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 farther 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 farther, 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 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 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 triffing moveable abstracted mala 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 inde

B.

1 Lord Kames, in his Historical Law Tracts.

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pendence, in which all laws are vain, passes of 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, gives 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 covin2 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

2 Covin, a deceitful agreement between two or more to the hurt of another. Johnson's Dic tionary.

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 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 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, 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 de

His

ourable 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. 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."

66

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

"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 1 look more upon it.1

"I am glad if you got credit by your cause, and am yet of opinion, that 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

1 Essay on Truth, 1770, of which five large editions were sold in the first four years of publication, besides three translations in French, Dutch, and German. Dr. Hill.

"I communicated to Beattie what you said of his book in your last letter to me. He writes to me thus; 'You judge very rightly in supposing that Dr. Johnson's favourable opinion of my book must give me great delight. Indeed it is impossible for me to say how much I am gratified by it; for there is not a man upon earth whose

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247

tionary of Ancient Geography." His Shakespeare," indeed, which had been received with high approbation by the public, and gone through several editions, was this year re-published by George Steevens, Esq., a gentleman not only deeply skilled in ancient learning, and of very extensive reading in English literature, especially the early writers, but at the same time of acute discernment and elegant taste. It is almost unnecessary to say, that by his great and valuable additions to Dr. Johnson's work, he justly obtained considerable reputation :

“Divisum imperium cum Jove Cæsar habet."

"TO JAMES BOSWELL, ESQ.

"DEAR SIR,

"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, testimonies of affection, which I have not often been able to excite; and Dr. Beattie rates the

tivate. His talents and his virtues I reverence more than any words can express. The extraordinary civilities (the paternal attentions I should rather say) and the many instructions I

have had the honour to receive from him, will to me be a perpetual source of pleasure in the recollection.

'Dum memor ipse mei, dum spiritus hos reget artus.' (Virgii. Æn. iv. 336.)

""I had still some thoughts, while the summer lasted, of being obliged to go to London on some little business; otherwise I should certainly have troubled him with a letter several months ago. and given some vent to my gratitude and admiration. This I intend to do, as soon as I am left a little at leisure. Meantime, if you have occasion to write to him, I beg you will offer him my most respectful compliments, and assure him of the sincerity of my attachment and the warmth of my gratitude.'

*

*

*

**

*

"I am, &c.

"JAMES BOSWELL."

In 1773, his only publication was an edition of his folio Dictionary, with additions and corrections; nor did he, so far as is known, furnish any productions of his fertile pen to any of his numerous friends or dependants, except the Preface*

to his old amanuensis Macbean's "Dic

merit, much higher than I should have thought it reasonable to expect.

"I have heard of your masquerade. What says your synod to such innovations? I am not studiously 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

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

1 He, however, wrote, or partly wrote, an epitaph on Mrs. Bell, wife of his friend John Bell, Esq. brother of the Rev. Dr. Bell, Prebendary of Westminster, which is printed in his Works. It is in English prose, and has so little of his manner that I did not believe he had any

hand in it, till I was satisfied of the fact by authority of Mr. Bell. B.

2 Given by a lady at Edinburgh. B. The lady, Croker tells us, was the Countess Dowager

of Fife. Boswell went as a Dumb Conjurer.

3 There been masquerades Scotland; but not for a very long time. B.

dicts ill success. I hope he will be mistaken. I think it deserves a very kind reception.

249

importance to the public." BoOSWELL : "I fancy, Sir, this is the first time that he has been engaged in such an adventure."

little to its usefulness.

"No book has been published since your departure, of which much notice is taken. Fac tion only fills the town with pamphlets, and greater subjects are forgotten in the noise of discord.

"Thus have I written, only to tell you how little I have to tell. Of myself 1 can only add, that having been afflicted many weeks with a very troublesome cough, I am now recovered.

"I take the liberty which you give me of troubling you with a letter, of which you will please to fill up the direction. I am, Sir, your most humble servant,

"SAM. JOHNSON.

"Johnson's Court, Fleet Street,

"London, March 4, 1773."

On Saturday, April 3, the day after my arrival in London this year, I went to his house late in the evening, and sat with Mrs. Williams till he came home. I found in the "London Chronicle," Dr. Goldsmith's apology to the public for beating Evans, a bookseller, on account of a paragraph in a newspaper published by him, which Goldsmith thought impertinent to him and to a lady of his acquaintance. The apology was written so much in Dr. Johnson's manner, that both Mrs. Williams and I supposed it to be his; but when he came home, he soon undeceived us. When he said to Mrs. Williams, "Well, Dr. Goldsmith's manifesto has got into your paper;" I asked him if Dr. Goldsmith had written it, with an air that made him see I suspected it was his, though subscribed by Goldsmith. JOHNSON: "Sir, Dr. Goldsmith would no more have asked me to write

such 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 imbecility. I as much believe that he wrote it, as if I had seen him do it. Sir, had he shewn 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 suppose he has been so much elated with the success of his new comedy, that he has thought every thing that concerned him must be of

1 See Forster's Life of Goldsmith, p. 420-22,

first time he has beat; he may have been beaten before. This, Sir, is a new plume to him."

I mentioned Sir John Dalrymple's "Memoirs of Great Britain and Ireland,” and his discoveries to the prejudice of Lord Russell and Algernon Sydney. JOHNSON: "Why, Sir, every body who had just notions of Government thought them rascals before. It is well that all mankind now see them to be rascals." BosWELL: "But, Sir, may not those discoveries be. true without their being rascals?" JOHNSON: "Consider, Sir, would any of them have been willing to have had it known that they intrigued with France? Depend upon it, Sir, he who does what he is afraid should be known, has something rotten about him. This Dalrymple seems to be an honest fellow; for he tells equally what makes against both sides. But nothing can be poorer than his mode of writing, writing it is the mere bouncing of a schoolboy: Great He! but greater She ! and such stuff."

I could not agree with him in this criticism; for though Sir John Dalrymple's style is not regularly formed in any respect, and one cannot help smiling sometimes at his affected grandiloquence, there is in his writing a pointed vivacity, and much of a gentlemanly spirit.

At Mr. Thrale's, in the evening, he repeated his usual paradoxical declamation against action in public speaking. "Action can have no effect upon reasonable minds. It may augment noise, but it never can enforce argument. If you speak to a dog, you use action; you hold up your hand thus, because he is a brute; and in proportion as men are removed from brutes, action will have the less influence upon them." MRS. THRALE: "What then, Sir, becomes of Demosthenes's saying? 'Action, action, action!"" JOHNSON: "Demosthenes,

2 Alluding, as Hallam pointed out to Croker, to the description of the parting between Lord and Lady Russell: "He great in this last act of his life, but she greater."