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