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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 public 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 commerc
erce 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. 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.
No. III. - ARGUMENT BY DR. JOHNSON IN
DEFENCE OF LAY PATRONAGE.
(See p. 287.)
AGAINST the right of patrons is commonly opposed, by the inferior 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. Opis nion, 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 possessors, and justly inherited by those that succeeded them. When Christianity was established in this island, a regular mode of public worship was prescribed. Public worship requires a public 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 when 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 tende or however active, can prompt him to restore what may be
roved 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 public 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 possessors, at least as certainly as any other right; we have left to the advocates of the people no other plea but that of convenience. Let us, therefore, now consider what the people would really gain by a general abolition of the