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rich themselves by unequal contracts and fraudulent 1772. intromissions. It is not against the violence of ferocity, Ætat. but the circumventions of deceit, that this law was 63. framed ; and I am afraid the increase of commerce, and the incessant struggle for riches which commerce exeites, give 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 covin 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 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 freVOL. U.
1772. quent, as to require the 'utinost activity of justice, and Ætat. vigilance of caution, to withstand its prevalence; and 63. 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 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 1772. those of a writer of such fame as Lord Kames, and that
Etat. too in his Lordship's own department.
63. 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 confirining the truth of an observation made to me by one of their number, in a merry mood : “ 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.
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 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 mean time, do not omit any
1772. opportunity of keeping up a favourable opinion of me Ætat.
in the minds of any of my friends. Beattie's book is, I 63. believe, every day more liked; at least, I like it more,
as I look more upon it.
“ I ain 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. The whole system of ancient tenures is gradually passing away; and I wish to have the knowledge of it preserved adequate and complete. For such an institution makes a very important part of the history of mankind. Do not forget a design so worthy of a scholar who studies the law of his country, and of a gentleman who may naturally be curious to know the condition of his own ancestors. dear Sir,
“ Your's with great affection, ' August 31, 1772.
TO DR. JOHNSON.
MY DEAR SIR,
Edinburgh, Dec. 25, 1772.
“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 sensible that the state of your health was but too good an excuse, but because you write in a strain which shews that you have agreeable views of the scheme which we have so long proposed.
“ 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 1773. earth whose good opinion I would be more ambitious to
Ætat. cultivate. His talents and his virtues I reverence more 64. 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.'
• 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. Mean time, 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."
as I am, &c.
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*1 to his old amanuensis Macbean's “ Dictionary of ancient Geography." His Shakspeare, indeed, which had been received with high approbation by the publick, 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
· 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 the authority of Mr. Bell.