Dempster[573] 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[574] 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.