of every legal Court is regulated by equity. It is the quality of reason to be invariable and constant; and of equity, to give to one man what, in the same 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 shall entitle him to the support and protection of society. That the law may be a rule of action, it is necessary that it be known; it is necessary 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 settled.

"To permit a law to be modified at discretion, 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 supplied. It is to suffer the rash and ignorant to act at discretion, 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 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 case may be justly applied that important principle, misera est servitus ubi jus est aut incognitum aut vagum. If Intromission be not criminal till it exceeds a certain point, and that point be unsettled, and consequently different in different minds, the right of Intromission, and the right of the Creditor arising from it, are all jura vaga, and, by consequence, are jura incognita; and the result can be no other than a misera servitus, an uncertainty concerning the event of action, a servile dependence 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 occasional 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 society only is well governed, 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

when it is detected is the proper art of vindictive co prevent frauds, and make punishment unnecessary, employment of legislative wisdom. To permit Introo punish fraud, is to make law no better than a pitfall. on the brink is safe; but to come a step further is But, surely, it is better to enclose the gulf, and hinder an by encouraging us to advance a little, to entice us Little further, and let us perceive our folly only by our

supplies the weak with adventitious strength, it likens the ignorant with extrinsick understanding. Law know when we commit injury and when we suffer it. ʼn marks upon actions, by which we are admonished to ear them. Qui sibi bene temperat in licitis, says one of the am cadet in illicita. He who never intromits at all, will t with fraudulent intentions.

laxation of the law against vicious intromission has vourably represented by a great master of jurisprue words have been exhibited with unnecessary pomp, be considered as irresistibly decisive. The great is authority makes it necessary to examine his posiages ago, (says he,) before the ferocity of the f this part, of the island was subdued, the utmost e civil law was necessary, to restrain individuals from ch other. Thus, the man who intermeddled irregularly eables of a person deceased, was subjected to all the deceased without limitation. This makes a branch of cotland, known by the name of vicious intromission; and s this regulation applied in our Courts of Law, that the noveable abstracted malâ fide, subjected the intermeddler ping consequences, which proved in many instances a punishment. But this severity was necessary, in order e undisciplined nature of our people. It is extremely hat in proportion to our improvement in manners, this been gradually softened and applied by our sovereign sparing hand.'

yself under a necessity of observing, that this learned writer has not accurately distinguished the deficiencies of the different conditions of human life, which, from vageness and independence, in which all laws are vain, 1 Lord Kames, in his "Historical Law Tracts."

k, and losing to the strong. In their first coalitions of society, h of this original savageness is retained. Of general happiness, product of general confidence, there is yet no thought. Men inue to prosecute their own advantages by the nearest way; and utmost severity of the civil law is necessary to restrain individuals 1 plundering each other. The restraints then necessary, are raints from plunder, from acts of publick violence, and undised oppression. The ferocity of our ancestors, as of all other ons, produced not fraud, but rapine. They had not yet learned heat, and attempted only to rob. As manners grow more polished, the knowledge of good, men attain likewise dexterity in evil. n rapine becomes less frequent, and violence gives way to ing. Those who before invaded pastures and stormed houses, begin to enrich themselves by unequal contracts and fraudulent >missions. It is not against the violence of ferocity, but the imventions of deceit, that this law was framed; and I am afraid increase of commerce, and the incessant struggle for riches which merce excites, give us no prospect of an end speedily to be ected of artifice and fraud. It therefore seems to be no very clusive reasoning, which connects those two propositions: the on is become less ferocious, and therefore the laws against fraud covin shall be relaxed.'

Whatever reason may have influenced the Judges to a relaxaof the law, it was not that the nation was grown less fierce I am afraid, it cannot be affirmed, that it is grown less fraudulent Since this law has been represented as rigorously and unreasonpenal, it seems not improper to consider what are the conditions qualities that make the justice or propriety of a penal law.

To make a penal law reasonable and just, two conditions are ssary, and two proper. It is necessary that the law should be quate to its end; that, if it be observed, it shall prevent the evi nst which it is directed. It is, secondly, necessary that the end he law be of such importance, as to deserve the security of a pena tion. The other conditions of a penal law, which though no lutely necessary, are to a very high degree fit, are, that to the al violation of the law there are many temptations, and that o physical observance there is great facility.

All these conditions apparently concur to justify the law which 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 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 of 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 duty 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, a 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 be now 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 department.

This masterly argument, after being prefaced and concluded with some sentences of my own, and garnished with the usual formularies, was actually printed and laid before the Lords of Session, but without success. My respected friend Lord Hailes, however, one of that honourable 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. His 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 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 present to us; for, indeed, it is casting pearls before swine.'

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

"DEAR SIR,

"To JAMES BOSWELL, ESQ.

"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 But such has been the

esteem.

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 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 cause, and am yet of opinion, that our 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.