1772.

that intromits, is criminal; he that intromits not, is innocent. Of the two Etat. 63. fecondary confiderations it cannot be denied that both are in our favour. The temptation to intromit is frequent and strong; so strong and fo frequent, as to require the utmost activity of juftice, and vigilance of caution, to withstand its prevalence; and the method by which a man may entitle himself to legal intromiffion 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 unneceffary. If the duty enjoined by the law were of difficult performance, omiffion, though it could not be justified, might be pitied. But in the prefent cafe, neither equity nor compaffion operate against it. A useful, a neceffary law is broken, not only without a reasonable motive, but with all the inducements to obedience that can be derived from fafety and facility.

1

"I therefore return to my original pofition, that a law, to have its effect, must be permanent and stable. It may be faid, in the language of the schools, Lex non recepit 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 difcretion 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 inftitution this Court has fometimes departed, cannot be denied. But, as it is evident that fuch 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 confiftent and steady decifions will furnish the people with a rule of action, and leave fraud and fraudulent intromiffion no future hope of impunity or efcape."

With fuch comprehension of mind, and fuch clearness of penetration, did he thus treat a fubject altogether new to him, without any other preparation than my having ftated to him the arguments which had been used on each fide of the queftion. His intellectual powers appeared with peculiar luftre, when tried against thofe of a writer of fo much fame as Lord Kames, and that too in his Lordship's own department.

This masterly argument, after being prefaced and concluded with some fentences of my own, and garnished with the ufual formularies, was actually printed and laid before the Lords of Seffion, but without fuccefs. My refpected friend Lord Hailes, however, one of that honourable body, had

5

critical fagacity enough to discover a more than ordinary hand in the Petition. 1772. I told him that Dr. Johnson had favoured me with his pen. His Lordship, tat. 63. Atat. with wonderful acumen, pointed out exactly where his compofition 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 inferiour 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 prefent to us; for, indeed, it is cafting pearls before fwine."

I renewed my folicitations that he would this year accomplish his longintended vifit to Scotland.

"DEAR SIR,

To JAMES BOSWELL, Esq.

« THE regret has not been little with which I have missed a journey fo pregnant with pleasing expectations, as that in which I could promise myfelf not only the gratification of curiosity, both rational and fanciful, but the delight of feeing those whom I love and esteem, * *

But fuch has been the course of things, that I could not come; and fuch 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 fincere in my design to pay the vifit, and take the ramble. In the mean time, 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 caufe, and am yet of opinion that our caufe was good, and that the determination ought to have been in your favour. Poor Haftie, I think, had but his deferts.

"You promised to get me a little Pindar, and 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 fyftem of ancient tenures is gradually paffing away; and I wish to have the knowledge

Ddd 2

1772.

ledge of it preferved adequate and complete. For fuch an inftitution makes Etat. 63. a very important part of the hiftory of mankind. Do not forget a design. so worthy of a scholar who studies the laws of his country, and of a gentleman who may naturally be curious to know the condition of his own. ancestors. I am, dear Sir,

"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 because I am fenfible that the ftate of your health was but too good an excufe, but because you write in a strain which fhews that you have agreeable views of the scheme which we have so long proposed.

"I communicated to Beattie what you faid of his book in your last letter to me. He writes to me thus: You judge very rightly in fuppofing that Dr. Johnson's favourable opinion of my book must give me great delight. Indeed it is impoffible for me to fay how much I am gratified by it; for there is not a man upon earth whofe good opinion I would be more ambitious to cultivate. His talents and his virtues I reverence more than any words can exprefs. The extraordinary civilities, (the paternal attentions I fhould rather fay,) and the many inftructions I have had the honour to receive from him, will to me be a perpetual source of pleasure in the recollection..

Dum memor ipfe mei dum fpiritus hos reget artus.'

I had ftill fome thoughts, while the fummer lafted, of being obliged to go to London on fome little business; otherwife I fhould certainly have troubled him with a letter feveral months ago, and given föme vent to my gratitude and admiration. This I intend to do, as foon as I am left a little at leifure. Mean time, if you have occafion to write to him, I beg you will offer him my moft refpectful compliments, and affure him of the fincerity of my attachment and the warmth of my gratitude.'

"I am, &c.

JAMES BOSWELL."

1773.

In 1773 his only publication was an edition of his folio Dictionary, with additions and corrections; nor did he, fo far as is known, furnish any produc- Etat. 64. tions of his fertile pen to any of his numerous friends or dependants, except the Preface to his old amanuenfis Macbean's "Dictionary of ancient Geography." His Shakspeare, indeed, which had been received with high approbation by the publick, and gone through feveral editions, was this year re-published by George Steevens, Efq. a gentleman not only deeply fkilled in ancient learning, and of very extenfive reading in English literature, especially the early writers, but at the fame time of acute difcernment and elegant taste. It is almost unneceffary to fay, that by his great and valuable additions to Dr.. Johnson's work, he justly obtained confiderable reputation :

"I HAVE read your kind letter much more than the elegant Pindar which it accompanied. I am always glad to find myself not forgotten, and to be forgotten by you would give me great uneasiness. My northern friends have never been unkind to me: I have from you, dear Sir, teftimonies of affection, which I have not often been able to excite; and Dr. Beattie rates the teftimony which I was defirous of paying to his merit, much higher than I fhould have thought it reasonable to expect.

"I have heard of your masquerade. What fays your Synod to fuch innovations? I am not ftudiously scrupulous, nor do I think a masquerade either evil in itself, or very likely to be the occasion of evil; yet as the world thinks it a very licentious relaxation of manners, I would not have been one of the first masquers in a country where no masquerade had ever been before*.

"A new edition of my great Dictionary is printed, from a copy which I was perfuaded to revife; but having made no preparation, I was able to do very little. Some fuperfluities I have expunged, and fome faults I have corrected, and here and there have scattered a remark; but the main fabrick of the work remains as it was. I had looked very little into it fince I wrote it, and, I think, I found it full as often better, as worse, than I expected.

"Baretti and Davies have had a furious quarrel; a quarrel, I think, irreconcileable. Dr. Goldsmith has a new comedy, which is expected in the.

* There had been masquerades in Scotland before; but not for a very long time.

fpring,

fpring. No name is yet given it. The chief diverfion arises from a ftratagem Etat. 64. by which a lover is made to mistake his future father-in-law's house for an inn. This, you fee, borders upon farce. The dialogue is quick and gay, and the incidents are fo prepared as not to feem improbable.

"I am forry that you loft-your caufe of Intromiffion, because I yet think the arguments on your fide unanswerable. But you seem, I think, to fay that you gained reputation even by your defeat; and reputation you will daily gain, if you keep Lord Auchinleck's precept in your mind, and endeavour to confolidate in your mind a firrn and regular system of law, instead of picking up occafional fragments.

"My health feems in general to improve; but I have been troubled for many weeks with a vexatious catarrh, which is sometimes fufficiently distressful. I have not found any great effects from bleeding and phyfick; and am afraid, that I must expect help from brighter days and fofter air.

"Write to me now and then; and whenever any good befalls you, make hafte to let me know it, for no one will rejoice at it more than, dear Sir, "Your moft humble fervant,

66

London, Feb 24, 1773.

SAM. JOHNSON.

"You continue to stand very high in the favour of Mrs. Thrale."

On Saturday, April 3, the day after my arrival in London this year, to his house late in the evening, and fat with Mrs. Williams till he came home. I found in the London Chronicle, Dr. Goldsmith's apology to the publick for beating Evans, a bookfeller, on account of a paragraph in a newfpaper published by him, which Goldsmith thought impertinent to him and to a lady of his acquaintance. The apology was written fo much in Dr. Johnson's manner, that both Mrs. Williams and I fuppofed it to be his; but when he came home he foon undeceived us. When he faid to Mrs. Williams, "Well, Dr. Goldsmith's manifefto has got into your paper;" I asked him if Dr. Goldsmith had written it, with an air that made him fee I fufpected it was his, though fubfcribed by Goldsmith. JOHNSON. "Sir, Dr. Goldsmith would no more have asked me to write fuch a thing as that for him, than he would have asked me to feed him with a spoon, or to do any thing else that denoted his imbecillity. I as much believe that he wrote it, as if I had feen him do it. Sir, had he fhewn it to any one friend, he would not have been allowed to publish it. He has, indeed, done it very well; but it is a foolish thing well done. I fuppofe he has been fo much elated with the fuccefs of his new

comedy,