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gertry, this peighbourhood has a breed sea-faring people would have much less

а of hories te for the saddle, and car- trouble than they frequently have by riages of every kind. The colours of the prefent mode of management, and horics are various; but the dark bay, would at the fanie time have the fatis. with black legs and feet, is preferred. fation of seeing justice done to a set Their shape is generally good. They of brave fellows, who have risked their were originally galloways, and said to lives in the service of their country. have sprung from a Spanish breed, which came ashore on this coast when UNITED Parishes of HOUSTON AND one of the veisels of the Armada was

KILLALLAN. wrecked upon it, atier failing round

Antiquities. by the Pentland Firth.

ABOUT 20 years ago, when the

country people in this parih were dig. Parish OF ROTHESAY. ging for stones to inclose their farms, Difcellaneous Obfervations. they met with several chests or coffins During the latt war, there were a of Hag stones, fet on their edges, fides, number of seamen from the parish in and ends, and covered with the same the navy service; anci, had the prize fort of stones above, in which were mamoney due to them been properly ac- 'rig human bones of a large size, and counted for, it is believed that press. several sculls in fome of them. In warrants would have been unnecessary one was found many trinkets of a jet here; but as matters are ai present black fubitaoce, fome round, athers managed, nothing but compulsion will round and oblong, and others of a diainduce them to enter into the navy ser- niond fepe, &c. all perforated. Provice. Many of thiem, to whom prize- balıly they were a necklace. There money is due, can get no account of, was a thia piece, abyut two inches nor even find out the agent in whose brad at one eod, and perforated with hands it is. Wonld it not answer the many holes, but narrow at the other; purposes of government equally well, the broad end, full of holes, seemed were the management of prizes put in- to b2 designed fur fufpending many to the hands of the pay-office, aud go. trinkets, as an ornament on the breast. vernment become accountable for it, The ground where these fione coffins as well as their wages; and, inttead were found was a little raised, with a of obliging the seamen to employ a- mixture of small stones and earth, in gents and attornies, at a great expence the form of a barrow or tumulus. and risk, might not the inipector of the But whether these stone coffins were pay-office correfpond with the mini- oller than the Roman government in iters of the different parishes to which this country, or later, or upon what the feamen belong, (which he is even occation 10 many people were buried at present sometimes obliged to do), there in that manner, and several in and the situation and circumstances of one stone chcit, is not known. It each seaman's righi and claim being, seems to have been the confequence of in the course of the correspondence, a battle or skirmish between two hostile afcertained, payment migh: bé had at parties; which was the case not 200 the nearest bank, or an order given up- years ago, between familles, through on the neareit customhouse, without most parts of Scotland, who often met either risk or expence ? By adopring their enemy, with their vadfils and desome measure of this kind, the mini- pendants, and flaughtered one sters of the parishes where there are ther. с 2







EFORE leaving London this duet which shall entitle him to the

year, I consulted the Dr upon a support and protection of society. question purely of Scotch law. It That the law may be a rule of action was held of old, and continued for a it is necessary that it be known; long period, to be an established prin- it is necessary that it be permaciple in that law, that whoever inter- ncnt and Mable. The law the meddled with the effe&ts of a person measure of civil right; but if the meadeceased, without the interpofition of sure be changeable, the extent of the legál authority to guard againit em- thing measured never can be settled. bezzelement, should be subjected to “ To permit a law to be modifier pay a!l the debts of the deceased, as at discretion, is to leave the commuhaving been guilty of what was toch- nity without lavr. It is to with:draw nically called vicious intromission. The the direction of that public wisdom, Court of Sefiion had gradually relax- by which the deficiencies of pri. ed the stri&ness of this principle, vate underitanding are to be fupa where the interference proved had plied. It is to suffer the rash and been inconsiderable. In a cafe + which ignorant to act at discretion, and then came before that Court the preceding to depend for the legality of that acwinter, I had laboured to persuade the tion on the sentence of the Judge. Judges to return to the ancient law. He that is thus governed, lives noz It was my own sincere opinion, that by law, but by opinion : not by a certhey ought to adhere to it; but I had tain rule to which he can apply his inexhausted all my powers of reasoning tention before he acts, but by an uncerin vaia. Juboson thought as I did; tain and variable opinion, which he and in order to a lift me in my applica. can never know but after he has contion to the Court for a revision and mitted the act on which that opinion alteration of the judgment, he dictat- fhall be passed. He lives by a law (if ed to me the following argument: a law it be,) which he can

This, we are told, is a law know before he has offended it. To which has its force only from the long this case may be justly applied that practice of the Court; and may, there. important principle, misera eft fervitus fore, be suspended or modified as the ubi jus eft aut incognitum aut vagum. Court shall think proper.

If intromillion be not criminal till it “ Concernimg the power of the exceeds a certain point, and that point Court to make or to suspend a law, be unsettled, and consequently difwe have no intention to inquire.' It ferent in different minds, the right of is sufficient for our purpose that every intromission, and the right of the just law is dictated by reason; and Creditor arising from it, are all jura ihat the practice of every legal Court is vaga, and, by confequerce, are jura regulated by equity. It is the quality incognita ; and the result can be no of reason to be in variable and con- other than a misera servities, an uncerftant; and of equity, to give to one tainty concerning the event of action, man whát, in the same "cale, is given a servile dependance on private opi. to another. The advantage which hu- nion. manity derives from law is this, that


be urged, and with great the law gives every man å rule of ac- plausibility, that there may be introtion, and prescribes a mode of con- mission without fraud ; which, how



66 It


* From Boswell's Life of Johnson,

t Wilson against Smith and Armour,

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ever true, will by no means justify an ter of jurisprudence, whose words Occasional and arbitrary relaxation of have been exhibited with unneceffary the law. The end of law is protection pomp, and seem to be considered as as wellas vengeance. Indeed vengeance irresistably decisive. The great mois never used but to strengthen protection. ment of his authority makes it necefThat society only is well governed sary to examine his position. . Some where life is freed from danger and from ages ago, (says he,) before the fero. suspicion; where poffeffion is so sheltered city of the inhabitants of this part of by falutary prohibitions, that violation the island was fubdued, the utmott is prevented more frequently than pu- severity of the civil law was neceffary, nished. Such a prohibition was this, to restrain individuais from plunderwhile it operated with its original ing each other. Thus, the man who force. The creditor of the deceased intermeddled irregularly with the movewas not only without loss, but without ailes of a person deceased, was subjectfear. He was not to seek a remedy ed to all the debts of the deceased for any injury suffered ; for injury without limitation. This makes a was warded off.

branch of the law of Scotland known “ As the law has been sometimes by the name of vicious intromisfion ; administered, it lays us open to and fo rigidly was this regulation apwounds, because it is imagined to have plied in our Courts of Law, that the the power of healing. To punish moit trifling moveable abstracted malá fraud when it is detected, is the pro- fide, subjected the intermeddler to the per act of vindictive justice ; but to foregoing consequences, which proved prevent frauds, and make punishment ia


instances a most rigorou3 unnecessary, is the great employment punishment. But this severity was of leg Native wisdom. To permit in- necessary, in order to fubdue the untromision, and to punish fraud, is to disciplined nature of our people. It make law no better than a pitfall. To is extremely remarkable, that in protread upon the brink is fafe ; but to portion to our improvement in come a step further is destruction. Bat, ners, this regulation has been gradufurely, it is better to inclose the gulf, ally foftened, and applied by our sove3d binder al access, than by en- reign Court with a sparing hand.' couraging us to advance a little, to en- " I find myfelf under a neceility of tice us afterwards a little further, and observing, that this learned and judilet us perceive our folly only by our cious writer has not accurately distindestruction.

guished the deficiencies and demands " As law supplies the weak with of the different conditions of liuman adventitious strength, it likewise en- life, which, from a degree of savage. lightens the ignorant with extrinsic ness and independance, in which all underitanding. Law teaches us to laws are vain, paffes or may pass, by

, know when we commit injury, and innumerable gradations, to a state of when we suffer it. It fixes certain reciprocal benignity, in which laws shall marks upon actions, by which we are be no longer necessary. Men are first admonithed to do or to forbear them. wild and unsocial, living each man to Qui fibi bene temperat in licitis, fays himself, taking from the weak, and one of the fathers, nunquam cadet in lofing to the strong. In their first illicita : He who never intromits at coalitions of society, much This all, will never intromit with fraudu- original favageness is retained. Of lent intentions.

general happiness, the product of ge“ The relaxation of the law against neral confidence, there is yet no vicious intromission bas been very fa- thought. Men continue to profecute Tourably represented by a great mal- their own advantages by the nearest





way; and the utmost severity of the penal law sanction. The oiher concivil law is neceffary to restrain indi- ditions of a penal law, which though viduals from plundering each other. not absolutely necessary, are to a very The restraints then necessary, are re- high degree fit, are, that to the mostraints from plunder, from acts of ral violation of the law there are niapublic viole::ce, and undisguised op. ny temptations, and that of the phyfspression. The ferocity of our ancef- cal observance there is great facility. tors, as of all other nations, produced

6 All these conditions apparentiy nor fraud but rapine. "They had not to just fy the law which we yet learned to cheat, and attempted are now considering. Its end is the only to rob. As manners grow more security of property; and property polished, with the knowledge of good, very often of great value. The memen attain likewise dexterity in evil. 'thod by which it cffets the security is Open rapine becomes less frequent, eficacious, because it admits, in iis and violence gives way to cunning. original rigour, no gradations of inThose who before invaded pastures jury; but keeps guilt and innocence and stormed houses, new begin to en- apart, by a distinct and definite linirich themselves by uncqual contracts tarion. He that intromits is crimi:a. and fraudulent intromilions. It is not al; he that intromits not, is innocent. against the violence of ferocity, but Of the two fecondary considerations the circumventions of deceit, that it cannot be denied that both are in this law was framed; and I am afraid

our favour.

The temptation to introthe increase of conmerce, and the in- mit frequent and strong; so strong cessant struggle for riches which com- and so frequent, as to require the utmerce excites, give us po profpeet of most activity of juitice, and vigilance an end speedily to be expected of ar- of caution, to withstand its prevalence ; tifice and fraud. It therefore feems and the method by which a man may to be no very conclusive reasoning, entitle himself to legal intromision is which connects trole two propoli. fo open and fo facile, that to neglect tions ;— the nation is become less fe- it is a proof of fraudulent intention : rocious, and therefore the laws against for why should a man omit to do (but fraud and cover shall be relaxed." for reasons which he will not confefs,)

" Whatever reason may have in- that which he can do so easily, and y fuenced the Judges to a relaxation of that which he knows to be requi:

the law, it was not that the nation red by the law? If temptation were was grown

lefs fierce ; and, I am rare, ,a penal law might be deemed afraid, it cannot be afirmed that it unnecessary. If the duty enjoined by is grown less fradulent.

the law were of difficult performance, “ Since this law has been repre- omillion, though it could not be justisented as rigorously and unreasonably fiel, might be pitied. But in the prepenal, it seems not improper to confi- fent case, neither equity nor compassion fter what are the conditions and qua- opcrate against it. A useful, a neceflities that make the justice or propriety fary law is broken, not only without of a penal law.

a reasonable motive, but with all the “ To make a penal law reasonable inducements to obedience that can be and juft, two conditions are neceflary, derived from safety and facility. and two proper. It is necessary that

" Ì therefore return to my original the law should be adequate to its end; position, that a law, to have its effects that, if it be observed, it shall pre- must be permanent and ftable. It vent the evil against which it is direct- may be said, in the language of the ed. It is, secordly, necessary that schools, Lex non recepit majus et minus, the end of the law be of such import- --we may have a law, or we may ance, as to deserve the security of a have no law, but we cannot have half



a law. We must either have a rule of tions, as they make law uncertain, adion, or be permitted to act by dif- make life unafe, I hope, that of decretion and by chance. Deviations parting from it there will now be an from the law must be uniformly pu- end; that the wiidum of our ancestors nilhed, or no man can be certain when will be treated with due reverence; he shall be fafe.

and that consistent and steady deci“ That from the rigour of the ori- fons will furnith the people with a ginal inftitution this Court has some- rule of action, and leave fraud and times departed, cannot be denied. fraudulent intromision no future hope But, as it is evident that such devid- of impunity or escape.”

Memoirs of James Boswell, Esq. From the European Magazine,

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TAMES BOSWELL, Esq. was encouraged by the late Lord Somer

; born at Edinburgh on the 20th of ville, to whose meno y


pays Odober, N. S. 1740, being the eldef grateful tribute. While he was at son of Alexander Bofwell, Esq. an Edinburgh College, Lady Houston, eminent Judge in the Supreme Courts fiiter of the late Lord Cathcart, put of Session and suit ciary in Scotland, under his care a comedy, entitled, by the title of Lord Auchinleck, from The Coquettes ; or, The Gallant in the Barony of that name in A yıshire, the Cafet; with a strict injunction that which has been the property of the its author should be concealed. Mr family for almoit

three centuries. His Buswell, who was then very fond of mother was Mis Euphemia Erskine, de- the drama, and affociated much with fcended in the line of Alva from the the players, got this comedy brought noble house of Mar, a lady of dif- upon the stage, and wrote the protinguished piety.

logue to it, which was spoken by Mr He received his early educati in at Parlons. But it was not fucceisful, the school of Mr James Munde!l, in being in truih damned the third night, Edinburgh, a teacher of great repu- and not unjuftly; for it was found to tation; anongst whose scholars were, be chiefly a trantation of one of the Mr Ilay Can poell now Loro Prouert bad plays of Thomas Corneille. Such, of the Court of Scion, and many o- lowerer, was the fidelity of Mr Bore thers who do honour to his memory. well, that although from his attending He went through the regula course the rehearsals, and other circumof the College of Edinburgh, where liances, he was generally supposed to he formed an intimacy with Mr be the author of it himielt, and cops Temple, of Alla:deen in No:thum- fequently had the laugh and sneer of berland, some time Rector of Mam- his country against him, he never head in Devonshire, and now Vicar mentioned by whom it was written, of St Gluvias in Cornwall ; an inti- nor: uas it known till the discovery macy which has continued without was made by the lady herself. interruption, and has probably contri- Having studied civil law for some buted to keep alive, that love of liter- time at Edinburgh, Mr Boswell went ature and of English manners which for one winter to continue it at the has ever marked Mr Boswell's cha- University of Glasgow, where he alracter. He very early began to shew fo attended the lc&ures of Dr Adam a propensity to distinguisha himself in li- Smith on moral philosophy and rheitrary composition, in which he was toric.


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