1772.

I mentioned a friend of mine who had refided long in Spain, and was Etat. 63. unwilling to return to Britain. JOHNSON. "Sir, he is attached to fome woman." BOSWELL. "I rather believe, Sir, it is the fine climate which keeps him there." JOHNSON. "Nay, Sir, how can you talk fo? What is climate to happiness? Place me in the heart of Afia, fhould I not be exiled? What proportion does climate bear to the complex fyftem of human life. You may advise me to go and live at Bologna to eat faufages. The faufages there, are the best in the world; they lofe much by being carried."

On Saturday, May 9, Mr. Dempfter 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 faid, " Walpole was a minifter given by the King to the people: Pitt was a minister given by the people to the King, as an adjunct.”

"The misfortune of Goldfmith in converfation is this: he goes on without knowing how he is to get off. His genius is great, but his knowledge is fmall. As they say of a generous man, it is a pity he is not rich; we may fay of Goldfimith, 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 deceased, without the interpofition of legal authority to guard against embezzlement, fhould be fubjected to pay all the debts of the deceased, as having been guilty of what was technically called vitious intromiffion. The Court of Seffion had gradually relaxed the ftrictness 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 reafoning in vain. Johnson thought as I did; and in order to affift 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 suspended or modified as the Court fhall think proper.

"Concerning the power of the Court to make or to fufpend a law, we have no intention to inquire. It is fufficient for our purpose that every just law is

Wilfon against Smith and Armour.

dictated

dictated by reason; and that the practice of every legal Court is regulated by equity. It is the quality of reafon to be invariable and conftant; and of equity, to give to one man what, in the fame 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 fhall entitle him to the fupport and protection of fociety. That the law may be a rule of action, it is neceffary that it be known;-it is neceffary 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 fettled.

"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 wisdom, by which the deficiencies of private understanding are to be fupplied. 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 fhall be paffed. 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 juftly 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 unsettled, and confequently different in different minds, the right of Intromiffion, and the right of the Creditor arifing from it, are all jura vaga, and, by confequence, are jura incognita; and the refult can be no other than a mifera fervitus, an uncertainty concerning the event of action, a fervile dependance on private opinion.

"It may be urged, and with great plaufibility, that there may be Intromiffion 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 ufed but to ftrengthen protection. That society only is well governed, where life is freed from danger and from fufpicion; where poffeffion is fo fheltered 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 lofs, but without fear. He was not to feek a remedy for an injury fuffered; for injury was warded off.

"As the law has been fometimes administered, it lays us open to wounds, because it is imagined to have the power of healing. To punish fraud when

1772.

Etat. 63.

1772.

it is detected, is the proper act of vindictive justice; but to prevent frauds, Etat. 63. and make punishment unneceffary, is the great employment of legislative wisdom. To permit Intromiffion, and to punish fraud, is to make law no better than a pitfall. To tread upon the brink is fafe; but to come a step further is destruction.. But, furely, it is better to enclose the gulf, and hinder all accefs, than by encouraging us to advance a little, to entice us afterwards a little further, and let us perceive our folly only by our deftruction.

"As law fupplies the weak with adventitious ftrength, it likewife 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, fays 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 intromiffion has been very favourably represented by a great master of jurifprudence', whose words have been exhibited with unneceffary pomp, and feem to be confidered as irresistibly decifive. The great moment of his authority makes it neceffary to examine his pofition. Some ages ago, (fays he,) before the ferocity of the inhabitants of this part of the island was fubdued, the utmost severity of the civil law was neceffary, to restrain individuals from plundering each other. Thus, the man who intermeddled irregularly with the moveables of a perfon deceased, was fubjected to all the debts of the deceased without limitation. This makes a branch of the law of Scotland, known by the name of vicious intromiffion; and fo rigidly was this regulation applied in our Courts of Law, that the most trifling moveable abftracted malá fide, fubjected the intermeddler to the foregoing confequences, which proved in many inftances a moft rigorous punishment. But this feverity was neceffary, in order to fubdue the undisciplined 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 sovereign Court with a sparing hand.'

"I find myself under a neceffity of obferving, 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 favageness and independence, in which all laws are vain, paffes or may pafs, by innumerable gradations, to a state of reciprocal benignity, in which laws fhall be no longer neceffary. Men are firft wild and unfocial, living each man to himself, taking

'Lord Kames, in his "Hiftorical Law Tracts."

from

1772.

from the weak, and lofing to the strong. In their firft coalitions of fociety, much of this original favagenefs is retained. Of general happiness, the product rat. 63of general confidence, there is yet no thought. Men continue to profecute their own advantages by the nearest way; and the utmoft feverity of the civil law is neceffary to restrain individuals from plundering each other. The restraints then neceffary, are reftraints from plunder, from acts of publick violence, and undisguised oppreffion. 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 likewife dexterity in evil. Open rapine becomes lefs frequent, and violence gives way to cunning. Thofe who before invaded pastures and stormed houses, now begin to enrich themselves by unequal contracts and fraudulent intromiffions. 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 inceffant ftruggle for riches which commerce excites, gives us no profpect of an end speedily to be expected of artifice and fraud. It therefore seems to be no very conclufive reasoning, which connects those two propofitions; the nation is become less 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 lefs fierce; and, I am afraid, it cannot be affirmed that it is grown lefs fraudulent.

"Since this law has been reprefented 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 juft, two conditions are neceffary, and two proper. It is neceffary that the law fhould be adequate to its end; that, if it be observed, it shall prevent the evil against which it is directed. It is, fecondly, neceffary that the end of the law be of fuch importance, as to deserve the fecurity of a penal fanction. The other conditions of a penal law, which though not abfolutely neceffary, are to a very high degree fit, are that to the moral violation of the law there are many temptations, and that of the phyfical obfervance there is great facility.

"All these conditions apparently concur to justify the law which we are now confidering. Its end is the fecurity of property; and property, very often of great value. The method by which it effects the fecurity is effica cious, because it admits, in its original rigour, no gradations of injury; but keeps guilt and innocence apart, by a diftinct and definite limitation. He Ddd

that

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 ftrong; fo ftrong 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 fo facile, that to neglect it is a proof of fraudulent intention for why fhould a man omit to do (but for reasons which he will not confefs,) that which he can do fo eafily, 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.

"I therefore return to my original position, that a law, to have its effect, must be permanent and stable. It may be said, `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 unfafe, I hope, that of departing from it there will now be an end; that the wildom 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 escape. "

With fuch comprehenfion of mind, and fuch 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 fide of the question. His intellectual powers appeared with peculiar luftre, when tried against those of a writer of so much fame as Lord Kames, and that too in his Lordfhip's own department.

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

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