The state invests the

elergy with

corporate rights.

laws of England divinities commissa esse dignoscuntur, order and consistency might appear to call here for a clear statement of the specific nature and objects of that spiritual power in church governors, which enables them to command, and directs and obliges the governed (that is those who profess to admit it) to submission and obedience but as this is a matter merely of conscientious obligation, it is not only out of the resort of the civil magistrate to enforce, but foreign from the department of a lawyer to discuss. It falls within the province of the ascetic and divine to furnish spiritual instruction and exhortation to the devout christian*.

:

The civil magistrate in England, since christianity has been the prevailing religion of the English nation, has thought fit to form an alliance with the church, or in other words, to clothe her ministers with certain rights, immunities, and advantages in the state, to which their mere spiritual capacity or divine mission cannot entitle them. This civil sanction or establishment is intended to support and enforce the duties of christianity by temporal means, which with the assent of the community may be done, and, when enacted as laws, bind each individual conscientiously to submit to them, as well as any other laws of the community, in which they reside but all human laws impose no other than a local obligation, whilst the individual bounden by them resides within the jurisdiction of that legislative power, which enacted them.

:

The most essential part of this establishment consists in the maintenance, which the state has thought proper to allot to the clergy, and in the corporate capacity with which some of them are invested. This brings us to the consideration of the nature of tithes, and other church property.

* The learned and eloquent Bossuet has thus expressed himself upon this subject: "Thus the catholic church speaks to her children: ye are a people, a state, a society; "but Jesus Christ, who is your King, holds nothing from you: his authority is of a "higher origin. You have no greater right to say, who shall be his minister, than "you have to appoint him to be your sovereign. Thus your pastors, who are his mi"nisters, derive their title from the same high source, that Christ himself does: And "it is essential, that they should be placed over you by an order of his appointment. "The kingdom of Christ is not of this world, nor can any adequate comparison be made "between his kingdom and the kingdoms of the earth. In a word, Nature affords us "nothing that bears a conformity with the spiritual kingdom of Christ: nor have you "any other right, than that which you find in the laws and customs immemorial of "this society. Now these are from the times of the apostles down to the present times: ❝ that the pastors already constituted should constitute others. Choose ye, says the "apostle, and we shall appoint. It was Titus's business to appoint the pastors of Crere, and it was from Paul appointed by Jesus Christ that he received his power."

BOOK I.-CHAP. II.

Of the general Nature of Tithes, and other Ecclesiastical Revenues.

religion not

the sanction

or support of

the christian religion.

If there never had existed a civil establishment of the christian re- Civil estaligion, our ideas of the spiritual and temporal powers would not have blishment of been confused, but clearly and distinctly marked. During the necessary for three first centuries of christianity the true religion was generally persecuted by every state, but sanctioned or supported by none; an irrefragable argument that civil sanction was necessary neither for the establishment nor the continuance of christianity. Some respectable and learned men have considered civil establishments hurtful to the real interests of religion; others have thought them serviceable, if not absolutely necessary. Non nostrum est, to moot the question.

The first, and in some senses the most important effect of a civil establishment of religion, is the provision or revenue allotted to and settled upon the clergy or ministers of that religion as their fixed estate. The idea of God's not having granted any power to the rulers of the realm over the church or its property, has been too fondly cherished, by some divines, not to require some investigation and discussion. According to the received or assumed doctrines of the established church of England, the church of Christ is a body, or society of believers in his doctrines governed by the spiritual successors of the apostles. It follows then, that it could never have acquired in its aggregate or corporate capacity any attribute, right or power, which Christ did not give to his apostles, to be perpetuated through their successors, till the end of time. Whether, therefore, I speak of the spiritual power of the church, it can possess no other) as possessed and exercised by the apostles themselves, after the ascension of Christ into heaven, or of the bishops of that same church in the 19th century of the christian establishment, it is one and the same thing. The whole spiritual power they have or claim, is derived from the same source, is of the same nature, extends to the same objects, is communicated to them by the same means, and produces the same effects: it is spiritual and not temporal: every man, with the use of reason, has full evidence, that the possession, transmission, and use of property, is the immediate object of civil or human legislation: it is given, regulated and transmitted in every state in some different 8

A settled provision for the first ef

the clergy is

fect of the

civil esta

blishment of a religion.

Property is

the creature

of the civil

power.

:

manner it is so essentially the creature of the civil power, that where there are no laws, there can be no property. Temporary occupancy may give a temporary use, but no permanent and exclusive dominion, which alone constitutes property. It is consequently evident, that the possession, transmission, use, or application of property in any particular state cannot be affected, but by the interference or controul of the legislature of that state. But if the power given by Christ to the apostles to teach all nations invested them with a right to alter, model, resist, repeal, or counteract the respective municipal laws of the different nations, to which they were commissioned to preach the revealed word of God, then would christianity have wanted one of its essential characteristic qualities, which is its universal aptitude to every possible form of civil government. Every christian, who reflects upon this subject must necessarily conclude that the spiritual or lays no claim ecclesiastical power (which alone the church lays claim to) can make to dispose of no law whatsoever which can vest, divest, transmit, qualify, apply, or dispose of temporal property. In whatever instance the church, or church governors have undertaken to do it, they have exceeded the powers given to them by Christ, and encroached upon the temporal or civil power of the state, which must cease to be supreme, if it can be controlled; and if it be not supreme, it will cease to answer the ends of society and government, for which God instituted it from the beginning.

The church

property.

How the judgment upon AnaЯias and Sapphira is

to be under

stood.

The advocates for the jure divino right of churchmen to their property usually lay much stress upon the punishment of Ananias and Sapphira, to prove that all property given to the church, becomes, from the moment of the gift, transferred from the control of the civil or temporal to that of the spiritual or ecclesiastical power. The very possibility of such a transfer, according to the principles laid down, is absolutely to be denied. The unauthorised disappropriation of such property by an individual is sinful, because it is a breach of the commandment of God, Thou shalt not stexl. But he must be inattentive to the facts of this history of Ananias and Sapphira, who pretends from it to establish the inalienability of church property. If the sacred text had merely narrated the facts and the punishment, there might have existed a doubt about the immediate cause of the punishment; but it particularly specifies the cause, for which they were punished. "Why hath Satan "tempted thy heart that thou shouldst lie to the Holy Ghost, and by fraud, keep part of the price of the field?" He is rebuked for lying and fraud, not for withholding a part of the money from

"

those, who had any right to claim it, but for attempting to pass off a fraud or cheat or deceit upon others, by assuming the merit of a larger voluntary contribution, than in fact he had made. It was not upon the score of injustice or sacrilegious appropriation of a fund consecrated to the Lord, "for whilst it remained, did "it not remain to thee? and being sold, was it not in thy pow"er?" There could be no injustice then in, withholding what was in his power?

In tracing the title and establishing the right to any property whether it be real or personal, moveable, or immoveable, it is essentially requisite to consider first the nature of the property itself; secondly the means of transmission; and thirdly the quality, aptitude, or capacity of the persons who convey, and of those, to whom the property is conveyed, or, as they are technically called, the donors and donees, grantors and grantees. By property I understand the exclusive right, use, and possession of matter, substance, or benefit, by which one individual enjoys and shuts out every other person from the right, use, and possession of that same matter, substance, or benefit, and moreover possesses the faculty of transmitting it in like manner to others. The expediency, advantages, and even necessity of property in the state of society, arise not out of the nature of the matter, substance, or benefit, of which the particular property consists, nor from any intrinsic or extrinsic quality or power in the nature of the possessor of it, by which he differs from those, who possess it not; nor are we to look into the particular justice, which a modern writer says, "is the criterion, that "must determine, whether this or that substance capable of contributing to the benefit of a human being, ought to be considered as your property or mine." For it would be impossible to find out the particular justice, by which one man enjoys a large fortune, and another is deprived of the necessary means of subsistence; by which the rich man is exempted from the punishment inflicted upon mankind," in the sweat of thy brow shalt "thou eat thy bread," whilst the poor labourer by that very sweat of his brow can scarcely support himself and family. But an allwise Creator having formed the earth to be inhabited and enjoyed by social man, has by the order of that same providence instituted the general necessity of private property for the preservation of society, in the same manner he instituted the necessity of civil government; but as to the modes, forms, and conditions of

་་

* Godwin's Political Justice,

No other

than a derivative title

set up to

permanent

this country.

making the distribution of property, to the enjoyment of the few, and the exclusion of the many, and of transmitting it to others even after death, all was left essentially to the will of each community. So it was upon the general necessity of the thing, that God engrafted that commandment," thou shalt not steal." That is, thou shalt not appropriate unto thyself any of that matter, substance, or benefit, of which the laws of thy community shall vest the property in another. Every particle therefore of matter or substance, which can by possibility be converted to profit or use, and any right of nomination, election, appointment, honour, dignity, or other incorporeal civil right, benefit or advantage, which can produce a price or value, will fall under the larger acceptance of the term property, which, therefore, is the immediate creature of the

state.

No man can at this hour claim in this country a right to any property of a permanent nature, which he has not received by can be now transmission or derivation from some other person, who preceded him in the right, use, and possession of it. All the means of acproperty in quiring property are instituted and established by the laws of each state. By our laws some sorts of property cannot be alienated at all by any act of the individual: but the law reserves to itself the sole operation of casting the descent of it upon a certain individual, under certain conditions, in a sort of perpetuity, and regular suecession. It now enables individuals to transmit, by particular modes, that property, which was before absolutely unalienable. Hence flows a general deduction, that there is no power upon earth, but the civil legislative power of each community, that can determine what shall be private property within that state, and how it may be acquired, enjoyed, possessed, transmitted, and conveyed to others. The sure criterion, therefore, by which a chris tian may determine what is private property, is to ascertain how far the act of appropriating it to one's self becomes an infringement of the commandment, "Thou shalt not steal." For the knows what commandment can only in its nature apply to the violation of a is property by the bear- civil law of the state: for such alone can constitute property. ing upon it Thus, as I before observed, the conscience of the thief is immediately affected by the breach of the commandment of God, who can alone bind the conscience, not by the civil or human power of the state, which cannot of itself, immediately or absolutely, impose any binding quality upon the conscience.

A christian

of God's

command

ment, Thou

shall not steal.

As property is essentially the creature of the civil power, it fol lows, that the donors and mees of it must be ascertained and ca