Boswell's Life of Johnson · James Boswell
Let it be remembered, that this justification is applicable only to the person who receives an affront. All mankind must condemn the aggressor.
The General told us, that when he was a very young man, I think only fifteen, serving under Prince Eugene of Savoy, he was sitting in a company at table with a Prince of Wirtemberg, The Prince took up a glass of wine, and, by a fillip, made some of it fly in Oglethorpe's face. Here was a nice dilemma. To have challenged him instantly, might have fixed a quarrelsome character upon the young soldier: to have taken no notice of it might have been considered as cowardice. Oglethorpe, therefore, keeping his eye upon the Prince, and smiling all the time, as if he took what his Highness had done in jest, said 'Man Prince,--'(I forget the French words he used, the purport however was.) 'That's a good joke; but we do it much better in England;' and threw a whole glass of wine in the Prince's face. An old General who sat by, said, 'Il a bien fait, mon Prince, vous l'avez commencA(C)_:' and thus all ended in good humour.'
Dr. Johnson said, 'Pray, General, give us an account of the siege of Belgrade.' Upon which the General, pouring a little wine upon the table, described every thing with a wet finger: 'Here we were, here were the Turks,' &c. &c. Johnson listened with the closest attention.
A question was started, how far people who disagree in a capital point can live in friendship together. Johnson said they might. Goldsmith said they could not, as they had not the idem velle atque idem nolle-- the same likings and the same aversions. JOHNSON. 'Why, Sir, you must shun the subject as to which you disagree. For instance, I can live very well with Burke: I love his knowledge, his genius, his diffusion, and affluence of conversation; but I would not talk to him of the Rockingham party.' GOLDSMITH. 'But, Sir, when people live together who have something as to which they disagree, and which they want to shun, they will be in the situation mentioned in the story of Bluebeard: "You may look into all the chambers but one." But we should have the greatest inclination to look into that chamber, to talk of that subject.' JOHNSON, (with a loud voice.) 'Sir, I am not saying that you could live in friendship with a man from whom you differ as to some point: I am only saying that I could do it. You put me in mind of Sappho in Ovid.'
Goldsmith told us, that he was now busy in writing a natural history, and, that he might have full leisure for it, he had taken lodgings, at a farmer's house, near to the six mile-stone, on the Edgeware road, and had carried down his books in two returned post-chaises. He said, he believed the farmer's family thought him an odd character, similar to that in which the Spectator appeared to his landlady and her children: he was The Gentleman. Mr. Mickle, the translator of The Lusiad, and I went to visit him at this place a few days afterwards. He was not at home; but having a curiosity to see his apartment, we went in and found curious scraps of descriptions of animals, scrawled upon the wall with a black lead pencil.
The subject of ghosts being introduced, Johnson repeated what he had told me of a friend of his, an honest man, and a man of sense, having asserted to him, that he had seen an apparition. Goldsmith told us, he was assured by his brother, the Reverend Mr. Goldsmith, that he also had seen one. General Oglethorpe told us, that Prendergast, an officer in the Duke of Marlborough's army, had mentioned to many of his friends, that he should die on a particular day. That upon that day a battle took place with the French; that after it was over, and Prendergast was still alive, his brother officers, while they were yet in the field, jestingly asked him, where was his prophecy now. Prendergast gravely answered. 'I shall die, notwithstanding what you see.' Soon afterwards, there came a shot from a French battery, to which the orders for a cessation of arms had not yet reached, and he was killed upon the spot. Colonel Cecil, who took possession of his effects, found in his pocket-book the following solemn entry:
[Here the date.] 'Dreamt--or ----. Sir John Friend meets me:' (here the very day on which he was killed, was mentioned.) Prendergast had been connected with Sir John Friend, who was executed for high treason. General Oglethorpe said, he was with Colonel Cecil when Pope came and enquired into the truth of this story, which made a great noise at the time, and was then confirmed by the Colonel.
On Saturday, April 11, he appointed me to come to him in the evening, when he should be at leisure to give me some assistance for the defence of Hastie, the schoolmaster of Campbelltown, for whom I was to appear in the House of Lords. When I came, I found him unwilling to exert himself. I pressed him to write down his thoughts upon the subject. He said, 'There's no occasion for my writing. I'll talk to you.' He was, however, at last prevailed on to dictate to me, while I wrote as follows:--
'The charge is, that he has used immoderate and cruel correction. Correction, in itself, is not cruel; children, being not reasonable, can be governed only by fear. To impress this fear, is therefore one of the first duties of those who have the care of children. It is the duty of a parent; and has never been thought inconsistent with parental tenderness. It is the duty of a master, who is in his highest exaltation when he is loco parentis. Yet, as good things become evil by excess, correction, by being immoderate, may become cruel. But when is correction immoderate? When it is more frequent or more severe than is required ad monendum et docendum, for reformation and instruction. No severity is cruel which obstinacy makes necessary; for the greatest cruelty would be to desist, and leave the scholar too careless for instruction, and too much hardened for reproof. Locke, in his treatise of Education, mentions a mother, with applause, who whipped an infant eight times before she had subdued it; for had she stopped at the seventh act of correction, her daughter, says he, would have been ruined. The degrees of obstinacy in young minds, are very different; as different must be the degrees of persevering severity. A stubborn scholar must be corrected till he is subdued. The discipline of a school is military. There must be either unbounded licence or absolute authority. The master, who punishes, not only consults the future happiness of him who is the immediate subject of correction; but he propagates obedience through the whole school; and establishes regularity by exemplary justice. The victorious obstinacy of a single boy would make his future endeavours of reformation or instruction totally ineffectual. Obstinacy, therefore, must never be victorious. Yet, it is well known, that there sometimes occurs a sullen and hardy resolution, that laughs at all common punishment, and bids defiance to all common degrees of pain. Correction must be proportioned to occasions. The flexible will be reformed by gentle discipline, and the refractory must be subdued by harsher methods. The degrees of scholastick, as of military punishment, no stated rules can ascertain. It must be enforced till it overpowers temptation; till stubbornness becomes flexible, and perverseness regular. Custom and reason have, indeed, set some bounds to scholastick penalties. The schoolmaster inflicts no capital punishments; nor enforces his edicts by either death or mutilation. The civil law has wisely determined, that a master who strikes at a scholar's eye shall be considered as criminal. But punishments, however severe, that produce no lasting evil, may be just and reasonable, because they may be necessary. Such have been the punishments used by the respondent. No scholar has gone from him either blind or lame, or with any of his limbs or powers injured or impaired. They were irregular, and he punished them: they were obstinate, and he enforced his punishment. But, however provoked, he never exceeded the limits of moderation, for he inflicted nothing beyond present pain; and how much of that was required, no man is so little able to determine as those who have determined against him;--the parents of the offenders. It has been said, that he used unprecedented and improper instruments of correction. Of this accusation the meaning is not very easy to be found. No instrument of correction is more proper than another, but as it is better adapted to produce present pain without lasting mischief. Whatever were his instruments, no lasting mischief has ensued; and therefore, however unusual, in hands so cautious they were proper. It has been objected, that the respondent admits the charge of cruelty, by producing no evidence to confute it. Let it be considered, that his scholars are either dispersed at large in the world, or continue to inhabit the place in which they were bred. Those who are dispersed cannot be found; those who remain are the sons of his persecutors, and are not likely to support a man to whom their fathers are enemies. If it be supposed that the enmity of their fathers proves the justice of the charge, it must be considered how often experience shews us, that men who are angry on one ground will accuse on another; with how little kindness, in a town of low trade, a man who lives by learning is regarded; and how implicitly, where the inhabitants are not very rich, a rich man is hearkened to and followed. In a place like Campbelltown, it is easy for one of the principal inhabitants to make a party. It is easy for that party to heat themselves with imaginary grievances. It is easy for them to oppress a man poorer than themselves; and natural to assert the dignity of riches, by persisting in oppression. The argument which attempts to prove the impropriety of restoring him to the school, by alledging that he has lost the confidence of the people, is not the subject of juridical consideration; for he is to suffer, if he must suffer, not for their judgement, but for his own actions. It may be convenient for them to have another master; but it is a convenience of their own making. It would be likewise convenient for him to find another school; but this convenience he cannot obtain. The question is not what is now convenient, but what is generally right. If the people of Campbelltown be distressed by the restoration of the respondent, they are distressed only by their own fault; by turbulent passions and unreasonable desires; by tyranny, which law has defeated, and by malice, which virtue has surmounted.'
'This, Sir, (said he,) you are to turn in your mind, and make the best use of it you can in your speech.'
Of our friend, Goldsmith, he said, 'Sir, he is so much afraid of being unnoticed, that he often talks merely lest you should forget that he is in the company.' BOSWELL. 'Yes, he stands forward.' JOHNSON. 'True, Sir; but if a man is to stand forward, he should wish to do it not in an aukward posture, not in rags, not so as that he shall only be exposed to ridicule.' BOSWELL. 'For my part, I like very well to hear honest Goldsmith talk away carelessly.' JOHNSON. 'Why yes, Sir; but he should not like to hear himself.'
On Tuesday, April 14, the decree of the Court of Session in the schoolmaster's cause was reversed in the House of Lords, after a very eloquent speech by Lord Mansfield, who shewed himself an adept in school discipline, but I thought was too rigorous towards my client. On the evening of the next day I supped with Dr. Johnson, at the Crown and Anchor tavern, in the Strand, in company with Mr. Langton and his brother-in-law, Lord Binning. I repeated a sentence of Lord Mansfield's speech, of which, by the aid of Mr. Longlands, the solicitor on the other side, who obligingly allowed me to compare his note with my own, I have a full copy: 'My Lords, severity is not the way to govern either boys or men.' 'Nay, (said Johnson,) it is the way to govern them. I know not whether it be the way to mend them.'
I talked of the recent expulsion of six students from the University of Oxford, who were methodists and would not desist from publickly praying and exhorting. JOHNSON. 'Sir, that expulsion was extremely just and proper. What have they to do at an University who are not willing to be taught, but will presume to teach? Where is religion to be learnt but at an University? Sir, they were examined, and found to be mighty ignorant fellows.' BOSWELL. 'But, was it not hard, Sir, to expel them, for I am told they were good beings?' JOHNSON. 'I believe they might be good beings; but they were not fit to be in the University of Oxford. A cow is a very good animal in the field; but we turn her out of a garden.' Lord Elibank used to repeat this as an illustration uncommonly happy.
Desirous of calling Johnson forth to talk, and exercise his wit, though I should myself be the object of it, I resolutely ventured to undertake the defence of convivial indulgence in wine, though he was not to-night in the most genial humour. After urging the common plausible topicks, I at last had recourse to the maxim, in vino veritas, a man who is well warmed with wine will speak truth. JOHNSON. 'Why, Sir, that may be an argument for drinking, if you suppose men in general to be liars. But, Sir, I would not keep company with a fellow, who lyes as long as he is sober, and whom you must make drunk before you can get a word of truth out of him.'
Mr. Langton told us he was about to establish a school upon his estate, but it had been suggested to him, that it might have a tendency to make the people less industrious. JOHNSON. 'No, Sir. While learning to read and write is a distinction, the few who have that distinction may be the less inclined to work; but when every body learns to read and write, it is no longer a distinction. A man who has a laced waistcoat is too fine a man to work; but if every body had laced waistcoats, we should have people working in laced waistcoats. There are no people whatever more industrious, none who work more, than our manufacturers; yet they have all learnt to read and write. Sir, you must not neglect doing a thing immediately good, from fear of remote evil;--from fear of its being abused. A man who has candles may sit up too late, which he would not do if he had not candles; but nobody will deny that the art of making candles, by which light is continued to us beyond the time that the sun gives us light, is a valuable art, and ought to be preserved.' BOSWELL. 'But, Sir, would it not be better to follow Nature; and go to bed and rise just as nature gives us light or with-holds it?' JOHNSON. 'No, Sir; for then we should have no kind of equality in the partition of our time between sleeping and waking. It would be very different in different seasons and in different places. In some of the northern parts of Scotland how little light is there in the depth of winter!'
We talked of Tacitus, and I hazarded an opinion, that with all his merit for penetration, shrewdness of judgement, and terseness of expression, he was too compact, too much broken into hints, as it were, and therefore too difficult to be understood. To my great satisfaction, Dr. Johnson sanctioned this opinion. 'Tacitus, Sir, seems to me rather to have made notes for an historical work, than to have written a history.'
At this time it appears from his Prayers and Meditations, that he had been more than commonly diligent in religious duties, particularly in reading the Holy Scriptures. It was Passion Week, that solemn season which the Christian world has appropriated to the commemoration of the mysteries of our redemption, and during which, whatever embers of religion are in our breasts, will be kindled into pious warmth.
I paid him short visits both on Friday and Saturday, and seeing his large folio Greek Testament before him, beheld him with a reverential awe, and would not intrude upon his time. While he was thus employed to such good purpose, and while his friends in their intercourse with him constantly found a vigorous intellect and a lively imagination, it is melancholy to read in his private register, 'My mind is unsettled and my memory confused. I have of late turned my thoughts with a very useless earnestness upon past incidents. I have yet got no command over my thoughts; an unpleasing incident is almost certain to hinder my rest.' What philosophick heroism was it in him to appear with such manly fortitude to the world, while he was inwardly so distressed! We may surely believe that the mysterious principle of being 'made perfect through suffering' was to be strongly exemplified in him.
On Sunday, April 19, being Easter-day, General Paoli and I paid him a visit before dinner. We talked of the notion that blind persons can distinguish colours by the touch. Johnson said, that Professor Sanderson mentions his having attempted to do it, but that he found he was aiming at an impossibility; that to be sure a difference in the surface makes the difference of colours; but that difference is so fine, that it is not sensible to the touch. The General mentioned jugglers and fraudulent gamesters, who could know cards by the touch. Dr. Johnson said, 'the cards used by such persons must be less polished than ours commonly are.'
We talked of sounds. The General said, there was no beauty in a simple sound, but only in an harmonious composition of sounds. I presumed to differ from this opinion, and mentioned the soft and sweet sound of a fine woman's voice. JOHNSON. 'No, Sir, if a serpent or a toad uttered it, you would think it ugly.' BOSWELL. 'So you would think, Sir, were a beautiful tune to be uttered by one of those animals.' JOHNSON. 'No, Sir, it would be admired. We have seen fine fiddlers whom we liked as little as toads.' (laughing.)
Talking on the subject of taste in the arts, he said, that difference of taste was, in truth, difference of skill. BOSWELL. 'But, Sir, is there not a quality called taste, which consists merely in perception or in liking? For instance, we find people differ much as to what is the best style of English composition. Some think Swift's the best; others prefer a fuller and grander way of writing.' JOHNSON. 'Sir, you must first define what you mean by style, before you can judge who has a good taste in style, and who has a bad. The two classes of persons whom you have mentioned don't differ as to good and bad. They both agree that Swift has a good neat style; but one loves a neat style, another loves a style of more splendour. In like manner, one loves a plain coat, another loves a laced coat; but neither will deny that each is good in its kind.'
While I remained in London this spring, I was with him at several other times, both by himself and in company. I dined with him one day at the Crown and Anchor tavern, in the Strand, with Lord Elibank, Mr. Langton, and Dr. Vansittart of Oxford. Without specifying each particular day, I have preserved the following memorable things.
I regretted the reflection in his Preface to Shakspeare against Garrick, to whom we cannot but apply the following passage: 'I collated such copies as I could procure, and wished for more, but have not found the collectors of these rarities very communicative.' I told him, that Garrick had complained to me of it, and had vindicated himself by assuring me, that Johnson was made welcome to the full use of his collection, and that he left the key of it with a servant, with orders to have a fire and every convenience for him. I found Johnson's notion was, that Garrick wanted to be courted for them, and that, on the contrary, Garrick should have courted him, and sent him the plays of his own accord. But, indeed, considering the slovenly and careless manner in which books were treated by Johnson, it could not be expected that scarce and valuable editions should have been lent to him.
A gentleman having to some of the usual arguments for drinking added this: 'You know, Sir, drinking drives away care, and makes us forget whatever is disagreeable. Would not you allow a man to drink for that reason?' JOHNSON. 'Yes, Sir, if he sat next you.'
I expressed a liking for Mr. Francis Osborne's works, and asked him what he thought of that writer. He answered, 'A conceited fellow. Were a man to write so now, the boys would throw stones at him.' He, however, did not alter my opinion of a favourite authour, to whom I was first directed by his being quoted in The Spectator, and in whom I have found much shrewd and lively sense, expressed indeed in a style somewhat quaint, which, however, I do not dislike. His book has an air of originality. We figure to ourselves an ancient gentleman talking to us.
When one of his friends endeavoured to maintain that a country gentleman might contrive to pass his life very agreeably, 'Sir (said he,) you cannot give me an instance of any man who is permitted to lay out his own time, contriving not to have tedious hours.' This observation, however, is equally applicable to gentlemen who live in cities, and are of no profession.
He said, 'there is no permanent national character; it varies according to circumstances. Alexander the Great swept India: now the Turks sweep Greece.'
A learned gentleman who in the course of conversation wished to inform us of this simple fact, that the Counsel upon the circuit at Shrewsbury were much bitten by fleas, took, I suppose, seven or eight minutes in relating it circumstantially. He in a plenitude of phrase told us, that large bales of woollen cloth were lodged in the town-hall;--that by reason of this, fleas nestled there in prodigious numbers; that the lodgings of the counsel were near to the town-hall;--and that those little animals moved from place to place with wonderful agility. Johnson sat in great impatience till the gentleman had finished his tedious narrative, and then burst out (playfully however,) 'It is a pity, Sir, that you have not seen a lion; for a flea has taken you such a time, that a lion must have served you a twelve-month.'
He would not allow Scotland to derive any credit from Lord Mansfield; for he was educated in England. 'Much (said he,) may be made of a Scotchman, if he be caught young.'
Talking of a modern historian and a modern moralist, he said, 'There is more thought in the moralist than in the historian. There is but a shallow stream of thought in history.' BOSWELL. 'But surely, Sir, an historian has reflection.' JOHNSON. 'Why yes, Sir; and so has a cat when she catches a mouse for her kitten. But she cannot write like ****; neither can ****.'
He said, 'I am very unwilling to read the manuscripts of authours, and give them my opinion. If the authours who apply to me have money, I bid them boldly print without a name; if they have written in order to get money, I tell them to go to the booksellers, and make the best bargain they can.' BOSWELL. 'But, Sir, if a bookseller should bring you a manuscript to look at?' JOHNSON. 'Why, Sir, I would desire the bookseller to take it away.'
I mentioned a friend of mine who had resided long in Spain, and was unwilling to return to Britain. JOHNSON. 'Sir, he is attached to some woman.' BOSWELL. 'I rather believe, Sir, it is the fine climate which keeps him there.' JOHNSON. 'Nay, Sir, how can you talk so? What is climate to happiness? Place me in the heart of Asia, should I not be exiled? What proportion does climate bear to the complex system of human life? You may advise me to go to live at Bologna to eat sausages. The sausages there are the best in the world; they lose much by being carried.'
On Saturday, May 9, Mr. Dempster and I had agreed to dine by ourselves at the British Coffee-house. Johnson, on whom I happened to call in the morning, said he would join us, which he did, and we spent a very agreeable day, though I recollect but little of what passed.
He said, 'Walpole was a minister given by the King to the people: Pitt was a minister given by the people to the King,--as an adjunct.'
'The misfortune of Goldsmith in conversation is this: he goes on without knowing how he is to get off. His genius is great, but his knowledge is small. As they say of a generous man, it is a pity he is not rich, we may say of Goldsmith, it is a pity he is not knowing. He would not keep his knowledge to himself.'
Before leaving London this year, I consulted him upon a question purely of Scotch law. It was held of old, and continued for a long period, to be an established principle in that law, that whoever intermeddled with the effects of a person deceased, without the interposition of legal authority to guard against embezzlement, should be subjected to pay all the debts of the deceased, as having been guilty of what was technically called vicious intromission. The Court of Session had gradually relaxed the strictness of this principle, where the interference proved had been inconsiderable. In a case which came before that Court the preceding winter, I had laboured to persuade the Judges to return to the ancient law. It was my own sincere opinion, that they ought to adhere to it; but I had exhausted all my powers of reasoning in vain. Johnson thought as I did; and in order to assist me in my application to the Court for a revision and alteration of the judgement, he dictated to me the following argument:--
'This, we are told, is a law which has its force only from the long practice of the Court: and may, therefore, be suspended or modified as the Court shall think proper.
'Concerning the power of the Court to make or to suspend a law, we have no intention to inquire. It is sufficient for our purpose that every just law is dictated by reason; and that the practice of every legal Court is regulated by equity. It is the quality of reason to be invariable and constant; and of equity, to give to one man what, in the same case, is given to another. The advantage which humanity derives from law is this: that the law gives every man a rule of action, and prescribes a mode of conduct which shall entitle him to the support and protection of society. That the law may be a rule of action, it is necessary that it be known; it is necessary that it be permanent and stable. The law is the measure of civil right; but if the measure be changeable, the extent of the thing measured never can be settled.
'To permit a law to be modified at discretion, is to leave the community without law. It is to withdraw the direction of that publick wisdom, by which the deficiencies of private understanding are to be supplied. It is to suffer the rash and ignorant to act at discretion, and then to depend for the legality of that action on the sentence of the Judge. He that is thus governed, lives not by law, but by opinion: not by a certain rule to which he can apply his intention before he acts, but by an uncertain and variable opinion, which he can never know but after he has committed the act on which that opinion shall be passed. He lives by a law, (if a law it be,) which he can never know before he has offended it. To this case may be justly applied that important principle, misera est servitus ubi jus est aut incognitum aut vagum. If Intromission be not criminal till it exceeds a certain point, and that point be unsettled, and consequently different in different minds, the right of Intromission, and the right of the Creditor arising from it, are all jura vaga, and, by consequence, are jura incognita; and the result can be no other than a misera servitus, an uncertainty concerning the event of action, a servile dependence on private opinion.
'It may be urged, and with great plausibility, that there may be Intromission without fraud; which, however true, will by no means justify an occasional and arbitrary relaxation of the law. The end of law is protection as well as vengeance. Indeed, vengeance is never used but to strengthen protection. That society only is well governed, where life is freed from danger and from suspicion; where possession is so sheltered by salutary prohibitions, that violation is prevented more frequently than punished. Such a prohibition was this, while it operated with its original force. The creditor of the deceased was not only without loss, but without fear. He was not to seek a remedy for an injury suffered; for, injury was warded off.
'As the law has been sometimes administered, it lays us open to wounds, because it is imagined to have the power of healing. To punish fraud when it is detected, is the proper act of vindictive justice; but to prevent frauds, and make punishment unnecessary, is the great employment of legislative wisdom. To permit Intromission, and to punish fraud, is to make law no better than a pitfall. To tread upon the brink is safe; but to come a step further is destruction. But, surely, it is better to enclose the gulf, and hinder all access, than by encouraging us to advance a little, to entice us afterwards a little further, and let us perceive our folly only by our destruction.
'As law supplies the weak with adventitious strength, it likewise enlightens the ignorant with extrinsick understanding. Law teaches us to know when we commit injury, and when we suffer it. It fixes certain marks upon actions, by which we are admonished to do or to forbear them. Qui sibi bene temperat in licitis, says 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 intromission has been very favourably represented by a great master of jurisprudence, whose words have been exhibited with unnecessary pomp, and seem to be considered as irresistibly decisive. The great moment of his authority makes it necessary to examine his position. "Some ages ago, (says he,) before the ferocity of the inhabitants of this part of the island was subdued, the utmost severity of the civil law was necessary, to restrain individuals from plundering each other. Thus, the man who intermeddled irregularly with the moveables of a person deceased, was subjected to all the debts of the deceased without limitation. This makes a branch of the law of Scotland, known by the name of vicious intromission; and so rigidly was this regulation applied in our Courts of Law, that the most trifling moveable abstracted mala fide, subjected the intermeddler to the foregoing consequences, which proved in many instances a most rigorous punishment. But this severity was necessary, in order to subdue the undisciplined nature of our people. It is extremely remarkable, that in proportion to our improvement in manners, this regulation has been gradually softened, and applied by our sovereign Court with a sparing hand."
'I find myself under a necessity of observing, that this learned and judicious writer has not accurately distinguished the deficiencies and demands of the different conditions of human life, which, from a degree of savageness and independence, in which all laws are vain, passes or may pass, by innumerable gradations, to a state of reciprocal benignity, in which laws shall be no longer necessary. Men are first wild and unsocial, living each man to himself, taking from the weak, and losing to the strong. In their first coalitions of society, much of this original savageness is retained. Of general happiness, the product of general confidence, there is yet no thought. Men continue to prosecute their own advantages by the nearest way; and the utmost severity of the civil law is necessary to restrain individuals from plundering each other. The restraints then necessary, are restraints from plunder, from acts of publick violence, and undisguised oppression. 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 likewise dexterity in evil. Open rapine becomes less 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 intromissions. 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 incessant struggle for riches which commerce excites, 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 frequent, as to require the utmost activity of justice, and vigilance of caution, to withstand its prevalence; and 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 effect, 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 intromission 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 those of a writer of so much fame as Lord Kames, and that too in his Lordship's own department.
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 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 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.
'DEAR SIR,
'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 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 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 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,
'Yours with great affection,
'SAM JOHNSON.'
'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 any 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 earth whose good opinion I would be more ambitious to cultivate. His talents and his virtues I reverence more 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 has 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."
* * * * *
'I am, &c. 'JAMES BOSWELL.'
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End of part 29 of 91
Continue readingThe Life: 1773-1774 (Part 1)
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