1 1772. } When one of his friends endeavoured to maintain that a country gentleman might contrive to pass his life very agreeably, "Sir, (faid he,) you cannot Ætat. 63. give me an instance of any man who is permitted to lay out his own time, contriving not to have tedious hours." This observation, however, is equally applicable to gentlemen who live in cities, and are of no profession. He said, "there is no permanent national character; it varies according to circumstances. Alexander the Great swept India: now the Turks sweep Greece." A learned gentleman who in the course of conversation wished to inform us of this simple fact, that the Counsel upon the circuit at Shrewsbury were much bitten by fleas, took, I suppose, seven or eight minutes in relating it circumstantially. He in a plenitude of phrase told us, that large bales of woollen cloth were lodged in the town-hall;-that by reason of this, fleas neftled there in prodigious numbers;-that the lodgings of the Counsel were near to the town-hall; and that those little animals moved from place to place with wonderful agility. Johnson sat in great impatience till the gentleman had finished his tedious narrative, and then burst out, "It is a pity, Sir, that you have not feen a lion; for a flea has taken you such a time, that a lion must have served you a twelvemonth *." He would not allow Scotland to derive any credit from Lord Mansfield; for he was educated in England. "Much (faid he,) may be made of a Scotchman, if he be caught young." Talking of a modern historian and a modern moralist, he said, "There is more thought in the moralift than in the historian. There is but a shallow stream of thought in history." BOSWELL. "But furely, Sir, an historian has reflection." JOHNSON. "Why yes, Sir; and fo has a cat when the catches a mouse for her kitten. But she cannot write like the moralist; neither can the hiftorian." He faid, "I am very unwilling to read the manuscripts of authours, and give them my opinion. If the authours who apply to me have money, E bid them boldly print without a name; if they have written in order to get money, I tell them to go to the booksellers, and make the best bargain they can." BOSWELL. "But, Sir, if a bookseller should bring you a manufcript to look at." -JOHNSON. "Why, Sir, I would defire the bookseller to take it away." 8 Mrs. Piozzi, to whom I to'd this anecdote, has related it, as if the gentleman had given "the natural history of the mouse." Anecdotes, p. 191. I mentioned : 1 1772. I mentioned a friend of mine who had resided long in Spain, and was Etat. 63. unwilling to return to Britain. JOHNSON. " Sir, he is attached to some woman." BOSWELL. " I rather believe, Sir, it is the fine climate which keeps him there." JOHNSON. "Nay, Sir, how can you talk so? What is climate to happiness? Place me in the heart of Afia, should I not be exiled? What proportion does climate bear to the complex system of human life. You may advise me to go and 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, faid, he would join us, which he did, and we spent a very pleasant day, though I recollect but little of what paffed. He said, "Walpole was a minister given by the King to the people: Pitt was a minifter 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 confulted 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 deceafed, without the interpofition 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 Seffion had gradually relaxed the strictness of this principle, where the interference proved had been inconfiderable. In a cafe which came before that Court the preceding winter, I had laboured to perfuade the Judges to return to the ancient law. It was my own fincere 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 judgement, he dictated to me the following argument: "This, we are told, is a law which has its force only from the long practice of the Court; and may, therefore, be fufpended 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 • Wilfon against Smith and Armour. dictated 1772. { Ætat. dictated by reason; and that the practice of every legal Court is regulated by "To permit a law to be modified at difcretion, is to leave the community without law. It is to withdraw the direction of that publick wifdom, by which the deficiencies of private understanding are to be supplied. It is to suffer the rash and ignorant to act at difcretion, and then to depend for the legality of that action on the fentence 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 cafe may be justly applied that important principle, misera eft fervitus ubi jus eft aut incognitum aut vagum. If Intromiffion be not criminal till it exceeds a certain point, and that point be unfettled, and confequently different in different minds, the right of Intromiffion, and the right of the Creditor arising from it, are all jura vaga, and, by confequence, are jura incognita; and the result can be no other than a mifera fervitus, 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 occafional 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 fociety only is well governed, where life is freed from danger and from fufpicion; where possession is so sheltered by falutary 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 feek a remedy for an injury fuffered; 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 1772. Ætat. 63. it is detected, is the proper act of vindictive juftice; 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 extrinfick understanding. Law teaches us to know when we commit injury, and when we fuffer it. It fixes certain marks upon actions, by which we are admonished to do or to forbear them. Qui fibi 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 intromision has been very favourably reprefented by a great master of jurisprudence', whose words have been exhibited with unneceffary pomp, and feem to be considered as irresistibly decisive. The great moment of his authority makes it necessary to examine his pofition. "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 mala fide, fubjected the intermeddler to the foregoing confequences, which proved in many instances a most rigorous punishment. But this severity was necessary, in order to fubdue the undifciplined nature of our people. It is extremely remarkable, that in proportion to our improvement in manners, this regulation has been gradually foftened, and applied by our fovereign Court with a sparing hand.' " I find myself under a neceffity of observing, that this learned and judicious writer has not accurately diftinguished 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 neceffary. Men are first wild and unsocial, living each man to himself, taking * Lord Kames, in his "Historical Law Tracts." from 1772. from the weak, and losing to the strong. In their first coalitions of fociety, much of this original savageness is retained. Of general happiness, the product Etat. 63. of general confidence, there is yet no thought. Men continue to profecute 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 profpect 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 lefs ferocious, and therefore the laws against fraud and coven fhall 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 confider what are the conditions and qualities that make the juftice 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, fecondly, necessary that the end of the law be of such importance, as to deferve the security of a penal fanction. 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 confidering. 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 |