"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 ent.i.tle 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 compa.s.sion 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 inst.i.tution 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 l.u.s.tre, when tried against those of a writer of so much fame as Lord Kames, and that too in his Lordship"s own department[577].
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[578], 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 _Pet.i.tion_. I told him Dr. Johnson had favoured me with his pen. His Lordship, with wonderful _ac.u.men_, pointed out exactly where his composition began, and where it ended[579]. 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 pet.i.tion 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[580] 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[581], 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 pa.s.sing away; and I wish to have the knowledge of it preserved adequate and complete. For such an inst.i.tution 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[582]."
"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[583] (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_[584].
""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 grat.i.tude 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 a.s.sure him of the sincerity of my attachment and the warmth of my grat.i.tude."
"I am, &c.
"JAMES BOSWELL."
1773: AETAT. 64.--In 1773 his only publication was an edition of his folio _Dictionary_, with additions and corrections[585]; nor did he, so far as is known, furnish any productions of his fertile pen to any of his numerous friends or dependants, except the Preface[586] to his old amanuensis Macbean"s _Dictionary of Ancient Geography_.[587] His _Shakspeare_, indeed, which had been received with high approbation by the publick, and gone through several editions, was this year re-published by George Steevens, Esq., a gentleman not only deeply skilled in ancient learning, and of very extensive reading in English literature, especially the early writers, but at the same time of acute discernment and elegant taste.[588] It is almost unnecessary to say, that by his great and valuable additions to Dr. Johnson"s work, he justly obtained considerable reputation:
"_Divisum imperium c.u.m Jove Caesar habet_."[589]
"To JAMES BOSWELL, ESQ.
"DEAR SIR,
"I have read your kind letter much more than the elegant _Pindar_ which it accompanied. I am always glad to find myself not forgotten; and to be forgotten by you would give me great uneasiness. My northern friends have never been unkind to me: I have from you, dear Sir, testimonies of affection, which I have not often been able to excite; and Dr. Beattie rates the testimony which I was desirous of paying to his merit, much higher than I should have thought it reasonable to expect.
"I have heard of your masquerade[590]. What says your synod to such innovations? I am not studiously scrupulous, nor do I think a masquerade either evil in itself, or very likely to be the occasion of evil; yet as the world thinks it a very licentious relaxation of manners, I would not have been one of the _first_ masquers in a country where no masquerade had ever been before[591].
"A new edition of my great _Dictionary_ is printed, from a copy which I was persuaded to revise; but having made no preparation, I was able to do very little. Some superfluities I have expunged, and some faults I have corrected, and here and there have scattered a remark; but the main fabrick of the work remains as it was. I had looked very little into it since I wrote it, and, I think, I found it full as often better, as worse, than I expected.
"Baretti and Davies have had a furious quarrel[592]; a quarrel, I think, irreconcileable. Dr. Goldsmith has a new comedy, which is expected in the spring. No name is yet given it[593]. The chief diversion arises from a stratagem by which a lover is made to mistake his future father-in-law"s house for an inn. This, you see, borders upon farce. The dialogue is quick and gay, and the incidents are so prepared as not to seem improbable.
"I am sorry that you lost your cause of Intromission, because I yet think the arguments on your side unanswerable. But you seem, I think, to say that you gained reputation even by your defeat; and reputation you will daily gain, if you keep Lord Auchinleck"s precept in your mind, and endeavour to consolidate in your mind a firm and regular system of law, instead of picking up occasional fragments.
"My health seems in general to improve; but I have been troubled for many weeks with a vexatious catarrh, which is sometimes sufficiently distressful. I have not found any great effects from bleeding and physick; and am afraid, that I must expect help from brighter days and softer air.
"Write to me now and then; and whenever any good befalls you, make haste to let me know it, for no one will rejoice at it more than, dear Sir,
"Your most humble servant, "SAM. JOHNSON."
"London, Feb. 24, 1773."
"You continue to stand very high in the favour of Mrs. Thrale."
While a former edition of my work was pa.s.sing through the press, I was unexpectedly favoured with a packet from Philadelphia, from Mr. James Abercrombie, a gentleman of that country, who is pleased to honour me with very high praise of my _Life of Dr. Johnson_. To have the fame of my ill.u.s.trious friend, and his faithful biographer, echoed from the New World is extremely flattering; and my grateful acknowledgements shall be wafted across the Atlantick. Mr. Abercrombie has politely conferred on me a considerable additional obligation, by transmitting to me copies of two letters from Dr. Johnson to American gentlemen. "Gladly, Sir, (says he,) would I have sent you the originals; but being the only relicks of the kind in America, they are considered by the possessors of such inestimable value, that no possible consideration would induce them to part with them. In some future publication of yours relative to that great and good man, they may perhaps be thought worthy of insertion."
"To MR. B---D[594].
"SIR,
"That in the hurry of a sudden departure you should yet find leisure to consult my convenience, is a degree of kindness, and an instance of regard, not only beyond my claims, but above my expectation. You are not mistaken in supposing that I set a high value on my American friends, and that you should confer a very valuable favour upon me by giving me an opportunity of keeping myself in their memory.