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23. Thus we see the right of abridging authors established both by reason and the customs of trade. But, perhaps, the necessity of this practice may appear more evident, from a consideration of the consequences that must probably follow from the prohibition of it.
24. If abridgments be condemned, as injurious to the proprietor of the copy, where will this argument end? Must not confutations be, likewise, prohibited for the same reason? Or, in writings of entertainment, will not criticisms, at least, be entirely suppressed, as equally hurtful to the proprietor, and certainly not more necessary to the publick?
25. Will not authors, who write for pay, and who are rewarded, commonly, according to the bulk of their work, be tempted to fill their works with superfluities and digressions, when the dread of an abridgment is taken away, as doubtless more negligences would be committed, and more falsehoods published, if men were not restrained by the fear of censure and confutation?
26. How many useful works will the busy, the indolent, and the less wealthy part of mankind be deprived of! How few will read or purchase forty-four large volumes of the transactions of the royal society, which, in abridgment, are generally read, to the great improvement of philosophy! 27. How must general systems of sciences be written, which are nothing more than epitomes of those authors who have written on particular branches, and those works are made less necessary by such collections! Can he that destroys the profit of many copies be less criminal than he that lessens the sale of one?
28. Even to confute an erroneous book will become more difficult, since it has always been a custom to abridge the author whose assertions are examined, and, sometimes, to transcribe all the essential parts of his book. Must an inquirer after truth be debarred from the benefit of such confutations, unless he purchases the book, however useless, that gave occasion to the answer?
29. Having thus endeavoured to prove the legality of abridgments from custom, and the necessity of continuing
that custom from reason, it remains only that we show, that we have not printed the complainant's copy, but abridged it".
30. This will need no proof, since it will appear, upon comparing the two books, that we have reduced thirtyseven pages to thirteen of the same print.
31. Our design is, to give our readers a short view of the present controversy; and we require, that one of these two positions be proved, either that we have no right to exhibit such a view, or that we can exhibit it, without epitomising the writers of each party.
ON SCHOOL CHASTISEMENT.
[The following argument, on school chastisement, was dictated to Mr. Boswell, who was counsel in the case. It originated in 1772, when a schoolmaster at Campbelltown was deprived, by a court of inferior jurisdiction, of his office, for alleged cruelty to his scholars. The court of session restored him. The parents or friends, whose weak indulgence had listened to their children's complaints in the first stage, now appealed to the house of lords, who reversed the decree of the court of session, and the schoolmaster was, accordingly, deprived of his situation, April 14, 1772.—Boswell, ii.]
THE charge is, that this schoolmaster has used im- . moderate 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 9." 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
PA fair and bona fide abridgment of any book is considered a new work; and however it may injure the sale of the original, yet it is not deemed, in law, to be a piracy, or violation of the author's copyright. 1 Bro. 451. 2. Atk. 141. and Mr. Christian's note on the Commentaries, ii. 407.—Ed.
9 See Blackstone's Comment. i. 453.
or more severe than is required, "ad monendum 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 had 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 license, 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 scholastick, as of military punishment, no stated rules can ascertain. It must be enforced till it overpowers temptation; till stubbornness become flexible, and perverseness regular. Custom and reason have, indeed, set some bounds to scholastick 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 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 Campbelltown, 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 diguity 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 confi
dence 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 Campbelltown 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.
[This argument cannot be better prefaced than by Mr. Boswell's own exposition of the law of vitious intromission. He was himself an advocate at the Scotch bar, and of counsel in this case. "It 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 embezzlement, should be subjected to pay all the debts of the deceased, as having been guilty of what was technically called vitious intromission. The court of session had, gradually, relaxed the strictness of this principle, where an interference proved had been inconsiderable. In the case of Wilson against Smith and Armour, in the year 1772, I had laboured to persuade the judge to return to the ancient law. It was my own sincere opinion, that they ought to adhere to it; but I had exhausted all my powers of reasoning in vain. Johnson thought as I did; and in order to assist me in my application to the court, for a revision and alteration of the judgment, he dictated to me the following argument."-Boswell, ii. 200.] 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,