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ters of justice are said to have sympathized with the general and growing sense of their countrymen on the side of clemency, and to have left fewer condemned criminals, than was formerly the case, for execution. This occasional interposition of mercy indicates a progressive but favourable change in quarters where change was much to be desired, and is much to be commended. It constitutes an experimental proof, that in order to answer their best ends in society, and to acquire their proper authority over the minds of men, the laws may be revised, and the penalties now inflicted by them in many respects mitigated. It will leave room for grave and full deliberation upon a Penal Code to be completely amended; and as to the alleged inconveniences of a total repeal, they may be easily remedied by an express declaration, that the old laws should remain in force for six, or at the utmost twelve months, after the enactment of the new.

He that should have the magnanimity to propose such a repeal, would not, I hope, be discouraged by the menacing and invidious allusions which, on some discussions on the Test Act, a deceased Prelate once made to the practice of putting a halter round the neck of the man who should propose a new law, and keeping it there, that he might escape or perish according to the issue of the deliberation.* In the last mentioned place it may be worth while to remark, Stobæus ascribes to Zaleucus the same relations which Diodorus Siculus + assigns to Charondas : and Wesseling in a note f supposes, with some probability, that on this, as well as other occasions, Diodorus bad met with a corrupted manuscript, in which he found the name of Charondas erroneously substituted for that of Zaleucus.

The same legislator, whether Zaleucus or Charondas, seems to have acted nearly upon the same general principles which Beccaria held, on the inflexibility of laws yet unrepealed, and on the mischiefs which arise from the subtle and licentious interpretations of private persons. And it must be owned that in some cases Judges, by their proneness to employ such interpretations, virtually assume the office of legislators, defeat the original intentions of those who enact statutes, and give rise to error and

* Vid. Stobæum, Serm. 42 and 37. + Lib, xii. parag. 17. edit. Reimar.

# Vol. i. p. 489.

perplexity in the minds of those who are required to obey them. The whole passage in Dionys. Halicarnass. deserves to be quoted, and it runs thus :

Προσέταξεν εκ πάντος τρόπου πείθεσθαι το νόμο κάν ή παντελώς, κακώς γεγραμμένος. Διορθoύν δε συνεχώρησε τον χρείαν έχοντα διορθώσεως. Το μεν γάρ ηττάσθαι υπό νομοθέτου καλών είναι υπελάμβανε το δε υπό ιδιώτου παντελώς άτοπον, και εί επί το συμφέρονται γίνεται. Και μάλιστα του τοιούτου τρόπου τους εν τοίς δικαστηρίοις των παραγενομηκότων προφάσεις και διανοίας αντί των ρητών εισάγοντας εκώλυσε ταϊς ιδιάις ευρεσιλογίαις καταλύειν την των νόμων υπεροχήν.**

I have great pleasure in concluding what I have written on a very important subject, with the statement of a fact which cannot fail to be interesting to those who are adverse to the frequency of capital punishments. My very ingenious and benevolent friend, Mr. Basil Montague, has sent to the press a large collection of the opinions which many distinguished writers upon the Penal Codes of England and other countries have delivered in the defence and recommendation of other punishments, as substituted for death. If some specimens with which he has lately favoured me had come into my hands before my own remarks had gone to my printer, I should have derived from them much valuable information, and especially upon the successful endeavours of Mr. Bentham to furnish a better scale than we have hitherto had for measuring guilt and apportioning punishment. Basil Montague, I am told, has been much commended by professional men for his publications upon subjects connected with the studies and duties of his profession. I esteem him very highly for his literary attainments and his personal virtues. Gladly, too, would any advocate for the reform of our Penal Code acknowledge such a man a συνεργός του κόπου της αγαπης.

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may be worth while to add, that, in the next paragraph, we have the well-known story of the unfortunate offender, who, having lost his only eye, as a punishment for destroying one eye of a man who had two, stood with a halter about his neck, and pleaded successfully for the repeal of the Lex Talionis.

NOTE

UPON

MR. FOX'S HISTORY

OF THE

EARLY PART OF THE REIGN OF JAMES II.

Having stated my expectation that Mr. Fox's projected History would not be unworthy of his general fame, and that the correctness of the style would be proportionate to the importance of the matter, I intended to communicate to you such remarks as might occur to my mind upon the perusal of a work which had not appeared when I began to address you. But my opinions have been so largely anticipated, so luminously expressed, and so judiciously defended by two very able writers in the Edinburgh and Monthly Reviews, that, having little to add to those critiques, and nothing to oppose to them, I abandoned my determination. “By the common sense of readers,” says Johnson, uncorrupted with literary prejudices, after all the refinements of subtilty, and the dogmatism of learning, must be finally decided all claim to poetical honours.” *

This observation may be extended to every kind of literary composition. Enough has been already done by criticism to assist the judgment of the public upon Mr. Fox's work; and when political partialities and animosities shall have spent their force, the merits of that History will be more distinctly understood, and more justly appreciated. Possible it is that my own deep reverence and affectionate regard for the writer, may have some degree even of undue influence upon my own mind. But after a most careful perusal, I find no reason to change any one opinion which I had previously formed, except that in which I supposed that he would not stoop to the use of

* Life of Gray.

low expressions. What indeed they are, in a dead or even in a living language, must often be decided by the different tastes of different men. From principle Mr. Fox employed many familiar phrases, which I should have rejected as inconsistent with the gravity and dignity of the historic style. But from his wellknown diligence and solicitude in the correction of his own writings, I am persuaded that he would have altered several passages in which wen of sense must perceive negligence in the choice of his phraseology, intricacy or laxity in the structure of his sentences, and harshness or feebleness in the rhythm of his periods.

If Demosthenes was content to retort the poignancy, without disputing the justice of the remark made by Pythias, “ éXXvxviwy όξειν αυτού τα ενθυμήματα” *-if Plato « τους εαυτού Διαλόγους κτενίξων, και βοστρυχίων, και πάντα τρόπον αναπλέκων, ου διέλιπεν όγδοήκοντα γεγονώς έτη,” and if in his tablets were found several variations of the short sentence κατέβην χθες είς Iletpaža,"t—if Cicero doubted whether, as a Homo Romanus, he should write Piræum or Piræa, and whether he should or should not use a preposition when he spoke of it, not as Oppidum, but Locum 1-if, in his correspondence with Atticus, he anxiously corrected a favourite correction of a favourite passage in lib. i. De Oratore, and thus wrote “ inhibere f illud tuum quod valde mihi arriserat, vehementer displicet ; est enim verbum totum nauticum : quanquam id quidem sciebam. Sed arbitrabar sustineri Remos, cum inhibere essent jussi. Jd non esse ejusmodi didici heri, cum ad Villam nostram Navis appelleretur, non enim sustinent, sed alio modo remigant. Dices hoc idem Varroni, nisi forte mutavit." || If in such great writers Mr. Fox had ex

* Vid. Plutarch. in Vit. Demosth.

+ Vid. Dionys. Halicar. de Struct. p. 239, Upton's edit. and Quintil. lib. viii. cap. 6.

# Vid. Epist. iii. ad Attic. lib. 7.
§ “Postquam inhibent remis puppes, ac rostra recedunt.”

Lucan, lib, iii. v. 659. || Epist. xxi. ad Attic. lib. 13. Upon the authority of a letter of Tiro, Aulus Gellius informs us that, when Pompey had inquired of some learned men at Rome, whether, in an inscription for the Æd. Victoriæ, which he was about to dedicate, it should be written tertium or tertio, Cicero felt the same uncertainty,

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