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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 cestors 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'.
s“ 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 ono 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 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 publick 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 possessours, at least as certainly as any other right, we have left the advocates of the people no other plea than that of convenience. Let us, therefore, now consider what the people would really gain by a general abolition of the right of patronage. What is most to be desired by such a change is, that the country should be supplied with better ministers. But why should we suppose that the parish will make a wiser choice than the patron? If we suppose mankind actuated by interest, the patron is more likely to choose with caution, because he will suffer more by choosing wrong. By the deficiencies of his minister, or by his vices, he is equally offended with the rest of the congregation ; but he will have this reason more to lament them, that they will be imputed to his absurdity or corruption. 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