Mr. Boswell's own
exposition of the law of vitious intromission. He was himself an
advocate at the Scotch bar, and of counsel in this case. "It was held of
old, and continued for a long period, to be an established principle in
Scotch 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 _vitious
intromission_. The court of session had, gradually, relaxed the
strictness of this principle, where an interference proved had been
inconsiderable. In the case of Wilson against Smith and Armour, in the
year 1772, I had laboured to persuade the judge 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 judgment, he dictated to me the following
argument."--Boswell, ii. 200.]

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