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 overoffice, for being somewhat severe in the chastise-powers temptation; till stubbornness become ment of his scholars. The Court of Session, flexible, 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 b 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 at 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, be some 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 him 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 intion, 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 must be corrected till he is subdued. are enemies. 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 learngates 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 inhabi tion 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 tain 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 ofbut 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 incognitum 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 malice, which virtue has surmounted."

[The decree of the Court of Session was reversed in the House of Lords, April 14, 1772, and the schoolmaster consequently deprived of his situation.

ON VICIOUS INTROMISSION.

[Ir was held of old, and continued for a long period to be an established principle in Scotch law, that whoever intermeddled with the effects of a person deceased, without the interposition of legal authority to guard against embezzle ment, should be subjected to pay all the debts of the deceased, as having been guilty of what was technically called VICIOUS INTROMISSION. The Court of Session had gradually relaxed the strictness of this principle, where the interference proved had been inconsiderable. In a case which came before that Court, in 1772, Mr. Boswell had laboured to persuade the judges to return to the ancient law. It was his opinion that they ought to adhere to it, but he exhausted all his powers of reasoning in vain. Dr. Johnson thought as he did, and in order to assist him in his application to the Court for a revision and alteration of the judgment, dictated to Mr. Boswell the following argument.]

"This, we are told, is a law which has its force only from the long practice of the Court; and may, therefore, be suspended or modified as the Court shall think proper.

of intromission, and the right of the creditor arising from it, are all jura vaga, and, by consequence, are jura incognita; and the result can be no other than a misera servitus, an uncertainty concerning the event of action, a servile dependance on private opinion.

"It may be urged, and with great plausibility, that there may be intromission without fraud; which, however true, will by no means justify an occasional and arbitrary relaxation of the law. The end of law is protection as well as vengeance. Indeed, vengeance is never used but to strengthen protection. That society only is well governed, where life is freed from danger, and from suspicion; where possession 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 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 equity. It is the quality of reason to be invariable and constant; and of equity, to give to one man what, in the same case, is given to another. The advantage which humanity derives from law is this: that the law gives every man a rule of action, and prescribes a mode of conduct which shall entitle him to the support and protection of society. That the law may be a rule of action, it is necessary that it be known: it is necessary that it be permanent and stable. The law is the measure of civil right: but if the measure be changeable, the extent of the thing measured never can be settled.

"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 repre sented by a great master of jurisprudence,* 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 feing 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 civil 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 by law, but by opinion: not by a cer

* Lord Kames, in his "Historical Law Tracts/

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.

plundering each other. Thus, the man who in- | vent the evil against which it is directed. It is, termeddled irregularly with the moveables of a person deccased, 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 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 remarkable, that in proportion to our improvement in manners, this regulation has been gradually softened and applied by. cur Sovereign Court with a sparing hand.'

"All these conditions apparently concur to justify the law which we are now considering.

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 intro

cent. 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 find myself under the necessity of observ-mits, is criminal; he that intromits not, is innoing, that this learned and judicious writer has not accurately disunguished 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 restrain individuals from plundering each other. 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 conneets 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?s

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 shalt pre

"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 im punity or escape."

ON LAY-PATRONAGE 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 conscience. Their conscience tells them, that

:

the people ought to choose their pastor: their conscience tells them, that they ought not to impose upon a congregation a minister ungrateful and unacceptable to his auditors. Conscience is nothing more than a conviction felt by ourselves of something to be done, or something to be avoided and in questions of simple unper plexed 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 con- | venience of another. Religion cannot be promoted by injustice; and it was never yet found that a popular election was very quietly transacted.

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 fraudu lently 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 de 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 been established. But as the great end of go capriciously made from a higher tyrant to avernment is to give every man his own, no int 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 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

convenience 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 civit subordination, by inciting the lower classes of mankind to encroach upon the higher.

"Having thus shown that the right of patron age, 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 wilk' have this reason more to lament them, that they will be imputed to his absurdity or corruptione 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 nothingt but a vote. It may be urged, that through thes 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 perverse

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.]

"Of the censure pronounced from the pulpit, our determination must be formed, as in other cases, by a consideration of the act itself, and the particular circumstances with which it is in

ness 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 resofute 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 flat-vested. ter some, and bribe others; and the electors, as "The right of censure and rebuke seems nein 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 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.

"As a father, he possesses the paternal au thority 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 denun ciation. 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.

[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 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 took possession of imperial power, and the civil