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OPINIONS ON QUESTIONS OF LAW. .
FROM BOSWELL S LIFE OF JOHNSON.
ON SCHOOL CHASTISEMENT.
dued by harsher methods. The degrees of scho (A SCHOOLMASTER in Scotland, was in 1772, lastic, as of military punishment, no stated rules by a court of inferior jurisdiction, deprived of his can ascertain. It must be enforced till it over. office, for being somewhat severe in the chastise- powers temptation ; till stubbornness become ment of his scholars. The Court of Session, Hlexible, and perverseness regular. Custom and considering it to be dangerous to the interest of reason have, indeed, set some bounds to scholearning and education to lessen the dignity of lastic penalties. The schoolmaster inflicts no teachers, and make them afraid of too indulgent capital punishments; nor enforces his edicts to parents, instigated by the complaints of their either death or mutilation. The civil law has children, restored him. His opponent appealed wisely determined, that a master who strikes as to the House of Lords, where Mr. Boswell was a scholar's eye shall be considered as criminal. his counsel. On this occasion, Dr. Johnson But punishments, however severe, that produce dictated the following paper to Mr. Boswell, as no lasting evil, may be just and reasonable, besome assistance to Mr. B. in his address to the cause they may be necessary. Such have been Lords.]
the punishments used by the respondent. No “The charge is, that this schoolmaster has scholar has gone from hiin either blind or lame, used immoderate and cruel correction. Correc. or with any of his limbs or powers injured or im tion, in itself, is not cruel: children, being not paired. They were irregular, and he punished reasonable, can be governed only by fear. To them: they were obstinate, and he enforced his impress this fear, is therefore one of the first punishment. But however provoked, he never duties of those who have the care of children. exceeded the limits of moderation, for he inflicted It is the duty of a parent; and has never been nothing beyond present pain; and how much of thought inconsistent with parental tenderness. that was required, no man is so little able to deIt is the duty of a master, who is in his highest termine as those who have determined against exaltation when he is loco parentis. Yet, as him—the parents of the offenders. It has been good things become evil by excess, correction, said, that he used unprecedented and improper by being immoderate, may become cruel. But instruments of correction. Of this accusation when is correction immoderate ? When it is the meaning is not very easy to be found. No more frequent or more severe than is required instrument of correction is more proper than ad monendum et docendum, for reformation and another, but as it is better adapted to produce instruction. No severity is cruel which obsti- present pain without lasting mischief. Whatever nacy makes necessary; for the greatest cruelty were his instruments, no lasting mischief has enwould be to desist, and leave the scholar too sued: and therefore, however unusual, in hands careless for instruction, and too much hardened so cautious, they were proper. It has been obfor reproof. Locke, in his Treatise of Education, jected, that the respondent admits the charge of mentions a mother, with applause, who whipped cruelty, by producing no evidence to confute it. an infant eight times before she had subdued it: Let it be considered, that his scholars are either for had she stopped at the seventh act of correc- dispersed at large in the world, or continue to in. tion, her daughter, says he, would have been habit the place in which they were bred. Those ruined. The degrees of obstinacy in young who are dispersed cannot be found; those who minds, are very different; as different must be remain are the sons of his prosecuters, and are the degrees of persevering severity. A stubborn not likely to support a man to whom their fathers scholar inust be corrected till he is subdued. are eneinies. If it be supposed that the enmity The discipline of a school is military. There of their fathers proves the justness of the charge, must be either unbounded license, or absolute it must be considered how often experience authority. The master, who punishes, not only shows us, that men who are angry on one ground consults the future happiness of him who is the will accuse on another; with how little kindness, immediate subject of correction, but he propa- in a town of low trade, a man who lives by learn. gates obedience through the whole school; and ing is regarded; and how implicitly, where the establishes regularity by exemplary justice. The inhabitants are not very rich, a rich man is hearkvictorious obstinacy of a single boy would make ened to and followed. "In a place like Campbellhis future endeavours of reformation or instruc- town, it is easy for one of the principal inhabition totally ineffectual. Obstinacy, therefore, tants to make a party. It is easy for that party must never be victorious. Yet, it is well known to heat themselves with imaginary grievances. that there sometimes occurs a sullen and hardy It is easy for them to oppress a man poorer than resolution, that laughs at all common punish- themselves; and natural to assert the dignity of ment, and bids defiance to all common degrees riches, by persisting in oppression. The argu. of pain. Corrections must be proportionate to ment which attempts to prove the impropriety of occasions. The flexible will be reformed by restoring him to the school, by alleging that he gentle discipline, and the refractory must be sub- has lost the confidence of the people, is not the
subject of juridical consideration ; for he is to stain rule to which he can apply his intention suffer, if he must suffer, not for their judgment, before he acts, but by an uncertain and variable but for his own actions. It may be convenient opinion, which he can never know but after he for them to have another master; but it is a con- has committed the act on which that opinion venience of their own making. It would be like shall be passed. He lives by a law (if a law it wise convenient for him to find another school; be) which he can never know before he has of but this convenience he cannot obtain. The fended it. To this case may be justly applied question is not what is now convenient, but what that important principle, misera est servitus ubi is generally right. If the people of Campbelltown jus est aut incognilum aut vagum. If intromis be distressed by the restoration of the respond- sion be not criminal till it exceeds a certain ent, they are distressed only by their own fault; point, and that point be unsettled, and conse by turbulent passions and unreasonable desires ; quently different in different minds, the right by tyranny, which law has defeated, and by of intromission, and the right of the creditor malice, which virtue has surmounted.” | arising from it, are all jura vaga, and, by con
[The decree of the Court of Session was re- sequence, are jura incognita ; and the result can versed in the House of Lords, April 14, 1772, be no other than a misera servitus, an uncerand the schoolmaster consequently deprived of tainty concerning the event of action, a servile his situation.
dependance on private opinion.
** It may be urged, and with great plausibility,
that there may be intromission without fruud; ON VICIOUS INTROMISSION.
which, however true, will by no means justify [It was held of old, and continued for a long an occasional and arbitrary relaxation of the period to be an established principle in Scotch law. The end of law is protection as well as law, that whoever intermeddled with the effects vengeance. Indeed, vengeance is never used of a person deceased, without the interposition but to strengthen protection. That society only of legal authority to guard against embezzle- is well governed, where life is freed from danment, should be subjected to pay all the debts of ger, and from suspicion ; where possession is so the deceased, as having been guilty of what was sheltered by salutary prohibitions, that violation technically called vicious INTROMISSION. The is prevented more frequently than punished. Court of Session had gradually relaxed the such a prohibition was this, while it operatod strictness of this principle, where the interference with its original force. The creditor of the deproved had been inconsiderable. In a case which ceased was not only without loss, but without came before that Court, in 1772, Mr. Boswell fear. He was not to seek a remedy for an injury had laboured to persuade the judges to return to suffered ; for injury was warded off. the ancient law. It was his opinion that they “ As the law has been sometimes administerought to adhere to it, but he exhausted all his ed, it lays us open to wounds, because it is imapowers of reasoning in vain. Dr. Johnson gined to have the power of healing. To punish thought as he did, and in order to assist him in fraud when it is detected, is the proper art of his application to the Court for a revision and al- vindictive justice : but to prevent frauds, and teration of the judgment, dictated to Mr. Bos- make punishment unnecessary, is the great emwell the following argument.)
ployment of legislative wisdom. To permit in“This, we are told, is a law which has its iromission, and to punish_fraud, is to make law force only from the long practice of the Court ; no better than a pitfall. To tread upon the brink and may, therefore, be suspended or modified as is safe; but to come a step further is destruction. the Court shall think proper.
But, surely, it is better to enclose the gulf, and “Concerning the power of the Court to make hinder all access, than by encouraging us to ador to suspend a law, we have no intention to in- vance a little, to entice us afterwards a little furquire. It is sufficient for our purpose that every ther, and let us perceive our folly only by our just law is dictated by reason; and that the destruction. practice of every legal court is regulated by “ As law supplies the weak with adventitious equity. It is the quality of reason to be invari- strength, it likewise enlightens the ignorant able and constant; and of equity, to give to one with extrinsic understanding.. Law teaches us man what, in the same case, is given to another. to know when we commit injury and when we The advantage which humanity derives from suffer it. It fixes certain marks upon actions, law is this : that the law gives every man a rule by which we are admonished to do or to forbear of action, and prescribes a mode of conduct them. Qui sibi bene lemperat in licitis, says one which shall entitle bim to the support and pro- of the fathers, nunquam cadet in illicita. Ho tection of society. 'That the law may be a rule who never intromits at all, will never intromit of action, it is necessary that it be known: it is with fraudulent intentions. necessary that it be permanent and stable. The “The relaxation of the law against vicious law is the measure of civil right : but if the intromission, has been very favourably, repre measure be changeable, the extent of the thing sented by a great master of jurisprudence, * measured never can be settled.
whose words have been exhibited with unneces“To permit a law to be modified at discretion, sary pomp, and seem to be considered as irreis to leave the community without law. It is to sistibly decisive. The great moment of his auwithdraw the direction of that public wisdom, thority makes it necessary to examine his posiby which the deficiences of private understand- tion. Some ages ago, (says he,) before the fe. ing are to be supplied. It is to suffer the rash rocity of the inhabitants of this part of the island and ignorant to act at discretion, and then to was subdued, the utmost severity of the civi] depend for the legality of that action on the sen- law was necessary, to restrain individuals from tence of the judge. He that is thus governed, lives not hy law, but by opinion: not by a cer * Lord Kamos, in his “Historica: Law Tracts
planadering each other. Thus, the man who in- | vent the evil against which it is directed. It is, iermeddled irregularly with the moveables of a secondly, necessary that the end of the law be person deceased, was subjected to all the debts of such importance as to deserve the security of of the deceased without limitation. This makes a penal sanction. The other conditions of a a branch of the law of Scotland, known by the penal law, which, though not absolutely necesname of vicious intromission : and so rigidly was sary, are to a very high degree fit, are, that to this regulation applied in our Courts of Law, the moral violation of the law there are many that the inost tritling moveable abstracted mala temptations, and that of the physical observante fide, subjected the intermeddler to the foregoing there is great facility. consequences, whieh proved in many mstances "All these conditions apparently concur lo a most rigorous punishment. But this severity justify the law which we are now considering. was necessary, in order to subdue the undiscip. Its end is the security of property, and property lined nature of our people. It is extremely re- very often of great value. The method by which markable, that in proporticar to oar improvement it effects the security is efficacious, boeause it in manners, this regulation has been gradually admits in its original rigour, no gradations of insoftened and applied by. cur Sovereign Court jury; but keeps guilt and innocence apan, by a with a sparing hand.'
distinct and definite limitation. He that intro“I find myself under the necessity of observ- mits, is criminal; he that intromits not, is innoing, that this learned and judicrous writer has cent. Of the two secondary considerations it not accurately disanguished the deficiences and cannot be denied that both are in our favour, demands, of the different conditions of human The temptation to intromit is frequent and life, which, from a degree of savageness and strong: so strong and so frequent, as io require independence, in which all laws are vain, passes, the utmost activity of justice, and vigilance of or may pass, by innumerable gradations, to a caution, to withstand its prevalence; and the state of reciprocal benignity, in which laws shall method by which a man may entitle himself to be no longer necessary. Men are tirst wild and legal intromission, is so open and so facile, that unsocial, living each man to himself, taking from to neglect it is a proof of fraudulent intention: the weak, and losing to the strong. In their for why should a inan omit to do (but for reafirst coalitions of society, much of this original sons which he will not confess) that which he savageness is retained. Of general happiness, can do so easily, and that which he knows to be
the product of general contidence, there is yet required by the law? If temptation were rare, no thought. Men continue to prosecute their a penal law might be deemed unnecessary. If own advantages by the nearest way; and the the duty enjoined by the law were of difficult utmost severity of the civil law is necessary to performance, omission, though it could not be restrain individuals from plundering each other. justified, might be pitied. But in the present The restraints then necessary, are restraints case, neither equity nor compassion operate from plunder, from acts of public violence, and against it. A useful, a necessary law is broken, undisguised oppression. The ferocity of our not only without a reasonable inotive, but with aneestors, as of all other nations, produced not all the inducements to obedience that can be defraud, but rapines. They had not yet learned to-rived from safety and facility. cheat, and attempted only to rob. As manners “I therefore return to my original position, grow more polished, with the knowledge of that a law, to have its effecis, must be perinagood, men attain likewise dexterity, in evil. nent and stable. It may be said in the language Open rapine becomes less frequent, and violence of the schools, Ler non recipit majus et minus, – gives way to cunning. Those who before in we may have a law, or we may have no law, but vaded pastures and stormed houses, now begin we cannot have bialf a law.' We must either to enrich themselves by unequal contracts and have a rule of action, or be permitted to act by fraudulent intromissions. It is not against the discretion and by chance. Deviations from the violence of ferocity, but the circumventions of law must be uniformly punished, or no man can deceit, that this law was framed ; and I am be certain when he shall be safe. afraid the increase of commerce, and the inces “That from the rigour of the original institusant struggle for riches which commerce exeites, tion this court has sometimes departed, cannot give us no prospect of an end speedily to be ex- be denied. But as it is evident that such devipected of artifice and fraud. It therefore seems ations as they make law uncertain, make life to be no very conclusive reasoning, which con- unsafe, I hope, that the wisdom of our ancestors neets those iwo propositions:- the nation is will be treated with due reverence: and that become less ferocious, and therefore the laws consistent and steady decisions will furnish the against fraud and covin shall be relaxed.'? people with a rule of action, and leave fraud and
Whatever reason may have influenced the fraudulent intromissions no future hope of im Judges to a relaxation of the law, it was not that punity or escape." the nation was grown less fierce; and, I am afraid, it cannot be affirmed, that it is grown ON LAY.PATRONAGE IN THE CHURCH less fraudulent.
OF SCOTLAND. .."Since this law has been represented as rigorously and unreasonably penal, it seems not (Question-Whether the claim of lay-patrons improper to consider what are the conditions to present ministers to parishes, be well founded: and qualities that make the justice or propriety and supposing it to be well founded, whether it of d penal iaws
ought to be exercised without the concurrence 1VTo make a penal law reasonable and just, of the people ?--Written in 1773.). two conditions are necessary, and two proper. «Against the right of patrons is commonly It is necessary that the law should be adequate opposed, by the inferior judicatures, the plea of to its end; that, if it be observed, it shalt pre-conscience. · Their conscience tells them, that
the people ought to choose their pastor: their equity by which the lands are possessed. It is, conscience tells them, that they ought not to im- in effect, part of the manor, and protected by pose upon a congregation a minister ungrateful the same laws with every other privilege. Ler and unacceptable to his auditors. Conscience us suppose an estate forfeited by treason, and is nothing more than a conviction felt by our granted by the Crown to a new family. With selves of something to be done, or something to the lands were forfeited all the rights appendant be avoided : and in questions of simple unper- to those lands; by the same power that giants plexed morality, conscience is very often a guide the lands, the rights also are granted. The right that may be trusted. But before conscience can lost to the patron falls not to the people, but is determine, the state of the question is supposed either retained by the Crown, or, what to the to be completely known. In questions of law, people is the same thing, is by the Crowni ĝiven or of fact, conscience is very often confounded away. Let it change hands ever so often, it 19 with opinion. No man's conscience can tell him possessed by him that receives it with the same the rights of another man; they must be known right as it was conveyed. It may, indeed, like by rational investigation or historical inquiry.- all our possessions, be forcibly seized or fraudus Opinion, which he that holds it may call his con- lently obtained. But no injury is still done to science, may teach some men that religion would the people; for what they never they have be promoted, and quiet preserved, by granting never lost.' Caius may usurp the right of T'itius, to the people universally the choice of their mi- but neither Caius nor Titius injure the people ; nisters. But it is a conscience very ill informed and no man's conscience, however tender ori that violates the rights of one man, for the con- however active; can prompt him to restore what venience of another. Religion cannot be pro- may be proved to have been never taken aways moted by injustice: and it was never yet found Supposing, what I think cannot be proved, that that a popular election was very quietly trans a popular election of ministers were to be deal acted.
sired, our desires are not the measure of equity. “That justice would be violated by transfer- It were to be desired that power should be only ring to the people the right of patronage, is ap- in the hands of the merciful, and riches in the parent to all who know whence that right had possession of the generous; but the law must its original. The right of patronage was not at leave both riches and power where it finds them; first a privilege torn by power from unresisting and must often leave riches with the covetous, poverty. It is not an authority at first usurped and power with the cruel, Convenience may in times of ignorance, and established only by be a rule in little things, where no other rule' has succession and by precedents. It is not a grant heen established. But as the great end of go! capriciously made from a higher tyrant to a ivernment is to give every man his own, no in! lower
. It is a right dearly purchased by the convenience is greater than that of making right) first possessors, and justly inherited by those that uncertain. Nor is any man more an enemy to succeed them. When christianity was esta- public peace, than he who fills weak heads witho blished in this island, a regular mode of worship imaginary claims, and breaks the series of civit: was prescribed. Public worship requires a pub- subordination, by inciting the lower classes of lic place; and the proprietors i lands, as they mankind to encroach upon the higher." were converted, built churches for their families "Having thus shown that the right of patron: and their vassals. For the maintenance of age, being originally purchased, may be legally: ministers they settled a certain portion of their transferred, and that it is now in the hands of lands; and a district, through which each mi- lawful possessors, at least as certainly as any! nister was required to extend his care, was, by other right :
:-we have left the advocates of the that circumscription, constituted a parish. This people no other plea than that of convenience: is a position so generally received in England, Let us, therefore, now consider what the people that the extent of a manor and of a parish are would really'gain by a general abolition of the regularly received for each other. The churches right of patronage. What is most to be desired which the proprietors of lands had thus built and by such a change is, that the country should be thus endowed, they justly thought themselves supplied with better ministers. But why should entitled to provide with ministers; and where we suppose that the parish will make a wiseri the episcopal government prevails, the bishop choice than the patron ? If we suppose mankind. has no power to reject a man nominated by the actuated by interest, the patron is more likely to patron, but for some crime ihat might exclude choose with caution, because he will suffer inore him from the priesthood. For the endowment by choosing wrong. By the deficiencies of his of the church being the gift of the landlord, he minister, or by his vices, he is equally offended! was consequently at liberty to give it according with the rest of the congregation ; but he will to his choice, to any man capable of performing have this reason more to lament them, that they the holy offices. "The people did not choose will be imputed to his absurdity or corruptiond! him, because the people did not pay
The qualifications of a minister are well knowns “Wehear it sometimes urged, that this original to be learning and piety; Of his learning the right is passed out of memory, and is obliterated patron is probably the only judge in the parish; and obscured by many translations of property and of his piety not less a judge than others; and changes of government; that scarce any and is more likely to inquire minutely and dilichurch is now in the hands of the heirs of the gently before he gives a presentation, than one, builders; and that the present persons have en- of the parochial rabble, who can give nothingt tered subsequently upon the pretended rights by but a vote. It may be urged, that through the a thousand accidental and unknown causes. -parish might not choose better ministers, they Much of this, perhaps, is true. But how is the would at least choose ministers whom they:like! right of patronage extinguished ? If the right better, and who would therefore: officiate withe Sollowed the lands, it is possessed by the same greater efficacy. That ignorance and perversekt
ness should always obtain what they like, was ministers of that place on account of a supposed nevor considered as the end of government; of allusion to him in one of his sermons. Upon which it is the great and standing benefit, that this the minister, on a subsequent Sunday, 'arthe wise see for the simple, and the regular act raigned him by name from the pulpit with some for the capricious. But that this argument sup- severity; and the agent, after the sermon was poses the people capable of judging, and reso- over, rose up and asked the minister aloud, lute to act according to their best judgments, “What bribe he had received for telling so many though this be sufficiently absurd, it is not all its lies from the chair of verity ?” The person arabsurdity. It supposes not only wisdom, but raigned, and his father and brother, who also unanimity in those, who upon no other occasions had a share both of the reproof from the pulpit are unanimous or wise, If by some strange and in the retaliation, brought an action against concurrence all the voices of a parish should Mr. Thomson, in the Court of Session, for de unite in the choice of any single man, though I famation and damages, and the court decided could not charge the patron with injustice for against the reverend defendant. Dr. Johnson presenting a minister, I should censure him as was satisfied that this judgment was wrong, and unkind and injudicious. But it is evident, that dictated to Mr. Boswell, who was one of the deas in all other popular elections there will be fendant's counsel, the following argument in concontrariety of judgment and acrimony of passion, futation of it.] a parish upon every vacancy would break into “Of the censure pronounced from the pulpit, factions, and the contest for the choice of a our determination must be formed, as in other minister would set neighbours at variance, and cases, by & consideration of the act itself, and bring discord into families. The minister would the particular circumstances with which it is inbe taught all the arts of a candidate, would flat-vested. ter some, and bribe others; and the electors, as “The right of censure and rebuke seems ne. in all other cases, would call for holidays and cessarily appendant to the pastoral office. He ale, and break the heads of each other during to whom the care of a congregation is entrusted, the jollity of the canvass. The time must, how. is considered as the shepherd of a flock, as the ever, come at last, when one of the factions must teacher of a school, as the father of a family:prevail, and one of the ministers get possession As a shepherd tending not his own sheep, but of the church. On what terms does he enter those of his master, he is answerable for those upon his ministry but those of enmity with half that stray, and that lose themselves by straying. his parish? By what prudence or what dili- But no man can be answerable for losses which gence can he hope to conciliate the affections of he has not power to prevent, or for vagrancy that party by whose defeat he has obtained his which he has not authority to restrain. living? Every man who voted against him will “As a teacher giving instruction for wages, enter the church with hanging head and down and liable to reproach, if those whom he uncast eyes, afraid to encounter that neighbour by dertakes to inform make no proficiency, he must whose vote and influence he has been overpow- have the power of enforcing attendance, of ered. He will hate his neighbour for opposing awakening negligence, and repressing contrahim, and his minister for having prospered by diction, the opposition; and as he will never see him “As a father, he possesses the paternal au but with pain, he will never see him but with thority of admonition, rebuke, and punishrnent hatred. Of a minister presented by the patron, He cannot, without reducing his office to an the parish has seldom any thing worse to say empty name, be hindered from the exercise of than that they do not know him. Of a minister any practice necessary to stimulate the idle, to chosen by a popular contest, all those who do reform the vicious, to check the petulant, and not favour him, have nursed up in their bosoms correct the stubborn. principles of hatred and reasons of rejection. “If we inquire into the practice of the primiAnger is excited principally by pride. The tive church, we shall, I believe, find the ministers pride of a common man is very little exaspe of the word exercising the whole authority of rated by the supposed usurpation of an acknow. this complicated character. We shall find them ledged superior. He bears only his little share not only encouraging the good by exhortation, of a general evil, and suffers in common with the but terrifying the wicked by reproof and denun whole parish; but when the contest is between ciation. In the earliest ages of the church, while equals, the defeat has many aggravations, and religion was yet pure from secular advantages, he that is defeated by his next neighbour, is sel- the punishment of sinners, was public censure, dom satisfied without some revenge ; and it is and open penance: penalties inflicted merely by hard to say what bitterness of malignity would ecclesiastical authority, at a time when the prevail in a parish where these elections should church had yet no help from the civil power: happen to be frequent, and the enmity of oppo- while the hand of the magistrate lifted only the sition should be rekindled before it had cooled." 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 ON PULPIT CENSURE.
of public censure is evident, because that power [In 1776, in the course of a contested election was frequently exercised. That it borrowed for the borough of Dumfermline, one of the not its power from the civil authority, is likewise agents for a candidate who was charged with certain, because civil authority was at that time having been unfaithful to his employer, and with its enemy: having deserted to the opposite party for a pecu “The hour came at length, when, after three niary reward, attacked very rudely in a news- hundred years of struggle and distress, Truth paper the Rev. Mr. James Thomson, one of the I took possession of imperial power, and the civil