1772. it is detected, is the proper act of vindictive justice; but to prevent frauds, and make punishment unneceffary, is the great employment of legislative Etat. 63. wifdom. 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 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 admonifhed 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, 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, (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 abstracted malâ fide, subjected 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 fovereign Court with a sparing hand.' "I find myself under a neceffity of obferving, that this learned and judicious writer has not accurately diftinguished 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 pass, 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 ftrong. In their first coalitions of fociety, much of this original savageness 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 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. 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 represented as rigorously and unreasonably penal, it seems not improper to confider 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 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 physical 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 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 strong; 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 fo open and fo facile, that to neglect it is a proof of fraudulent intention for why fhould a man omit to do (but for reafons 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 safety and facility. "I therefore return to my original position, that a law, to have its effect, must be permanent and ftable. It may be faid, 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 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 fometimes departed, cannot be denied. But, as it is evident that such deviations, as they make law uncertain, make life unfafe, 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 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 fubject 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 lustre, when tried against thofe of a writer of fo much fame as Lord Kames, and that too in his Lordship's own department. This masterly argument, after being prefaced and concluded with fome fentences of my own, and garnished with the ufual formularies, was actually printed and laid before the Lords of Seffion, but without fuccefs. My refpected friend Lord Hailes, however, one of that honourable body, had 1772. critical fagacity enough to discover a more than ordinary hand in the Petition. I told him that Dr. Johnson had favoured me with his pen. His Lordship, Atat. 63. with wonderful acumen, pointed out exactly where his compofition began, and where it ended. But that I may do impartial juftice, and conform to the great rule of Courts, Suum cuique tribuito, I must add, that their Lordfhips 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 compofition of the papers you prefent to us; for, indeed, it is cafting pearls before fwine." I renewed my folicitations that he would this year accomplish his longintended visit to Scotland. "DEAR SIR, To JAMES BOSWELL, Efq. "THE regret has not been little with which I have miffed a journey fo pregnant with pleasing expectations, as that in which I could promise myfelf not only the gratification of curiofity, both rational and fanciful, but the delight of feeing those whom I love and efteem, But fuch has been the course of things, that I could not come; and fuch 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 fincere in my design to pay the vifit, 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 caufe was good, and that the determination ought to have been in your favour. Poor Haftie, I think, had but his deferts. "You promised to get me a little Pindar, and 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 fyftem of ancient tenures is gradually paffing away; and I wish to have the knowledge Ddd 2 1772. ledge of it prefervéd adequate and complete. For fuch an inftitution makes Etat. 63. a very important part of the history of mankind. Do not forget a design fo worthy of a scholar who studies the laws of his country, and of a gentleman who may naturally be curious to know the condition of his own ancestors. I am, dear Sir, "I was much difappointed 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 fenfible that the ftate of your health was but too good an excufe, but because you write in a strain which fhews that you have agreeable views of the scheme which we have fo long propofed. "I communicated to Beattie what you faid of his book in your last letter to me. He writes to me thus: You judge very rightly in fuppofing that Dr. Johnson's favourable opinion of my book must give me great delight. Indeed it is impoffible for me to say how much I am gratified by it; for there is not a man upon earth whofe good opinion I would be more ambitious to cultivate. His talents and his virtues I reverence more than any words can exprefs. The extraordinary civilities, (the paternal attentions I should rather fay,) and the many inftructions I have had the honour to receive from him, will to me be a perpetual fource of pleasure in the recollection. • Dum memor ipfe mei dum fpiritus hos reget artus. • I had still fome thoughts, while the fummer lafted, of being obliged to go to London on fome little bufinefs; otherwife I fhould certainly have troubled him with a letter feveral months ago, and given fome vent to my gratitude and admiration. This I intend to do, as foon as I am left a little at leisure. Mean time, if you have occafion to write to him, I beg you will offer him my most respectful compliments, and affure him of the fincerity of my attachment and the warmth of my gratitude.? "I am, &c. "JAMES BOSWELL." |