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 a