FROM a little volume published in 1805, and now become scarce, entitled "An Account of the Life of Dr. Samuel Johnson, from his Birth to his Eleventh Year, written by himself to which are added, Original Letters to Dr. Johnson, by Miss Hill Boothby: from the MSS. preserved by the Doctor, and now in possession of Richard Wright, Surgeon, of Lichfield."-" This volume (says this gentleman) was among that mass of papers which were ordered to be committed to the flames a few days before Dr. Johnson's death, thirty-two pages of which were torn out by himself, and destroyed. Francis Barber, his black servant, unwilling that all the MSS. of his illustrious master should be utterly lost, preserved these relics from the flames. By purchase they came into the possession of the Editor." It seems strange that Mr. Boswell, who seems to have had access to all Barber's information, should not have heard of this.— CROKER.

ANNALS.

I. 1709-10.

SEPT. 7.1 1709, I was born at Lichfield. My mother had a very difficult and dangerous labour, and was assisted by George Hector, a man-midwife of great reputation.2 I was born almost dead 3, and could not cry for some time. When he had me in his arms, he said, "Here is a brave boy."

In a few weeks an inflammation was discovered on my buttock, which was at first, I think, taken for a burn; but soon appeared to be a natural disorder. It swelled, broke, and healed.

My father being that year sheriff of Lichfield, and to ride the circuit of the county next day, which was a ceremony then performed with great pomp; he was asked by my mother, "Whom he would invite to the Riding?" and answered, "All the town now." He feasted the citizens with uncommon magnificence, and was the last but one that maintained the splendour of the Riding.

I was, by my father's persuasion, put to one Marclew, commonly called "Bellison." the servant, or wife of a servant of my father, to be nursed in George Lane, where I used to call when I was a bigger boy, and eat fruit in the garden, which was full of trees. Here it was discovered that ny eyes were bad; and an issue was cut in my left arm 6, of which I took no great notice, as I think my mother has told me, having my little hand in a custard.

It is observable, that, having been told of this operation, I always imagined that I remembered it, but I laid the scene in the wrong house. Such confusions of memory I suspect to be common.

My mother visited me every day, and used to go different ways, that her assiduity might not expose her to ridicule; and often left her fan or glove behind her, that she might have a pretence to come back unexpected; but she never discovered any token of neglect. Dr. Swinfen told me, that the scrofulous sores which afflicted me proceeded from the bad humours of the nurse, whose son had the same distemper, and was likewise short-sighted, but both in a less degree. My mother thought my diseases derived from her family. 7

In ten weeks I was taken home, a poor, diseased infant, almost blind.

I remember my aunt Nath. Ford told me, when I was about... years old, that she would not have picked such a poor creature up in the street.

In 1767, when I was at Lichfield, I went to look for my

nurse's house; and, inquiring somewhat obscurely, was told "this is the house in which you were nursed." I saw my nurse's son, to whose milk I succeeded, reading a large Bible, which my nurse had bought, as I was then told, some time before her death.

Dr. Swinfen used to say, that he never knew any child reared with so much difficulty.

II. 1710-11.

In the second year I knew not what happened to me. I believe it was then that my mother carried me to Trysul, to consult Dr. Atwood, an oculist of Worcester. My father and Mrs. Harriots, I think, never had much kindness for each other. She was my mother's relation; and he had none so high to whom he could send any of his family. He saw her seldom himself, and willingly disgusted her, by sending his horses from home on Sunday; which she considered, and with reason, as a breach of duty. My father had much vanity, which his adversity hindered from being fully exerted. I remember, that, mentioning her legacy in the humility of distress, he called her our good Cousin Harriots. My mother had no value for his relations; those indeed whom we knew of were much lower than hers. This contempt began, I know not on which side, very early; but as my father was little at home, it had not much effect.

My father and mother had not much happiness from each other. They seldom conversed; for my father could not bear to talk of his affairs; and my mother, being unacquainted with books, cared not to talk of any thing else. Had my mother been more literate, they had been better companions. She might have sometimes introduced her unwelcome topic with more success, if she could have diversified her conversation. Of business she had no distinct conception; and therefore her discourse was composed only of complaint, fear, and suspicion. Neither of them ever tried to calculate the profits of trade, or the expenses of living. My mother concluded that we were poor, because we lost by some of our trades; but the truth was, that my father, having in the early part of his life contracted debts, never had trade sufficient to enable him to pay them, and maintain his family; he got something, but not enough.

It was not till about 1768, that I thought to calculate the returns of my father's trade, and by that estimate his probable profits. This, I believe, my parents never did.

III. 1711-12.

This year, in Lent-12. I was taken to London, to be touched for the evil by Queen Anne. My mother was at Nicholson's, the famous bookseller, in Little Britain. 9 I always retained some memory of this journey, though I was then but thirty months old. I remembered a little dark room behind the kitchen, where the jack-weight fell through a hole in the floor, into which I once slipped my leg.10

1 remember a boy crying at the palace when I went to be touched. Being asked, "on which side of the shop was the counter?" I answered, "on the left from the entrance," many years after, and spoke, not by guess, but by memory. We went in the stage-coach, and returned in the waggon, as my mother said, because my cough was violent. The hope of saving a few shillings was no slight motive; for she, not having been accustomed to money, was afraid of such expenses as now seem very small. She sewed two guineas in petticoat, lest she should be robbed.

7 Antè, p. 4. n. 1. His mother and Dr. Swinfen were both perhaps wrong in their conjecture as to the origin of the disease; he more probably inherited it from his father, with the morbid melancholy which is so commonly an attendant on scrofulous habits.- CROKER.

Near Wolverhampton.-R. Wright.

9 My mother, then with child, concealed her pregnancy, that she might not be hindered from the journey.-Orig. 10 I seem to remember, that I played with a string and a bell, which my cousin Isaac Johnson gave me; and that there was a cat with a white collar, and a dog called Chops, that leaped over a stick: but I know not whether I remember the thing, or the talk of it. - Orig.

We were troublesome to the passengers; but to suffer such inconveniences in the stage-coach was common in these days to persons in much higher rank. She bought me a small silver cup and spoon, marked SAM. I., lest, if they had been marked S. I., which was her name, they should, upon her death, have been taken from me. She bought me a speckied linen frock, which I knew afterwards by the name of my London frock. The cup was one of the last pieces of plate which dear Tetty 2 sold in our distress. I have now the spoon. She bought at the same time two tea-spoons, and till my manhood she had no more.

My father considered tea as very expensive, and discouraged my mother from keeping company with the neighbours, and from paying visits or receiving them. She lived to say, many years after, that if the time were to pass again, she would not comply with such unsocial injunctions.3

I suppose that in this year I was first informed of a future state. I remember, that being in bed with my mother one morning, I was told by her of the two places to which the inhabitants of this world were received after death: one a fine place filled with happiness, called Heaven; the other, a sad place, called Hell. That this account much affected my imagination, I do not remember. When I was risen, my mother bade me repeat what she had told me to Thomas Jackson. When I told this afterwards to my mother, she seemed to wonder that she should begin such talk so late as that the first time could be remembered.

On Thursday night a small portion of Æsop was learned by heart, and on Friday morning the lessons in Æsop were repeated; I believe, not those in Helvicus. On Friday afternoon we learned Qua Genus; I suppose that other boys might say their repetition, but of this I have now no distinct remembrance. To learn Quæ Genus was to me always pleasing; and As in Præsenti was, I know not why, always disgusting.

When we learned our Accidence we had no parts, but, I think, two lessons. The boys that came to school untaught read the Accidence twice through before they learned it by heart.

When we learned Propria quæ Maribus, our parts were in the Accidence; when we learned As in Præsenti, our parts were in the Accidence and Propria quæ Maribus; when we learned Syntaxis, in the former three. Propria quæ Maribus I could repeat without any effort of recollection. I used to repeat it to my mother and Tom Johnson; and remember, that I once went as far as the middle of the paragraph, "Mascula dicuntur monosyllaba," in a dream.

We

On Saturday, as on Thursday, we were examined. were sometimes, on one of those days, asked our Catechism, but with no regularity or constancy.

The progress of examination was this. When we learned Propria que Maribus, we were examined in the Accidence; particularly we formed Verbs, that is, went through the same person in all the Moods and Tenses. This was very difficult to me; and I was once very anxious about the next day, when this exercise was to be performed, in which I had failed till I was discouraged. My mother encouraged me, and I proceeded better. When I told her of iny good escape," We often," said she, dear mother! "come off best, when we are most afraid." She told me, that, once when she asked me about forming verbs, I said, “I did not form them in an ugly shape." "You could not," said she, "speak plain; and I was proud that I had a boy who was forming verbs." These little memorials soothe my mind. Of the parts of Corderius or Esop, which we learned to repeat, I have not the least recollection, except of a passage in one of the Morals, where it is said of some man, that, when he hated another, he made him rich; this I repeated emphatically in my mother's hearing, who could never conceive that riches could bring any evil. She remarked it, as I expected.

I had the curiosity, two or three years ago, to look over Garretson's Exercises, Willymot's Particles, and Walker's Exercises; and found very few sentences that I should have

1 I was sick one woman fondled me, the other was disgusted. Orig.

2 His wife, whom he called by this familiar contraction of Elizabeth. CROKER.

3 When Dr. Johnson, at an advanced age, (for the Account must have been written subsequent to 1768) recorded all these minute circumstances, he contemplated, we are told, writing the history of his own life, and probably intended to develope, from his own infant recollections, the growth and powers of the faculty of memory, which he possessed in so remarkable a degree. From the little details of his domestic history he perhaps meant also to trace the progressive change in the habits of the middle classes of society.-CROKER.

When we learned As in Præsenti, we parsed Propria que Maribus by Hoole's Terminations; and when we learned Syntaxis, we parsed As in Præsenti; and afterwards Qua Genus by the same book; sometimes, as I remember, proceeding in order of the rules, and sometimes, particularly in As in Præsenti, taking words as they occurred in the Index. The whole week before we broke up, and the part of the week in which we broke up, were spent wholly, I know not why, in examination; and were therefore easy to both us and the master. The two nights before the vacation were free from exercise.

This was the course of the school, which I remember with pleasure; for I was indulged and caressed by my master, and, I think, really excelled the rest.

I was with Hawkins but two years, and perhaps four months. The time, till I had computed it, appeared much longer by the multitude of novelties which it supplied, and of incidents, then in my thoughts important, it produced. Perhaps it is not possible that any other period can make the same impression on the memory.

X. 1719

In the Spring of 1719, our class, consisting of eleven, the number was always fixed in my memory, but one of the names I have forgotten, was removed to the upper school, and put under Holbrook, a peevish and ill-tempered man. We were removed sooner than had been the custom; for the head-master, intent upon his boarders, left the town-boys long in the lower school. Our removal was caused by a reproof from the Town-clerk; and Hawkins complained that he had lost half his protit. At this removal I cried. The rest were indifferent. My exercise in Garretson was somewhere about the Gerunds. Our places in Æsop and Helvicus I have totally forgotten.

At Whitsuntide Mrs. Longworth brought me a " Hermes Garretsoni," of which I do not remember that I ever could make much use. It was afterwards lost, or stolen at school. My exercise was then in the end of the Syntax. Hermes furnished me with the word inliciturus, which I did not understand, but used it. This task was very troublesome to me; I made all the twenty-five exercises, others made but sixteen. I never showed all mine; five lay long after in a drawer in the shop. I made an exercise in a little time, and showed it my mother; but the task being long upon me, she said, “Though you could make an exercise in so short a time, I thought you would find it difficult to make them all as soon as you should."

This Whitsuntide, I and my brother were sent to pass some time at Birmingham; I believe, a fortnight. Why such boys were sent to trouble other houses, I cannot tell. My mother had some opinion that much improvement was to be had by changing the mode of life. My uncle Harrison was a widower; and his house was kept by Sally Ford, a young woman of such sweetness of temper, that I used to say she had no fault. We lived most at uncle Ford's, being much caressed by my aunt, a good-natured, coarse woman, easy of converse, but willing to find something to censure in the absent. My uncle Harrison did not much like us, nor did we like him. He was a very mean and vulgar man, drunk every night, but drunk with little drink, very peevish, very proud, very ostentatious, but, luckily, not rich." At my aunt Ford's I ate so much of a boiled leg of mutton?, that she used to talk of it. My mother, who had lived in a narrow sphere, and was then affected by little things, told me seriously that it would hardly ever be forgotten. Her mind, I think, was afterwards much enlarged, or greater evils wore out the care of less.

I stayed after the vacation was over some days; and remember, when I wrote home, that I desired the horses to come on Thursday of the first school week; and then, and not till then, they should be welcome to go. I was much pleased with a rattle to my whip, and wrote of it to my mother.

When my father came to fetch us home, he told the ostler, that he had twelve miles home, and two boys under his care.

4 G. Hector, [junior], never had been taught his Catechism. -Orig.

5 Antè, p. 8. n. 1. - Harwood. — C.

6 Dr. Harwood informed me that the Town-clerk was Mr. Richard Wakefield, one of Dr. Johnson's godfathers, who left him five pounds by his will. He died in 1733. — CROKER.

7 All these trifles - since Dr. Johnson thought them worth recording appear worth quoting. His voracious love of a leg of mutton adhered to him through life; and the prophecy of his mother, that it never would be forgotten, is realised in a way the good woman could not have anticipated. CROKER.

This offended me. He had then a watch', which he returned when he was to pay for it.

In making, I think, the first exercise under Holbrook, I perceived the power of continuity of attention, of application not suffered to wander or to pause. I was writing at the kitchen windows, as I thought, alone, and turning my head saw Sally dancing. I went on without notice, and had finished almost without perceiving that any time had elapsed. This close attention I have seldom in my whole life obtained.

In the upper-school, I first began to point my exercise, which we made noon's business. Of the method I have not so distinct a remembrance as of the foregoing system. On Thursday morning we had a lesson, as on other mornings. On Thursday afternoon, and on Saturday morning, we commonly made examples to the Syntax.

We were soon raised from Esop to Phædrus, and then said our repetition on Friday afternoon to Hunter. I remember the fable of the wolf and lamb, to my draught—that I may drink. At what time we began Phædrus, I know not. It was the only book which we learned to the end. In the

latter part thirty lines were expected for a lesson. What reconciles masters to long lessons is the pleasure of tasking. Helvicus was very difficult; the dialogue Vestitus, Haw. kins directed us to omit, as being one of the hardest in the book. As I remember, there was another upon food, and another upon fruits, which we began, and were ordered not to pursue. In the dialogue of Fruits, we perceived that Holbrook did not know the meaning of Uva Crispa. That lesson gave us great trouble. I observed that we learned! Helvicus a long time with very little progress. We learned it in the afternoon on Monday and Wednesday.

Gladiolus Scriptorius- A little lapse, we quitted it. 1 got an English Erasmus.

In Phædrus we tried to use the interpretation, but never attempted the notes. Nor do I remember that the interpretation helped us.

In Phædrus we were sent up twice to the upper master to be punished. The second time we complained that we could not get the passage. Being told that we should ask, we informed him that we had asked, and that the assistant would not tell us.

§1. LAW CASES.

1. Argument in behalf of Hastie, the Schoolmaster, prosecuted for undue Severity.

[See p. 241.]

THE charge is, that he has used immoderate and cruel correction. Correction in itself is not cruel; children, being not reasonable, can be governed only by fear. To impress this fear is, therefore, one of the first duties of those who have the care of children. It is the duty of a parent; and has never been thought inconsistent with parental tenderness. It is the duty of a master, who is in his highest exaltation when he is loco parentis. Yet, as good things become evil by excess, correction, by being immoderate, may become cruel. But when is correction immoderate? When it is more frequent or more severe than is required ad moncndum et docendum, for reformation and instruction. No severity is cruel which obstinacy makes necessary; for the greatest cruelty would be, to desist, and leave the scholar too careless for instruction, and too much hardened for reproof. Locke, in his treatise of education, mentions a mother, with applause, who whipped an infant eight times before she subdued it; for had she stopped at the seventh act of correction, her daughter, says he, would have been ruined. The degrees of obstinacy in young minds are very different: as different must be the degrees of persevering severity. A stubborn scholar must be corrected till he is subdued. The discipline of a school is military. There must be either unbounded licence or absolute authority. The master, who punishes, not only consults the future happiness of him who is the immediate subject of correction, but he propagates obedience through the whole school, and establishes regularity by exemplary justice. The victorious obstinacy of a single boy would make his future endeavours of reformation or instruction totally ineffectual. Obstinacy, therefore, must never be victorious. Yet it is well known, that there sometimes occurs a sullen and hardy resolution, that laughs at all common punishment, and bids defiance to all common degrees of pain. Correction must be proportionate to occasions. The flexible will be reformed by gentle discipline, and the refractory must be subdued by harsher methods. The degrees of scholastic as well as of military punishment, no stated rules can ascertain. It must be enforced till it overpowers tempta. tion; till stubbornness becomes flexible, and perverseness regular. Custom and reason have, indeed, set some bounds to scholastic penalties. The schoolmaster inflicts no capital punishments; nor enforces his edicts by either death or mutilation. The civil law has wisely determined, that a master who strikes at a scholar's eye shall be considered as criminal. But punishments, however severe, that produce no lasting evil, may be just and reasonable, because they may be necessary. Such have been the punishments used by the respondent. No scholar has gone from him either blind or lame, or with any of his limbs or powers injured or impaired. They were irregular, and he punished them: they were obstinate, and he enforced his punishment. But however provoked, he never exceeded the limits of moderation, for he inflicted nothing beyond present pain; and how much of

1 The convenience of a watch, now so general, Dr. Johnson himself, as Sir J. Hawkins reports, (antè, p. 192. n. 6.), did not possess till 1768. CROKER.

that was required, no man is so little able to determine as those who have determined against him-the parents of the offenders. It has been said, that he used unprecedented and improper instruments of correction. Of this accusation the meaning is not very easy to be found. No instrument of correction is more proper than another, but as it is better adapted to produce present pain without lasting mischief. Whatever were his instruments, no lasting mischief has ensued; and therefore, however unusual, in hands so cautious they were proper. It has been objected, that the respondent admits the charge of cruelty by producing no evidence to confute it. Let it be considered, that his scholars are either dispersed at large in the world, or continue to inhabit the place in which they were bred. Those who are dispersed cannot be found; those who remain are the sons of his prosecutors, and are not likely to support a man to whom their fathers are enemies. If it be supposed that the enmity of their fathers proves the justness of the charge, it must be considered how often experience shows us, that men who are angry on one ground will accuse on another; with how little kindness, in a town of low trade, a man who lives by learning is regarded; and how implicitly, where the inhabitants are not very rich, a rich man is hearkened to and followed. In a place like Campbell-town, it is easy for one of the principal inhabitants to make a party. It is easy for that party to heat themselves with imaginary grievances. It is easy for them to oppress a man poorer than themselves, and natural to assert the dignity of riches, by persisting in oppression. The argument which attempts to prove the impropriety of restoring him to the school, by alleging that he has lost the confidence of the people, is not the subject of juridical consideration; for he is to suffer, if he must suffer, not for their judgment, but for his own actions. It may be convenient for them to have another master; but it is a convenience of their own making. It would be likewise convenient for him to find another school; but this convenience he cannot obtain. The question is not what is now convenient, but what is generally right. If the people of Campbell-town be distressed by the restoration of the respondent, they are distressed only by their own fault; by turbulent passions and unreasonable desires; by tyranny, which law has defeated, and by malice, which virtue has surmounted.

2. Argument in favour of the Scottish Law Doctrine of "Vicious Intromission."

[See p. 244.]

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.

Concerning the power of the court to make or to suspend a law, we have no intention to inquire. It is sufficient for our purpose that every just law is dictated by reason, and that the 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.

To permit a law to be modified at discretion, is to leave the community without law. It is to withdraw the direction of that public wisdom, by which the deficiencies of private understanding are to be supplied. It is to suffer the rash and ignorant to act at discretion, and then to depend for the legality of that action on the sentence of the judge. He that is thus governed lives not by law, but by opinion: not by a certain rule, to which he can apply his intention before he acts, but by an uncertain and variable opinion, which he can never know but after he has committed the act on which that opinion shall be passed. He lives by a law (if a law it be), which he can never know before he has offended it. To this case may be justly applied that important principle, misera est servita ubi jus est aut incognitum aut vagum. If intromission be not criminal till it exceeds a certain point, and that point be unsettled, and consequently different in different minds, the right 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 dependence 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 hinder all access, than, by encouraging 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 intrinsic 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 malâ 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 undisciplined 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 our sovereign court with a sparing hand."

I find myself under a necessity of observing, that this learned and judicious writer has not accurately distinguished the deficiencies and demands of the different conditions of human life, which, from a degree of savageness and indepen. dence, 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

I Lord Kames, in his Historical Law Tracts.- BOSWELL.

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 dithicult 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, Lez 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 of departing from it there will now be an end; 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.

3. Argument in defence of Lay Patronage.

[See p. 260.]

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 grant

ing 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 succeeded them. When Christianity was established in this island, a regular mode of public 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. churches which the proprietors of lands had thus built and thus endowed, they justly thought themselves entitled to provide with ministers; and when the episcopal government prevails, the bishop has no power to reject a man nominated by the patron, but for some crime that night 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.

The

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 to the advocates of the people no other plea but 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 corrup tion. 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 a 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 his 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.

4. Argument in favour of Mr. James Thompson, Minister of Dunfermline.

[See p. 513.]

"Of the censure pronounced from the pulpit, our determination must be formed, as in other cases, by a considera. tion 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 intrusted, 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 while 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 publie censure, is evident, because that power was frequently exercised. That it borrowed not its power from the civil autho