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 vitious 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 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 the 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 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 publick 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 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 difficult performance, omission, though it could not be justified, might be pitied. But in the present case, neither equity nor compassion operate against it. An 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, "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 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 escape3.

This masterly argument on vitious intromission, after being prefaced and concluded with some sentences of my own," says Mr. Boswell, "and garnished with the usual formularies, was actually printed, and laid before the lords of session, but without success."-Boswell, ii. 207.

ON LAY PATRONAGE

IN THE CHURCH OF SCOTLAND.

[Dr. Johnson has treated this delicate and difficult subject with unusual acuteness. As Mr. Boswell has recorded the argument, we will make use, once more, of his words to introduce it; observing, by the way, that it did not convince Mr. Boswell's own mind, who was himself a lay patron. I introduced a question which has been much agitated in the church of Scotland, 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? That church is composed of a series of judicatures; a presbytery, a synod, and, finally, a general assembly; before all of which this matter may be contended; and, in some cases, the presbytery having refused to induct or settle, as they call it, the person presented by the patron, it has been found necessary to appeal to the general assembly. Johnson said, I might see the subject well treated in the Defence of Pluralities; and although he thought that a patron should exercise his right with tenderness to the inclinations of the people of a parish, he was very clear as to his right. Then supposing the question to be pleaded before the general assembly, he dictated to me what follows."-Boswell, ii. 248.]

AGAINST the right of patrons is commonly opposed, by the inferiour 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 unperplexed 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 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 possessours, and justly inherited by those that succeed them. When christianity was established in this island, a regular mode of worship was prescribed. Publick worship requires a publick 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. 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