments of approbation & abhorrence are not universal. For in some countries the inhabitants hold it right to maintain their aged parents, in others ‘tis a virtue to put them to death. In some countries tis thought a duty incumbent upon them to bring up Orphans, in others to expose them.  The instinct indeed between the sexes is universal, but the moral sense is only general. For when Fashion countenances any particular virtue or vice (as it does at present Duelling) the multitude submit their opinions to it. Now the approbation of some particular virtue being general may, even where we have no interest, be explain’d without the supposition of a Moral Sense. 1st Because most people approve from Precept, from Authority, from a habit of approbation acquired in their Infancy. 2ndly  Because having experienced in some instances that such an action to be beneficial to us, or observed that it w[oul]d be so, a Sentiment of Approbation rises up which ever afterwards accompanies the Idea of mention of the action, tho the original reason for approving it is no more. Thus if a friend makes me a present, I no doubt applaud his generosity, & if ten years afterwards an action of the same kind is related to me, by Association this sentiment of approbation accompanies the Idea. This obtains also with the miser. He having experienced the use of money, still associates that Idea with it long after it ceases to be of any use to him. In short when this sentiment of approbation is once established in the world it will always remain there. After all this is a matter of more curiosity than consequence.

 

Human Happiness is the next point to be consider’d. Happiness, tho it be a positive term & seems to denote something absolute or real, is however generally to be understood in relative sense, that is, when upon hearing of a mans having got an additional piece of preferment, we say now he is happy, we only mean that his present situation is happy when compared with his former one. 2ndly Happiness signifies that condition in which the amount of pleasure is greater than that of pain.  It is a very difficult task to say wherein happiness consists on account of the variety of tastes which prevails in mankind. It is just as likely that one kind of fruit should please every body, as that one mode of Happiness should be agreeable to all.

 

To point out wherein it does not consist is far less difficult. It does not consist in the abundance of sensual pleasures. 1st because they only continue for a little at [a] time. For it the moments spent in the usual gratifications of sensual pleasures (be the man who enjoys them ever so voluptuous) be summed up they will not amount to an hour & half in the Day. Notwithstanding this, it may be said if a man has money (which we suppose he has) it is in his power to continue & renew them. To this I answer that he may. But every repetition tends to diminish their relish & will in the end totally destroy it.

 

2ndly Neither does it consist in the mere absense of bodily pain, labour, or molestation. Nothing is more usual with us when oppress’d with pain or trouble, than to say, rid me but of this & I shall behappy. Thus people in Business are continually wishing for a fortune that might enable them to retire from the noise & hurry of trade. But the success of their wish proves the error of it. For they only change business for what is much worse, Melancholy & depression of spirits which nothing can shake off.

 

3dly Happiness does not consist in Greatness i.e. in the elevation or grandeur of a man’s situation in the world. 1st Because the pleasure of greatness consists only in a superiority over those with whom we compare ourselves, which is a pleasure attainable by the meanest. Thus the Shepherd has no pleasure in his superiority over his Dog, nor the Farmer in his superiority over the Shepherd, nor the Squire in his superiority over the Farmer, nor the King in his superiority over the Squire, because there is no Comparison, rivalship or emulation between them. But should the Shepherd find himself superior to another Shepherd in boxing, the Squire himself superior to another squire in Equipage or the King see that he had gain’d a superiority over another King in navel affairs, they no doubt would receive equal pleasure. 2ndly This pleasure which arises from the Comparison ceases with it, & fresh competitions start up. Thus in a race when a man has passed one all competition & rivalship between them is at an end & he exerts his endeavours only to pass the next. So it is in Life.

 

As far as we can judge from observation, Happiness consists 1st in social affections, as Love of one’s Children & Family, Compassion, Friendship &. As a proof of it you always observe such as lead retired monastick lives peevish & discontented. 2ndly it is promoted by the perusal of some favourite object. The merchant is never so happy as when he is getting money, nor the religious man as when he hopes for a future felicity. To the want of Objects of pursuit, we may attribute the weariness & listlessness observable in the rich & fashionable part of the world. To this is owing the eagerness with which they engage in trivial pursuits, such as a Game at Cards, or a seat for a paltry Borough. 3dly It consists in Health of Body, in which are included health & peace of mind & good spirits, as they appear in a great measure to depend upon it.

 

From what has been said 2 Corollaries may be deduced. 1st That happiness is pretty equally distributed among the different conditions of human life. 2nd That Vicious men have not in worldly happiness the advantage over the virt[u]ous.

 

In respect to the first of these Cor[ollaries] as Happiness is found to consist only in the exercise of the social affections, the pursuit of some object, & Health of body & mind, the poor are as likely from nature to be Happy as the rich. For they have equal pleasure in the love of their families, their daily labour is a sufficient object of pursuit, & they generally exceed people in high life in health of Body & strength of Spirits. The rich indeed have some few advantages over the poor, as in acts of Generosity & Charity.

 

Human Virtue is the doing good to mankind in obedience to the will of God, & for the sake of everlasting happiness. The good of mankind is its object. The will of God its rule, & Everlasting happiness its motive.

 

It was formerly divided in 4 parts.

 

Benevolence which proposes good ends.

Prudence which suggests the best means of executing them.

Fortitude which enables us to encounter the difficulties which oppose.

Temperance which restrains those passions which might take off our Attention.

 

Thus for example in supporting a poor neighbour under a Law-suit forced upon him by some tyrannical Lord, you exercise all these. For, Benevolence proposes your supporting him; Prudence puts you into the best method of doing it; Fortitude enables you to surmount the difficulties attending it & temperance restrains such passions as might oppose its success.

 

Virtue is now divided into 3 parts.

 

1st Duties towards God, as Prayer, Devotion, Reverence

2ndly to Ourselves as Temperance, Chastity, Sobriety, &c.

3dly to Others as Charity, Justice, Loyalty &c

 

Here 3 observations may be made.

 

1st That men are & ought to be governed by Habit rather than reason in most of their actions.

That they are is evident as a Sot is driven to his Bottle more from habit than from thirst. & that they ought to be appears from 2 reasons.

 

1st Because there is often no time for reason thus the opportunity of relieving distress would often slip away during deliberation.

2ndly Because he who reasons under the Biass of Temptation, always reasons himself into an Error; & we should not be led by Reason where Passion or Propensity is concerned. Not that it is to be inferred from hence the Reason is to be entirely excluded, it is only meant that it should be made use of to form conclusions in our cooler moments, which habit is afterwards to confirm.

 

In consequence of what has been said it is evident that many things should be done merely for the sake of establishing good habits – such as attending publick worship at particular times, or relieving every apparent object of distress. On the contrary many things are to be shun’d merely for fear of contracting bad habits. Thus a man may tell numberless lies, without either meaning or doing any harm. Yet it is a practice thus far bad that it begets a bad habit.

 

In the next place it follows that Morality consists in suppressing bad habits & creating good ones. Vice consists in the habitual [sic] of any one flagrant offence but Virtue is not thence to be consider’d as consisting in one particular good action, but in such a compliance with those rules which Reason has made Habit confirmed, so as to render every Action good.

 

It has been some times asked why the Scriptures whose end is to conduct men to Salvation have not exactly ascertained how much innocence or virtue is necessary to save a man?  It is impossible for this reason, viz: that the quantity of virtue must vary relatively, ie. more virtue is to be expected from the man who has had Education & opportunity of improvement than from the rude, uninstructed Savage. Thus far indeed may be said

1st that there is no reasonable hope of Salvation to those who act only in compliance with convenience & interest.

2ndly Mere Innof[f]ensiveness viz: the exemption from flagrant crimes without doing some positive good, is not sufficient for such a hope.

3dly Neither are those to expect it who indulge themselves continually in one crime.

 

When (in Morality) one side of a Question is doubtfull, the other clear, it is a Duty absolutely incumbent upon us to take the clear side.  Thus a person may perhaps doubt whether he has not a right to put an end to himself, yet one side of the question is clear, viz: that there can be no harm in letting it alone, & therefore he is in Duty bound to take that side. For supposing the doubtfull side to turn out right, still to us who were ignorant of the justice of it it is a sin. This Duty is expressly enjoyned in Scripture. Romans Cap: 14.

 

All that has hitherto been said is merely introductory.

 

 

Moral Obligation

 

That is why we are obliged to the discharge of any duty, such as that of paying out Debts. The answers which different moralists have given to this question are these.

 

1st Because it is right.

2ndly Because agreeable to the Fitness of Things.

3dly Because conformable to Reason & nature.

4thly Because conformable to truth.

5thly Because it promotes the publick Good.

6thly Because required by God.

 

The first observation upon these answers is that they all in the end agree, viz, in recommending the same virtues & dissuading the same vices. Thus one man rests moral Obligatino in its promotion of the publick Good. Another in its being required of God. Another in its being conformable to the fitness of things. Now whatever promotes the publick good, is enjoyned by God, is agreeable to the fitness of things, by which is meant the tendency of actions to promote the publick good. Being conformable to Reason & nature means no more than our apprehension or Perception of the tendency of Actions to promote the Publick happiness & truths is the same, only express’d in propositions. So that in fact they all agree.

2ndly Not one of these answers satisfies the Question, for a man may still ask, “Why am I obliged to conform to what is right, pay any regard to Truth or even obey the will of God?”

 

In order to give a satisfactory answer to this question we must first define what we mean by obligation. Obligation signifies “being urged to a thing by a violent motive resulting from the command of another.”

 

1st The motive must be violent. Thus in a contended Election if a man who had done you some slight favour solicits your votes you would not say or think that you were obliged to give it hi, but if your Father or any one else on whom you had dependence should ask it, you would say that you were obliged to it.

 

2dly It must result from the command of another. Thus if a Magistrate insists upon an Officer taking a man into custody, he is obliged to do it, because urged by a violent motive. Viz: the fear of incurring a fine, which motive results from the Command of another. But should any private person offer him a sum of money to do it; tho’ the sum offer’d exceeded the penalty incurred in disobeying the Magistrate still he would not say he was obliged to do it in Consequnece of the Bribe but induced, prevailed upon, persuaded, or tempted by it. In this case tho the motive was more violent yet as it did not result from the Command of another, there was no Obligation.

 

Hence 2 Consequences may be deduced.

 

1st That we can be obliged to nothing unless something is to be gained or lost by it: because if a man is neither to gain or lose by an Action there can be no violent motive. Thus we should not be obliged to obey the Laws of the Land unless there was some punishment attending the disobedience of them. In the same manner we are obliged to the exercise of Virtue, because we know that future rewards & punishments will be distributed accordingly.

2dly The Converse is not true. Ie. we are not always obliged to a thing where some thing is to be gained or lost by it. Thus a man is not obliged to marry an old woman of great fortune: for tho the motive may be violent enough, still it does not result from the command of another.

 

To return then from the point whence we digressed. A man is obliged to pay his Debts, for the same reason that he is obliged to the discharge of any other Duty: viz. because “he is urged by a violent motive viz the fear of being hereafter punished if he does not, resulting from the command of another viz God.”

 

This answer differs from all the former in this respect; that in this no farther questions can be asked.

 

Now from the account given of Moral Obligation 2 inferences follow.

1st That private happiness is our Motive, the Will of God our rule.

2ndly That “sublato statu futuro”, there is no obligation to virtue.

 

At this rate where is the difference between an act of Prudence & an act of Duty? – It is this. ‘Tis thought an act of Prudence to withdraw our money from the hand of a Creditor whose security we distrust. An act of Duty to pay our Debts. They differ then in this, viz. that in [an] act of Prudence we consider our gain or loss in this world. In an act of Duty our gains or losses in the next.

 

As the Will of God is our rule, the method of finding out how we are to act in any case is to endeavour to find our the will of God.

 

In order to do this we are to deal with God just as one Intelligence being would with another, as Ambassador would with his Prince, as a Servant with his Master: that is we are first to have recourse to his express declaration on that point where they may be had, viz in Scripture.

 

2ndly where that is not practicable we are to endeavour to spell it out as well as we can; from the Knowledge we have of his general Character & Disposition - & this is the Province of Morality. Hence appears the absurdity of considering Natural & revealed Religion as different subjects: whereas they both aim at the same mark, viz. finding out the will of God & It is not of the smallest consequence, so long as it be found out, whether it be known from the light of Nature & his general character or from his express Commands.

 

The methods of collecting the divine will from the Light of Nature, viz. from his general Character are these. 1st  An action which is conformable to those maxims of justice self evident to our understanding & generally received by the world, we may take for granted are aggreeable to the will of God. – 2ndly An action which tends to to [sic] benefit or hurt the publick happiness is accordingly aggreeable to the will of God.

 

It may be asked perhaps how we are to act if these two rules contradict one another? This never happens. But if they allways aggree at the last what occasion is there for two rules? Because the one is often more easily applied than the other. Thus in Mathematicks there is scarce any proposition but may besolved either by Algebra or Geometry, yet both are made use of, because one is often more conveniently applied than the other.

 

The Proof of the first rule given for finding out the will of God is this. “Unless such actions as are conformable to the maxims of justice evidence to our understanding & generally received by the world are aggreeable to the will of God, he has so formed us to be inevitably deceived by the very principles he has implanted in us which is to tally inconsistent with his general disposition towards us. Thus when we hear of a barbarous murder, we cannot possibly help condemning & disapproving it. Again when a tender tale of humanity is told us, we cannot help at least feeling sentiments of pleasure & approbation. Now should God in the distribution of rewards & punishments act in direct opposition to these principles; should he, I say, reward the murderer & punish the humane, he has taken the pains to inspire us with sentiments which must inevitably deceive us. The proof of the 2nd rule is this. “It is evident from the provision he has made for them that God wishes the happiness of his Creatures: consequently such actions as tend to obstruct that happiness must be disaggreeable to him, & “vice versa”.

 

Caution is necessary in both these rule. 1st we must take care not to mistake local prejudices for self evident maxims. As Aristotle from the naturally haughty & proud turn of the Greeks lays it down as a maxim in his Ethicks, that God intended barbarians (by which he means the Countries round Greece) for Slavery & argues upon it as upon an axiom. This error is best avoided by observing whether what appears self-evident to us appears so to the world in general.

 

With respect to the 2nd rule we must take care to comprehend all the consequences. The meaning of this Caution may be seen by considering this Question, viz, “If whatever is usefull is right as it ought to be, how comes it to pass that many things are usefull & yet wrong? Thus to dispatch an old Tyrant who disturbed & oppressed a whole neighbourhood, would be usefull yet wrong. To rob the rich in order to give to the poor would be usefull yet it would be wrong.  To this it may be answered that neither of these actions would upon the whole & taking in all the Consequences be usefull.

 

The Consequences of actions are two fold. Particular & General. The Particular Consequence of an action is the mischief immediately occasion’d. As in the Case of the Assassination. The pain suffered by the person kill’d – the Distress of his Family. The Gen:[eral] Con:[sequence] of an action is the mischief occasion’d by the violation of some general rule”that no man should be put to death without Legal Authority”.

 

In estimating the action, although it has no particular ill Consequences, & even if it hath some particular good ones, yet it may not be usefull on account of the Gen: Consequences, which are far more important as they are far more extensive. The harm done the publick by the violation of any general rule will be proportional to the use & necessity of them: which is this “You cannot permit one action & forbid another without shewing a difference between them”, & therefore the same Actions must be generally permitted or generally forbid. If the general permission of such actions would be pernicious some general rule must be established to forbid them, & this rule must not only be established but supported. So that if (to apply this to our instance) if we excuse the man that assassinates the old Tyrant we must by the same rule excuse all others who do the same & this allowance being in its effects so extensive, to suffer it would be to cut asunder the binds of Civil Society. – The General Consequences therefore of an action however remote may be estimated by asking what would be the Consequence if such actions were generally permitted?[1]

 

Want of proper Distinction between particular & general consequences, & not sufficiently attending to ye latter occasion’d all that Confusion evident in the writings of ye Ancient Moralists, Plato, Aristotle, Seneca, Cicero &c.  To estimate actions without looking forward to ye Consequences appear’d to them absurd, & yet regarding the Consequences led them to approve of Actions ye most detestable. In order then to steer clear of this Difficulty they went by the “utile” as far as it wold lead them, & then called in the honestum or “to prepon”, words of their brain, & similar to our present Idea of honor, ie, if examined into full as lax[?] & unsettled in their meaning.

 

Hence we may understand the Aphorism among Moralists “not to do evil that Good may come”.  It means, we should never violate a general rule for the sake [of] particular good Consequences.

 

Right

 

This Term is used in 2 senses Legal & Moral. A man is said to have a legal right or title to do a thing, when people are obliged to permit him to do it.  Thus a man has alegal right to refuse paying a Debt contracted in his minority – tho not a moral one.  Moral Right is applied either as a Quality to Actions or to men. It is applied to Actions when we say “it is right to punish murder with Death[“] – to Men when we say a man has a Right to such an Estate. In both cases it means the same viz consistency with the will of God.” & a Thing is not only said to be consistent with the will of God when it is commanded by [?], but also when it is not forbidden.

 

Right & Obligation are reciprocal, ie. whenever there is a Right in one there is a Corresponding Obligation in another. Thus if parents have a right to Obedience from their Children, their Children are under Obligation to obey them.

 

Rights are of 3 kinds.

 

1  Natural & Adventitious

2  Alienable & Unalienable

3 perfect & Imperfect

 

Natural are those which every one would have had in a State of Nature. As the right of self-defence.

Adventitious are such as result from Civil Society. As the right the King has to Allegiance.

 

But it may be asked how it come to pass that there are adventitious Rights? For that is in appearance to bend the will of God to our own Convenience.  The Ans[we]r is this. From former enquiries it is evident that God wills & wishes the happiness of his Creature, as therefore Civil Society tends to promote that Happiness, such rules as result from it, or support it must be accordingly aggreeable to him. Nor does this argue any mutability in the will of God for it is still consistent with his desire for our Happiness. It is consistent with the will of God, that malefactors should be punished, because it promotes Civil Society. This would not be the case in a state of Nature.

 

After all you will say, those right[s] which are the result of human contrivance are not so sacred as those laid down by God himself. They are equally binding, as the the [sic] violation of them is in both cases a violation of the will of God.

 

Rights are Alienable or Unalienable according as they may or may not be legally transferred to another. They depend upon the mode of acquisition. Such as are limited to the person of ye Possessor, either expressly or by Personal Condition annex’d are Unalienable. Thus Feudal tenures were unalienable as also is the Right a Master has over his servants, a King over his subjects. To take the case of a King: the subject swears allegiance to the King with a view to be protected & defended by him. Therefore when that power of Protection ceases, the Allegiances ceases [sic] also. All other rights are Alienable. Such as those we have to our property, Liberty, &c. But, it may be asked, if ourLiberty be an alienable Right, why do we execrate the memory of such as have sold their Liberty to their Prince?

 

Ans[we]r – Because tho they have a right to sell their own Liberty, yet in doing it they also sell that of their Countrymen which they have not the least right to do. Thus if half a house belongs to me I have no right to set fire to it lest I destroy my neighbours part of it.

 

Rights are Perfect when they may be asserted by Force. Imperfect when they may not. Thus the right a man has to defend himself is a perfect one because it may be asserted by force. The right ye indigent have to relief tho in appearance very great, is imperfect because they cannot use violent measures to gain it.  But how comes it to pass that a man should have a right to a thing & yet cannot have recourse to the Law to acquire it? That is how comes it pass, that it should be consistent with the will of God that a man sh[oul]d have a thing, & yet inconsistent with the will of God that he should use force to acquire it?  Ans[we]r – Because the Permission of Force in some cases by reason of the indeterminateness of the Object or its Circumstances, w[oul]d necessarily permit it in others where there was no Right. When rights are imperfect there is an ambiguity in them. Now whenever Cases are indeterminate, there must be some Person to determine them, & if we allow the person who has the right to use force, we should make him the determiner & Judge of this uncertainty; & his judgement must be of all others the most partial, so that this would be opening the door to everlasting strife. Thus if the Poor were allowed to use force in acquiring relief, they would be made the Judges what degree of relief should be given, at what season &c, so that no man’s property would be secure, inasmuchas that is no longer a mans own which he is obliged to give away, at a certain time or in a certain degree: but this by the bye.

 

Right & Obligation being reciprocal, it follows, that obligations are also perfect & imperfect. To find out the distinction between perfect & imperfect Obligation we must observe whether the Precept be positive or negative. Positive precepts being generally indeterminate in [ys=these] circumstances imply imperfect Obligation. Thus ye 5th Commandment is a positive Precept, yet the right which a parent has to the honor [sic] of his Children, & consequently the obligation Children are under to honour yr parents is imperfect. On ye other hand Negative precepts as they are generally more accurate & determinate, imply perfect obligation as the 8th Commandment, viz. “Thou shalt not steal.”

 

The Rights being perfect or imperfect determines nothing as to the right of violating it, tho the word imperfect seems to imply as much. Thus suppose a rich miser suffers a numerous family to starve for want, tho the right they have to relief is imperfect, yet his sin is infinitely greater than if he had rob’d a person of half a Crown which is violating a perfect right.

 

There is a Difficulty concerning imperfect Rights which must be removed. Suppose a subscription is going about to found an Hospital, to which I am willing to subscribe £100 whilst others in better circumstances & more concerned will only £50. I am either obliged or not obliged; if I am not obliged why shd I give so much, & if I am obliged, what are those to expect who give in better circumstances only £50?  This Question is answered by observing that different Degrees of reward are assigned to different degrees of merit: that there is a certain point of moral Character which must be attained in order to avoid punishment, & beyond which we shall be rewarded in proportion to our Deserts. In this case therefore those who give only £50 will not be punished, only they will not have so great as I shall “ie” I shall have a reward as much superior to theirs as my gift was superior to theirs.

 

The whole of this Difficulty is owing to this that in general when one action is right another is wrong. But this notion often misleads us, as it often happens that a thing may be right & yet the contrary right also. Thus St Paul says “he doeth well that marrieth”, whence one would be led to suppose that he does ill who doth not marry. But that is not the Case for he afterwards says “He doth better who doth not marry.”

 

The General Rights of Mankind

 

By the general rights of mankind are meant such as they would have had in a state of Nature. They are three.

1st To the Fruits of the earth

2ndly To the flesh of animals

3rdly The right of extream necessity

 

That we have a right to the fruits of the earth may be proved in this manner, viz. that as God has so formed us as to be desirous & needful of food, & has also provided food to satisfy our desire & want, it was certainly his intention that men shd make use of it.  God is confessedly the owner, & we have a right to receive it at his hands. Besides we need not be very scrupulous about using the fruits of ye earth, if it be only for this reason, that nobody is injured by our taking them.

 

The arguments brought in favour of ye 2nd general right viz. “the right of taking away ye lives of animals in order to gain possession of their bodies”, are only presumptive. They are God’s creatures as well as we, & therefore have as much right to defend their lives.

 

The 1st argument is that because animals were created designedly to feed on each other, it may be inferred from analogy that man was designed to feed on them. That animals were designed to feed on each other appears from there being no other food for them. But there is this difference between man & the brute Creation. The brute could not subsist without preying upon his fellow brutes; but man could subsist as well if not better upon vegetable than upon animal food.

 

2ndly Because Brutes would otherwise over-run the earth & consume its produce & since we have a right to defend our property even against man we have certainly a much greater to defend it against brutes. This argument may be good as far as it goes, but the Butcher, I fear, cannot with truth affirm when he is going to kill a lamb, that he does it lest it should destroy his property.

 

3dly Because upon the whole it is better for the beasts to be as they are under the care of [sic] protection of mankind tho they lose their life in the end than to be subject to the fury of other wild beats, the inclemency of the weather &c. This argument also is sufficient as far as it goes, but is of small extent. With regard to sheep, Cattle &c it may hold good, but not with regard to Fish, wild fowl, Hares, &c.

 

After all none of the arguments would be sufficient, if it were not expressly permitted by God himself, as it is in Gen. C. 9: 3. in these words. “Every living Creature shall be meat for you even as the green herb” &c. It may not be amiss by ye way to observe that this permission was not imparted to Man till after the flood, for we find in the first part of Genesis, that Adam had only leave to use vegetable food. To Noah was 1st given the permission of using animal food. Yet as the Antediluviuans used flesh for sacrifices, it is probable that they used it for food, upon the presumption of its being consistent with the will of God because it was not expressly forbidden by him.

 

Hence may be deduced 3 Corollaries.

 

1st That all cruel wanton or barbarous treatment of animals is wrong because excused by none of these reasons.

 

2ndly That all waste or misapplication of the produce of ye earth is repugnant to the will of God & therefore wrong. There are many practises much tolerated amongst us that come under this head – such as laying ground laying large tracts of ground into Forests for the sake of hunting – suffering land to lie uncultivated – wasting food on Dogs – excluding others from Fisheries which we cannot ourselves exhaust as in the fishery upon the coast of Newfoundland which is engrossed by one or two kingdoms tho they themselves confess that there are Fish enough to supply all Europe – also suffering Fish to perish in order to enhance the price – diminishing ye Quantity to enrich ye Quality, as in ye distillation of Grain; boiling down meat for pungent sauces, &c.

 

3dly [“]Nothing ought to [be] made exclusive property which may as well be enjoyed in common.”  This is the “prima facie” appearance of nature, & therefore should not be deviated from unless where publick utility absolutely requires it. Thus it would be absurd to parcel out the air because there is so much of it that it may as well be enjoyed in common.

 

Hence we may easily determine an old Question much agitated amongst moralists, viz. “mare esse liberum” because it may be as well enjoyed in common; excepting Creaks, harbours, & Sea-coasts which may be appropriated for self-defence. But theclaim of Venice to the Adriatick, Denmark to the Baltick; Spain to the Pacifick & England to the British, &c are totally unjust.

 

Another question is whether or no a man has a right wholly to engross a medicinal spring which he finds in his garden?  Certainly not, because it may as well be enjoyed in common. Thus far indeed he [is] to be recompensed, viz. in the trouble & expence he was at in digging & also in the hazard he [?ever] of its being of no use. Thus the Window-Tax has been thought a violation of this rule. But it was made not with an intent to make us pay for the light, but as it was necessary that men should be taxed & that in proportion to yr Circumstances, the number of windows was pitched upon as the Criterion of their wealth.

 

Under this head we may consider the Game Laws.

 

Objections to these are 4.

 

1st They violate without reason a natural right.

2ndly They are the instruments of Oppression & cause of hatred.

3rdly They occasion strife amongst equals, & therefore destroy that unity of Counsel which many publick Circumstances require.

4thly They are established upon partial views, & made to consult ye interest of the makers.

 

So far as relates to the suppression of vagabonds & professed poachers they are right, but no farther.

 

The 3d general right is the right of extreme necessity, by which is meant the right of using another’s property when we must otherwise perish. In which case the right of property is absolutely defeated, & we may affirm that the necessitous have such a right if it be only for this reason that in this case the particular Consequences overbalance the general, as the life of a man is preserved by a trifling injury done to the community.  But in every case where the Party is able, he is obliged to made compensation for what he takes.

 

But suppose the master of a ship throws anothers goods into the sea to prevent her sinking, what restitution is he bound injustice to make? In such a case the owner is not to expect the full value of his goods, only the value of them consider’d in the circumstances they were then in.

 

Of Bona Fide Possession

 

Another general right is Bona fide possession “ie” keeping a thing imagining it to be your own which really belonged to another. The ways of acquiring this possession are three.

 

1st By Prescription, “ie” long usage

2ndly By Derivation from the wrongfull possessor.

3dly By ignorance of the true owner.

 

Common cases in Prescription are these

1st where a man finds himself of a thing without knowing whence or how he got it.

2ndly Where a man is possessed of an estate which he finds upon enquiry to have been acquired unjustly.

 

In the 1st case a man has an undoubted right to his estate because if it had not been justly transmitted to him, it is probable that the true owners would not have suffer’d him to keep it. In the next place if he was bound to give it up he must first know when to restore it too, which is not comprehended in the supposition.

 

In the 2nd case where the origin is known, & the estate found to have been 1st acquired unjustly, yet it if has been long peacefully enjoyed the Law entitles him to keep it. Has he in justice a right to it? Where the true owner knew of his right & was in Circumstances sufficient to enable him to assert it, & yet was silent about it, his silence may be construed into Consent, & therefore he has a right to it. But where ye true owner is restrained by fear or indigence from asserting his right there a man cannot in justice keep it.

 

By the Laws of England if you have been possessed of an estate 60 years however unjustly acquired you have a right to keep it; except in Church Lands, a Bond must be claim’d within 21 years & a Debt within 7 to be recoverable.

 

2ndly By Derivation from the wrongfull possessor: as in buying a stolen Horse &c, the man who buys it, is not bound in justice to restore it provided he is ignorant of its being stolen, because he is just as innocent as the owner & there is no reason in justice & equity why one innocent man should suffer more than another.  Where a thing is wrongfully given, the person who receives it is obliged to restore it because he would not be injured by restoring it, & indeed in both cases the Law of the Land lays you under an equal obligation of restoring it. As the Law only can compel you to restore it, it follows that you are not bound to do it except where it expressly commands it, this is the case with money & all kinds of Bills which it does not command should be restored.

 

If a man buys a stolen Horse innocently & it comes to harm in his hands he is not answerable for it. For as he look’d upon it to be his own, he undoubtedly too as much care of it as if it had really been so.

 

 

Property

 

Were you to see a flock of Pigeons <(in number 100)superscript> in a field instead of picking where they pleased & satisfying each its own appetite, 99 of them raking up & scraping together every seed taking from the heap nothing for themselves nothing but a little chaff, whilst they watch’d & preserved it for one perhaps the weakest feeblest of the Flock; & if any one pick’d a grain from the store if any instead of defending him, all joined & beat him to death: you would only see what is frequently tolerated, nay daily practised among men, whom we continually see toiling & labouring for one alone & he perhaps the weakest, the vilest of the species, as a Child, a woman, a fool, or a madman. Had this one for whom they are labouring, force to compel, merit to deserve, or Benevolence to reward them for it, it would not be so wonderfull: but he is perhaps the feeblest the most abandon’d, most avaritious of them all.  That this is daily the case, daily experience teaches us. It now remains to trace out the origin of this absurdity, & to set forth the advantages which counterbalance it.

 

The first advantage accruing from property is, that it encreases the produce of the Land.[2] For none would be at the pains to cultivate if any other person was at liberty to reap the fruits of his Labour & the Land would without cultivation produce little or nothing. The same holds with respect to Flocks & herds. This is also confirmed by Fact, as in some parts of North America. The tract of Land which in this Country supports a thousand people would would [sic] not be sufficient to maintain 100 Savages who would take no care of it.  In very fertile Countries perhaps the want of property might be tolerated, which is the case in Otaheita. When we get farther from the aquator [sic], where the ground is less fertile we find them often reduced to the necessity of devouring one another.

 

A 2nd advantage is that it not only encreases the fruits of the earth, but also preserves them to maturity; which could not be the case if there was no Property. For then every person fearing lest another should get it before him would pluck the fruits before it was half ripe, saying he had better have it then than not at all.

 

3dly Property alone prevents Quarrels & Strife; which must unavoidable [sic] arise where there is not enough for all, & no rules to settle it by or divide it.

 

4thly It procures better Accomodation [sic] to all “ie” more of the Comforts & Conveniences of Life. This advantage is not mention’d as confined to the owners for their number is small but to the Community in general.

 

It effects this 2 ways.

 

1st By giving Encouragement to Art & labour by appropriating the Profits of it.

 

2ndly By giving leisure to particular persons to imploy themselves wholly in particular Branches.

 

Property is advantageous in the 1st case because no man would labour if he could not secure the reward of his Labour – in the 2nd because if there was no property each man must be employed in providing for his own necessities, a man must be then his own Carpenter, taylor, &c &c.  The Consequence of which would be, that every thing being made by the same pair of hands everything would be done in an awkward manner, & arts could arrive at no perfection.

 

These arguments give us sufficient grounds to say that even the poor wold be better in a state of Property than in a state of Community.

 

 

History of Property

 

The first objects of property were –

 

The Fruits a man pluck’d – the wild animals he caught – the Tents & houses he built – the tools he used - & his weapons of offence & Defence. This was the Case in the earliest ages of the world & the Savages in many parts of America have not got beyond this yet. It is now said that they carry their fruits &c to market in one common stock.

 

The 2nd Objects of Property were Herds & Flocks, & we read in Gen C: 4: 2 that Abel who was the second from Adam was a keeper of Flocks. The Patriarchs in the old Testament are not described as worth so much money, having so much Cash in the Funds, but as having so many Flocks & Herds. This is the precise situation of ye Arabs at this time.

 

The 3d Objects of Property were wells, because the World was first people in the East where there was greater plenty of land than water. Hence it not only became private property, but was reckon’d a very valuable possession. We read in Gen. C: 21: 25th verse & 26:18 of a great Contest about a well & Jacobs well was resorted to even in the time of Christ. Hence by comparing Palestine with England at present, we see that Property arises from there not being enough for all. InPalestine water became property <& not land [superscript]> for the above reason; with us the very reverse is true, & land is made property & not water. In GenesisLand is said to have been divided by Tribal, but it does not appear to have become real property, till the Country became populous & Agriculture took place. J[ulius] Caesar who has given us the earliest account of Britain makes no mention [of] Property as subsisting among its inhabitants.  Little among the Patriarchs.  The Scythians made their Cattle & Houses Property, but ye Land was common.

 

Before Property, possession gave a right to moveables & occupation to immoveables, but the right ceased with the possession or Occupation. That is when a man had killed some game no one had a right to take it from him, or when a flock was feeding upon a Hill no one had a right to drive them away & take their place, but when they went away they could not lock the gate as we do & keep others out.

 

Regular property does not appear to have taken place till the establishment of Laws & regular Government; & was therefore at first subject to the Caprice of the Legislators. After all this is a subject of mere Curiosity.

 

The next Question is why a Person has a right to any particular Estate, since all was originally common.  In order to answer this we must 1st show the first owner to have had a right to it & 2ndly make it appear to have been lawfully transmitted from him to the present possessor.

 

The first of these Considerations viz. how the first owner came lawfully by it so as to possess it in preference of any one else, when a little before every one had an equal right to it with himself is a matter of great difficulty.  The accounts given of it by different great moralists are three.

 

The first is, that mankind when they suffer’d a man to occupy a piece of Ground by a tacit consent relinquished their right to it, & that from that time no one had a right to molest him in the enjoyment of it.

 

An objection to this is that the Consent of others cannot be inferred from silence, unless they know of the thing to which they are supposed to consent & are at Liberty to refuse their Consent. Now this Land did not only belong to the immediate neighbours, but to the world in general, consequently the consent of such as liv’d at a great distance could not be inferr’d from their silence because they knew nothing of it 7 consequently were not at Lliberty to refuse their consent.

 

A 2nd account of this Question given by Mr Locke is this. Every man has a right to his limbs & Labour. Now by occupying & tilling a piece of Ground a man so blends & mixes his Labour with the soil that ground becomes his because you cannot take it from him without robbing him of what he has an undoubted right to viz. his labour, & it is better to let a man enjoy a thing to which he has but a small dubious right than by taking it from him to deprive him of what he has an undoubted right.  This is also allow’d in fact. A Partridge when flying is common but when shot becomes the property of him that shot it, because you cannot take it from him without depriving him of his Labour which is inseperably mixed with it. Thus if a man works an old piece of iron found upon the road into a watch chain, no one can demand it from him for tho it was once common yet his labour is now so mixed & interwoven with it, that you cannot deprive him of the one without robbing him of the other. This argument holds good where the improvement exceeds ye value of the land, & so long as that improvement continues but no farther.

 

A 3d & more satisfactory account than all is that God intended these things for the use of all; consequently he has given leave to individuals to take what they want without asking the consent of all ye rest. Thus at an election dinner every Freeholder has leave to come & eat what he wants without any occasion to ask ye consent of ye rest.

 

This argument also holds good as far as it goes, but the extent of it is small as it only reaches as far as necessaries.

 

After all none of these Reasons are sufficient, were they indeed ever so satisfactory they would not justify our present claims as it is not probable that any of our estates were either so acquired or so transmitted.

 

The only thing on which we are to rely for the right to an estate is the Law of the Land & when the Law gives you a right you have a right also in justice & morality.

 

The Proof of this Proposition is this. “It is the intention of God that the produce of the earth sh[oul]d be applied to the use of man – this intention cannot be fulfilled without the Establishment of Property – it is therefore God’s will that Property be established – the land cannot be divided without the help of the law to regulate that division, consequently it is consistent with the will of God that we should abide by ye Division made by the Law. QED.

 

This cuts off all the Questions & embarrassments involved in the right of Property. How acquired, how transmitted signifies nothing, where the present Law of the Land gives a right to it.

 

Neither does this Right depend upon the equity or expediency of the Law that give it & this should be the Case because nothing varies so much as the Laws concerning Property.

 

Here arises a Difficulty, viz. if every mans Right depends upon the Law of the Land wholly & solely, it seems as if we had a right to keep or take whatever the law allows – which is giving a right to the greatest injustice, eg: if a man loses a Tradesmans receipt the law allows him to demand a second payment but can he in Conscience do so?

 

An answer to this Difficulty is this.

 

Whenever the Law intends we should keep or take a thing, we may conscientiously keep it, but not where it only allows you to do it in pursuit of some other intention.  Thus is a Creditor neglects to demand a Debt for more than 7 years the law does not oblige the Debtor to pay it, but this was not the intention of the law. The intent of it was to prevent ye use of antiquated claims when all evidence was dead.

 

 

Alienation of Property

 

The modes of it are three. Sale. Gift. & Will.  The two first will be consider’d in another place.

 

We shall now apply ourselves to Wills only.

 

Wills

 

The First Question concerning Wills is whether they are a Natural or a Positive Right? “ie” whether in a state of Nature a man could leave an Estate by will so that the person to whom he left it would have a better right to it than any other person?

 

Moralists are divided in their Opinion concerning it. In support of its being a Natural Right tis said that an absolute Gift would authorize the acceptor to keep it after the Donor’s death.  A will is nothing but a Gift upon condition of the death of the Donor, therefore it ought to produce the same effect.

 

Those who contend that it is a positive Right argue thus. The Testators Right say they arose from his wanting it & being able to use it; at his Death therefore when he can no longer want or use it, his Right ceases & his Estate should lapse into the common stock.

 

Again if a man has a Right to dispose of his Estate one moment after his Death he has a Right to dispose of it for any number of years: which is absurd as it would give the first Generation a right after all the rest.

 

This argument seems to be decisive. The Right therefore of Disposal by Will is Positive; except with respect to the immediate & direct produce of a mans own Labour of which the Disposal is a natural Right.

 

Most modern Laws however have allow’d the right of wills for three reasons.

 

1st Because it encourages industry – for [who] would labour for anything beyond his bare subsistence, if it was to devolve to people whom he knew nothing of or regarded.

 

2ndly Because it encourages marriage by giving liberty to make settlements.

 

3dly Because it secures the obedience of Children.

 

The next Question is how far the survivors are bound to regard the Testators directions in an unformal will. Thus if a will be signed only by 2 witnesses (in which case the Law renders it void) is the heir at Law bound to give it up to the person to whom it was “left”?  Certainly not even in justice for as the Testator derived his right of Disposal from the Law solely he can only exercise his right under certain Restriction which the Law directs, & if these Restrictions be transgressed or the conditions wanting he has no right to make a will, & therefore the Survivors are not bound to regard it.

 

Hence another Question viz. whether a Person is possession of an Estate being conscious of such a Defect in the Will which no one else knows of should in justice give it up to the Heir at Law?  Certainly unless it was gain’d by the Labour of the Testator for in such a case as was before said the Right is natural.

 

Under this head may be consider’d the Right of cutting off entails, which may be done for this reason that the Law seeing the inconvenience of such long-sighted disposals has tied us up to certain limits & when they are transgress’d the entail sh[oul]d be cut off.

 

Why is a man bound to regard Kindred in the Disposal of his Fortune? For two reasons.

 

1st The intention of ye common ancestor is to be consider’d.

 

2ndly The Familiarity upon which relations live makes it a crime to dissapoint [sic] their expectations.

 

The exceptions to these reasons are 2.

 

1st where you get the estate yourself & 2ndly where have taken care to give no expectations.

 

To this may be added another inquiry viz why we are bound to relieve poor relations rather than others equally poor?

 

1st Because they are more immediately under your eye, & therefore it implies a greater degree of hard-heartedness to refuse them relief.

 

2ndly Because they [strikethrough] if you don’t know one else will.

 

History of Wills

 

The first mention we find of wills is in Genesis C: 48 – where Jacob contrary to the establish’d law of the Country bequeaths a double share of his Property to Joseph. Wills were introduced into Athens by Solon, into Rome by the 12 tables. They were disallow’d by the Germans in the time of Tacitus.

 

Estates by the Laws of this Country are divided into 2 kinds, - Real & personal.  Real estates consist in Houses & Land. Personal in money, effects & every thing else.

 

Of Wills relative to Personals

 

By the ancient Laws of England a man was bound to leave 1/3 of his personals to his widow & one 3d to his Children, if he left no widow, he was obliged to leave ½ to his Children - & the remainder only was in his power.  Now the whole is in his Disposal; & he may leave it to whom he pleases. Here our Law differs from the Roman Law, which did not allow Disinheritance without a very good reason, but set aside such will as inofficious.

 

Wills are of 2 kinds. Nuncupative or written. A Nuncupative will is one made by word of mouth, & can only dispose of Personals. The following rule must be observed in making them.

 

1st They must not be words casually spoken, but must be said with an intent to bequeath.

2ndly They must be deliver’d at Home, unless the Testators be supprized abroad with sickness; in order to guard the infirmities of age from being biased by undue influence.

 

3dly It must be made in a man’s last sickness, because if he recovers he is at Liberty to commit it to writing, & if he does not it is presum’d that he has changed his intention.

 

4thly If he leaves above 30£ there must be 3 witnesses.

 

5thly It must be proved within six months or committed to writing within 3 Days.

 

Written Wills of Personals

 

If the Will be written in the Testator’s own hand it is sufficient without either signing or sealing. If in another’s hand it is sufficient provided it can be proved to be written by his Directions & to contain his Intentions.  No particular number of witnesses or form are necessary.

 

It is usual to cutt people off in a will with a Shilling. This is a matter of form not necessary or required by Law, but only serves to shew that the testator did not overlook or forget such people but meant to leave them nothing.

 

The principle person in the management of a will is the Executor, whose Duty is as follows.

1st / He must prove the will, “ie” must swear to it himself or provide witnesses to swear to it. 2ndly / He must deposit ye original in the Registry of the Ecclesiastical Court, & receive a Copy o fit with a Certificate of its being proved.[3]

3dly / he msut make an inventory of the Effects & then begin to defray Expences & Debts. & 1st / He must pay the funeral Expences. 2ndly / the Debts, & these in their order: 1st Those Due to the King. 2ndly / penalties. 3dly seal’d Bonds, Instruments, & Rents. 4thly Simple Contracts, Notes of Hand & Book Debts & lastly Legacies. For a man sho[ul]d certainly be just before he is generous.

 

If there is not enough to pay ye Legacies they must be proportionably diminished. If there is a sur-plus, it must go the Residuary Legatee (if one be appointed) if not to the Executor, provided the Testator has left him no Legacy, but if he has the surplus is to be disposed of as if there was no Will.

 

If a Person leaves another a legacy who dies before him, the Legacy does not go to the Heirs of the intended Legatee but lapses to the Testator. But if a Person has a Legacy left him to be paid him at the age of 21 it vends in his heirs in case he dies before that time. But if he is to receive the Legacy if he arrives at that age (& he dies before it) the Legacy goes to the Heirs of the Testator.

 

If the Legacies are left to be paid out of a particular Fund the Executor must pay them immediately or be accountable for the interest. If they are to be paid out of an Estate, so that Affairs must first be settled, he must pay them within a year.

 

Of Wills relating to Real Estates

 

The power of bequeathing Real Estates by will was not allow’d till Henry 8ths time, about 260 years ago, at which time all real estate went of Course to the Heir at Law.

 

A will bequeathing Lands &c cannot be made till a person is 21. Three witnesses are required who must see the Testator subscribe & be present while each subscribes. The Roman Law required 7. If a Legacy is left to a witness our Law renders it void.  A will does not transfer Lands obtain’d after the will is made, tho thus expressed, “I leave to my son &c all I shall die possessed of.”

 

No Land can be given in a Mort-main (quasi in mortuum manum) “ie” to charitable uses by Will, except to the 2 Universities, but may by Deed which when given is irrevocable even by the Donor, witnessed by 2 witnesses twelve month before his Death & enrolled in Chancery 6 months before his Death.  The meaning of a Will is always to be construed towhat is supposed to be the Testators Intentions.

 

Hence arise 2 Questions

 

1st / Why the Law takes so little care of Personal, so much of Real Estates.

An:sr Before the introduction of Commerce the influx of money was so small that Personal Estates were very inconsiderable.

2nd / Why the Jurisdiction of Wills belongs to the Ecclesiastical Court.

An:sr Formerly when a man died intestate his Personals went to the King, & were by him given to the Bishop of the Diocese to be distributed for pious uses (such was yr superstition) for the good of the dead mans soul.  It is proper therefore that the wills sh[oul]d be proved before the Bishop because in case it was not a true one, the Effects would have devolved to his Disposal.

 

Under the following Circumstances a man is bound to make a will, otherwise he sins in his grave.

 

1st / Where his Estate is so situated that his Creditors can’t touch it by which means he defrauds them of their due.

2ndly / Where he has a number of Children a widow, Father, or Mother, to provide for, who if he dies intestate will get nothing all the Estate going to the eldest son.

3dly / where the want of a Will creates Disputes in a Family.

 

Succession to Intestate Persons

 

In point of natural justice the Testators intention is binding where there is no Will & the Law ought to pursue it as far as it can be fairly collected.

 

The Law ought to consider the general Duty & Inclination of the deceas’d in the Disposal of his Property & so it does for it commands him to dispose of it to this relations & those one would suppose he loved most.

 

 

[END OF MS TEXT]

 


[1] Essentially, Kantian Categorical Imperative?

[2] This is perhaps the key to WP’s thinking on this matter. He sees the small farmer, the Cumbrian Statesman, the sturdy English yeoman, with his independent competence, as the key to liberty. He is defending the right of property for the common man, against the nobleman – and we know from many other sources that he is mocking of the noble.

[3] The reason Paley gives so much time to the subject of wills, apart from their significance in the discussion of property and its role in social and economic order, is that the greater number of his undergraduates would become clergy, and it was part of their remit to see to Wills. [In what sense is this true?  See Burn, Ecclesiastical Law; Parish Officer; JP etc]