صور الصفحة
PDF
النشر الإلكتروني
[ocr errors]

Historical Law-Tracti

Judge, obtorto collo, as expreffed by the writers on that law: 307 and the fame regulation appears in the laws of the Vifigoths. But Jurifdiction, at firft merely voluntary, came gradually to be improved to its prefent ftate of being compulfory; involving fo much of the magisterial authority as is neceffary for explicating Jurifdiction, viz. Power of calling a party into Court, and power of making a sentence effectual. And in this manner civil Jurifdiction, in progrefs of time, was brought to perfection.

Criminal Jurifdiction is in all countries of a much later date. Revenge, the darling privilege of human nature, is never tamely given up; for the reafon chiefly, that it is not gratified unless the punishment be inflicted by the perfon injured. The privilege of refenting injuries, was there*fore that private right which was the lateft of being furrendered, or rather wrefted from individuals in fociety. This revolution was of great importance with refpect to Govern ment, which can never fully attain its end, where punishment in any measure is trufted in private hands. A revol lution fo contradictory to the ftrongeft propenfity of human nature, could not by any power, or by any artifice, be in*ftantaneous. It behoved to be gradual, and, in fact, the progreffive fteps tending to its completion, were flow, and taken fingly, almoft imperceptible; as will appear from the following hiftory. And to be convinced of the difficulty of wrefting this privilege from individuals, we need but reflect upon the practice of Duelling, fo customary in times paft; and which the ftricteft attention in the Magi t ftrate, joined with the fevereft punishment, have not alto gether been able to reprefs.'

Early measures, our Author obferves, were taken to prevent the bad effects of rafh Judgments, by which the inno cent were often oppreffed, whilst the dangerous privilege of private revenge was left with individuals. The benent of the Sanctuary, among the Jews, allowed to the Manslayer, till the Elders could determine whether the deed was voluntary, or cafual, is an early inftance of the care taken to prevent erroneous judgment. If the crime was manifeft, the party might avenge himself without any ceremony. There fore it was lawful for a man to kill his wife and an adulterer found together, or his daughter taken in the act of forni

cation.

The neceffity, our Author continues, of applying to a
Judge, where any doubt arofe about the Author of a crime,

Y 2

was

was probably, in all countries, the firft inftance of the Legiflators interpofing in matters of punishment. This, though a novelty, was fuch as could not alarm individuals, being calculated not to restrain the privilege of Revenge, but only to direct it towards its proper object.

The next step in order, was to regulate the degree of punishment, and to refcue the offender from the arbitrary power of the party injured. Our Author takes notice of a wife regulation in Abyffinia, for this purpofe; by which the Governor of the province named a Judge, who determined what punishment the crime deferved. If death, the criminal was delivered to the accufer, who had an opportunity of gratifying his Refentment to the full. But this regulation, he obferves, was improved by the Athenian Law, by which, tho the criminal was delivered to the accufer to be put to death, yet it was unlawful to put him to any torture, or to force money from him. At length, however, all fuch regulations were rendered unneceffary, by a cuftom, which made a great figure in Europe for many ages, that of pecuniary compofitions for crimes.

From the correspondence between the privilege of revenging voluntary injuries, and the fenfe of merited punishment in the delinquent, punishment came to be confidered as a fort of debt, in the strictest sense, which made room for these pecuniary compofitions, of which our Author difcovers traces among many different nations.

This practice at firft, as may reafonably be conjectured, rested altogether upon private confent: and the person injured might punish, or forgive, at his pleasure. The firft ftep towards improvement, was to interpofe in behalf of the delinquent, if he offered a reasonable fatisfaction in cattle or mohey, and to afford him protection, if the fatisfaction was refufed by the perfon injured. The next ftep, was to make it unlawful to profecute Refentment, without first demanding fatisfaction from the delinquent. The third ftep, which compleated the fyftem, was to compel the delinquent to pay, and the perfon injured to accept of a proper fatisfaction.

Our Author traces thefe gradual advances, through the Laws of several barbarous nations, with great diligence and accuracy. He takes notice that thefe compofitions were proportioned to the dignity of the perfon injured, and fhews to whom they were payable. By the Salic Law, he obferves, where a man is killed, the half of the compofition belongs to his children, the other half to his other relations, upon

the

the fide of the father and mother. If there be no relations on the father's fide, the part that would belong to them, accrues to the Fifk. The like for want of relations on the mother's fide.

These reflections on pecuniary compofitions, naturally bring our Author to what he calls the laft and most shining period of the Criminal Law: in which he unfolds the means by which criminal Jurifdiction, or the right of punishment, was transferred from private hands to the Magiftrate. In the infancy of society, he obferves, the idea of a Public is fo faint and obfcure, that public crimes, where no individual is hurt, pafs unregarded: but when Government, in its natural growth, hath advanced to fome degree of maturity, the public intereft is then recognized, and the name of a crime against the Public understood.

It cannot be doubted, he fays, that the compofitions for crimes established by Law, paved the way to thefe improved notions of Government. The Magiftrate having acquired fuch influence in private punishment, proceeded naturally to affume the privilege of avenging wrongs done to the Public merely, where no individual was hurt. It being once eftablished that there is a Public, that this Public is a politic body, which, like a real perfon, may fue and defend, it was, an eafy step to intereft the Public even in private crimes, by imagining every atrocious crime to be a public as well as private injury. In the oldeft compofitions for crimes, there is, not a word of the Public: in the Salic Laws, there is a long lift of crimes, and of their converfion in money, without any fine to the Public *. At length, however, a fine or Fredum was fuperadded to the King.

In procefs of time, as mankind were more enlightned, certain crimes were reckoned too flagrant to admit of a pecuniary converfion and compofitions established in the days of poverty, bore no proportion to crimes, when nations became rich and powerful. It was not difficult to provide a remedy for this evil: it having been long established, that the perfon injured had no claim but for the compofition, however difproportioned to the crime, this afforded the chief Ma

Though there was no direct fine to the Public in the old compofitions, yet it is too much to fay, that there is not a word about the Public. For we find by the Salic Law, that for want of relations on the father or mother's fide, the part that would belong to them, accrued to the Fisk. So that we find the idea of a Public began to gain ground at that time.

Y 3

gistrate

giftrate a fair opportunity to interpofe, and decree an ade quate punishment. The firft inftances of this kind, had probably the confent of the party injured; and it was not difficult to perfuade any man of fpirit, that it was more for his honour to fee his enemy condignly punished, than to put up with a trifling compenfation in money. However this be, the new method gained credit, and paffed into a Law.

After this Revolution in Government, our Author continues, we find the first punishments extremely moderate, not only becaufe they were directed chiefly to gratify the perfons injured, but becaufe, till authority was fufficiently establifhed, great feverities are beyond the ftrength of a Legiflature. But when authority is firmly rooted in the minds of the people, more rigorous punishments may be ventured upon. At laft, when people are become altogether tame and fubmissive, punishments being lefs and lefs neceffary, are generally mild, and ought always to be so,

To this, he adds another remark, connected with the former, that it is not the only or chief view of a wife Legiflature, to preferve a ftrict proportion between a crime and its punishment. The purposes of human punifhments are, firft, to add weight to thofe which Nature has provided;" and next, to enforce municipal regulations intended for the good of Society. Whence, he concludes, that in regu lating the punishment of crimes, two circumftances ought to weigh, viz. the immorality of the action, and its bad tendency, of which the latter appears to be the capital cir cumftance; for this evident reafon, that the peace of Society is an object of much greater importance, than the ⚫ peace, or even life of individuals.'

This doctrine, however, ought furely to be promulged with the greatest caution and referve. It tends greatly to weaken the principles of Virtue, when men are made fenfible, that political convenience, and moral goodness, are independent confiderations, and that the latter is poftponed to the former. Inftead of establishing this dangerous diftinction, our Author should rather have applied himfelf to prove, that confidered a legiflative view, every act against the peace of Society, includes in it a strong degree of moral turpitude. The Morality or Immorality of our actions, bear refpect to the Quo Anime: but human Laws must neceffarily prefume, that every bad act, that is, every act against the order of Society, is guided by a bad intent, and confequently immoral. Where favourable circumftances appear in behalf of particular delin

quents

[ocr errors]

quents, to induce a contrary conclufion, there is in moft states a dernier refort, where a power is lodged of moderating the Law. The Legislature, however, cannot provide againft particular contingencies, but is governed by general principles, which lead to conclude, that every action against the peace of Society, is directed by an evil intention; and thus our Au thor's diftinction vanishes.

The Writer, as he proceeds, takes occafion to pay great commendation to the Egyptian Laws, which, he obferves, have the following peculiar character, that they effectually an fwer their end, with lefs harfhnefs and feverity, than is found in the Laws of any other nation ancient or modern, Thus, fays he, thofe who revealed the fecrets of the army to the enemy, had their tongues cut out. Thofe who coined false money, or contrived falfe weights, or forged deeds, or razed public records, were condemned to lofe both their hands,

We cannot, however, concur with the Author in his encomiums on these Laws. The mutilations they directed, at the fame time that they punished the delinquent, punished the State, by rendering him lefs capable of being ferviceable, A man without hands, is a kind of dead weight to Society; and it cannot effectually answer the end of punishment, to difable the criminal.

This Tract concludes with fome very ingenious remarks on the privilege of profecuting public crimes; and takes notice of various regulations which have fubfifted in different countries, with respect to the perfons authorized for this purpose. Here, however, our Author has fallen into a mistake with refpect to the Law of England, where he fays,

Na

criminal trial, in name of the Crown, can proceed, till 'first the matter be examined by the Grand Jury of the country.' It has probably escaped the Writer's notice, or recollection, that, by means of an Information, a criminal trial may proceed, without any previous examination by a Grand Jury. But in a work of fuch confpicuous merit, more nu merous and confiderable errors might claim indulgence.

The Works of W. Hawkins, M. A. late Poetry Profeffor in the University of Oxford, and Fellow of Pembroke College. 8vo, 3 vols. 15s. Dodley, &c,

IN

N the first volume of the publication before us, Mr. Hawe kins makes his appearance as a polemical Divine; a character which, in our opinion, does not fit very eafy on him;

[blocks in formation]
« السابقةمتابعة »