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 innoc
ence 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.
Complete Works of Samuel Johnson Page 728