either unbounded licence 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 scholastic, as of military punishment, no stated rules can ascertain. It must be enforced till it overpowers temptation; till stubbornness becomes flexible, and perverseness regular. Custom and reason have, indeed, set some bounds to scholastic 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 Campbell-town, 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 Campbell-town 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.

No. II. ARGUMENT IN FAVOUR OF THE

SCOTTISH LAW DOCTRINE OF "VICIOUS

INTROMISSION."

(See p. 234.)

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 public 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 before 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 cri

minal 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 dependence 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 intrinsic 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 illi

cita.

He who never intromits at all, will never intromit with fraudulent intentions.

The relaxation of the law against vicious 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 vicious intromission; and so rigidly was this regulation applied in our courts of law, that the most trifling moveable abstracted malâ 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 a 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.

(1) Lord Kames, in his Historical Law Tracts. - BOSWELL.

Men