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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 Etat. 63. give me an instance of any man who is permitted to lay out his own time, contriving not to have tedious hours." This obfervation, however, is equally applicable to gentlemen who live in cities, and are of no profession.

He faid, "there is no permanent national character; it varies according to circumstances. Alexander the Great fwept India: now the Turks fweep Greece."

A learned gentleman who in the course of converfation wifhed to inform us of this fimple 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 thofe little animals moved from place to place with wonderful agility. Johnfon fat in great impatience till the gentleman had finished his tedious narrative, and then burft out, "It is a pity, Sir, that you have not feen a lion; for a flea has taken you fuch a time, that a lion must have ferved 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 hiftorian and a modern moralift, he faid, "There is more thought in the moralift than in the hiftorian. There is but a fhallow ftream of thought in hiftory." BOSWELL. "But furely, Sir, an hiftorian has reflection." JOHNSON. "Why yes, Sir; and fo has a cat when the catches a mouse for her kitten. But fhe cannot write like the moralift; neither can the hiftorian."

He faid, "I am very unwilling to read the manufcripts 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 bookfellers, and make the best bargain they can." BOSWELL. "But, Sir, if a bookfeller fhould bring you a manufcript to look at."-JOHNSON. "Why, Sir, I would defire the bookfeller to take it away."

Mrs. Piozzi, to whom I told this anecdote, has related it, as if the gentleman had given "the natural hiftory of the mouse." Anecdotes, p. 191. I mentioned

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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 fausages. 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. Johnfon, 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 Goldfmith, it is a pity he is not knowing. He would not keep his knowledge to himfelf."

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 perfon deceased, without the interpofition of legal authority to guard against embezzlement, should 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 reasoning 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 juft law is

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 cafe, 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 fupport and protection of fociety. That the law may be a rule of action, it is necessary 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 wifdom, by which the deficiencies of private understanding are to be fupplied. It is to fuffer the rafh and ignorant to act at difcretion, 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 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, mifera 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 used but to strengthen protection. That fociety 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

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Etat. 63.

!

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it is detected, is the proper act of vindictive juftice; 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 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 fupplies 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, 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 reprefented by a great master of jurisprudence', whofe words have been exhibited with unneceffary pomp, and seem to be confidered as irresistibly decifive. The great moment of his authority makes it neceffary to examine his pofition. Some ages ago, (says 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 abstracted malâ fide, fubjected the intermeddler to the foregoing confequences, which proved in many instances a most 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 fovereign Court with a sparing hand.'

"I find myself under a neceffity 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, paffes or may pass, by innumerable gradations, to a state of reciprocal benignity, in which laws fhall be no longer neceffary. Men are first wild and unsocial, living each man to himself, taking

'Lord Kames, in his "Historical Law Tracts.”

from

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from the weak, and lofing to the ftrong. In their first coalitions of fociety, much of this original favageness 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 neceffary to restrain individuals from plundering each other. The restraints then neceffary, are restraints 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. Those 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, give us no profpect of an end speedily to be expected of artifice and fraud. It therefore feems to be no very conclufive reafoning, which connects those two propofitions; 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 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 feems 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 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 fhall prevent the evil against which it is directed. It is, fecondly, neceffary that the end of the law be of fuch importance, as to deferve 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 juftify 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 efficacious, because it admits, in its original rigour, no gradations of injury; but keeps guilt and innocence apart, by a diftinct and definite limitation. He