A	»	B	»	C	»	D	»	E
F	»	G	»	H	»	I	»	J
K	»	L	»	M	»	N	»	O
P	»		R	»	S	»		T
U	»		V	»	W	»		Z

Anonymous - "The Book of Enterprise and Adventure"

Francois Pierre Guillaume Guizot - "A Popular History of France From The Earliest Times"

S. A. Ferrall - "A Ramble of Six Thousand Miles through the United States of America"

Society for Pure English - "Society for Pure English, Tract 5"

Barnes & Noble Recent Beating of Borders
Moreover Technologies - Premier purveyor of real-time news and RSS feeds from across the Web

Barnes & Noble Recent Beating of Borders
Ad - Men... learn to understand what your woman wants right now!

Peter Matthiessen, Annette Gordon Reed Among National Book Award Winners
Barnes & Noble Inc.| BKS Barnes and Noble (BKS Quote - Cramer on BKS - Stock Picks) is ringing up the sales while its chief rival, Borders (BGP Quote - Cramer on BGP - Stock Picks), is struggling. Consumer spending is up 11% since April at Barnes

The Works of Samuel Johnson in Nine Volumes by Samuel Johnson

S >> Samuel Johnson >> The Works of Samuel Johnson in Nine Volumes




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 from reason, it remains only that we show, that we have not
printed the complainant's copy, but abridged it[1].

30. This will need no proof, since it will appear, upon comparing the
two books, that we have reduced thirty-seven 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.

[1] A 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.



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 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[1]." 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 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 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 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.

[1] See Blackstone's Comment, i. 453.



VITIOUS INTROMISSION.

[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, 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 publick 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 her fore he has offended
it. To this case may be justly applied that important principle, "misera
est servitus 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 dependance 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 extrinsick 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 vitious intromission has been very
favourably represented by a great master of jurisprudence[1], 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 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
escape[2].

FOOTNOTES:

[1] Lord Kames, in his Historical Law Tracts.

[2] "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.