No great idea in its beginning can ever be within the law.—Emma Goldman, 1917
Audio brought to you by Curio, a Lapham’s Quarterly partner
Toward the end of his life, Samuel Johnson drew up a list of subjects that he would like to research. He projected forty-nine works in all; none was on any aspect of the law. According to James Boswell, Johnson’s celebrated biographer, almost the only subjects sure to distress Johnson when raised were mortality, particularly his own, and what might have transpired had he become a lawyer. Even when nearing seventy, he rounded on his friend William Scott, who had innocently commented, “What a pity it is, sir, that you did not follow the profession of the law. You might have been lord chancellor of Great Britain and attained to the dignity of the peerage.” According to Boswell, “Johnson, upon this, seemed much agitated; and in an angry tone exclaimed, ‘Why will you vex me by suggesting this, when it is too late?’ ” For here lay a curious paradox: of all great writers, in any language, Johnson was the one most consumed by the law, yet he never practiced it, and being relegated to the position of an outside observer brought him profound misery—even as he acknowledged his career could not have been otherwise.
For the young Johnson, actually studying the law in any formal way had proved impossible. After leaving Oxford without a degree (he was too poor to continue beyond a bare thirteen months there), he cast around for suitable employment, taking up a succession of menial teaching posts and then, in 1738, regular hack work for the London-based Gentleman’s Magazine. He would sign letters “Impransus”—the supperless one. About that time, he inquired of a legal friend “whether a person might be permitted to practice as an advocate” in the House of Commons without a degree in civil law. The authority he consulted, an Oxford contemporary, was confident that Johnson “would have attained to great eminence.” Johnson himself believed that he would have been a successful lawyer, one reason being his lightning ability to understand both (or many) sides of an argument. Boswell affectionately reports that there where times when the “Why, sir…” of later Johnsonian replies was designed to give him a crucial extra second to decide which side of an argument to take that day. Hardly an unprejudiced observer, Boswell adds:
I cannot conceive a man better qualified to make a distinguished figure as a lawyer; for he would have brought to his profession a rich store of various knowledge, an uncommon acuteness, and a command of language in which few could have equaled, and none have surpassed him.
Throughout his adult life, Johnson was surrounded by lawyers. Boswell himself was a practicing advocate and constantly asked for advice on his own cases and those of his father (Lord Auchinleck, a Scottish judge), as well as about key legal disputes of the day. Johnson would reply by letter, frequently penning lengthy speeches that Boswell might use in court—and sometimes did, near verbatim. Many of Johnson’s friends were lawyers, including his first biographer and literary executor, John Hawkins. Others, like the Irish barrister and wit Arthur Murphy, whose biographical study of Johnson appeared in 1792, or the political philosopher and member of Parliament Edmund Burke, whose father was an attorney and who briefly attended one of the Inns of Court, made lifelong use of their legal training. Not being of their number hurt acutely.
Guilt Haunts, by Sergei Isupov, 2003. © Sergei Isupov. Printed at Littleton Studios, Spruce Pine, NC. Courtesy of Ferrin Contemporary.
Despite being a man of principles, Johnson deeply loved argument both for its own intellectual delight and for the aggressive joy of smashing down an opponent. But the want of a degree proved an insuperable barrier to his using these gifts in a formal setting. The best that he managed was to be commissioned by The Gentleman’s Magazine to report debates in Parliament. Since publishing accounts of Commons proceedings was illegal, these reports appeared under the mock title “Debates in the Senate of Magna Lilliputia.”
He took to the task in his customary eccentric way, attending the House just once, thereafter using a messenger to supply him with illicit notes from sympathetic sources, from which he would fashion and attribute often brilliant speeches. No politician ever complained, although the phrasing and frequently even the arguments were Johnson’s; he made the politicians look good. And, as he composed, he educated himself in many of the legal and political questions of the day.
The mid-eighteenth century was a time when a man of literary talent could be successful across a variety of genres. Johnson arrived in London in 1737 and it took some time for him to establish himself, but by 1750 he was writing essays, generally two a week, at first for the periodical The Rambler (which set his reputation), thereafter for The Adventurer and The Idler. By then he had already completed his poems London and The Vanity of Human Wishes; written and rewritten a play, Irene; and published his groundbreaking biography of the poet and convicted murderer Richard Savage. In 1755, after nine years’ concentrated endeavor, he also produced A Dictionary of the English Language, “proud in its vast bulk,” covering some 43,000 words and citing 114,000 quotations drawn from authors across four centuries. Meticulous, he would give the single verb/noun take 134 definitions, running to 8,000 words, over five pages. He also wrote a novel, The History of Rasselas, Prince of Abissinia, composed in a single week in 1759 to defray the cost of his mother’s funeral. Then there were forewords and introductions for books on subjects in which he might have minimal acquaintance: in 1756 he contributed a preface to Richard Rolt’s Dictionary of Trade and Commerce, later admitting to Boswell that he never read the book—“I knew very well what such a dictionary should be, and I wrote a preface accordingly.”
In the two years that he wrote essays for The Rambler—some 208 of them—not once does he tackle a legal subject head-on. The same is true of his articles in The Idler, The Adventurer, and The Gentleman’s Magazine; in more than 700 articles, none is directly on a legal subject. Two Idler essays are devoted to the shortsightedness of sending debtors to prison, but that was more a social sally:
The wisdom and justice of the English laws are, by Englishmen at least, loudly celebrated; but scarcely the most zealous admirers of our institutions can think that law wise which, when men are capable of work, obliges them to beg; or just which exposes the liberty of one to the passions of another.
(Shortly after the Dictionary was published, Johnson had found himself thus incarcerated in a “sponging house,” and his father too had fallen into debt.) During his years penning pieces for The Rambler, he would make frequent references to legal matters—at least twenty have some mention, if only in a phrase—but only No. 114 concerns a legal question at any length, an impassioned plea against vindictive laws, especially capital punishment for theft. In No. 125 he mentions in passing “one of the maxims of the civil law, that definitions are hazardous.” It is a telling quotation.
Ampère’s Law, by Simon Donaldson, 2014. © Simon Donaldson, courtesy of Nancy Hoffman Gallery.
He had great respect for the place of law and a reverence for good lawyers, although he could be merciless about bad ones. In the dictionary, he created 178 new legal definitions and took from other sources a further 154, but his definitions are often with a curve to them. Choosing an authority for the word attorney, he quotes Alexander Pope: “vile attorneys, now an useless race”; he defines lawgiver as a “legislator, one who makes laws,” and this time the authority is Jonathan Swift: “A law may be very reasonable in itself, although one does not know the reason of the lawgivers.” He had a sense of humor and a sense of outrage.
In 1756 he contributed a long essay to The Literary Magazine, much of it concerned with King Frederick’s plan to reform the Prussian courts. At one point he acknowledges:
It is perhaps impossible to review the laws of any country without discovering many defects and many superfluities. Laws often continue when their reasons have ceased. Laws made for the first state of the society continue unabolished, when the general form of life is changed. Parts of the judicial procedure, which were at first only accidental, become in time essential; and formalities are accumulated on each other, till the art of litigation requires more study than the discovery of right.
The law of the land was vital to civilize society; but it could be a cumbersome and unfair thing.
By the mid 1750s, Johnson’s reputation as one of the outstanding literary figures of the day was assured, while within a small elite group his talents as a self-taught legal expert were being recognized. Among those impressed by his parliamentary reporting was one William Gerard Hamilton, popularly known as “Single Speech Hamilton,” due to a brilliant Commons debut, never repeated. Johnson was introduced to Hamilton by Robert Chambers, who in 1758, not yet twenty-one, had written to Johnson asking for help in winning a scholarship to Oxford. Now, eight years on, Johnson became Hamilton’s fact gatherer, researcher, and amanuensis, with a welcome salary, while that same year Oxford appointed Chambers, still only twenty-nine, Vinerian Professor of English Law, the most senior such position in the university. The professorship required Chambers to give a minimum of sixty lectures a year; he would be fined for each lecture undelivered. But while he may have been a brilliant constitutional lawyer, he was a timid soul, and when he put quill to paper was infected with a labored, pedestrian writing style. In some desperation, he asked Johnson to dictate the lectures for him.
Johnson happily accepted the work, regularly removing his hulk-like, lumbering frame off to Oxford for joint working sessions. To-gether they shared, wrote Boswell, “a great intimacy.” The partnership lasted until 1773, when Chambers was offered an important judgeship in Bengal. The result of the collaboration, in its most recent published edition, comprises two volumes totaling more than nine hundred pages. This Course of Lectures on the English Law boasts Chambers as principal author on the title page but also has the line “Composed in association with Samuel Johnson”—a well-kept secret throughout the time the lectures were delivered, and still not widely known.
The Vinerian lectures were Johnson’s profound contribution to legal literature and education. The spread of his knowledge is daunting, from the general character of feudal law and common law to royal power and medieval trade, the origins of the Commons and the Privy Council, courts of equity, the taxation of colonies, the general nature of punishment, forgery, divorce, even the use of books by a law student, and much else besides. Where the authorship is obviously Johnson’s, the sentences are enlivened by wit and fine phrasing. On page 452 of volume one, we learn that “gaming in persons of low degree is punished as idleness and dissoluteness…and punishable by fine and imprisonment.” But “for persons of a higher rank, if he loses more at a time than ten pounds may sue and recover it.” In George III’s Britain the aristocracy needed a certain protection; not incidentally, the king wanted a copy of the lectures for his private library, which is the sole reason that a complete manuscript of the lectures survives. On the penultimate page, readers are warned that “there are in every particular profession many things necessary to be known which books do not teach”—a Johnsonian gloss, one suspects.
Although Boswell mentions Robert Chambers a score of times in his biography, he seems utterly ignorant of the collaboration the young academic engineered with his unlikely mentor. The first book to examine their unique partnership in any detail was Dr. Johnson and the English Law, by E.L. McAdam Jr., published in 1951. It was McAdam who uncovered the secret of Johnson’s coauthorship, as late as 1939. He rated Johnson “the great lawyer-layman of his century.” One wonders if anyone has been a serious rival to him in the several centuries since.
In 1965 I went up to Cambridge to read law. My commitment did not last long. One of the first lectures I attended was by Professor Glanville Williams, then the country’s preeminent expert on criminal law. “How does one define a crime?” he asked a packed lecture theater. I sat forward expectantly: this was interesting. He went on: “A crime…is an action that is followed by criminal proceedings.” This was not interesting (as it seemed then to me; to be fair, his point was that more substantive proposed definitions all fail). Within the year I had changed courses to read English literature, my girlfriend’s subject and my longtime love.
The Lawyer’s Last Circuit, by Thomas Rowlandson, 1802. Courtesy National Gallery of Art, Washington, Rosenwald Collection.
After college I drifted into book publishing, and by the early 1990s was the editor for Richard Holmes’ new book, Dr. Johnson and Mr. Savage, an extraordinary work that examines the strange friendship between the young Johnson and the belligerent, wayward, spendthrift poet twelve years his senior, who claimed to be the illegitimate and persecuted son of a wealthy aristocrat. Savage’s ill fame was well earned. Some ten years before the two men met, late one night in November 1727, he, together with two well-soused companions, burst into a coffeehouse in Charing Cross, threw over a table, and threatened the customers there. During the ensuing scuffle, Savage drew his sword and thrust it into the belly of one of the men at the table. He was arrested on a capital charge of wounding and murder, found guilty by a grand jury court at the Old Bailey, and sentenced to be hanged at Tyburn. His reputation as provocative poet and rabble-rouser made the case the talking point of literary London, and within eight weeks, through the intercession of two aristocratic sympathizers, he had received a royal pardon.
After Savage had been freed from the hangman’s noose, he gloried in his newfound infamy, but he was soon down on his luck again, which was when Johnson befriended him. Johnson at the time was unknown and new to London, his nighttime companion notorious, but for two years the two men, without the means to rent decent lodgings, wearing paper cravats because their linen was in pawn, would wander the streets of London through the small hours, talking incessantly about life and love, literature and politics, encountering beggars, cutpurses, prostitutes, drunkards, and all the lowlifes of the city’s many disreputable haunts and dark alleyways.
Do what thou wilt shall be the whole of the law.—Aleister Crowley, 1904
Johnson published his re-creation of Savage’s life in 1744, the year after the poet’s death, and records the court case in detail. Although there was little doubt of his friend’s guilt, Johnson tilts the events as if he were counsel for the defense. The testimony of the three prosecuting witnesses—a coffeehouse maid and a prostitute and her pimp—he dismisses witheringly: “The witnesses which appeared against him were proved to be persons of characters which did not entitle them to much credit; a common strumpet, a woman by whom strumpets were entertained, and a man by whom they were supported.” Savage, by contrast, is “a modest, inoffensive man.” The whole account was published anonymously.
Richard Holmes (himself the son of a lawyer) expertly examines each piece of testimony, and Johnson’s distortions of it, and while he marvels at his subject’s skill in massaging the evidence, he makes the special pleading plain. In short, Johnson, in his thirty-fifth year when he wrote Savage’s story, so well past youthful flights of rebellion, puts friendship before the obligation to truth under the law: if Savage broke society’s rules, well, society had unfairly ranged itself against him.
Years later, after Savage’s death, Johnson was to explain to Boswell, “Nobody attempts to dispute that two and two make four; but with contests concerning moral truth, human passions are generally mixed, and therefore it must ever be liable to assault and misrepresentation.” Even though he advocates certain kinds of conduct, absent from his moral writings is any predetermined and authorized pattern of “good behavior.” Boswell goes on to say, as a way of explaining his subject’s moral code, that Johnson “delighted in discrimination of character, and having a masterly knowledge of human nature, was willing to take men as they are, imperfect and with a mixture of good and bad qualities.” He might show “the reverence due to a judicial determination,” but in the end he preferred his own system of ethics to that of any legal formulation.
In summarizing Savage’s case, Johnson concluded with a famous appeal to common humanity: “Those are no proper judges of his conduct who have slumbered away their time on the down of plenty, nor will a wise man easily presume to say, ‘Had I been in Savage’s condition, I should have lived, or written, better than Savage.’ ” Legal and moral judgment were not the same. Forever a committed Christian, Johnson would bend the knee to his maker but not to the overweening wisdom of the courts; they knew much, but he knew better. Thus he might coauthor a magisterial history of the law, but he remained at heart the Great Outlaw.
Petty laws breed great crimes.—Ouida, 1880
In effect, the financial obstacles preventing Johnson from studying law were perhaps a blessing, saving him the trouble of discovering later on that his worldview would prevent him from enjoying being a lawyer. For all his regrets at the path not taken, there was good reason that he preferred to come at the law from the outside and not from the ranks of the formally admitted. The ways of the human heart might be effectively managed by the courts (“the law is the last result of human wisdom acting upon human experience for the benefit of the public,” he would proclaim in its defense), but they were better understood by what he called “the nose of the mind.” His nose, his mind.