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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 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'.

"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.

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 forited by treason, and granted by the crown to a new family. With the lands were forfeited all the rights appeadant 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 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.

power

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 qua lifications 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

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 publick censure, and open penance; penalties inflicted merely by ecclesiastical authority, at a time when the church had yet no help from the civil power; while the hand of the magistrate lifted only the rod of persecution; and when governours were ready to afford a refuge to all those who fled from clerical authority.

That the church, therefore, had once a power of publick censure is evident, because that power was frequently exercised. That it borrowed not its power from the civil authority is, likewise, certain, because civil authority was at that time its enemy.

The hour came, at length, when, after three hundred years of struggle and distress, truth took possession of imperial power, and the civil laws lent their aid to the ecclesiastical constitutions. The magistrate, from that time, cooperated with the priest, and clerical sentences were made efficacious by secular force. But the state, when it came to the assistance of the church, had no intention to diminish its authority. Those rebukes and those censures, which were lawful before, were lawful still. But they

had hitherto operated only upon voluntary submission. The refractory and contemptuous were at first in no danger of temporal severities, except what they might suffer from the reproaches of conscience, or the detestation of their fellow christians. When religion obtained the support of law, if admonitions and censures had no effect, they were seconded by the magistrates with coercion and punishment.

It, therefore, appears, from ecclesiastical history, that the right of inflicting shame by publick censure has been always considered as inherent in the church; and that this right was not conferred by the civil power; for it was exercised when the civil power operated against it. By the civil power it was never taken away; for the christian magistrate interposed his office, not to rescue sinners from censure, but to supply more powerful means of reformation; to add pain where shame was insufficient; and when men were proclaimed unworthy of the society of the faithful, to restrain them by imprisonment, from spreading abroad the contagion of wickedness.

It is not improbable, that from this acknowledged power of publick censure, grew, in time, the practice of auricular confession. Those who dreaded the blast of publick reprehension, were willing to submit themselves to the priest, by a private accusation of themselves; and to obtain a reconciliation with the church by a kind of clandestine absolution and invisible penance; conditions with which the priest would, in times of ignorance and corruption, easily comply, as they increased his influence, by adding the knowledge of secret sins to that of notorious offences, and enlarged his authority, by making him the sole arbiter of the terms of reconcilement.

From this bondage the Reformation set us free. The minister has no longer power to press into the retirements of conscience, or torture us by interrogatories, or put himself in possession of our secrets and our lives. But though we have thus controlled his usurpations, his just and original power remains unimpaired. He may still see, though

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