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ycar, I consulted the Dr upon a support and protection of society. quelt on purely of Scotch law. It That the law may be a rule of action was held of old, and continued for a it is necestary that it be known; long period, to be an established prin. --it is necessary that it be per maciple in that law, that whoever inter nent and table. The law is the modeled with the effects of a person me fure of civil right; but if the me 2deceafod, without the interpofition of fure be changeable, the extent of the legal authority to guard against em- thing measured never can be settled. bezzlement, should be fubje&ed to " To permit a law to be modificil pa; all the debts of the deceased, as at discretion, is to leave the con muhaving been guilty of what was tech- nity without law. It is to withdraw nically called vicious iatromillion. The the direction of that public wisdom, Court of Sellion had gradually relax- by which the deficiencies of pri. ed the stri&ness of this principle, vate understanding are '10 be supre where the interference proved bad pried. It is to suffer the rash and been inconliderable. In a case to which ignorant 10 ac at discretion, and then came before that Court the preceding to depend for the legality of that acwinter, I had laboured to ; erfuade the tion on the sentence of the Judge. Judges to return to the ancient law. Ile that is thus governed, lives not It was my own sincere opinion, that by law, but by opinion : not by a cer. they 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 vain. Johnson thought as I did; tain and variable opinion, which h: and in order to allist me in my applica. can never know but after he has comtion 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
6. This, we are told, is a law know before he has offended it. To which has its force only from the loing this case may be justly applied that practice of the Court; and may, there. important principle, misera eft fervitus fore, be fufpended or modified as the ui jus of aut incognitum ant vaguni. Court fall thick proper.
If introniiflion 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 that the practice of every'legal Court is vaga, and, by confequence, are jura sa gulated by equity. It is the quality incognita ; and the result can be no of reason to be invariable and con other than a misera servitus, an uncersant; and of equity, to give to óre tainty concerning the event of action, man what, in the fame case, is given a fervile dependance on private opito another. The advantage wliich hu- nion. manity derives from law is this, that “ It may be urged, and with great the law gives every nian a rule of ac- plausibility, that there may be introtion, and prescribes a mode of con- mission without fraud; which, how
eves From Boswell's Life of Johnson, † Wilson against Smith and Armour.
Opir.ion of Dr Johnson on the Subject of Vicious Intromision. ever true, will by no means justify an ter of jurisprudence, whose words occasional and arbitrary relaxation of have been exhibited with unnecessary the law. The end of law is protection pomp, and seem to be considered as as well as vengeance. Indeed vengeance irresistably decisive. The great mois never used but to strengthen protection. ment of his authority makes it necefThat fociety only is well governed fary to examine his position. “Some where life is freed from danger and from ages ago, (says he,) before the ferofufpicion; where poffeffion is so sheltered city of the inhabitants of this part of by falutary prohibitions, that violation the island was fubdued, the utmoft is prevented more frequently than pu- feverity of the civil law was necessary, nithed. 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 move. was not only without loss, but without ables of a perfon 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 intromission; administered, it lays us open to and so rigidly was this regulation apwounds, because it is imagined to have plied in our Courts of Law, that the the power of healing. To puuith most trifling nyoveable abttracted malá fraud when it is detečied, is the pro- firie, subjected the intermeddler to the per act of vindićtive justice ; but to foregoing consequences, which proved prevent frauds, and make punishment in many instances a most rigorous unnecessary, is the great employment punishment. But this severity was of legislative wisdom. To permit in- neceflary, in order to fubdue the antromillion, 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 safe ; but to portion to our inzprovement in mancome a step further is destruction. But, ners, this regulation has been gradusurely, it is better to inclose the gulf, ally softened, and applied by our foveand hinder a!l access, than, by en- reign Court with a sparing hand.' couraging us to advance a little, to en “ I find myself under a necessity of tice us afterwards a little further, and observing, that this learned and judilet us perceive our folly only by cur .cious writer has not accurately distin. destruction,
geished the deficiencies and demands “ As law supplies the weak with of the different conditions of hunian adsentitious strength, it likewise en life, which, from a degree of savagelighteos the ignorant with extrinfic ness and independance, in which all underitanding. Law teaches us to laws are vain, pasies 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 mirks upon actions, by which we are be no longer necessary. Men are first admonithed to do or to forbear them. wild and un social, living each man to Qui pihi hene temperat in licitis, says himself, iaking from the weak, and otcf the fathers, niinquanı cadet in losing to the strong. In their first illicita : He who never intromi:s at coalitions of society, much
ibis all, will never intromit with fraudu- original favageness is retained. Of leat intentions,
general happiness, the product of ge-“ The relaxation of the law against neral confidence, there is yet no vicious iatrom (Gon has been very fa- thought. Men continue to prosecute rourably represented by a great mal- their own advantages by the nearest
way; and the utmost severity of the penal law fanction. The other corcivil law is necessary 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 froni plunder, from aês of ral violation of the law there are mapublic violence, and undisguised op. ny temptations, and that of the physi pression. The ferocity of our ances- cal observance there is great facility. tor3, as all other nations, produced
“ All these conditions apparently not fraud but rapine. They had not to justify 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 effects the security is Open rapine becomes less frequent, efficacious, because it admits, in its and violence gives way to cunning. original rigour, no gradations of inThose who before invaded paitures jury; but keeps guilt and innocence and stormed houses, now begin to en. apart, by a distinct and definite limirich themselves by unequal contracts tation. He that intromits is crimin. and fraudulent intromisions. It is not al; he that intromits not, is innocent. against the violence of ferocity, but of the two fecondary confiderations 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 iniro. iheincrease of commerce, and the in. mit is frequent and strong; so strong cefiant struggle for viches which com- and so frequent, as to require the utmerce excites, give os no prospect of most activity of justice, and vigilance an end speedily to be expected of ar- of caution, to withstand its prevalence ; tifice and fraud. It therefore seems and the method by which a man may to be no very conclusive reasoning, entitle himself to legal intromiffion is which connects those two propo i- fo open and so 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 coven thall be relaxed.' for reasons which he will not confess, )
" Whatever reason may have in- that which he can do so easily, and fluenced 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 less fierce; and, I am rare, a penal law might be deemed afraid, it cannot be affirmed that it undecessary. If the duty enjoined by is grown less fradulent.
the law were of difficult performance, “ Since this law has been repre. omission, though it could not be justisented as rigorously and unreasonably fied, might be pitied. But in the prepenal, it seems not improper to confi. fent case, neither equity nor compaffion lider what are the conditions and qua. operate against it. A useful, a necef. lities that make the justice or propriety sary 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 jult, two conditions are neceflary, derived from fafety and facility. and two proper.
It is neceflary that " I therefore return to my original the law should be adequate to its end; position, that a law, to have its effect, that, if it be observed, it shall pre- must be permanent and stable.
I. vent the evil agaiost which it is direct may be said, in the language of the ed. It is, secondly, 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 po law, but we cannot have half
law. We must either have a rule of tions, as they make law uncertain, tion, or be permitted to act by dif- make life untafe, I hope, that of de etion and by chance. Deviations parting from it there will now be an pm the law must be uniformly pu- end ; that the wisdom of our ancestors thed
, or no man can be certain when will be treated with due reverence; shall be fafe.
and that confiftent and steady deci" That from the rigour of the ori- fions will furnish the people with a nal institution this Court has some rule of action, and leave fraud and hes departed, cannot be denied. fraudulent intromisfion no future hope lat, as it is evident that such devia. of impunity or escape.”
Memoirs of James Boswell, Esq. From the European Magazine. AMES BOSWELL, Efq. was encouraged by the late Lord Somer
born at Edinburgh on the 29th of ville, to whose memory he pays a dober, N. S. 1740, being the eldest grateful tribute. While he was at
of Alexander Boswell, Esq. an Edinburgh College, Lady Houston, inent Judge in the Supreme Courts Gifter of the late Lord Cathcart, put Sellion and Justiciary in Scotland, under his care a comedy, entitled, the title of Lord Auchinleck, from “ The Coquettes ; or, The Gallant in Barony of that name in Ayrshire, the Closet; with a strict injunction that ich has been the property of the its author should be concealed. Mr vily for almost three centuries. His Boswell, who was then very fond of ther was Mis Euphemia Erskine, de. the drama, and associated much with nded in the line of Alva from the the players, got this comedy brought le house of Mar, a lady of dif- upon the stage, and wrote the pro
logue to it, which was spoken by Mr He received his early edacation at Parsons. But it was not successful, school of Mr James Mundell, in being in truth damned the third night, nburgh, a teacher of great repu- and not unjustly; for it was found to on; amongst whose fcholars were, be chiefly a translation of one of the Ilay Campbell now Lord Preficient bad plays of Thomas Corneille. Such, he Court of Session, and many o- however, was the fidelity of Mr Boss who do honour to his memory. well, that although from his attending went through the regular course the rehearsals, and other circumhe College of Edinburgh, where stances, he was generally supposed to formed an intimacy with Mr be the author of it himself, and conople, of Allardeen in Northum- fequently had the laugh and freer of ind, some time Rector of Mam- his country against him, he never 1 in Devonshire, and now Vicar mentioned by whom it was written, It Gluvias in Cornwall; an inti- nor was it known till the discovery y which has continued without was made by the lady herself. ruption, and has probably contri Having itudied civil law for fome d to keep alive that love of liter. time at Edinburgh, Mr Boswell went : and of English manners which for one winter to continue it at the ever marked Mr Boswell's cha- University of Glasgow, where he al
He very early began to fhew so attended the lectures of Dr Adam penfity to diftinguish himself in li- Smith on moral philosophy and the y composition, in which he was toric.
At this early period he was flatter Captivated with the variety and ani. ed by being held forth as a patron of mation of the metropolis, Mr BofLiterature; for Mr Francis Gentle- weil was now earnest to have a comman published at the elegant press of mision as an Oflicer of the Guards; the Foulis's the tragedy of Oroonoko, but his father prevailed with him to altered from Southerne, and inscribed return to Scotland, and take fome it to him in a poetical epistle, con- time to consider of it. Wishing that cluding thus in the person of his his fon should apply to the law, which Mufe:
his family had done for two generaBut where with honest pleasure she can find, Auchinleck took the troul le himself
tions with great advantage, Lord Sense, taste, religion, and good-nature join’d, There gladly will she raise her feeble voice, itruction in that science; a circum
to give bim a regular course of inNor fear to tell that BOSWELL is her choice.
stance of singular benefit, and of He had acquired, from reading and which Mr Bofwell has ever expreffed conversation, an almost enthusiastic a strong and gratefui fenic. Mr Boswell notion of the felicity of London, at this time, but ftill without puitirg which he visited, for the first time, his name, only the initials, contributearly in the year 1760, and his ar
ed several pieces to
" á Collection of dent expectations were not disappoint- Poems by Gentlemen of Scotland,” pubed. He had already given some fpe- lithed by Mr Alexander Donaldson. cimens of a talent for writing in se. Several of these were particularly disveral occasional essays, both in prose tinguished in “ The Critical Review.” and verse, without a name, and lie In one of them he pleasantly draws .foon obtained the acquaintance of his own character. It appears that he many of the wits of the metropol's, was very intimate with the Reverend having the late Mr Derrick as his in. Edward Colquet, one of the minitroductor into “many-colour'd life.” Iters of the Church of England Chaor, as he has pleasantly expreffed it, pel at Edinburgh, a man who had livhis governor.
But his views of the ed much in the world, and, with o. world were chiefly opened by the late ther qualities, was eminent for gay Alexander Earl of Eglintoune, one socialiiy. Mr Bofwell thus speaks of of the most amiable and accomplished him : noblemen of his tiine, who being of the same country, and from his earli- And lie owns that Ned Colquet the priest est years acquainted with the family May to fomething of humour pretend; of Auchinleck, infifted that young
And he swears that he is not in jest, Bufwell fiould have an apartment of
When he calls this fame Colquet his his house, and introduced him into
friend, the circles of the great, the gay, and
We cannot but observe, that there the ingenious. He in particular carried him to Newmarket, the history altered. As for instance :
are traits in it which time has not yet of which Mr Boswell related in a poem written upon the spot, entitled, Boswell docs women adore, 6. The Cub at Necumarket, a Tale;" And never once means to deceive; which he published next year in quar. He's in love with at least half a score, to, with a dedication to Edward Duke
If they're serious he smiles in his fleeve. of York, to whom the author had been allowed to read it in manuscript, And that egotism and self-applause and had been honoured with his Roy- which he is fill displaying, yet it al Highness's approbation.
would secm with a conscious fmile: