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in manners, this regulation has been gradually softened and applied by our Sovereign Court with a sparing hand.'
the law. The end of law is protection as well was necessary, in order to subdue the undiscipas vengeance. Indeed, vengeance is never lined nature of our people. It is extremely reused but to strengthen protection. That so-markable, that in proportion to our improvement ciety only is well governed, where life is freed from danger, and from suspicion; where pos. session is so sheltered by salutary prohibitions, that violation is prevented more frequently than punished. Such a prohibition was this, while it operated with its original force. The creditor of the deceased was not only without loss, but without fear. He was not to seek a remedy for an injury suffered; for injury was warded off. "As the law has been sometimes administered, it lays us open to wounds, because it is imagined to have the power of healing. To punish fraud when it is detected, is the proper art of vindictive justice: but to prevent frauds, and make punishment unnecessary, is the great employment of legislative wisdom. To permit intromission, and to punish fraud, is to make law no better than a pitfall. To tread upon the brink is safe; but to come a step further is destruction. But, surely, it is better to enclose the gulph, and hinder all access, than by encou-restrain individuals from plundering each other. raging us to advance a little, to entice us afterwards a little further, and let us perceive our folly only by our destruction.
"As law supplies the weak with adventitious strength, it likewise enlightens the ignorant with extrinsic understanding. Law teaches us to know when we commit injury and when we suffer it. It fixes certain marks upon actions, by which we are admonished to do or to forbear them. Qui sibi bene temperat in licitis, says one of the fathers, nunquam cadet in illicita. He who never intromits at all, will never intromit with fraudulent intentions.
"The relaxation of the law against vicious intromission, has been very favourably represented by a great master of jurisprudence,* whose words have been exhibited with unnecessary pomp, and seem to be considered as irresistibly decisive. The great moment of his authority makes it necessary to examine his position. 'Some ages ago (says he), before the ferocity of the inhabitants of this part of the island was subdued, the utmost severity of the civil law was necessary, to restrain individuals from plundering each other. Thus, the man who intermeddled irregularly with the moveables of a person deceased, was subjected to all the debts of the deceased without limitation. This makes a branch of the law of Scotland, known by the name of vicious intromission: and so rigidly was this regulation applied in our Courts of Law, that the most trifling moveable abstracted mala fide, subjected the intermeddler to the foregoing consequences, which proved in many instances a most rigorous punishment. But this severity
Lord Kames, in his "Historical Law Tracts."
"I find myself under the necessity of observing, that this learned and judicious writer has not accurately distinguished the deficiences and demands of the different conditions of human life, which, from a degree of savageness and independence, in which all laws are vain, passes, or may pass, by innumerable gradations, to a state of reciprocal benignity, in which laws shall be no longer necessary. Men are first wild and unsocial, living each man to himself, taking from the weak, and losing to the strong. In their first coalitions of society, much of this original savageness is retained. Of general happiness, the product of general confidence, there is yet no thought. Men continue to prosecute their own advantages by the nearest way; and the utmost severity of the civil law is necessary to
The restraints then necessary, are restraints from plunder, from acts of public violence, and undisguised oppression. The ferocity of our ancestors, as of all other nations, produced not fraud, but rapine. They had not yet learned to cheat, and attempted only to rob. As manners grow more polished, with the knowledge of good, men attain likewise dexterity in evil, Open rapine becomes less frequent, and violence gives way to cunning. Those who before invaded pastures and stormed houses, now begin to enrich themselves by unequal contracts and fraudulent intromissions. It is not against the violence of ferocity, but the circumventions of deceit, that this law was framed; and I am afraid the increase of commerce, and the incessant struggle for riches which commerce excites, give us no prospect of an end speedily to be expected of artifice and fraud. It therefore seems to be no very conclusive reasoning, which connects those two propositions:-' the nation is become less ferocious, and therefore the laws against fraud and covin shall be relaxed.'
"Whatever reason may have influenced the Judges to a relaxation of the law, it was not that the nation was grown less fierce; and, I am afraid, it cannot be affirmed, that it is grown less fraudulent.
"Since this law has been represented as rigorously and unreasonably penal, it seems not improper to consider what are the conditions and qualities that make the justice or propriety of a penal law.
"To make a penal law reasonable and just, two conditions are necessary, and two proper. It is necessary that the law should be adequate to its end; that, if it be observed, it shall prevent the evil against which it is directed. It is,
secondly, necessary that the end of the law be of such importance as to deserve the security of a penal sanction. The other conditions of a penal law, which, though not absolutely necessary, are to a very high degree fit, are, that to the moral violation of the law there are many temptations, and that of the physical observance there is great facility.
"All these conditions apparently concur to justify the law which we are now considering. Its end is the security of property, and property very often of great value. The method by which it effects the security is efficacious, because it admits in its original rigour, no gradations of injury; but keeps guilt and innocence apart, by a distinct and definite limitation. He that intromits, is criminal; he that intromits not, is innocent. Of the two secondary considerations it cannot be denied that both are in our favour. The temptation to intromit is frequent and strong: so strong and so frequent, as to require the utmost activity of justice, and vigilance of caution, to withstand its prevalence; and the method by which a man may entitle himself to legal intromission, is so open and so facile, that to neglect it is a proof of fraudulent intention: for why should a man omit to do (but for reasons which he will not confess) that which he can do so easily, and that which he knows to be required by the law? If temptation were rare, a penal law might be deemed unnecessary. If the duty enjoined by the law were of difficult performance, omission, though it could not be justified, might be pitied. But in the present case, neither equity nor compassion operate against it. A useful, a necessary law is broken, not only without a reasonable motive, but with all the inducements to obedience that can be derived from safety and facility.
"I therefore return to my original position, that a law, to have its effects, must be permanent and stable. It may be said in the language of the schools, Lex non recipit majus et minus,we may have a law, or we may have no law, but we cannot have half a law. We must either have a rule of action, or be permitted to act by discretion and by chance. Deviations from the law must be uniformly punished, or no man can be certain when he shall be safe.
"That from the rigour of the original institution this court has sometimes departed, cannot be denied. But as it is evident that such deviations as they make law uncertain, make life unsafe, I hope, that the wisdom of our ancestors will be treated with due reverence: and that consistent and steady decisions will furnish the people with a rule of action, and leave fraud and fraudulent intromissions no future hope of impunity or escape."
IN THE CHURCH OF SCOTLAND.
[Question-Whether the claim of lay-patrons to present ministers to parishes be well founded: and supposing it to be well founded, whether it ought to be exercised without the concurrence of the people?-Written in 1773.]
"Against the right of patrons is commonly opposed, by the inferior judicatures, the plea of Their conscience tells them, that conscience. the people ought to choose their pastor: their conscience tells them, that they ought not to impose upon a congregation a minister ungrateful Conscience and unacceptable to his auditors. is nothing more than a conviction felt by ourselves of something to be done, or something to be avoided: and in questions of simple unperplexed morality, conscience is very often a guide that may be trusted. But before conscience can determine, the state of the question is supposed to be completely known. In questions of law, or of fact, conscience is very often confounded with opinion. No man's conscience can tell him the rights of another man; they must be known by rational investigation or historical inquiry. Opinion, which he that holds it may call his conscience, may teach some men that religion would be promoted, and quiet preserved, by granting to the people universally the choice of their ministers. But it is a conscience very ill informed that violates the rights of one man, for the convenience of another. Religion cannot be promoted by injustice: and it was never yet found that a popular election was very quietly transacted.
"That justice would be violated by transferring to the people the right of patronage, is apparent to all who know whence that right had its original. The right of patronage was not at first a privilege torn by power from unresisting poverty. It is not an authority at first usurped in times of ignorance, and established only by succession and by precedents. It is not a grant capriciously made from a higher tyrant to a lower. It is a right dearly purchased by the first possessors, and justly inherited by those that succeed them. When Christianity was established in this island, a regular mode of worship was prescribed. Public worship requires a public place; and the proprietors of lands, as they were converted, built churches for their families and their vassals. For the maintenance of ministers they settled a certain portion of their lands; and a district, through which each minister was required to extend his care, was, by that circumscription, constituted a parish. This is a position so generally received in England, that the extent of a manor and of a parish are regularly received for each other. The churches which the proprietors of lands had thus built and
thus endowed, they justly thought themselves | entitled to provide with ministers; and where the episcopal government prevails, the bishop has no power to reject a man nominated by the patron, but for some crime that might exclude him from the priesthood. For the endowment of the church being the gift of the landlord, he was consequently at liberty to give it according to his choice, to any man capable of performing the holy offices. The people did not choose him, because the people did not pay him.
"We hear it sometimes urged, that this original right is passed out of memory, and is obliterated and obscured by many translations of property and changes of government; that scarce any church is now in the hands of the heirs of the builders; and that the present persons have entered subsequently upon the pretended rights by a thousand accidental and unknown causes. Much of this, perhaps, is true. But how is the right of patronage extinguished? If the right followed the lands, it is possessed by the same equity by which the lands are possessed. It is, in effect, part of the manor, and protected by the same laws with every other privilege. Let us suppose an estate forfeited by treason, and granted by the Crown to a new family. With the lands were forfeited all the rights appendant to those lands; by the same power that grants the lands, the rights also are granted. The right lost to the patron falls not to the people, but is either retained by the Crown, or, what to the people is the same thing, is by the Crown given away. Let it change hands ever so often, it is possessed by him that receives it with the same right as it was conveyed. It may, indeed, like all our possessions, be forcibly seized or fraudulently obtained. But no injury is still done to the people; for what they never had, they have never lost. Caius may usurp the right of Titius, but neither Caius nor Titius injure the people; and no man's conscience, however tender or however active, can prompt him to restore what may be proved to have been never taken away. Supposing, what I think cannot be proved, that a popular election of ministers were to be desired, our desires are not the measure of equity. It were to be desired that power should be only in the hands of the merciful, and riches in the possession of the generous; but the law must leave both riches and power where it finds them; and must often leave riches with the covetous, and power with the cruel. Convenience may be a rule in little things, where no other rule has been established. But as the great end of government is to give every man his own, no inconvenience is greater than that of making right uncertain. Nor is any man more an enemy to public peace, than he who fills weak heads with imaginary claims, and breaks the series of civil subordination, by inciting the lower classes of mankind to encroach upon the higher.
"Having thus shown that the right of patronage, being originally purchased, may be legally transferred, and that it is now in the hands of lawful possessors, at least as certainly as any other right:-we have left the advocates of the people no other plea than that of convenience. Let us, therefore, now consider what the people would really gain by a general abolition of the right of patronage. What is most to be desired by such a change is, that the country should be supplied with better ministers. But why should we suppose that the parish will make a wiser choice than the patron? If we suppose mankind actuated by interest, the patron is more likely to choose with caution, because he will suffer more by choosing wrong. By the deficiencies of his minister, or by his vices, he is equally offended with the rest of the congregation; but he will have this reason more to lament them, that they will be imputed to his absurdity or corruption. The qualifications of a minister are well known to be learning and piety. Of his learning the patron is probably the only judge in the parish; and of his piety not less a judge than others; and is more likely to inquire minutely and diligently before he gives a presentation, than one of the parochial rabble, who can give nothing but a vote. It may be urged, that though the parish might not choose better ministers, they would at least choose ministers whom they like better, and who would therefore officiate with greater efficacy. That ignorance and perverseness should always obtain what they like, was never considered as the end of government; of which it is the great and standing benefit, that the wise see for the simple, and the regular act for the capricious. But that this argument supposes the people capable of judging, and resolute to act according to their best judgments, though this be sufficiently absurd, it is not all its absurdity. It supposes not only wisdom, but unanimity in those, who upon no other occasions are unanimous or wise. If by some strange concurrence all the voices of a parish should unite in the choice of any single man, though I could not charge the patron with injustice for presenting a minister, I should censure him as unkind and injudicious. But it is evident, that as in all other popular elections there will be contrariety of judgment and acrimony of passion, a parish upon every vacancy would break into factions, and the contest for the choice of a minister would set neighbours at variance, and bring discord into families. The minister would be taught all the arts of a candidate, would flatter some, and bribe others; and the electors, as in all other cases, would call for holidays and ale, and break the heads of each other during the jollity of the canvass. The time must, however, come at last, when one of the factions must prevail, and one of the ministers get possession of the church. On what terms does he enter
upon his ministry but those of enmity with half his parish? By what prudence or what diligence can he hope to conciliate the affections of that party by whose defeat he has obtained his living? Every man who voted against him will enter the church with hanging head and downcast eyes, afraid to encounter that neighbour by whose vote and influence he has been overpowered. He will hate his neighbour for opposing him, and his minister for having prospered by the opposition; and as he will never see him but with pain, he will never see him but with hatred. Of a minister presented by the patron, the parish has seldom any thing worse to say than that they do not know him. Of a minister chosen by a popular contest, all those who do not favour him, have nursed up in their bosoms principles of hatred and reasons of rejection. Anger is excited principally by pride. The pride of a common man is very little exasperated by the supposed usurpation of an acknowledged superior. He bears only his little share of a general evil, and suffers in common with the whole parish; but when the contest is between equals, the defeat has many aggravations, and he that is defeated by his next neighbour, is seldom satisfied without some revenge: and it is hard to say what bitterness of malignity would prevail in a parish where these elections should happen to be frequent, and the enmity of opposition should be rekindled before it had cooled."
ON PULPIT CENSURE.
[In 1776, in the course of a contested election for the borough of Dumfermline, one of the agents for a candidate who was charged with having been unfaithful to his employer, and with having deserted to the opposite party for a pecuniary reward, attacked very rudely in a newspaper the Rev. Mr. James Thomson, one of the ministers of that place, on account of a supposed allusion to him in one of his sermons. Upon this the minister, on a subsequent Sunday, arraigned him by name from the pulpit with some severity; and the agent, after the sermon was over, rose up and asked the minister aloud, "What bribe he had received for telling so many lies from the chair of verity ?" The person arraigned, and his father and brother, who also had a share both of the reproof from the pulpit, and in the retaliation, brought an action against Mr. Thomson, in the Court of Session, for defamation and damages, and the court decided against the reverend defendant. Dr. Johnson was satisfied that this judgment was wrong, and dictated to Mr. Boswell, who was one of the defendant's counsel, the following argument in confutation of it.]
our determination must be formed, as in other cases, by a consideration of the act itself, and the particular circumstances with which it is invested.
"The right of censure and rebuke seems necessarily appendant to the pastoral office. He, to whom the care of a congregation is entrusted, is considered as the shepherd of a flock, as the teacher of a school, as the father of a family. As a shepherd tending not his own sheep, but those of his master, he is answerable for those that stray, and that lose themselves by straying. But no man can be answerable for losses which he has not power to prevent, or for vagrancy which he has not authority to restrain.
"As a teacher giving instruction for wages, and liable to reproach, if those whom he undertakes to inform make no proficiency, he must have the power of enforcing attendance, of awakening negligence, and repressing contradiction.
"As a father, he possesses the paternal authority of admonition, rebuke, and punishment. He cannot, without reducing his office to an empty name, be hindered from the exercise of any practice necessary to stimulate the idle, to reform the vicious, to check the petulant, and correct the stubborn.
"If we inquire into the practice of the primitive church, we shall, I believe, find the ministers of the word exercising the whole authority of this complicated character. We shall find them not only encouraging the good by exhortation, but terrifying the wicked by reproof and denunciation. In the earliest ages of the church, while religion was yet pure from secular advantages, the punishment of sinners was public censure, and open penance: penalties inflicted merely by ecclesiastical authority, at a time when the church had yet no help from the civil power: while the hand of the magistrate lifted only the rod of persecution; and when governors were ready to afford a refuge to all those who fled from clerical authority.
That the church, therefore, had once a power of public censure is evident, because that power was frequently exercised. That it borrowed not its power from the civil authority, is likewise certain, because civil authority was at that time its enemy,
"The hour came at length, when, after three hundred years of struggle and distress, Truth took possession of imperial power, and the civil laws lent their aid to the ecclesiastical constitutions. The magistrate from that time co-operated with the priest, and clerical sentences were made efficacious by secular force. But the state, when it came to the assistance of the church, had no intention to diminish its authority. Those rebukes and those censures which were lawful before, were lawful still. But they had hitherto “Of the censure pronounced from the pulpit, operated only upon voluntary submission. The
refractory and contemptuous were at first in no danger of temporal severities, except what they might suffer from the reproaches of conscience, or the detestation of their fellow Christians. When religion obtained the support of law, if admonitions and censures had no effect, they were seconded by the magistrates with coercion and punishment.
"It therefore appears from ecclesiastical history, that the right of inflicting shame by public censure, has been always considered as inherent in the church: and that this right was not conferred by the civil power; for it was exercised when the civil power operated against it. By the civil power it was never taken away; for the Christian magistrate interposed his office, not to rescue sinners from censure, but to supply more powerful means of reformation; to add pain where shame was insufficient; and when men were proclaimed unworthy of the society of the faithful, to restrain them by imprisonment, from spreading abroad the contagion of wickedness.
"It is not improbable that from this acknowledged power of public censure, grew in time the practice of auricular confession. Those who dreaded the blast of public reprehension, were willing to submit themselves to the priest, by a private accusation of themselves; and to obtain a reconciliation with the church by a kind of clandestine absolution, and invisible penance; conditions with which the priest would in times of ignorance and corruption easily comply, as they increased his influence, by adding the knowledge of secret sins to that of notorious offences, and enlarged his authority, by making him the sole arbiter of the terms of reconcile
"From this bondage the Reformation set us free. The minister has no longer power to press into the retirements of conscience, or torture us by interrogatories, or put himself in possession of our secrets and our lives. But though we have thus controlled his usurpations, his just and original power remains unimpaired. He may still see, though he may not pry: he may yet hear, though he may not question. And that knowledge which his eyes and ears force upon him it is still his duty to use, for the benefit of his flock. A father who lives near a wicked neighbour, may forbid a son to frequent his company. A minister who has in his congregation a man of open and scandalous wickedness, may warn his parishioners to shun his conversation. To warn them is not only lawul, but not to warn them would be criminal. He may warn them one by one in friendly converse, or by a parochial visitation. But if he warn each man singly, what shall forbid him to warn them altogether? Of that which is to be made known to all, how is there any difference whether it be communicated to each singly, or
to all together? What is known to all, must necessarily be public; whether it shall be public at once, or public by degrees, is the only question. And of a sudden and solemn publication the impression is deeper, and the warning more effectual.
"It may easily be urged, if a minister be thus left at liberty to delate sinners from the pulpit, and to publish at will the crimes of a parishioner, he may often blast the innocent and distress the timorous. He may be suspicious, and condemn without evidence he may be rash, and judge without examination: he may be severe, and treat slight offences with too much harshness: he may be malignant and partial and gratify his private interest or resentment under the shelter of his pastoral character.
"Of all this there is possibility, and of all this there is danger. But if possibility of evil be to exclude good, no good ever can be done. If nothing is to be attempted in which there is danger, we must all sink into hopeless inactivity. The evils that may be feared from this practice arise not from any defect in the institution, but from the infirmities of human nature. Power, in whatever hands it is placed, will be sometimes improperly exerted; yet courts of law must judge, though they will sometimes judge amiss. A father must instruct his children, though he may often want instruction. A minister must censure sinners, though his censure may be sometimes erroneous by want of judgment, and sometimes unjust by want of honesty.
"If we examine the circumstances of the present case, we shall find the sentence neither erroneous nor unjust: we shall find no breach of private confidence, no intrusions into secret transactions. The fact was notorious and indubitable; so easy to be proved, that no proof was desired. The act was base and treacherous, the perpetration insolent and open, and the example naturally mischievous. The minister, however, being retired and recluse, had not yet heard what was publicly known throughout the parish; and on occasion of a public election, warned his people, according to his duty, against the crimes which public elections frequently produce. His warning was felt by one of his parishioners, as pointed particularly at himself. But instead of producing, as might be wished, private compunction and immediate reformation, it kindled only rage and resentment. He charged his minister, in a public paper, with scandal, defamation, and falsehood. minister, thus reproached, had his own character to vindicate, upon which his pastoral authority must necessarily depend. To be charged with a defamatory lie, is an injury which no man patiently endures in common life. To be charged with polluting the pastoral office with scandal and falsehood, was a violation of char