28

Opinion of Dr Johnson on the Subject of Vicious Intromiffion.

way; and the utmost severity of the civil law is neceffary to reftrain individuals from plundering each other. The restraints then neceffary, are reftraints from plunder, from acts of public 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 polifhed, with the knowledge of good, men attain likewife dexterity in evil. Open rapine becomes lefs frequent, and violence gives way to cunning. Thofe who before invaded paftures and ftormed 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 theincrease of commerce, and the incefiant ftruggle for riches which commerce excites, give us no profpect of an end fpeedily to be expected of artifice and fraud. It therefore feems to be no very conclufive reasoning, which connects thofe two propofitions; the nation is become less ferocious, and therefore the laws against fraud and coven fhall be relaxed.'

"Whatever reafon 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 fradulent.

"Since this law has been reprefented as rigorously and unreasonably penal, it feems not improper to confifider what are the conditions and qualities that make the juftice or propriety of a penal law.

"To make a penal law reasonable and jut, two conditions are neceffary, and two proper. It is neceffary that the law fhould be adequate to its end; that, if it be obferved, it fhall prevent the evil against which it is directed. It is, fecondly, neceffary that he end of the law be of fuch importace, as to deferve the fecurity of a

penal law fanction. The other con
ditions of a penal law, which though
not abfolutely neceffary, are to a very
high degree fit, are, that to the mo-
ral violation of the law there are ma-
ny temptations, and that of the phyfi
cal obfervance there is great facility.

"All thefe conditions apparently
concur to justify the law which we
are now confidering. Its end is the
fecurity of property; and property
very often of great value. The me-
thod by which it effects the fecurity is
efficacious, because it admits, in its
original rigour, no gradations of in-
jury; but keeps guilt and innocence
apart, by a distinct and definite linri-
talion. He that intromits is crimin-
al; he that intromits not, is innocent.
Of the two fecondary confiderations
it cannot be denied that both are in
our favour. The temptation to intro-
mit is frequent and ftrong; so strong
and fo frequent, as to require the ut-
most 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 should a man omit to do (but
for reafons which he will not confefs,)
that which he can do so easily, and
that which he knows to be requi
red 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 jusli-
fied, might be pitied. But in the pre-
fent cafe, neither equity nor compaffion
operate against it. A ufeful, a necef-
fary law is broken, not only without
a reasonable motive, but with all the
inducements to obedience that can be
derived from fafety and facility.

It

"I therefore return to my original pofition, that a law, to have its effect; must be permanent and ftable. may be faid, in the language of the fchools, 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 muft either have a rule of
action, or be permitted to act by dif-
cretion and by chance. Deviations
from the law must be uniformly pu-
nished, or no man can be certain when
he fhall be fafe.

"That from the rigour of the original institution this Court has fome times departed, cannot be denied. But, as it is evident that fuch devia

23

tions, 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; fions will furnish the people with a and that confiftent and fteady decirule of action, and leave fraud and fraudulent intromiffion no future hope of impunity or escape."

Memoirs of James Bofwell, Efq.

AMES BOSWELL, Efq. was born at Edinburgh on the 29th of October, N. S. 1740, being the eldest fon of Alexander Bofwell, Efq. an eminent Judge in the Supreme Courts of Seffion and Jufticiary in Scotland, by the title of Lord Auchinleck, from the Barony of that name in Ayrshire, which has been the property of the family for almost three centuries. His mother was Mis Euphemia Erfkine, defcended in the line of Alva from the noble house of Mar, a lady of diftinguished piety.

He received his early education at the school of Mr James Mundell, in Edinburgh, a teacher of great reputation; amongst whofe fcholars were, Mr Ilay Can pbell now Lord Prefident of the Court of Seffion, and many others who do honour to his memory. He went through the regular courfe of the College of Edinburgh, where he formed an intimacy with Mr Temple, of Allardeen in Northumberland, fome time Rector of Mamhead in Devonshire, and now Vicar of St Gluvias in Cornwall; an intimacy which has continued without interruption, and has probably contributed to keep alive that love of literature and of English manners which has ever marked Mr Bofwell's character. He very early began to fhew a propensity to diftinguish himself in literary compofition, in which he was

From the European Magazine.

encouraged by the late Lord Somer-
ville, to whofe memory he pays a
grateful tribute. While he
Edinburgh College, Lady Houston,
fifter of the late Lord Cathcart, put
under his care a comedy, entitled,
"The Coquettes; or, The Gallant in
the Clofet; with a ftrict injunction that
its author fhould be concealed. Mr
Bofwell, who was then very fond of
the drama, and affociated much with
the players, got this comedy brought
upon the ftage, and wrote the pro-
Parfons. But it was not fuccessful,
logue to it, which was fpoken by Mr
being in truth damned the third night,
and not unjustly; for it was found to
bad plays of Thomas Corneille. Such,
be chiefly a tranflation of one of the
however, was the fidelity of Mr Bof-
well, that although from his attending
the rehearsals, and other circum-
fiances, he was generally fupposed to
be the author of it himself, and con-
fequently had the laugh and faeer of
his country against him, he never
mentioned by whom it was written,
nor

was made by the lady herself.
was it known till the difcovery

went

time at Edinburgh, Mr Bofwell Having ftudied civil law for fome for one winter to continue it at the University of Glasgow, where he alfo attended the lectures of Dr Adam Smith on moral philofophy and rhetoric.

A+

-Bofwell is modeft enough,
Himself not quite Phoebus he thinks.
And

He has all the bright fancy of youth,
With the judgment of forty and five.
In short, to declare the plain truth,
There is no better fellow alive.

acquaintance of literary men, and particularly obtained that of Dr SAMUEL JOHNSON, from which fo much inftruction and entertainment has been derived.

of Holland, from whofe family he had the honour of being defcended; a daughter of that illuftrious house having married Alexander Earl of Kincardine, whofe daughter, Lady Elizabeth Bruce, was Mr Boswell's grandmother by the father's fide.

He fulfilled his additional winter's ftudy of civil law at Utrecht, in which that of Holland was intermixed, unHaving an uncommon defire for the der the very able German profeffor company of men diftinguished for ta- Trotz, and made excurfions to other lents and literature, he was fortunate parts of the Seven Provinces, particularenough to get himself received into ly the Hague, where he had this great that of those who were confiderably advantage of being treated with all his fuperiors in age; fuch as Lord the kindnefs of relationship by M. Elibank, Lord Kaimes, Sir David Van Sommelfdyck, one of the nobles Dalrymple, Dr. Robertfon, Dr Blair, Mr David Hume, Dr Carlyle, Mr Andrew Stuart, and others; and was admitted a member of the Select Society of Edinburgh. He then paffed his trials as a Civilian before a Committee of the Faculty of Advocates. Perfifting, however, in his fondness for the Guards, or rather, in truth, for the metropolis, he again repaired to London, in the end of the year 1762, re commended to the late Duke of Queensberry, the patron of Gay, who, he believed, was to obtain for him what he wifhed; but, perhaps from a fecretunder!tanding with Lord Auchinleck, it was delayed from time to time, till, in summer 1763, a compromife was made, that if he would relinquifh his favourite project, and refume the study of the civil law, for one winter, at Utrecht, he fhould afterwards have the indulgence of travelling upon the Continent; provided that on his return he fhould become an advocate at the Scotch Bar. This year he, for the first time, appeared as an author with his name, in a little volume of "Letters between the Honourable Andrew Erkine and James Bofweil," Efq. a publication in which he and his friend, a brother of the Earl of Kelly, indulged themselves in a vein of fingular and fometimes extravagant humour. During his refidence in London at this time, Mr Bofwell cultivated the D VOL. XIV. No. 79.

He then accompanied the late Earl Marifchal of Scotland into Germany; and, being well recommended, paffed fome time at many of the Courts; proceeded through Switzerland to Geneva; vifited Rouffeau and Voltaire; croffed the Alps into Italy, and not only faw the parts of that delightful country which are commonly furveyed in the courfe of what is called the Grand Tour, but others worthy of a claffical traveller's curiofity. During a part of the time which he paffed in Italy he had the happiness of being along with Lord Mountstuart, to whole merits he has done juftice in a Lacin Dedication of his Thefes Juridica. Nor was it a circumftance of fmail moment in the pleasant and focial fcale that he met at Turia, Rome, and Naples, the celebrated John Wilkes, Efq; with whom he had always maintained an acquaintance upon the moft liberal terms, and with whom he enjoyed many claffical fcenes with peculiar relish.

But Mr Boswell's travels were principally marked by his vifiting the ifland of Corfica, the internal part of which no native of Britain had ever

feen.