which keeps him there." JOHNSON: "Nay, Sir, how can you talk so? What is climate to happiness? Place me in the heart of Asia, should I not be exiled? What proportion does climate bear to the complex system of human life? You may advise me to go to live at Bologna to eat sausages. The sausages there are the best in the world; they lose much by being carried."

On Saturday, May 9, Mr. Dempster and I had agreed to dine by ourselves at the British Coffee-house. Johnson, on whom I happened to call in the morning, said he would join us, which he did, and we spent a very agreeable day: though I recollect but little of what passed. He said, "Walpole was a minister given by the king to the people : Pitt was a minister given by the people to the king,—as an adjunct." "The misfortune of Goldsmith in conversation is this: he goes on without knowing how he is to get off. His genius is great, but his knowledge is small. As they say of a generous man, it is a pity he is not rich, we may say of Goldsmith, it is a pity he is not knowing. He would not keep his knowledge to himself."

Before leaving London this year, I consulted him upon a question purely of Scotch law. It was held of old, and continued for a long period, to be an established principle in that 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 vicious intromission. The Court of Session had gradually relaxed the strictness of this principle, where the interference proved had been inconsiderable. In a case1 which came before that Court the preceding winter, 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 :

cr

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

Wilson against Smith and Armour.-BoswELL.

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 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 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 extrinsic 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 vicious intromission has been very favourably represented by a great master of jurisprudence, 1 whose words have

1

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

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 regularly 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. 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 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 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. A 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."

With such comprehension of mind, and such clearness of penetration did he thus treat a subject altogether new to him, without any other preparation than my having stated to him the arguments which had been used on each side of the question. His intellectual powers appeared with peculiar lustre, when tried against those of a writer of such fame as Lord Kames, and that too in his lordship's own department.

This masterly argument, after being prefaced, and concluded with some sentences of my own, and garnished with the usual formularies, was actually printed and laid before the Lords of the Session, but with

out success. My respected friend Lord Hailes, however, one of that honourable body, had critical sagacity enough to discover a more than ordinary hand in the petition. I told him Dr. Johnson had favoured me with his pen. His lordship with wonderful acumen, pointed out exactly where his composition began and where it ended. But that I may do impartial justice, and conform to the great rule of courts, Suum cuique tribuito, I must add that their lordships in general, though they were pleased to call this a “well-drawn paper,” preferred the former very inferior petition which I had written; thus confirming the truth of an observation made to me by one of their number, in a merry mood: "My dear Sir, give yourself no trouble in the composition of the papers you present to us; for, indeed, it is casting pearls before swine."

I renewed my solicitations that Dr. Johnson would this year accomplish his long-intended visit to Scotland.

66 TO JAMES BOSWELL, ESQ.

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"DEAR SIR, August, 31, 1772. "The regret has not been little with which I have missed a journey so pregnant with pleasing expectations, as that in which I could promise myself not only the gratification of curiosity, both rational and fanciful, but the delight of seeing those whom I love and esteem. But such has been the course of things, that I could not come; and such has been I am afraid, the state of my body, that it would not well have seconded my inclination. My body, I think, grows better, and I refer my hopes to another year; for I am very sincere in my design to pay the visit, and take the ramble. In the meantime, do not omit any opportunity of keeping up a favourable opinion of me in the minds of any of my friends. Beattie's book is, I believe, every day more liked; at least I like it more, as I look more upon it.

"I am glad if you got credit by your cause, and am yet of opinion, that our cause was good, and that the determination ought to have been in your favour. Poor Hastie, I think, had but his deserts.

"You promised to get me a little 'Pindar;' you may add to it a little 'Anacreon.'

"The leisure which I cannot enjoy, it will be a pleasure to hear that you employ upon the antiquities of the feudal establishment. The whole system of ancient tenures is gradually passing away; and I wish to have the knowledge of it preserved adequate and complete. For such an institution makes a very important part of the history of mankind. Do not forget a design so worthy of a scholar who studies the law of his country, and of a gentleman who may naturally be curious to know the condition of his own ancestors.

"I am, dear Sir, yours with great affection,

"I was much disappointed that you did not come to Scotland last autumn. However, I must own that your letter prevents me from complaining; not only