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Parr, Samuel, 174721825.
The works of Samuel Parr

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SAMUEL “PARR, LL.D.

PREBENDARY OF ST. PAUL’S, CURATE OF HATTON, &c.

WITH

MEMOIRS OF HIS LIFE AND WRITINGS,

A SELECTION FROM HIS CORRESPONDENCE,

BY
JOHN JOHNSTONE, M. D.

FELLOW OF THE ROYAL SOCIETY, AND OF THE ROYAL COLLEGE
OF PHYSICIANS OF LONDON, &e.

IN EIGHT VOLUMES.

Waray, .».

LONDON:
LONGMAN, REES, ORME, BROWN, AND GREEN,

PATERNOSTER-ROW,

1828,

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CONTENTS OF VOLUME IV.

Page
Character of Charles James Fox : ; oh
Notes : ν ‘ 131
Appendix to Notes P ; . 359
Note upon Mr. Fox’s History of the early Sat of the
Reign of James IT. ς ᾿ ; . 381
Inscriptions (Latin) ‘ , : . Sao
τς ( English) , : . 6ὅ6

fllustrations of the Inscriptions ; ; PM

Digitized by the Internet Archive
in 2014

https://archive.org/details/worksofsamuelpar04parr

CHARACTER

OF

CHARLES JAMES FOX,

BY

PHILOPATRIS VARVICENSIS.

VOL, IV. B

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ADVERTISEMENT.

Ir was thought needless to reprint the Characters of Mr.
Fox, which Dr. Parr selected from newspapers and other pub-
lications, as, though interesting in themselves, they did not be-
long to him, All that was actually written by himself, and
published under the name of Philopatris Varvicensis, is here
reprinted, excepting only the Character of Mr. Fox in Latin,
which will be found in the Preface to Bellendenus, and the
Discussion on a μιαρόν τι Kal ἄῤῥητον βδέλυγμα, in the omis-
sion of which it is conceived a sound discretion has been exer-
cised. The punishment proposed for that particular offence,
is an inimitable specimen of the bonhomie and almost child-
like simplicity of our venerable friend—verbum non amplius.
The long note on Law, though too long, too much elaborated,
and too much illustrated, comprises so many excellencies
peculiar to Dr. Parr's mode of thinking, and mode of writing,
that it alone will sanction the republication of the Philopatris
to every English reader.

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ΤΟ

THOMAS WILLIAM COKE, ESQ.

THE PERSONAL AND POLITICAL FRIEND
OF THE LATE
CHARLES JAMES FOX,
THE FAITHFUL AND INDEPENDENT REPRESENTATIVE
OF THE COUNTY OF NORFOLK,
THE JUDICIOUS AND MUNIFICENT PROMOTER
OF AGRICULTURAL IMPROVEMENTS,
THE STEADY GUARDIAN OF CONSTITUTIONAL FREEDOM,
THE RESOLUTE OPPOSER
OF INTOLERANCE, CORRUPTION, AND UNNECESSARY WAR;

A GENTLEMAN IN HIS MANNERS AND SPIRIT,
AND

A CHRISTIAN IN FAITH AND PRACTICE;

THE FOLLOWING PAGES

ARE MOST RESPECTFULLY DEDICATED,

BY HIS SINCERE WELL-WISHER,

AND MUCH-OBLIGED HUMBLE SERVANT,

THE EDITOR.

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ORIGINAL PREFACE.

Ir was thought by some friends of Mr. Fox that
a collection of the best written Characters* which
had been drawn of him soon after his death, would
not be unacceptable to the public. Those which
are here presented to the reader have been selected
from many others with the utmost impartiality.
They were written by men of different parties, and
perhaps even to distant generations they will not
be wholly uninteresting, by the views which they
exhibit of Mr. Fox’s merits or demerits, as they
were estimated by some of his intelligent contem-
poraries.

The Editor has exercised his own judgment in
republishing the whole, or what appeared to him
the more important parts, of the articles which
he found in newspapers, in periodical works, in
sermons, and even in poems, where the name of
Mr. Fox was incidentally introduced. Remember-
ing the ingenuous and artless mind of Mr. Fox
himself, the Editor has excluded some complimen-
tary statements, which, upon careful enquiry, he
had reason to believe unsupported by facts. He
thought it his duty to incorporate frequent com-

* Vide Advertisement, p. 3.

8 ORIGINAL PREFACE.

mendations of Mr. Pitt. He has not refused ad-
mission to many censures upon Mr. Fox. But he
has rejected all coarse and acrimonious invectives,
because he was convinced that they would be dis-
gusting alike to the warm admirers and the honour-
able opponents of that illustrious statesman. He
supposes that, by anonymous writers, no offence
will be taken at his endeavours to give additional
notoriety to compositions, the selection of which is
a proof that his own mind was not unfavourably
impressed with the propriety of the matter, or the
graces of the style. He trusts too that his excel-
lent friends Dr. Symmons and Mr. Belsham will
excuse him for having made some extracts from
judicious and elegant discourses which they deli-
vered from the pulpit, and afterwards committed to
the press.

The character of Mr. Fox which some years ago
appeared in the Preface to Bellendenus de Statu,
is inserted with the permission of the author, and
the same person is to be considered as the writer
both of the Letter and the Notes which are placed
at the conclusion of the work. Having separated
several quotations from classical authors, and seve-
ral remarks upon Mr. Fox himself, from the text
of that Letter, and having thrown them into Notes,
the writer did not choose to disturb the epistolary
form in which they had been originally prepared ;
and, for the sake of consistency, he preserved the
same form in all the additional Notes.

It is unnecessary to state, that his observations
upon our Penal Code were suggested to him by

ORIGINAL PREFACE. 9

the remembrance of a most serious, and, in truth,
nearly the last conversation which passed between
himself and Mr. Fox; and upon this circumstance
he would rest his apology for submitting them, on
the present occasion, to the consideration of the
public. As he had expressed some of his expecta-
tions upon the probable merit of Mr. Fox’s History
in the earlier part of his Notes, and before the ap-
pearance of the work itself, he could not with pro-
priety be quite silent when that History had seen
the light, and when it was in his power to form a
more correct opinion of its excellencies and its
faults. He is aware that some controversial discus-
sions, which in justice to Mr. Fox’s memory he
could not avoid, will be interesting chiefly to eccle-
siastical readers. But it should not be forgotten
that among them will be found many persons of
learning, sense, and virtue, to whose esteem Mr.
Fox, if he were living, would not be indifferent,
and to whose judgment therefore is more particu-
larly addressed the vindication of Mr. Fox’s princi-
ples from the severe charges brought against them
in a periodical work, which has, and deserves to
have, a very extensive circulation, and a very favour-
able reception, among the teachers of the Esta-
blished Church.

As to the Notes, which in number and in size
have imperceptibly grown far beyond the original
expectation of the Editor, he must content himself
with stating, that the additional ones suggested
themselves to his mind when he was gathering a
rank and huge bundle of errata in the sheets

10 ORIGINAL PREFACE.

printed off; that the matter contained in them, and
the precedings ones, relates to subjects which he
thinks important; that he in all probability will
have no future opportunity for communicating his
opinions upon those subjects; and that he sees no
reason for believing even the present communication
of them likely to be unacceptable to that class of
readers to whose decisions upon questions of criti-
cism, politics, and ethics, he is disposed to pay the
greatest respect.

The Editor owes great praise to the patience,
diligence, and even sagacity of his Printer, in con-
tending with the difficulties of a manuscript, which
was sent to him in loose papers, had been written
by eleven different scribes, and obscured by nu-
merous references, corrections, erasures, and addi-
tions. In truth, the Editor has felt frequent and
serious inconvenience from his early and perverse
inattention to an attainment, the usefulness of
which was justly appreciated by an ancient critic:
“Non est aliena res, que fere ab honestis negligi
solet, cura bene et velociter scribendi. Nam cium
sit in studiis precipuum, quoque solo verus ille
profectus, et altis radicibus nixus paretur, scribere
ipsum: tardior stylus cogitationem moratur; rudis
et confusus intellectu caret: unde sequitur alter
dictandi, que et transferenda sunt, labor.”* He
unfortunately accustomed himself “ velociter scri-
bere, non bene,” and often has he been induced by

* Quintilian, lib. i. cap. i. p. 13. ed. Gesner, V. Not. et
VV. LL.

ORIGINAL PREFACE. ll

his own painful experience to recommend Quin-
tilian’s observation to young men, who, conscious
of their natural talents, and their literary acquisi-
tions, were disposed to slight good penmanship, as
below the notice of a scholar. He has sometimes
wished that it had been his own lot to aspire to
the calligraphy of the Antiquarii, or the united ac-
curacy and rapidity of the Notarii, whom Scaliger
describes in his learned remarks upon Ausonius,*
Those wishes must now be unavailing—But he
hopes to put some check upon the boyish heedless-
ness, or petty vanity of other men, by reminding
them, that in the art of writing Mr. Fox was emi-
nently distinguished by the clearness and firmness,
Mr. Professor Porson by the correctness and ele-
gance, and Sir William Jones by the ease, beauty,
and variety, of the characters which they respectively
employed.*

* Vid. Note on Epigram 146, and Epistol. 16.

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CHARACTER

OF

CHARLES JAMES FOX.

I nave long been anxious to convey to you my
condolence on the death of our inestimable friend
Mr. Fox. But I have been hitherto restrained by
the dread of appearing to you obtrusive in the fresh
hour of your affliction; and by a consciousness of
my own inability to administer much to your com-
fort. Such is the wise constitution of our nature,
that in certain situations, and for a certain time, it
is better for us to follow the instinctive impulses of
our feelings, than to wait for the slow and calm di-
rection of our reason. Grief under such circum-
stances is impatient of the slightest interruption to
that series of ideas which is most congenial to it-
self; and we then reject the very same topics of
consolation, which we afterwards cherish and ap-
prove, when they occur to us spontaneously, or when
flowing from those around us, they fall in with
other trains of thinking, which time has silently in-
troduced iuto our bosoms.

Well knowing the poignant anguish occasioned
by the loss of those whom we have been accus-

14 - CHARACTER OF

tomed to regard with affection, I cannot but take a
most lively share in your distress, heightened as I
am aware it must be by the continual privation of
the delight you formerly experienced in the conver-
sation of a cheerful, sagacious, and most faithful
friend. Pardon me, however, for expressing my
hope that you are beginning to find some consolation,
as I do, in reflecting upon the numerous and match-
less excellencies of one whom England ought to con-
sider as its best guardian, and the world as its most
noble ornament. If the sublimity of his genius, the
depth and variety of his knowledge, the solidity of
his judgment, the gentleness of his private and the
moderation of his public conduct, offer themselves
to your mind, the sense you entertain of all his
amiable and all his venerable qualities, accompanied
perhaps by transient and involuntary illusions of
his momentary presence among us, may suspend
or mitigate your sorrow.

The pleasure I have myself had, though some-
times alloyed by melancholy, in looking back upon
the many hours which I have passed in Mr. Fox’s
company, naturally leads me to consider your lot as
highly fortunate, in having for so many years dili-
gently cultivated, and uninterruptedly enjoyed the
confidence of so valuable a man, and in the many
endearing recollections which your long and unre-
served habits of intimacy with him cannot fail to
supply. If you had been called upon to select a
friend from the whole human race, where could you
have found one endowed as he was with the guile-
less playfulness of a child, and the most correct and

CHARLES JAMES FOX. 15

comprehensive knowledge of the world; or dis-
tinguished as he was by an elegant taste in the dead
and living languages, by a thorough acquaintance
with the most important events of past and present
times, by ἃ profound skill in the history, and by a
well founded and well directed reverence for the
constitution of his country, and by the keenest pe-
netration into all the nearer and all the remoter
consequences of public measures? Where could
you have found a statesman so qualified by the
impartiality of his spirit and the extent of his views
to fix upon right measures for the accomplishment
of right ends: to separate appearances from realities
in the political horizon: to reason down local
and temporary prejudices into subjection to the
eternal laws of justice, and to infuse confidence into
the minds of enlightened foreigners, with whom he
was Officially to discuss the intricate and jarring
claims of powerful and jealous nations? Where
could you have found an orator gifted with proper-
ties of eloquence so many and so great, always ex-
citing attention by his ardour and rewarding it by
his good sense; always adapting his matter! to the
subject, and his diction to the matter; never mis-
representing where he undertook only to confute,
nor insulting because he had vanquished ;_ instruc-
tive without a wish to deceive, and persuasive with-
out an attempt to domineer; manfully disdaining
to seize the incidental and subordinate advantages
of controversy, and inflexibly intent upon develop-

* The figures refer to the Notes at the end.

16 CHARACTER OF

ing the substantial and specific merits of the cause
in which he was engaged ; eager for victory only as
the prize of truth; holding up the most abstruse and
uncommon principles in the most glowing colours,
and dignifying the most common by new combina-
tions ; at one moment incorporating it with argu-
ment, and at the next ascending from historical de-
tails to philosophical generalization ; irresistible
from effort, captivating without it, and by turns
concise and copious, easy and energetic, familiar
and sublime.

Furnished you certainly are with such delicacy of
perception and such fulness of information, as qua-
lify you to appreciate that assemblage of intellectual
faculties, which in Mr. Fox was characterised by
variety without disproportion, and by splendour
without glare. But you must surely have been
charmed again and again with those manners which
in him were the native expressions of his thoughts,
and with that temper which preserved him from the
weakness of vanity, the corrosions of envy, and the
asperities of pride; struck you must have been,
equally with that tranquillity and firmness of soul
which appeared so conspicuously through the
whole career of his political life. Amidst the
fiercest animosities of party contention never did
the infidelity of associates, nor the calumnies of
foes, destroy his equanimity. In the most alarming
state of public ferment, never did the intreaties of
his friends nor the menaces of his accusers, induce
him to slacken his exertions in the cause of public
liberty. Never was his piercing and ready wit so

CHARLES JAMES FOX. 17

employed as to violate the delicacies or abuse the
freedom of friendship. Never did the loftiness of
his nature permit him to treat any opponent with
insolence, or any inferior with contempt. Even
amidst the enthusiastic applause of popular assem-
blies, he never lost for one moment that sobriety
and that magnanimity which forbade him to exult?
in the conscious pre-eminence of his powers, and at-
tract admiration towards himself at the hazard of
the common weal.

I am sure that you will not refuse me your atten-
tion, when I endeavour to assuage both your grief
and my own, by entering upon a large and, I hope,
an impartial view of Mr. Fox’s attainments as a
scholar, his powers as a public speaker, and his
merits as a statesman.

You, dear Sir, have not ceased to admire the easy
flow of numbers and the varied tints of expression
which adorn his poetical effusions. The clearness
and purity of his English prose have not often been
surpassed, and they may be well described in the
language of Suetonius? upon the eloquence of
Augustus.

Aware of the extraordinary responsibility which
a great politician incurs, when he undertakes to re-
cord and explain the events of a great political era,
he would have given to his projected History 4 all
the advantages, which muta dies and multa litura
could have procured it. If he had lived to com-
plete that work we should have seen many proofs
of his capacity to soar into the loftiest style, where
the dignity of his subject required amplification and

VOL, Iv. ο

18 : CHARACTER OF

grandeur. Contempt of perfidy, and indignation
against cruelty would have called forth those powers
in the writer, which we have again and again wit-
nessed with astonishment in the speaker, and when
his taste> had come in to the aid of his other intel-
lectual attainments, we should have found that his
education as a scholar, and his pursuits as a states-
man, peculiarly qualified him for the most arduous
and exalted duties of an historian. His memory
seems never to have been oppressed by the number,
or distracted by the variety of the materials which
he had gradually accumulated. Never indeed will
his companions forget the readiness, correctness, and
glowing enthusiasm with which he repeated the no-
blest passages in the best English, French, and
Italian poets, and in the best epic and dramatic
writers of antiquity. But that he should look for
relaxation to his understanding, or amusement to
his fancy in the charms of poetry, is less remarkable
than that he should find leisure and inclination to
exercise his talents on the most recondite, and I
add the most minute topics of criticism. He read
the most celebrated authors of Greece and Rome,
not only with exquisite taste, but with philological
precision, and the mind which had been employed
in balancing the fate of kingdoms seemed occa-
sionally like that of Cesar when he wrote upon
grammatical Analogy, to put forth its whole might
upon the structure of sentences, the etymology of
words, the import of particles, the quantity of
syllables, and all the nicer distinctions of those
metrical canons,® which some of our ingenious

CHARLES JAMES FOX. 19

countrymen have laid down for the different kinds
of verse in the learned languages. Even in these
subordinate accomplishments he was wholly ex-
empt from pedantry. He could amuse without os-
tentation, while he instructed without arrogance.
He enlarged his own knowledge of real life by re-
flecting upon fictitious representations of characters
and manners; and by the productions of the comic
and the tragic Muse he was prepared to give great-
er compass to his arguments, greater vivacity to his
illustrations, and greater ardour to his remon-
strances and warnings in parliamentary discussions.
Thus he turned to the most important uses in prac-
tice those acquisitions in which the generality of
men are content to look only for the gratification
of harmless curiosity, or the employment of vacant
hours, for speculative improvement or literary fame.

I ought particularly to notice that in Euripides
and Aristophanes he found the richest treasures of
that political wisdom, which in common with other
enquirers, he sometimes drew from other sources in
the works of orators and historians. Critics must
often have observed a peculiar resemblance between
Mr. Fox and Demosthenes in their disregard of pro-
fuse and petty ornaments, in their application of
the sound, the salutary, and sometimes homely
maxims which common life supplies for the eluci-
dation of politics, in the devotion of all their mind,
and all their soul, and all their strength, to a great
subject, and in their eagerness to fix upon some per-
tinent and striking topic, to recur to it frequently,7
suddenly, forcibly, and upon each recurrence to hold

c 2

90 , CHARACTER OF

it up in a new light, and point it in anew direction.
But biographers will do well to record that im con-
versing with a learned friend he professed to receive
more delight from Cicero than from Demosthenes.®
Experience in this, as in other instances, puts to flight
the conclusions which theorists might be prone to
draw from apparent likeness in the characteristic
traits of style. Similitude is not always the effect of
voluntary and conscious imitation, nor does appro-
bation always imply direct and general preference
for the purposes of composition. We have been
told that Euripides was the favourite writer of Mail-
ton in his closet; but in Milton’s poetry we often
meet with the bolder features and the more vivid
colouring which enrapture and astonish us in the
tragedies of Aischylus.

From our own experience, you and I can rectify
the mistakes into which persons unacquainted with
Mr. Fox have fallen, when they supposed his talent
for conversation to be wholly disproportionate to
his excellence in public speaking.

He that on no occasion would have borrowed
“ Garagantua’s mouth,”? may not have been much
disposed to summon the whole force of his mind in
the presence of Dr. Johnson, whose Toryism he
could endure, because he respected his genius. The
plain truth is, that Mr. Fox had neither the general
taciturnity of Mr. Addison, who, “ without having
nine-pence in his pocket, could draw for a thousand
pounds ;” nor the general felicity of Mr. Burke,
who, “take him up where you would, was ready to
meet you; who talked, not from the desire of dis-

CHARLES JAMES FOX. 21

tinction, but because he was full; whose conversa-
tion, beyond that of any other man, corresponded
with his general fame; and yet who, upon some
occasions, was satisfied with ringing the bell” to
our indefatigable, inexhaustible, indomitable lexico-
grapher. But you and I can look back to many
hours when Mr. Fox was not content to be auditor
tantum—when, with the utmost alacrity, he would
take his share in the liveliest and the gravest dis-
cussions—when he trifled without loss of dignity,
or disputed without loss of temper—when he op-
posed, only because he really dissented, and yielded
as soon as he was convinced—when, without prepa-
tion, he overcame the strong, and without display
he excelled the brilliant. Sometimes indeed he was
indolent, but never dull; and sometimes reserved,
but never morose. He was swift to hear, for the
purpose of knowing and examining what scholars
and men of sense were disposed to communicate,
and slow to speak, from unwillingness to grapple
with the ostentatious, and to annoy the diffident.
Though he commanded the attention of senates, he
was not therefore presumptuous enough to slight
the good opinion of wise and learned companions.
But he might often meet them with spirits ex-
hausted by intense exertion in public debate, or pri-
vate reflection. He might carry with him trains of
thinking, which were connected with political sub-
jects of high importance, and which produced in
him a temporary indifference to literary discussions.
He might, in the society even of literary men, have
sometimes looked for opportunities of relaxation,

22 CHARACTER OF

rather than exercise. But when silent, he was not
contemptuous, and when communicative, he was not
vain. Perhaps a general description of his collo-
quial powers could not be given more properly than
by contrasting them with the defects which John-
son imputed to the writings of Dr. Mudge.

Mr. Fox never “grasped more sense than he
could hold.” He never “took more corn than he
could make into meal.” “The prospects he opened
were wide, but never so distant as to be indistinct.”

His exertions, when the importance of the sub-
ject, or the cheerfulness of his spirits induced him
to make any, were not unworthy of his general
fame. But they were not frequent enough to 1m-
press common observers with the same admiration
which they must have felt from the promptness, the
acuteness, and the fertility of Mr. Burke and Dr.
Johnson, in almost every company, and upon almost
every topic. Let us, however, remember that the
mind which rushed with the impetuosity of a tor-
rent over the broad level, and the rugged precipices
of debate, was, in the current of common life,

‘Though deep yet clear, though gentle, yet not dull;

Strong without rage ; without o’erflowing full.”—
that Mr. Fox conversed in private circles as he spoke
before a public audience, for the purpose not of
triumph, but investigation—that he never crushed
his associates by insolent contradiction, nor endea- |
voured to mislead them by ingenious sophistry—
that he listened to every objection with good man-
ners, and answered it with good nature as well as
good sense.

CHARLES JAMES FOX. 23

Though Mr. Fox’s reading in metaphysical books
was desultory, and perhaps scanty, he possessed
many of the greatest advantages which metaphysical
studies are supposed to bestow upon the operations
of the human understanding. Large and compli-
cated questions ought to be viewed upon every
side, and the final determinations of the judgment
will be preceded by much suspense and many efforts.
Yet the practice of so viewing them often compels
ordinary men to seek in confirmed and undistin-
guishing scepticism some repose from the toil of
continual research, or it decoys their vanity into the
dogmatical defence of those points which are least
accessible to the common apprehensions, or least
accordant to the common belief of mankind. But
the same practice enabled Mr. Fox to find the
shortest way to the stronger probabilities and the
more important results, and his good sense led him
to acquiesce in them when they were found. In
examining the opinions of others he followed the
strictest process of the analytic method; and every
step which he took brought his hearers farther from
obscurity or nearer to truth. In explaining and
supporting his own sentiments, he showed himself
master of that wide comprehension, and that lucid
order, which belong to synthetic reasoning. He
awakened curiosity by the bright and massy generali-
ties which he placed in the front of his speeches, and
in his progress he impressed conviction by the ap-
posite and close application of them to particular
objects. With a kind of intuitive glance he dis-
cerned all the equivocal and unequivocal signs of

24 - CHARACTER OF

resemblance, and he could calculate with exactness
all the properties of causation, whether simple or
complex, proximate or remote. He did not disdain
to estimate the force of local and temporary cir-
cumstances. But in guiding his audience to ulti-
mate decision, he taught them to look beyond those
circumstances to the broader character stamped upon
human events and human actions by the general
laws of the physical and the moral world. For part
of this excellence he perhaps was indebted to the
habit which pervaded both his private conversation
and his public speeches, and which never permitted
his words to stray beside the course, or vary from
the form, or swell beyond the size, of the concep-
tions they were intended to convey.

In addition to the cause which I have just now
assigned for the intellectual endowments of Mr.
Fox, other causes equally efficacious might be ad-
duced with equal propriety. But itis of more im-
portance for me to remark, that many of those en-
dowments afforded the most direct, constant, and
powerful aid to his moral qualities. True benevo-
lence is not merely guided, but enlarged and invigo-
rated by true wisdom. It derives from practice
that activity and that consistency, the want* of
which we are often compelled to deplore in the con-
duct and even the tempers of philosophers, who
have employed the greatest talents in the investiga-
tion of moral theories. It teaches all men to sym-
pathize with the sorrows and joys of their fellow-

* Vid, Cicero, Tusculan, Quist. lib. i. parag. 4.

CHARLES JAMES FOX. 95

creatures, and impels them to alleviate the one, and
to perpetuate or heighten the other. But in Mr.
Fox we behold the last, greatest, best, and rarest of
its effects—we behold them in the disposition
which he manifested, not only to love and encourage
virtue, but upon every proper occasion to admit and
to enforce every possible extenuation of “ali the
sins, negligences, and ignorances” to which man is
made subject by the will of his Creator; subject,
dear Sir, for purposes, sometimes, I grant, inscrut-
able, but in numberless instances, I contend, visibly
righteous and wise.

To the peering and stern genius of modern loy-
alty, Mr. Fox might have transferred the language
of Dr. Jortin, in his propitiatory address to the ma-
jesty of modern orthodoxy—

“TInvitus, Regina, tuo de littore cessi. But “alas,
opinion,” says the same writer, “is a Queen who
will not accept of such excuses.”*

Suspicion, a lowering and sleepless centinel,
keeps eternal watch at the door of her council
chamber—Treachery wafts every whisper of com-
plaint from every quarter to her ear—Dogmatism
stands tiptoe with all the engines of interpretation at
hand, to torture dissent into impiety or treason, be-
fore her tribunal—Intolerance gives the signal to her
body guards, and when Persecution waves the ban-
ner of destruction, legions of frantic and ruthless
vassals are ready to sally forth from their dark am-
buseade, to raise the war-whoop, unsheath their

* Remarks on ‘Eccles, History, vol. ii. p. $07.

26 CHARACTER OF

sabres, and imbrue themselves in the blood of every
offender who presumes to investigate the rights of
the usurper, hesitates to obey her merciless decrees,
or refuses to echo and re-echo her senseless jargon.
We cannot therefore wonder, that from bigots in
politics Mr. Fox was in danger of incurring the same
rough treatment, which Jortin and other worthies
have often deprecated from the doughty champions
of theology.

What, I would ask, are the offences which sub-
jected him to so much oblequy? Did he debase the
dignity of any important cause by the affectation of
singularity, or disturb the course of grave discussion
by perverse cavils or ostentatious refinements? No.
— But in pleading for the social rights of man, beset
as they were by perils seen, and unseen, and assailed
at once by powerful enemies and perfidious friends,
he paid little deference to authority without reason,
and to assertion without proof—He looked with
equal distrust upon romantic paradoxes, which
dazzle superficial observers under the imposing
name of discovery, and upon trite and shewy gene-
ralities, which are rarely applicable to such new mo-
difications of duty, or such new opportunities for
action, as arise from new, blended with the old,
relations of individuals and communities—He
shewed peculiar dexterity in unravelling the webs
of technical sophistry, and peculiar zeal, too, in
scattering to the winds all the mischievous fallacies
wrapped up in them by certain disputants, who,
from the mechanical influence of their daily employ-
ment, direct their attention to the darker side of

CHARLES JAMES FOX. 27

human characters, and human affairs, who feel their
usefulness to consist rather in enforcing restraints
than regulating encouragements, who too frequently
acquire more expertness in imparting plausibility to
misrepresentation than luminousness to truth, who
sometimes lose in real wisdom not less than they
gain in artificial subtlety, and who chiefly derive
their information from the remote analogies,!° or
arbitrary rules of jurisprudence, rather than from
the affinities and contrarieties of political systems,
and the diversified energies of moral causes.

Such, dear Sir, seemed to be the opinion of Mr.
Fox, when he rose to explain what others had been
labouring to distort or to disguise—when he extri-
cated right premises from the knots of wrong con-
clusions—when he opened some new track to prin-
ciples, through a long and crowded maze of prece-
dents—when he rescued credulity from the snares
spread for its weakness, by the nimble sleights of
interpretation, and amidst “the noisy strife of
tongues "—when he crushed petulance under the
weight of argument—when he vanquished ingenuity
by the tactics of common sense—when he set well-
disciplined facts in array against a column of sturdy
assumptions, preceded by raw recruits of jests and
jeers, protected in the more vulnerable quarters by
light hussars of quirks and quibbles, and followed
by a sable rear-guard of veteran truisms, ready at
any time to swell “the pomp and circumstance” of
wordy war, and to serve, like Swiss mercenaries,
under any leader, and in any cause. Peculiar to
Mr. Fox that opinion was not, for I am acquainted

28 CHARACTER OF

with other persons of deep reflection and unsullied
who hold and avow it ; and I have seen, too, some-
thing like the effects of it, when flippant quips and
solemn see-saws were put to flight by the irresistible
wit of Mr. Sheridan, the masterly logic of Mr.
Windham, and the stately eloquence of Mr. Pitt.
But as Mr. Fox expressed the sentiments to which
I allude, only in the discussion of political affairs, I
am sure that, like other scholars and other states-
men, he felt a due, and therefore a great respect, for
the knowledge and talents of professional men upon
professional subjects. He would have allowed AXo-
lus *!! to bluster in his cave, and rule over the winds
committed to his charge; but wished to exclude him
from exercising any dominion over the ocean, as the
nobler prerogative of a higher deity.

Mr. Fox was not absurd enough to imagine that
the study of laws was wholly separate from that of
politics. On the contrary, he knew the various
points in which they were connected, and in the
most interesting discussions he illustrated that con-
nection with a readiness, clearness, and precision,
which unhappily ‘and unexpectedly put an end to
the embarrassments, and a check to the refinements
of the ablest pleaders, and which might have in-
duced his hearers to suppose that he had been him-
self “ fortia verbosi natus ad arma Fori.’-- He had
been the attentive hearer of an Erskine, a Dunning,
a Mansfield, a Thurlow, and a Camden. He was
the professed admirer of Lord Somers. He felt all

* Vid. Aineid, lib. i, + Vid, Ovid. Trist, lib. iv. Eleg. 9.

CHARLES JAMES FOX. 99

the veneration due to the names of a Coke, a Hale,
and a Bacon. But he distinguished between the du-
ties of a legislative assembly and a court of judicature
—between the letter and the spirit of law itself—be-
tween the principles of a science, and circumstances
which accompany the application of it, in the preju-
dices and peculiarities of its professors. He thought
that men who could settle very well disputes about
ruta coesa and caduca legata, and take due cogni-
zance of greater crimes than the theft of trium ca-
pellarum, were not the fittest persons to have pro-
vided against the defeat at Cannze—to have con-
ducted a negociation in the Bellum Mithridaticum—
to have counteracted the sagacity of Hannibal, when
he gave effect to the perjuria Punici furoris, or to
have appeased the dreadful contentions of a Sylla
and a Marius.* He would not have been disposed
to say of any class among his contemporaries, what
was said of old by Megillus, ὅσοι τών ᾿Αθηναίων εἰσὶν
ἀγαθοὶ διαφερόντως ἀγαθοὶ eici.-> But he had ob-
served, that the habits of reasoning which some men
almost mechanically contract from long practice in
their own profession, produce a narrowness and ob-
liquity in their way of thinking upon subjects par-
tially or incidentally related to it. He seems to
have suspected, too, that the frequent triumphs of
subtlety might now and then in speculation weaken
our natural love of truth, and in practice generate a
dangerous indifference to those plain and salutary
rules of conduct for which we have daily and hourly

* Vid, Martial, lib, vi. epigr, 19. t+ Vid. Plato de Leg. lib, i.

30 CHARACTER OF

occasion in the business of common life. He would
have admitted with little hesitation the justness of a
remark I have read in some eminent writer, whose
name I forget, that the human understanding has
opportunities for continual exercise, and is some-
times put to its fullest stretch in the buffetings of
legal questions —that the countless and fine-spun
distinctions which occur in them may require per-
spicacity as well as diligence, and that they are not
wholly without their use in the solution of those
doubts which present themselves to the strongest
minds, from the magnitude, or the singularity, or
the intricacy of cases, from the fluctuations of ge-
neral opinion, from the contrariety of testimony
equally credible, and from the imperceptible prepon-
derancy of opposite claims when they are weighed
only in the balance of equity. 13

But he might have contended, that the same in-
dustry in amassing materials, whether cumbersome
or tractable—the same keenness in prying out the
distinctions, whether substantial or shadowy—the
same volubility in bandying technical phrases, whe-
ther dainty or uncouth—the same eagerness to flee
for shelter to the decisions of some renowned sage—
the same proneness to confront with them opposite
dogmas, undisturbed by examination, and hallowed
by antiquity—the same briskness in starting objec-
tions — the same lubricity in eluding them —the
same stiffness in stickling for them, and the same
dexterity in plucking them from the gripe of confu-
tation, were in a degree, not very unequal, the pecu-
liar characteristics of the old scholastic doctors and

CHARLES JAMES FOX. 31

their followers. It has been said, indeed, that easu-
ists and advocates, though they understand, assume,
and appeal to the essential differences between right
and wrong, too frequently enfeeble the general sense
of obligation, by those hopes of impunity which are
excited by their skilfulness in providing subterfuges
and administering palliatives. Be this as it may,
the schoolmen were useful pioneers in the rugged
paths of knowledge, and have a claim to praise for
indefatigable activity —their researches preserved
the human mind through many ages from the slum-
ber of ignorance and the obduracy of barbarism —
they prepared it by incessant exercise for those ex-
ertions which in succeeding times were directed
with happier effect to more intelligible and more
important objects—they mingled some truth with
many errors, and though inferior, very inferior in
usefulness, to adepts in the study of that science
which sometimes gives shape and colour to the sub-
stance of virtue, controls the will by strong and visi-
ble sanctions, and far oftener promotes than im-
pedes the interests of society, yet they kept alive a
spirit of attention to learning, and of respect for
morality and religion. In all the intellectual pur-
suits of man, where there is much use, there will be
some abuse ; but perhaps that time is not wholly
wasted which instructs men in the art of employing
one trifle to counteract the practical mischiefs of
another, and even the havoc made by the intestine
warfare of sophisms eventually leaves a wider and
clearer field for the culture of common sense.

That my mind should pass from the ingenuity of

32 ; CHARACTER OF

lawyers to the subtlety of schoolmen, will not sur-
prise you, when you recollect the observations of
Blackstone, in his chapter on the rise, progress, and
gradual improvements of the laws of England. In
describing the substitution of Norman for Saxon
jurisprudence, he tells us, that “ the age in which
it took place, and those immediately succeeding,
were the era of refinement and subtlety. That the
divinity and law of those times were frittered into
logical distinctions, and drawn out into metaphysi-
cal subtleties, with a skill most amazingly artificial;
but which served to no other purpose than to show
the vast powers of the human intellect, however
vainly or preposterously employed—that law in par-
ticular, which (being intended for universal recep-
tion) ought to be a plain rule of action, became a
science of the greatest intricacy—and that those
scholastic reformers have transmitted their dialect
and finesses to posterity, so interwoven in the body
of our legal polity, that they cannot now be taken
Out without a manifest imjury to the substance.”
They who employ their abilities in ascience accom-
panied by such a dialect and such subtleties cannot
wholly escape their unfavourable effects upon the
human understanding ; and if a statesman were to
draw his principles of action, or his turn of reason-
ing, from a political work of Thomas Aquinas, !%
upon the Republic of Aristotle, the scholastic cha-
racter would surely be 1mpressed upon his language,
his opimions, and his measures.

Take notice, dear Sir, that while I am stating Mr.
Fox’s opinion, I have no wish to dissemble my own.

CHARLES JAMES FOX. 33

I do not draw, as he would not, general and invi-
dious conclusions from particular and offensive in-
stances.!4 J distinguish, as he would have done,
between the profound and the superficial, the dis-
creet and the forward, the honest and the venal,!>
in every class of mankind. I know, as he did, the
indispensable and supreme importance of law !° it-
self to the well being of every community, the ener-
gies of every government, and the safety, I had
almost said, the innocence, of every individual. 1
am scarcely acquainted with any profession where
the strongest powers of the human intellect, but
assisted, you will always remember, by a liberal
education, and directed by virtuous principles, can
find a more extensive range for observation upon the
motives and consequences of human action in pri-
vate life, or be employed with more beneficial effect
to human happiness in the ordinary intercourse of
society. Like Mr. Fox, I have myself the honour
to rank among my friends persons who deserve all
the professional fame which they have acquired, and
who deserve it the more, because they are gentle-
men, scholars, and philosophers, as well as success-
ful pleaders,—because their highly cultivated under-
standings enable them to discern the rules which
ought to guide, and the boundaries which ought to
limit, the application of their professional notions
and usages to politics, and, above all, because they
would disdain to barter their integrity for office, and
prostitute their great abilities and great knowledge
in the service of corruption and despotism.

Instead of wasting his time upon doubtful and

VOL. IV. D

34 [ CHARACTER OF

unprofitable topics of controversy, Mr. Fox watched
the effects of the controversial spirit upon religious.
establishments and sects; and, while he respected
the ancient and salutary privileges of the one, he
paid a proper regard to the civil rights of the other.
This impartiality arose, not from a secret and cri-
minal indifference to religion itself, but from his
attention to the various kinds and degrees of influ-
ence which the more and the less rational modifica-
tions of it appear to have, under various circum-
stances, upon private morals and the public peacee—
from his knowledge of the instructive lessons which
history furnishes, upon the inefficacy as well as the
injustice of multiplied restraints, and from his dread
of the mischievous consequences which have arisen
in our own, and in other countries, when persecu-
tion, direct or indirect, has long preyed upon the
spirits of honest men, and when opportunities have
suddenly started up for religious zeal to unite with
political discontent, in avenging by one effort, with-
out discrimination and without mercy, the real or
supposed wrongs of many preceding generations.
He therefore acted, as well as reasoned, in con-
formity to the well-founded observation of Mr.
Burke, that “our constitution is not made for great,
general, proscriptive exclusions,’ —and that, “sooner
or later, it will destroy them, or they will destroy
it.” *

Bent upon promoting the solid interests of his
countrymen, by intelligible as well as honourable

* Vid. Mr. Burke’s Letter to Sir H. Langrish.

CHARLES JAMES FOX. 39

expedients, and unwearied in surmounting the ob-
stacles which passion, or prejudice, or selfishness
might have raised around them, Mr. Fox was nei-
ther awed by prescription, nor beguiled by novelty
—he made no surrender of his conviction to his
ambition—he entered into no compromise between
his duties to the higher and to the lower classes,
nor did his employments and connections as a poli-
tician blunt his sensibility as a man. Ready he
was, not to irritate nor delude, but by regulations,
or perhaps indulgencies, to protect those fellow-sub-
jects who are inevitably doomed to toil and die
without the cheering hope of distinction, and who,
suffering much, may be pardoned for the infirmity
of fearing more, from “the scornfulness of the
wealthy, and the despitefulness of the proud ”—ready
to procure for them the attentions and aids which
substantial justice would grant without reluctance,
and sound discretion even proffer without solicita-
tion, to their wants, their numbers, their rights from
nature, and their usefulness to society — ready to
put their reason, their gratitude, and their instinc-
tive sense of self-preservation, and self-interest, on
the side of a government, by which they experi-
mentally found themselves to be mildly and equita-
bly treated, and thus to soothe many of the galling
and dismal feelings which lurk and throb within the
breast of man, from the consciousness of neglected
indigence, slighted merit, and weakness alarmed by
insult bordering upon oppression.

Doubtless he discerned with equal sagacity, and
would have opposed nearly with equal steadiness,

2

36 CHARACTER OF

the silent encroachments, and the rapid strides of
tyranny—but he never expressed, nor entertained,
any unseemly, or fantastic, or virulent prejudice
against royalty. He praised with ardour, the me-
mory of good kings '7 in every age—he unfeignedly
and uniformly approved of the kingly office as esta-
blished in this country, where by the provisions of
law, and with the concurrence of general opinion,
directed and.animated by general experience, it con-
fers great power, connected with great duties, and
where the discharge of those duties is most honour-
able to the Sovereign, and most beneficial to the
people.

That “negligentia non ingrata” * which Cicero
and our friend admired in style was diffused through
his behaviour to persons of all ranks. It was the
native ease and frankness of a mind reposing on
the consciousness of its own strength, and disdain-
ing to force attention by turbulent self-importance,
or to conciliate favour by appearing to be what it
was not. Among judicious observers of the real
man, it had the same effect which artists ascribe to
wet drapery on well-wrought statues. It delighted
his friends, it softened for a while his enemies, and
it offended only vain and testy persons, who over-
rated perhaps their own consequence, and who had
been taught to estimate the propriety of demeanour
by its studied and multiplied formalities. But even
the chronicles of slander furnished by court gossips,
were never tainted with a fouler calumny than that

* Vid. Cicero, in Orator. 77.

CHARLES JAMES FOX. 37

which charges Mr. Fox with want of personal re-
spect to his royal master.

Though Demosthenes, * before he went on his
embassy, had boasted that he would “sew up
Philip’s mouth with a dried bulrush,” yet he was
scared into confusion and silence by that grandeur
of mien which he for the first time witnessed in the
man of Macedon, and by the novelty of his own
situation, when speaking, not before a coarse and
giddy populace, but a resolute, sagacious, and mighty
monarch. Mr. Fox, on the contrary, had not
learned his manners, as Demosthenes did, in the
school of tumultuous assemblies, or from the lessons
of noisy demagogues—he was himself a gentleman
much above the common level, both by birth and
connexions—he, from his boyhood, had lived with
ministers, and the adherents of ministers—in his
youth he had visited the most polished courts in
Europe, and as the society of princes and nobles
was familiar to him, he had acquired the habits of
politeness without servility, and freedom without
impertinence—in the presence of young Ammon’s
son,} he, in all probability, would not have carried
one shoulder too high, nor have imitated the sooth-
sayer, who, for the purpose of adulation, violated 18
the idiom of the Greek language t—#in the palace
of Augustus he would not have meanly cast down

* Vid. Leland’s Life of Philip, book iii, section 2, and the
marginal references to /Eschines.

t Vid. Preface to Pope's Satires.

1 Vid, Plutarch, in Vit. Alexandri,

38 CHARACTER OF

his head 9 to gratify an emperor who prided him-
self on the piercing brightness of his eyes—in trans-
acting business of state with Charles the Sixth, he
would not have gone away satisfied with the con-
fused, inarticulate, unmeaning gibberish 7° which
that sovereign employed to disguise his own
thoughts, and to put ambassadors under the neces-
sity of standing aloof. Though free from the arro-
gant temper of Chrysippus,* he might have so far
resembled that philosopher, as not to dedicate any
of his writings to sceptered patrons. But surely
the man in whom the “ asperitas agrestis et incon-
cinna”-f~ was never seen in his imtercourse with
equals or inferiors, was the most unlikely person in
the world to gratify his pride or his spleen by pre-
suming to tell a king not “to stand between him-
self and the sun.”*!_ He had been accustomed to
pay honour to persons of all ranks, wheresoever
honour was due, nor could he upon any occasion
forget that in this country, where the kingly office
is the great fountain of external distinction, usage
and laws have wisely appointed every mark of ex-
ternal homage which gesture or language can ex-
press. He had not, I must acknowledge, the same
pretensions to urbanity with that smooth courtier, ¢
the humble servant to “all human kind, who, when
his tongue could scarce stir, brought out this, ‘If
where I’m going, I could serve you, Sir??” He is

* Vid. Diogen. Laert. lib. vii. segn. 185.
+ Vid. Horace, Epistle 18. lib. i.
t See Pope’s Moral Essays, Epistle 1,

CHARLES JAMES FOX. 39

said to have dealt not very profusely, “in the holi-
day and lady terms”* which warble in a drawing-
room. Perhaps in the hearing of Majesty itself, he
sometimes delivered, and enforced his own opinions,
with that earnestness which became a great man,
discharging great duties, and with that plainness of
air, and tone, and diction, which is not very usually
found among those who crouch that they may be
noticed or rewarded, and flatter, though they would
not hesitate to betray. This, I am confident, was
the very head and “front of his offending,’ and
no more ; for no more did I ever hear from persons
whose high situation gave them easy and frequent
access to their Sovereign, and some of whom were
not much prejudiced in favour of Mr. Fox. You
and I, dear Sir, have more than once been annoyed
with the story, and were it true, we should blush
for our friend—but I have never been able to trace
it beyond the prattle of those gaudy triflers, 7? whose
busy hum, and mischievous whispers, ought not to
be tolerated for one moment in quarters where the
temptations to lying are so strong, the opportunities
so numerous, and the consequences so pernicious.
Let us then dismiss the silly tale, as unworthy not
only of the smallest credit, but the smallest attention,
from men of sense and honour—let us leave it in
full possession of one privilege to which it really is
entitled—the privilege of being reported only by the
malevolent, and believed only by the foolish.

Mr. Fox knew well that, not only among our-

* Vid. Act 1, Part i. of Henry IV, ¢ Vid. Othello.

40 : CHARACTER OF

selves, but in ages less enlightened, and in countries
less free than our own, some men might acquire a
strong partiality towards theories in favour of re-
publicanism, from the peculiar structure of their
minds, or the peculiar course of their studies. But
he also knew, that upon questions of such magni-
tude, virtuous men pause before they press forward
from theory to practice, and that rash men would
be most effectually appeased or restrained, if states-
men, neither flattering the prince nor deceiving the
people, would adhere to the genuine principles of
the constitution. He knew yet farther, that a go-
vernment administered according to those princi-
ples must have little to fear from visionary pro-
jectors. or turbulent demagogues—that by the evi-
dence of “ good works” it could soon “ put to silence
the ignorance of foolish men ;” that, confiding in its
own rectitude, and its own strength, it would be
slow to infer wicked intention from erroneous opi-
nion, slow to employ severity rather than lenity,
even as the instrument of prevention, slow to accuse
unless it were able to convict, and slow to punish,
unless it were unable to reclaim. If these be
wrongs, the blame seems to lie with Nature for dis-
posing Mr. Fox to commit them, and with the con-
stitution for supplying him with so many reasons to
think himself right.

Mr. Fox, though not an adept in the use of poli-
tical wiles, was very unlikely to be the dupe of
them. He was conversant in the ways of man, as
well as in the contents of books. He was ac-
quainted with the peculiar language of states, their

CHARLES JAMES FOX. 4]

peculiar forms, and the grounds and effects of their
peculiar usages. From his earliest youth he had
investigated the science of politics on the greater
and the smaller scale. He had studied it in the
records of history, both popular and rare, in the
conferences of ambassadors, in the archives of royal
cabinets, in the minuter detail of memoirs, and in
collected or straggling anecdotes of the wrangles,
intrigues, and cabals, which, springing up in the
secret recesses of courts, shed their baneful influence
on the determinations of sovereigns, the fortune of
favourites, and the tranquillity of kingdoms. But
that statesmen of all ages, like priests of all reli-
gions, are in all respects alike, is a doctrine, the
propagation of which he left, as an inglorious pri-
vilege, to the misanthrope, to the recluse, to the
factious incendiary, and to the unlettered multitude.
For himself, he thought it no very extraordinary
stretch of penetration or charity, to admit that hu-
man nature is every where nearly as capable of emu-
lation in good, as in evil. He boasted of no very
exalted heroism, in opposing the calmness and firm-
ness of conscious integrity to the shufHing and
slippery movements, the feints in retreat, and feints
in advance, the dread of being overreached, or de-
tected in attempts to overreach, and all the other
humiliating and mortifying anxieties of the most
accomplished proficients in the art of diplomacy.
He reproached himself for no guilt, when he endea-
voured to obtain that respect and confidence, which
the human heart unavoidably feels in its intercourse
with persons, who neither wound our pride nor

49 CHARACTER OF

take aim at our happiness, in a war of hollow and
ambiguous words. He was sensible of no weak-
ness in believing that politicians who, after all,
“know only as they are known,’ may, like other
human beings, be at first the involuntary creatures
of circumstances, and seem incorrigible from the
want of opportunities or incitements to correct
themselves ; that, bereft of the pleas usually urged
in vindication of deceit, by men who are fearful of
being deceived, they, in their official dealings with
him, would not wantonly lavish the stores they had
laid up for huckstering in a traffic which, ceasing to
be profitable, would begin to be infamous ; and that
possibly, here and there, if encouraged by example,
they might learn to prefer the shorter process, and
surer results of plain dealing, *? to the delays, the
vexations, and the uncertain or transient success,
both of old-fashioned and new-fangled chicanery.
In these sentiments, which evinced at once his pe-
netration and his liberality, Mr. Fox had the concur-
rence of a friend who had reached, I believe, his
sixtieth year, without having had recourse to deceit
in his own personal or professional intercourse with
society, and without envying the exploits of the
most skilful and fortunate deceivers. Many, he
would say, are the errors, and many the faults, which
leave room for a man to rally after detection, and to
regain the good opinion of others, or to bear up
against their censures. But forlorn indeed is the
condition of cunning, when, left defenceless by the
failure of its own spells, it has been dragged into
open day. Ina moment the sorceress shrinks into

CHARLES JAMES FOX. 43

a crippled, ugly, dwarfish hag, excites contempt
without appeasing suspicion, and is hunted down
with derision, by the brave for its deformity, and by
the timorous for its impotency.

For political investigation, in which principles
and the practical decisions resting on them often
hinge upon a single phrase, Mr. Fox was qualified,
not merely by his prompt recollection of parallel
cases recorded in history, or preserved in state
papers, but by his just and distinct conceptions of
those abstract terms which, though employed very
frequently, are sometimes understood very imper-
fectly. Power, he was well aware, though it does
not enter as an integral part, into our notion of
right, is an inseparable adjunct to it, and in scho-
lastic language may be denominated the conditional
cause ; for who would seriously insist upon a right,
without having any present, or expecting any future
power to use that which he now possesses, or that
which he would hereafter obtain? Would not right,
if under such circumstances it deserved the name,
be at once barren to individuals and injurious to
society? While it produced no materials for addi-
tional advantage to the claimant, would it not lessen
the general stock of happiness, by excluding other
occupiers, whose talents or labours employed upon
the object, would contribute to the increase of that
stock ? In practice, then, mischief arises, not from
the mere act of uniting the idea of power with the
idea of right, but from the untoward propensity of
mankind to make their own rights co-cxtensive
with their own powers—from their propensity to

44 CHARACTER OF

envy and undermine the superior pretensions of
others, when they can be enforced by superior
might—from their propensity to despise, and to
tread under foot such pretensions, while they lean
for support upon reason alone. ‘The propensities
here enumerated, and other causes which more or
less co-operate with them, the absence of an intelli-
gent, patient, and upright mediator, dissembled
ambition in the stronger party, illtimed sturdiness
in the weaker, habits of inveterate jealousy in both,
caprice roving after experiments, obstinacy clinging
to precedents, stern commands from sovereigns, and
wry instructions from ministers—these are the ob-
stacles, which, for the most part, clog political
negociations, and which occasion astonishment and
chagrin to superficial observers, at their tardy pro-
gression, sudden interruptions, and unexpectcd or
unwelcome issues.

Whatsoever subtlety some men may affect, and
whatsoever distinctions other men may confound in
their words, yet in their actions they rarely contend
for rights, without looking directly or indirectly to
expediency, to good to be now enjoyed and pro-
tected, or good to be hereafter attained and secured.
In public, no doubt, as in private affairs, the gene-
ral fact is that utility,?4 upon the whole, is the
measure of duty; and the general rule is, that duty
itself is to be preferred to some immediate gratifi-
cation supposed to be within our reach, upon the
ground of its tendency to procure some distant
gratification of higher value. But the difficulty

lies in seeing the ultimate connection between uti-

CHARLES JAMES FOX. 45

lity and duty, in marking the intermediate relations
of their several parts, in forming right judgments
upon the objects which successively present them-
selves to our minds before we choose finally, in
keeping our attention steadily fixed upon those
judgments, and in guarding against the undue m-
fluence of circumstances fortuitously or slightly
conjoined, in our apprehensions, with means, during
the process of deliberation, or with ends, at the
moment of election.

Now, dear Sir, if Mr. Fox, in his discussions
upon State affairs, opened to each party a safe and
honourable path, by which the expectations of each
might be gratified, without the ignominy of com-
pulsory flight, or the hazards of protracted contest
—if, in asserting rights, he not only looked to their
origin and past effects, but was disposed to modify
them in prudent and honest accommodation to the
present interest and the present condition of the par-
ties—if he heard without impatience the proposals, or
objections, or pretensions of men grown hoary in
watching and working the complex machinery of po-
litics—if he answered them without haughtiness, or
indecision, or duplicity—if he set before them the
clearest and largest views of expediency itself—let us
not judge so harshly of our common nature as to ima-
gine that he was indebted for his success solely and
exclusively to the operation of principles unmixedly
selfish. By enabling men to understand more than
they understood before, he got the power of per-
suading them to act better than they would other-
wise have acted. By meeting them fairly and dis-

46 CHARACTER OF

passionately on the grounds upon which they had
been accustomed to reason, he induced them to
follow him the more readily when he went on to
other and stronger grounds. He drew their assent
to his opinions in a current of thinking so smooth,
or with transitions so easy, as to make their very
conversion appear to themselves the legitimate
effect of their own knowledge and their own reflec-
tion. He gradually, and almost imperceptibly,
loosened the bonds which held them in captivity to
prejudice, to habit, or even to confused and narrow
perceptions of their real good. He thus prepared
them for being directly and voluntarily actuated by
that sense of justice, which is suspended, not de-
stroyed, by the first tumultuous suggestions of self-
interest, which engages pride, not vanity, as an
auxiliary to sound discretion, and which infuses
even into political measures a kind of conscious
security, and conscious dignity, not very often de-
rived from calculations of loss and gain—from a
spirit which, let it resist systematically or irregu-
larly, may itself be resisted indefinitely—from ram-
pant eagerness to grasp, and from churlish reluct-
ance to concede.

Looking upon force as the first expedient usu-
ally adopted by coarser minds, but the last upon
which men truly enlightened will fix their choice,
and sensible of the illusions and reciprocal injuries
which arise from the want of a common umpire in
enforcing the laws of nations, Mr. Fox always found
a faithful arbiter within his own bosom. To the
decisions of that arbiter he appealed, in some per-

CHARLES JAMES FOX. 47

plexing negociations between his own and foreign
countries. In conducting them, he entered into the
feelings and views of other men, without dissem-
bling his own. He compared that which under all
circumstances each might demand, with that which
each might concede. He rescued concession itself
from every debasing appearance of submission. He
strengthened his own title to the ultimate attain-
ment, or the undisturbed use, of great and lasting
advantages, by the sacrifice of such as are subordi-
nate, fleeting, or dubious ; and he averted the odium
which attends superior power, by subjecting the ex-
ercise of it to the sacred supremacy of reason. He
anticipated, and sometimes experienced, the loss of
popularity and station, for venturing to sustain the
part which alone would make him deserving of
either; and he sought for repose in the approba-
tion of his own mind. But if patriotism upon
other occasions, and by other men, were thus tem-
pered by justice,** would governments be less stable,
ministers less praiseworthy, subjects less prosperous,
or princes less venerable? All profess to admire
the same plain rule which he followed, and, mis-
guided by ambition or selfishness, they hastily con-
demned him for following it openly and constantly.
Mr. Fox despised, as I do, the quaint devices of
that philanthropy which cast into deep shade the
virtue of loving our country, and tricked out in
garish confusion the social relations of one people
to another. But he cherished that love most sin-
cerely, and he applied it to the best uses, by his

48 : CHARACTER OF

profound knowledge and resolute observance of the
duties which those relations prescribe.”®

Our friend, as I have often remarked to you,
had deeply explored the essential and characteristic
properties of mixed governments,*’ and upon ba-
lancing their comparative conveniences and incon-
veniences, he avowedly preferred them to the more
simple forms. He saw in them more correctives
for occasional abuses, and more inherent powers for
general co-operation in the maintenance of social
order. Yet he was aware that, sometimes from the
slow, and sometimes from the sudden, operation of
external circumstances, liberty may degenerate into
licentiousness, and loyalty into servility, and from
temperament, as well as reflection, he avoided, and
exhorted others to avoid, both extremes. In the
wayward passions and jarring interests of mankind
he saw all the latent sources from which “ offences
must come,’ and without having recourse to the
judicial interpositions of Heaven, he believed that,
from the fearful and wonderful efficacy of those
unalterable and irresistible laws which govern the
affairs of kingdoms, evil, sooner or later, would
overtake the real aggressor. Upon controverted
questions of war, he said, with more consistency
than Johnson, and with more sincerity, perhaps,
than some of his contemporaries, “cuncta prius
tentanda ;” and, separating necessity from conve-
nience, he acted up to his professions upon several
trying occasions. But as to peace, he loved it,
he sought it, he “ensued” it, he was largely gifted

CHARLES JAMES FOX. 49

with the “sweetest phrase”* of it, because to him-
self, as well as to some unknown personage in a
work which he read with fondness, peace seemed
to include all the constituents of that good *9 which
philosophers have vainly sought in other quarters,
and speciously represented under other names.
Gifted with a faculty of presage not often equalled,
in marking the signs of the times, and the bearings
of general causes upon particular situations, he
wished reform everywhere set up as ἃ barrier
against swift and sweeping destruction; and in
order to facilitate the attainment of it at home, he
enlisted himself, not in a ruffian band of democrats,
but in “the noble army” of patriots.

Hence, at a juncture to which my thoughts will
often be turned, because it forms a memorable era
in his life, he took the station pointed out to him
by his judgment and his feelings. Favoured by
little assistance from partizans, and having no other
guidance than his own sense of imperious duty, he
was reviled by all bad men; and even by some
good men he was blamed for unseasonable and un-
becoming pertinacity. Yet his candour prevented
him from scofhng at the mistakes and preposses-
sions of other men with rude contempt: his good
sense and his good nature did not permit him to
slight the censure of those whom he had been
accustomed to esteem: he was pierced with sor-
row—not paralized by fear—and he journied on-
ward, though «wild beasts from the forest yelled

* Vid. Othello.
VOL. IV. E

50 CHARACTER OF

aanend him, and though “a lion stood in the
way.”

There is one topic, dear Six, upon which I should
be inclined to be quite silent, if I did not foresee
that silence would, in some quarters, expose Mr.
Fox to the suspicion of impiety, and myself to the
imputation of indifference. Something therefore
must be said upon it, and I will peeves to βὰν
it intelligibly and ingenuously.

Of Mr. Fox’s religious tenets, then, I cannot
speak so fully, as from motives, not of impertinent
curiosity, but of friendly anxiety, you may be dis-
posed to wish. But I have often remarked that
upon religious subjects he did not talk irreverently,
and generally appeared unwilling to talk at all be-
fore strangers or friends. When we look back to
the studies, and indeed the frailties of his youth,
and the employments of his manhood, it were idle
to suppose that he was deeply versed in theological
lore. Yet, from conversations which have inciden-
tally passed between him and myself, I am induced
to think that, according to the views he had taken
of Christianity, he did not find any decisive evi-
dence for several doctrines, which many among the
wisest of the sons of men have believed with the
utmost sincerity, and defended with the most power-
ful aids of criticism, history, and philosophy. But
he occasionally professed, and from his known vera-
city we may be sure that he inwardly felt, the
highest approbation of its pure and benevolent
precepts. Upon these, as upon many other topics,
he was too delicate to wound the feelings of good

CHARLES JAMES FOX. δ]

men, whose conviction might be firmer and more
distinct than his own. He was too wise to insult
with impious mockery the received opinions of
mankind, when they were favourable to morality.
He preserved the same regard to propriety, the
same readiness to attend to information, when it
was offered to him without sly circumvention or
pert defiance, the same respect for the attainments
and the virtues 2° of those who differed from him,
and the same solicitude for the happiness of his
fellow creatures. Thus much may be said with pro-
priety, because it can be said with truth; and glad
should I be if it were in my power to say more
upon a point of character, which, in such a man,
could not escape the observation of the serious, the
misconceptions of the ignorant, and the censures of
the uncharitable.

We naturally feel, and we ought to feel, satisfac-
tion, from the concurrence of eminent men in our
own opinions upon the most interesting of all
questions which tend to exercise or improve the
human mind, But it may be doubted, whether the
real interests of piety be eventually promoted by of-
ficious, severe, inquisitorial scrutiny into the origin
and extent of speculative scruples, which the per-
sons who unhappily, and it may be unavoidably,
experience them, are too discreet to proclaim, and
too decorous to disseminate. Learned, sagacious,
and truly devout enquirers are, beyond all other
men, aware of the difficulties which sometimes sur-
round the “secret things”?! that belong to religion ;
and perhaps, in mauy cases, it is for the Searcher of

E2

52 CHARACTER OF

all hearts alone to determine either the merit of as-
sent, or the demerit of suspense. Be this as it may,
the spirit of Christianity does not warrant us in
passing harsh judgment upon the thoughts of indi-
viduals, when they are unaccompanied by presump-
tuous words, or immoral deeds. Common justice
forbids us to confound the unoffending sceptic with
the loquacious and profane scoffer, and in times like
the present, common prudence seems to require
that he “who is not against us,” should in some
degree be considered as “for us.” He at least has
not availed himself of that impunity which, in
order to guard against the encroachments of perse-
cution, is granted, even in Christian countries, to
the avowal of unbelief. He does not aspire to that
praise which some men arrogantly claim, when
they set up their infidelity as a proof of their own
intellectual vigour, their extensive researches, and
their glorious elevation above the credulity of the
vulgar, and the terrors of the superstitious. Con-
templating with reverence, and sometimes with
amazement, the moral government of the world, he
may feel, in common with many enlightened and
pious believers, that “clouds and darkness are
around” the Deity, while he acknowledges the force
of many consolatory proofs that “Righteousness
and Judgment are the habitation of his seat.”

[f the rank and the talents of Lord Bolingbroke
gave undue weight to the dangerous opinions which,
after his death, but by his direction, were sent mto
the world, it is of importance for you and me to re-
mind our countrymen that other persons adorned

CHARLES JAMES FOX. 53

by rank equal or nearly equal, and endowed with ta-
lents not unequal, have more or less countenanced
other and better opinions. Within our own me-
mories, Lord North, Mr. Burke, Mr. Pitt, and Mr.
Fox, were the great political luminaries of this
country. But however they may have differed from
each other in matters of “doubtful disputation,”
and however any of them might have erred in other
matters, which to our apprehensions are clear; yet,
as Englishmen, we have reason to rejoice that they
were too well principled, and too well disposed, to
prostitute their abilities in the service of infidelity
—that they did not misemploy their authority, in
bringing contempt upon the established religion of
their country—that they avoided the guilt which
the nobles of a neighbouring country are known to
have incurred, when, misled by their vanity, they
encouraged the common people to look with dis-
trust and disrespect upon the guides of their faith,
and the guardians of their virtue. I leave it to his-
torians to bestow similar commendation upon three
or four distinguished but discarded statesmen who
are now living, and whom I forbear to name, lest
my testimony, though well-founded, and perhaps
well-timed, should be imputed to any unworthy mo-
tive. It is for my superiors in station and fortune
to profit by their example, and it is for myself to
pay the homage of my heart to their unostentatious
virtues and noiseless piety.‘ Parco nominibus vi-
ventium: veniet Eorum Laudi Suum tempus : ad
posteros enim durabit Virtus, non pervenit inv ida.” *

* Vid. Quintilian, lib. iii. cap. |.

δ4 CHARACTER OF

Let us pass on to other topics, which concern
the orator rather than the man.

The most severe and fastidious critic would
hardly withhold the praise. of originality from the
manner of Mr. Fox’s eloquence, and perhaps no
public speaker has an equal claim to the encomium
which Quintilian bestowed upon the philosophical
writings of Brutus: “Scias eum sentire que. di-
cit.”* Systematically Mr. Fox imitated*? no man,
and to no man who is not endowed with the same
robustness of intellect and the same frankness of
disposition, is he a model for imitation. The pro-
fuse imagery of Mr. Burke, and the lofty senten-
tiousness of Mr. Pitt, have produced many followers
among the “tumidos, ac sui jactantes, et ambitiosos
institores eloquentie.”-~ But the simple and native
grandeur of Mr. Fox is likely to stand alone in the
records of English oratory. Every man of taste
would abandon the hope of resembling him in the
rapidity of his elocution, in the quickness and mul-
tiplicity of his conceptions, in the inartificial and di-
versified structure of his diction, in the alertness of
his escapes from objections which we should have
pronounced insuperable, in the fresh interest he
poured into topics which seemed to be exhausted,
and in the unexpected turn he gave to parliamentary
conflicts, which had already exercised the prowess
of veteran combatants. Every man of sense, if he
reflects upon these transcendental excellencies, will
cease to wonder at the complaints which hearers in

* Vid, Quintilian, lib. x, cap. 1. ¢ Vid. lib. xi, cap, 1.

CHARLES JAMES FOX. 55

the gallery, and hearers on the floor of the senate,
have so often made of their inability to follow Mr.
Fox through all his impetuous sallies, his swift
marches, and his sudden evolutions—to calculate at
the moment all the value of arguments acute with-
out refinement, and ponderous without exaggera-
tion—to discern all the sources and all the bearings
of one observation, when, without any respite to
their attention, they were called away to listen to
another, equally apposite, sound, and comprehen-
sive.

The openings of his speeches were, I grant,
sometimes slovenly and uninteresting, and some-
times he seemed to be deserted by words, when
his mind was oppressed by crowds of thought
which outran his powers of utterance, and which
it was impossible for any resolution to repress, or
any ingenuity to methodize, instantaneously. But
as he advanced, he never failed to summon up
growing strength with the growing importance of
the subject—never slackened his pace for the sake
of momentary relief to himself from intense exer-
ertion—never digressed designedly for the mere
purpose of amusing or deceiving his audience, nor
ever stumbled without the power of rising from his
fall with increased vigour and increased speed. In
the close, he rarely professed to assist the indolent
by recapitulation, or endeavoured to soothe the
captious by apology: he disdained to catch applause
by a glittering sentiment or a sonorous period: he
said what at the instant appeared fittest to be said,
and according to the different states of his own

ὃθ ι CHARACTER OF

mind, or the different characters of the question,
he was temperate without languor, earnest without
turbulence, pithy without quaintness, or solemn
without grimace.

The luminousness and regularity of his premedi-
tated speeches** are, I believe, universally acknow-
ledged, and yet in preparing even them, however
convinced he might be with Cleanthes “ artem esse
potestatem, que viam et rationem efficiat,” he
seemed never to forget “desinere artem esse, si ap-
pareat.”* But they who impute a frequent and un-
becoming neglect of method to his extemporaneous
effusions should be reminded, that in arrangement,
as well as expression, genius may sometimes “ snatch
a grace beyond the reach of αὐτί. Mr. Fox was not
accustomed, like Hortensius, “ argumenta diducere
in digitos, et propositionum ac partitionum leporem
captare,” and for this, as well as other reasons, the
speeches of Mr. Fox, when we read them, are not
exposed to the remark which a critic of antiquity
made upon Hortensius, “ apparet placuisse aliquid
eo dicente, quod legentes non invenimus.”-f+ Mr.
Fox did not bestrew his exordiums with technical
phrases coined in the mint of rhetoric. He didnot
tacitly compliment the sagacity of his hearers, nor
entrap them into admiration of his own precision,
by loud and reiterated professions of solicitude to be
precise. He did not begin with requiring their at-
tention to a long and elaborate series of divisions,*4

a ee —i—i— NH

* Vid. Quintil, lib. ii. cap, 18, and lib. iv, cap. 2.
+ Vid. lib, xi, cap, 3.

CHARLES JAMES FOX. 57

and then insidiously throw in some extraneous mat-
ter to make them overlook the studied violation of
the order before proposed, to catch the credulous by
surprise, and to let the unwary imagine that a diffi-
culty had been solved, because the intention of solv-
ing it had been confidently announced. His tran-
sitions were indeed abrupt, but not offensive. They
exercised our judgment, but did not perplex or mis-
lead it. Artless and eager he pushed onwards where
inferior speakers would have been anxiously em-
ployed in anticipating petty cavils, in deprecating
perverse interpretations, in stimulating the dull, and
flattering the attentive. If a vivid conception
sprung up in his mind, he chaced it till he had
seized and laid open every property which belonged
to his subject, and upon quitting it he without ef-
fort returned to the leading points of the debate.
Considered as a leader of opposition who was to
investigate the reasons assigned for public mea-
sures, Mr. Fox seldom put forth his strength in
reply, and perhaps they who engage in it sometimes
find themselves exposed to inconveniences which
more than counterbalance the advantages of arbi-
trary selection. A speaker may be compelled to
pursue the track pointed out by his antagonist, or
to irritate a weary and impatient audience by de-
tailing the circumstances which induce him to
strike into another path. He may be required to
embody what is scattered in the mass of speeches
previously delivered by other men; to restore to
its right place what had been pushed aside from it
by a crafty, or headstrong, or blundcring disputant ;

58 CHARACTER OF

to separate what had been confounded; to elucidate
what had been darkened; to bring forward what
had been overlooked; to lay bare the unsoundness
of premises already admitted, and the fallacy of
conclusions already approved; to strip the mask
from specious imposture, and to break the spells of
misapplied eloquence. Thus arduous is the task
of reply ; and it were useless to inquire whether
Mr. Fox was prevented from frequently undertaking
it by the warmth of his temper, by the conscious-
ness of his ability to develope truth in another form,
or by his fearlessness of sophistry however dexter-
ous, and declamation however splendid. But that
he was thoroughly qualified for performing such a
task we have better testimony than the eulogies of
his admirers or the concessions of his enemies, and
we may find that testimony in the general practice
of his keen-eyed competitor. Even Mr. Pitt,though
he was himself eminently skilful in reply, seems in-
directly to have given Mr. Fox credit for equal
skill. Hence with every advantage in his favour
from popular opinion and official information, he
rarely delivered his own sentiments till his impetu-
ous, and sometimes incautious antagonist had
enabled him to discern what to attack or to defend,
to enforce or to disguise. Great, I allow, under
any circumstances, and in any large assembly, must
be the fascination of such a speaker as Mr. Pitt,
from the fulness of his tones, the distinctness of his
articulation, the boldness of his spirit, the sharp

ness of his invectives,*® the plausibility of his state-
ments, and the readiness, copiousness, and brilliancy

CHARLES JAMES FOX. 59

of his style. But I suspect that he was indebted
for much of his success to the deliberate and habi-
tual reservation of his strength to undermine what
he could not overthrow, to crush by contradiction
what he could not distort by misrepresentation, to
expatiate on the weaker side of the arguments ad-
duced by his opponents, to thrust back the stronger
from the view of his hearers, and to efface the con-
viction left upon their minds by a mighty rival,
when having risen professedly as an answerer he
could without detection and without resistance em-
ploy every ingenious artifice, and every vehement
struggle in making the last impression by his own
last words.

You have sometimes complained to me of the
annoyance you had suffered from persons who are
fond of raising metaphysical mists around the ordi-
nary topics of conversation, who impede the easy
movements of common sense by throwing logical
obstacles in its way, and who indulged their ill-dis-
sembled vanity, or too well-dissembled spleen, by
expatiating upon specious but frivolous distinctions,
which confound the unlearned, and mislead the
unwary. “The talents of Mr. Fox (say these critics)
are not only overrated but misunderstood. He
never struck out any new lights, but gave us now
and then a more distinct perception of old ones.
He thought only what many other men have often
thought before him, but he was expert enough in
saying it better than it usually is said.” Be it so.
In politics as in the general science of ethics, it
were absurd at this time of day to look for the

60 CHARACTER OF

discovery of principles in the strict and philoso-
phical sense of the word. Combination, arrange-
ment, improvements in the choice of terms,*° and
above all promptitude, firmness, and integrity in
the application of truths long known to ever vary-
ing exigencies in the interests of society, and to in-
finitely diversified contingencies i human hie ;
these are almost the only objects to which the in-
genuity of man can be usefully directed in his spe-
culative researches, or his practical pursuits. Here
indeed a wide field opens itself for numerous and
important differences between different writers, dif-
ferent statesmen, different communities, and differ-
ent ages. Mr. Fox was not weak enough to pre-
tend to abstract discoveries. He was wise enough
to know that in the opinion of Cicero* and other
great writers, and in the practice of himself and
other great speakers, the most powerful effects are
wrought in popular assemblies by the adaptation of
matter, and if possible even of language to the
common judgments of men, founded as they always
are upon the common or uncommon occurrences of
the world. He aspired only to the praise of under-
standing clearly, and directing honestly, those poli-
tical rules which good sense had suggested to the
minds of our fathers, and which in reality had been
perceived, disseminated, and approved even “ in the
old time before them.” Happy were it for mankind
if his knowledge so acquired and so employed, had
never been thwarted by sophistry, never overborne

a A .. . ---------- - . ...- ....ο..

* Vid. Cicero de Oratore, lib. i. parag. 4.

CHARLES JAMES FOX. 61

by declamation, nor finally bafHed by contrary no-
tions,*7 which eventually have contributed very
little to the honour of our government, or the safe-
ty of our country. I have long seen through the
specious disguise which at first was thrown over
those notions, and I now feel very unpleasant fore-
bodings of their ultimate tendency. But whatso-
ever errors they might involve, and whatsoever mis-
chiefs they may have produced, I do not forget that
they were once adopted by some well-meaning and
well-informed men, whose opinions I shall ever
disdain to vilify by comparison with those swarms
of new and pestilential theories which lately dark-
ened the face of the continent, and compelled every
star in the intellectual firmament to “ withdraw its
shining.”

The masculine understanding of Mr. Fox led
him to explore and to discriminate most carefully
the various sources of those evils, which by ordi-
nary politicians are huddled together into one com-
mon lump, and which are ascribed to a few promi-
nent causes, when they in truth are the results of
many other causes, less observed indeed, but not
less real, nor in their aggregate less efficacious.

He was aware that in the progress of knowledge,
men are led, not merely by vague and wanton curi-
osity, but by the connexion of the subject with
their own personal happiness, to enquire into the
forms and effects of the government under which
they hve—that by confused and painful perceptions
of wrongs, they are pushed on to frame distinct and
indistinct notions of rights—that even in this state

62 ἶ CHARACTER OF

of things, ancient prejudices, wisely managed by
their rulers, will check the encroachments or cor-
rect the excesses of errors which have not yet taken
root, and that partial, but voluntary, and therefore
gracious concessions, may be employed as preserva-
tives against the total surrender of authority, to be
extorted by undistinguishing and unrelenting vio-
lence—that if from indolence or obstinacy, popular
discontents are suffered to reach their full height,
claims are piled upon claims, reasonable compli-
ances serve only to facilitate such as are unreasonable,
respect is not recovered by submission, gratitude is
not excited by consent, anger is wrought up to
fury by refusal, and the oppressed feeling their
strength, cast away all regard to the original merits
of their cause, and pant for victory, not safety,
for vengeance, not justice, in a successful struggle
with their oppressors—that in the agitation of
those discordant elements which more or less _per-
vade every society, the usual operations of their at-
tractive and repulsive forces may be so disordered
as ultimately to defeat all endeavours to regulate,
and even to calculate them, and that rushing toge-
ther in direct contact, they lay waste all the sur-
rounding scenes with horrible explosion—that with-
out the existence of actual, and at last intolerable
grievances, no important revolution was ever yet
accomplished by a people among themselves—that
the deliberate and long continued neglect of apply-
ing proper remedies to those grievances, creates
occasions of which bad men most eagerly avail
themselves, to disseminate very bad principles—

CHARLES JAMES FOX. 63

that theories which thwart the more obvious and
uncorrupted conceptions of mankind in politics,
morality, and religion, meet with less resistance in
consequence of the indignities previously offered to
their common sense in common life, under ill-con-
stituted, or ill-administered systems of power—that,
in addition to the impatience arising from evils ex-
perienced, investigated, complained of, and unre-
dressed, there is sometimes a feverish affection of
the mind, when novelty acts with redoubled vigour,
and imparts credibility and agreeableness to those
representations which in seasons of calmer and
sounder thinking, we should reject as improbable
and fallacious—that restraints, whether religious or
civil, real or imaginary, then crowd upon the me-
mory, and supply fuel to that flame of the passions,
which, having been long smothered, is beginning to
kindle—that the justifications which formerly
soothed or awed the injured party into acquiescence,
are sifted rigorously, and unless approved, are sure
to be followed by a train of numberless and shape-
less spectres, ever ready to start up at the beck of
suspicion—that rank and property rarely cease to
be safe till their possessors have ceased to be re-
spectable—that the envy of the lower classes is kept
in check by an habitual sense of dependence, and
by a sullen and dastardly consciousness of imbeci-
lity, from which they are roused only by the goads
of multiplied injury—that the unbending stiffness,
and undissembled haughtiness of the higher ranks,
engender resentments which, aided by unexpected
circumstances, overcome the fears and the supine-

64 CHARACTER OF

ness of their inferiors—that pride, repeatedly wound-
ed by insult, precipitates civilized man into all the
enormities which the uncivilized commit from the.
impulses of blind and sudden rage—that grosser
acts of oppression, for which their authors often
disdain to apologize, and which in times of bar-
barous ignorance terrified the helpless into abject
submission, are in other junctures of public affairs
only the proximate and ostensible pretexts for open
and extensive revolt—that the more powerful causes
lie mm more remote quarters, where honest and en-
lightened statesmen will ever be upon the watch to
discover and to counteract them—that they are to
be found in those evils which can be mitigated to-
day or increased to-morrow by the arbitrary will of
rulers ; which, if they are disguised or explained
away by one set of men, can be brought into view
and exaggerated by another; which annoy by their
frequency and by their inveteracy rather than by
the immediate pressure of detached instances ;
which at once alarm and inflame, whether the ima-
gination gathers them into heaps, or parcels them
out into particulars; which assume every possible
appearance of bulk and number, that the afflicted,
or terrified, or exasperated mind of men can con-
ceive ; which, being at variance with the recent
but confident judgments they have formed upon
their own interests, become more and more offen-
sive from angry remembrance of the past, and
gloomy anticipations of the future; which, scarcely
admitting any specific description, and mingling
with the general mass of hopes and fears, of new

CHARLES JAMES FOX. 65

prepossessions daily thriving, and old ones decay-
ing hourly, cannot be done away by mere pallia-
tives, but which at first, almost imperceptibly, alie-
nate the sentiments of men from their wonted alle-
giance, and gradually prepare them, while they are
unconscious of their perilous situation, for becom-
ing the instruments of hasty, tumultuous, and de-
structive changes.

Such I conceive to be the point of view in which
Mr. Fox contemplated the late disastrous occurren-
ces in France, as fresh events supplied him with
fresh materials for knowledge; and in this manner
did he account for many of those mischiefs which
the authors and propagators of paradoxes hardly
believed even by themselves, had secretly planned,
and which, emboldened by opportunity, they perpe-
trated with final and fatal success.

But, whatsoever might be the doom of France,
he always bore in mind, that in England there long
has existed, and now does exist, a constitution,
which if it were not so often assumed as a topic of
boasting,®* but contemplated much oftener as a rule
of conduct by statesmen, would leave us every
thing to hope from the best feelings of mankind,
and very little to dread from the worst.

They who disagree upon the probable merit of
measures that were not tried, may find some com-
mon test for deciding upon the import of words
which were uttered publicly and frequently. I hold,
then, that on reading the speeches of Mr. Fox, no
judicious and dispassionate man will now profess to
find in them the smallest vestige of that tricking

VOL. IV. F

66 CHARACTER OF

and braggart philosophy which set at nought the au-
thority of all laws and all customs, impudently gave
the lie to history and experience, and polluted the
sacred names of reason and liberty by affixing them
to the most frantic extravagancies and the most
atrocious crimes.

Those speeches, if we had been inclined to dis-
tinguish between the flashes of eloquence and the
light of reasoning, might have guided our feet in
the paths of safety. But that philosophy, as I just
now observed to you, put out every luminary which
had been wont to cheer and direct the eye of the
undistempered mind. It glared for a season like a
portentous meteor, and then vanished from our
view, sinking into a deep and huge abyss, from
which it can emerge no more. ‘The intestine war
of those elements, which in the usual and regular
course of moral causes give health and life to so-
ciety, is not yet composed. At this moment corus-
cations of strange and dire aspect are shooting
athwart the vast void, and perhaps will be succeeded
by a “ darkness that may be felt.” Yet, “as the
violent perverting of judgment and justice in a pro-
vince is regarded by him that is higher than the
highest, 1 marvel not®9 at the matter,” and resist
the gloomy suggestions of despondency. Long and
unquiet may be the night of sorrow, and over every
nation intoxicated by prosperity, enervated by cor-
ruption, or hoodwinked in voluntary thraldom, it
may be very long, and very unquiet. But “joy
cometh in the morning,” and my prayer is, that
you may live to hail the returning dawn, when the

CHARLES JAMES FOX. 07

sun of peace is about to “ rise with healing in its
wings,” to “destroy the face of the covering cast
over all people,” and to spread around them the
pure and refreshing irradiations of justice and
truth.

The subjects discussed in some of the foregoing
paragraphs, painfully bring to my recollection other
matters, which as they immediately concern the
memory of Mr. Fox, must not be passed over in
silence. Ina very elaborate and masterly sketch
of Mr. Fox’s character, which lately appeared in the
newspapers, and which has excited a considerable
degree of attention, we are informed, that in the
estimation of Mr. Burke, “ Mr. Fox, to be sure,
was aman born to be loved,” and that “ by slow
degrees he became the most brilliant and accom-
plished debater Mr. Burke had ever seen.”

If Mr. Burke spoke of Mr. Fox as “ a man born
to be loved,” he spoke the truth, but he at the same
time passed a sentence of condemnation upon him-
self, for the severe invectives he had uttered against
one who must have heen destitute of every pro-
perty which entitles him to our love, if he really
had been, as Mr. Burke im effect declared him to
be, the shameless and remorseless advocate of the
worst agents in the worst cause, of libertines, plun-
derers, murderers, and the enemies of God and
man—against one whom he had endeavoured to
convict of a “ high treasonable misdemeanour,” in
a pamphlet said to have been enlarged and shorten-
ed, corrected and re-corrected, during a long and
agonizing struggle between rage without fortitude,

F 2

08 CHARACTER OF

and self-reproof without self-command, where many
changes reported to have been made in the matter
and style indicated no change in the vindictive pur-
pose of the writer—against one whose courteous
and affectionate proposal for an interview he is said
to have rejected on the approach of those awful
moments, when the interrupted or forfeited endear-
ments of friendship are regretted most painfully,
when the wonted causes of enmity and competition
drop their hold upon hope and fear, and when the
good and the bad are alike anxious to forgive and
be forgiven, before “they go hence, and are no
more seen.”

In the preceding paragraph I have adverted to
“a Letter from the Right Honourable Edmund
Burke to his Grace the Duke of Portland, on the
Conduct of the Minority in Parliament; contain-
ing fifty-four articles of impeachment, against the
Right Hon. C.J. Fox, from the original copy in
the possession of the noble Duke.”

This terrific title,4#° I believe, proceeded from the
editor; but the book itself contains such evidence
as left no doubt about the author. The effect pro-
duced by this book in separating Mr. Fox entirely
from Mr. Burke, and the effects intended by it to
blacken Mr. Fox with indelible disgrace, in the
mind of the king, the parliament, and the country,
never can be forgotton by you or by myself. It
appeared in 1796;4! it refers to events which had
occurred some years before; it has every internal
mark of deliberation. The writer, in page 6, “ that
he may avoid the imputation of throwing out even

CHARLES JAMES FOX. 69

privately any loose random imputations against the
public conduct of a gentleman for whom he once
entertained a very warm affection, and whose abili-
ties he then regarded with the utmost admiration,
professes to put down distinctly and articulately
some of the objections which he felt to his late doc-
trines and proceedings.” Again, in page 81, he
speaks of “a full, serious, and he thinks, dispas-
sionate consideration of the whole of what Mr. Fox
and Mr. Sheridan had acted, said, and written, in
the sessions of 1792, 1793. The interval between
the charge and the crimes compels us then to look
upon Mr. Burke as delivering his real sentiments—
I will therefore produce several of them to justify
my opinion, that they tend to do away every fa-
vourable impression which may be made by the two
observations that have lately appeared in the sketch
of Mr. Fox’s character. In page 7, Mr. Burke tells
us, that “ Mr. Fox, without the knowledge or parti-
ticipation of any one member of parliament, with
whom he was bound by every party principle, in
matters of delicacy and importance, confidentially to
communicate, had thought proper to send Mr. Adair
as his representative, and with his cypher, to St.
Petersburgh, there to frustrate the objects for
which the minister for the crown was authorized to
treat.” |

Iam not enoughacquaintedwith the circumstances
of this transaction, either to justify or to condemn
the whole of it. “ Scelus* illud vocat Tubero,”

* Vid, Orat. pro Ligario.

70 CHARACTER OF

and Tubero, as we once heard from many quarters,
is “ an honourable man.” But the conduct of the
accuser leads me to suspect that the accusation is at
once vague and exaggerated.

Much as may be said about the awful secrets of
cabinets, and the profound contrivances of states-
men, men of reading and observation will some-
times be tempted to apply to them, what a great
politician once told us of certain Legum Carmina.
Dum erant occulta necessario ab eis, qui ea tene-
bant, petebantur; postea vero pervulgata atque in
manibus jactata et excussa,* inanissima prudentiz
reperta sunt, fraudis autem et stultitize plenissima.
Folly will not be hastily imputed to Mr. Fox; but his
well-wishers will be anxious to enquire, what are the
grounds upon which Mr. Burke ventured to charge
him with the worst kind of fraud. I remember that
about the time when Mr. Adair went to Russia, the
storm of war which had been gathering passed
over. And I farther remember, that this event did
not produce any loud complaints that the country
had incurred any loss of its honour, or its security.
Mr. Burke, indeed, tells us in 1796, that Mr. Adair
“had frustrated the king’s minister in some of the
objects of his negociation.” But he does not tell
us that the objects themselves were very salutary,
or very important. The means of frustrating them he
pronounces unconstitutional and illegal. But how
does he know it? Or at least, how has he proved it,
if he knew it? His tenderness to Mr. Fox was not

---.-.ὄό..-..ὄ.

* See Cicero's Speech for Murena, paragr. 6,

CHARLES JAMES FOX. 71

always such as to make him very thrifty in impart-
ing this kind of knowledge to other men. If he
could have proved it, the anxiety which he professed
to feel for his king aud country, and the indignation
which he avowed against their foes, whether foreign
or domestic, were such, that he would have been
justified to himself and to the world in producing
the whole store of his proofs. In an exuberance of
zeal similar to that he upon a well-known occasion
had formerly manifested for impeachment,
“ς Did he appeal our friend on secret malice,
Or, worthily, as a good subject should,
On some known ground of treachery in him ?”

If, to adopt the language of Mr. Burke in another
passage, “the intentions of Mr. Adair were pure,”
was Mr. Adair under an error so great as to ima-
gine, that his end being the attainment of peace,
would consecrate unconstitutional, and even unlaw-
ful means? Did Mr. Fox, after the return of Mr.
Adair communicate to his friends the measure he is
said to have taken without their knowledge? Did
he leave them satisfied or dissatisfied with the rea-
sons he assigned for taking it? Did they view his
conduct in the same strong light in which Mr.
Burke holds it up to public reprobation? Did Mr.
Adair give to the Russian court any false or any
dangerous information about the resources of the
government, or the temper of the people? Had he
discovered the secret designs of the English cabinet,
and after discovering, did he betray more of them
than a man quite unconnected with the members of
administration, and honestly adverse to their mea-

72 CHARACTER OF

sures, had a moral, or even a legal right to reveal?
Did he encourage the court of Petersburgh to urge
new and unjust demands, or furnish them with new
and mischievous reasons, to enforce those upon
which they had previously insisted? Did he only,
as a private individual, point out in conversation to
the ministers of Russia, such views of the subject in
dispute as made peace more desirable to them than
war? Did he by mere suggestions turn their atten-
tion towards conciliatory and reasonable terms,
which the pride or the anger of the contending
parties had caused them to overlook, and which if
proposed by one of them were likely to be adopted
by the other, after temperate and immediate discus-
sions between the courts of St. Peterburgh and St.
James's? Did he presume to answer for the par-
liamentary support of that very party with whom
Mr. Fox had studiously avoided all direct and even
indirect communication upon the subject? Or, did
he merely communicate the sentiments and wishes
of himself, and a few other individuals? Was he
contented with mentioning Mr. Fox’s name, and pro-
ducing his cypher for something which the accuser
of Mr. Fox has not explained by any circumstantial
detail whatsoever, nor by any other specific pro-
perty, than that in Mr. Burke’s opinion the deed
was almost treason, nor by any other visible effect,
than that it frustrated some unknown objects, which
the King’s ambassador was endeavouring to attain ?
The fact, of whatever kind it may have been, is
said to have come within the knowledge of admi-
nistration. But foul as may have been the channel

=

CHARLES JAMES FOX. 78

through which intelligence was conveyed to them,
could that circumstance diminish the illegality of
the transaction ? Or did the intelligence itself throw
such doubts upon the whole that ministers with all
the advantages of official situation, and all the sug-
gestions of crown lawyers, were at a loss to find any
one political expedient, for turning it to any one
political account ? ἀπλοῦν τὸ δίκαιον, ῥάδιον τὸ ἀληθές,
βραχὺς ὃ Ereyzos.*. If for prudential, or any other
reasons, they did not choose to make the offenders
amenable to law, would they have been tardy to
assist in lowering the parliamentary and the popu-
lar importance of a man who had not only disap-
pointed them in Russia, but, with a charge of trea-
son hanging over his head, had ventured to oppose
them about the affairs of France? If their own pro-
ceedings had been perfectly right, was it not their
interest, as well as their duty, somehow or other to
convince the public that Mr. Fox’s conduct was en-
tirely and unpardonably wrong? Was their delicacy
to Mr. Fox so very great, or their confidence in Mr.
Burke so very little, that they would have refused
to furnish the latter with information, when he was
labouring in their cause, and when the odium of
employing it, if odium was to be expected rather
than praise, would have fallen upon Mr. Burke, not
upon themselves? In point of fact, then, ministers,
who were acquainted with the whole truth, and who
possessed the very amplest powers of proclaiming it
with authority, and supporting it by evidence, at-

* Vid. Orat, Lycurg. contra Leocrat. p. 162, Reiske edit.

74 | CHARACTER OF

tempted nothing decisive for the purpose of punish-
ment, and even alleged nothing distinct for the pur-
pose of crimination. But what are we to think of
Mr. Burke, who knew probably much less than
ministers knew, and yet has said much more than
persons better informed upon the subject, and more
interested in it, were pleased to say?

The accusation is produced by Mr. Burke in
1796. The crime must have been committed several
years before—when, I ask, and how, did Mr. Burke
discover that crime? Why did he keep back so im-
portant a discovery upon our negociations with
Russia, till Mr. Fox had displeased him by his poli-
tics on the affairs of France? Did Mr. Burke, or
did he not, continue to act in parliament with Mr.
Fox after the discovery had been made? Would he
have been justified in keeping up any party con-
nexion with a man whom he had strong reason only
to suspect of such guilt, as is laid to his charge in
the following words: “This proceeding of Mr. Fox,”
say he, “does not (as I conceive) amount to abso-
lute high treason. Russia, though on bad terms,
not having been then declaredly at war with this
kingdom. But such a proceeding is, in law, not
very remote from that offence, and is undoubtedly a
most unconstitutional act, and a high treasonable
misdemeanour.”

It will be long before, upon the mere strength of
Mr. Burke’s representation, I shall suffer myself to
consider Mr. Adair as a spy, or Mr. Fox as a traitor.
But such imputations were well calculated to pre-
pare the minds of Mr. Burke’s readers for believing

CHARLES JAMES ἘΟΧ. 78

other charges, which are afterwards brought for-
ward.

In page 30, he accuses Mr. Fox of moving reso-
lutions “ tending to confirm the horrible tyranny
and robbery of the French, and having for their
drift the sacrifice of our own domestic dignity and
safety, and the independency of Europe, to the sup-
port of the strange mixture of anarchy and tyranny
prevailing in France, and called by Mr. Fox and his
party, a government,”

In page 52, he says, that “ under a specious ap-
pearance, not unfrequently put on by men of un-
scrupulous ambition, that of tenderness and com-
passion to the poor, Mr. Fox did his best to appeal
to the meanest and most ignorant of the people on
the merits of the war.”

In page 59, he says, that “ it would be shameful
for any man above the vulgar, to shew so blind a
partiality even to his own country, as Mr. Fox ap-
peared on all occasions in the system of that year,
to have shewn to France, and that if he had been
minister, and proceeded on the principles laid down
by himself, in Mr. Burke’s belief there is little
doubt that he would have been considered as the
most criminal statesman that ever lived in this
country.”

In page 61, Mr. Fox is likened to Petion, and
Brissot, because he “ studiously confined his horror
and reprobation to the massacres of the second of
September, but passed over those of the tenth of
August; and like the Brissotine faction condemned,
not the deposition, or the proposed exile, or the

76 CHARACTER OF

proposed perpetual imprisonment, but only the
murder of the king.”

I disdain to enter into any formal refutation of
these charges. But I am at a loss to conceive how
any man who, according to Mr. Burke’s statement,
countenanced the horrible tyranny and robbery of
the French—who was more partial to a foreign
country, than any enlightened man ought to be to
his own—who acted under the specious pretences
put on by men of unscrupulous ambition—who was
indifferent to the massacre of the tenth of August,
and the barbarous indignities offered to the French
monarch before his murder, could, in Mr. Burke’s
estimation, “ be a man born to be loved.” Had so
many years elapsed before Mr. Burke could discover
that he had been the partisan and the friend of a
Cataline? For of Catiline we read, “ Quis clariori-
bus viris quodam tempore jucundior? quis civis
meliorum partium aliquando? quis tetrior hostis
huic civitati?” *

In page 59, Mr. Burke “thinks it possible that
Mr. Fox would act and think quite in a different
way, if he were in office. To be sure,” says he,
“some persons might try to excuse Mr. Fox, by
pleading in his favour a total indifference to princi-
ple, but this (says Mr. Burke) I will not suppose:
one may think.better of Mr. Fox, and that from
better, or from worse motives, he might change his
mind on acquiring the favour of the crown.” This
concession is followed by pretty broad hints, that
such a change was to be expected very faintly, and

* ‘Cie, Orat, pro Μ, Coelio, par. 9,

CHARLES JAMES FOX. 7d

by a tragical detail of the dreadful consequences that
must flow from the absence of it.

In page 78, Mr. Burke allows “that the intentions
of Mr. Fox and his associates may be pure, though
they were in great error.”

Under the impression however that their perse-
verance in error was not grossly improbable, in page
83, Mr. Burke says, that “ the declared opinions and
uniform line of conduct conformable to those opi-
nions pursued by Mr. Fox, must become a matter of
serious alarm if he should obtain a power at court,
or in parliament, or in the nation at large, because
he must be the most active and efficient member of
any administration, and Mr. Burke adds, that a man
or a set of men guided by such not dubious but de-
livered and avowed systems, principles, and maxims
of politics, as to need a watch and check on them in
the exercise of the highest power, ought, in Mr.
Burke’s opinion, to make every man who is not of
the same principles a little cautious how he helps
a man or a set of men to climb up to the highest
authority.

In page 89, he says, that if “ Mr. Fox be wedded,
they who have been little satisfied with the pro-
ceedings of Mr. Pitt in the beginning of his admi-
nistration, must be sensible that Mr. Fox’s opinions
and principles must be taken as his portion. That
in Mr. Fox’s train must also be taken the whole
body of gentlemen who are pledged to him and to
each other, and to their common politics and prin-
ciples. That Mr. Burke believes that no king of
Great Britain will ever adopt for his confidential

78 CHARACTER OF

servants that body of gentlemen holding that body
of principles.

Mr. Burke goes on to say, that if the present
king or his successor should think fit to take that
step, he apprehends a general discontent of those
who, wish that this nation and Europe should con-
tinue in their present state, would ensue. A dis-
content which combined with the principles and
progress of the new men in power, would shake
this kingdom to its foundations.”

Are these expressions qualified by occasional
suppositions that Mr. Fox would in all probability
change his opinions upon coming into office? Are
they not rather accompanied by very intelligible in-
timations that we had littie reason to look for such a
change? Do they show merely the propriety and
comparative expediency of excluding Mr. Fox from
power in the whole reign of our present sove-
reign, and the whole reign of his successor? Do
they not imply that Mr. Fox was utterly unworthy
of any favour from his sovereign, any support from
the aristocracy, or any confidence from the people ?
That if any sovereign should ever vouchsafe to em-
ploy Mr. Fox, men who wish things to continue as
they are would be provoked to take up arms
against the king and his servants? That Mr. Fox
was likely to pursue such measures as would shake
this kingdom to its foundations ?

Let me not be told that such representations
were mere effusions of anger, or mere flourishes of
rhetoric—No: they were not spoken—but they
were written—they issued from the press, and to

CHARLES JAMES FOX. 79

the press they were sent after much deliberation
and in a very offensive form, though while they were
in the press they might undergo many corrections.
Did the editor forge the whole? Did he interpo-
late any part? Did he suppress any thing kind?
Did he aggravate any thing severe? In the book
itself all excuses of precipitation are excluded by
the words of the author himself. In page 88, he
ushers in his opinion of the consequences that were
to flow from the admission of Mr. Fox to power,
by telling us that “on a cool and dispassionate view
of affairs in this time and country Mr. Pitt or Mr.
Fox must be minister, and that to his sorrow they
are irreconcileable.” The succeeding parts of this
paragraph seem to be written in the same cool and
dispassionate view. The conclusion tells us ex-
plicitly and positively that, in “ Mr. Burke's belief,
no political conjecture can be more certain than
this, that if the king or his successor should think
fit to employ Mr. Fox and his partizans, such dis -
content among the well-wishers to the present
state of this nation and of Europe would ensue, 'as,
eombined with the principles and progress of the
new men in power, would shake this kingdom to
its foundations.”

I do not ask what portion of the public approved
of Mr. Burke’s letter, or how many persons may
now remember it. But thus much I know, it was
once read eagerly, it will be read hereafter, and
with indifference no man of any party can read it.
But that Mr. Burke wrote it, that he meant to pub-
lish it, that he suffered it to be published, that he

80 CHARACTER OF

himself republished it, that he retracted it not, that
he softened it not, were sufficient reasons for Mr.
Fox to separate himself entirely from Mr. Burke.
They are sufficient reasons with me too, for ex- .
pressing as I have done to you my opinions upon
the comparative merits of Mr. Burke and Mr. Fox,
and they are sufficient also to justify me in setting
very little value upon Mr. Burke’s concession, that
Mr. Fox was “a man born to be loved, and that he
became by slow degrees the most brilliant and ac-
complished debater Mr. Burke had ever seen.”

You and I, dear Sir, should not retain much love
for the constitutional good nature, or the private
virtues of any man, if we were convinced that his
ambition was unscrupulous, that he felt no horror
at the massacre of the tenth of August, that he had
been almost a traitor, and that upon coming into
office he would pursue such measures as must ter-
minate in rebellion and revolution.

To Mr. Burke’s political conjecture, so approach-
ing to certainty as he describes it, we may oppose
some plain facts.

Mr. Fox neither in parliament nor out of it, re-
tracted any of the principles which he had really
entertained and avowed upon the politics of France ;
and from opinions that were distinct from princi-
ples little danger could be apprehended.

Now Mr. Pitt within these four or five years en-
tered into something like a negociation for coales-
cing with Mr. Fox; and whatsoever compromise
they might have made from motives of prudence to
avoid all discussions upon the causes of the late

CHARLES JAMES FOX. 8]

war, neither of them was supposed to surrender his
principles; nor can it be seriously believed by any
man that Mr. Pitt viewed Mr. Fox’s political judg-
ments in the same odious light in which Mr. Burke
represents them, or that Mr. Fox had bargained for
not acting upon them so far as he thought them
right, or that Mr. Pitt if he thought them incorri-
gibly and dangerously wrong, would have been
weak enough to he a party in such a bargain.

Mr. Adair, a self-appointed ambassador to Peters-
burgh, and the reputed accomplice of Mr. Fox in
“a high treasonable misdemeanour,” was sent by
one ministry as envoy to Vienna, and we may sup-
pose that he has expiated his offences, or at least
that like a sincere penitent he has not repeated
them, because he continues in that important cha-
racter with the approbation of his sovereign, and
with the acquiescence it should seem of another
ministry, whose general system of politics he would
not support.

I have long had the happiness and the honour to
call Mr. Adair my friend, and well do I remember
the pangs which he suffered and the tears which he
shed, when persons whom he had. been accustomed
to love and respect were torn asunder at the com-
mencement of the late war. I know Mr. Adair’s
literary attainments, his various information, his
constitutional principles, 4? his exquisite and amiable
sensibility, his sincerity in private friendship, and
his firmness in political attachment; and to his
fiercest accusers I should say with confidence,

** However Heaven or fortune may cast his lot,
VOL, IV. G

82 CHARACTER OF

There lives in him, true to King George’s throne,
A loyal, just, and upright gentleman,” *

This declaration is extorted from me by the invi-
dious introduction of Mr. Adair’s name in the
House of Lords, on the part of a peer who “ called
upon a noble relation of the person who sent him to
explain some rumours respecting the supposed se-
cret mission of Mr. Adair upon a former occasion
to St. Petersburgh.” Happy I was to observe that
the good sense of the house immediately acquiesced
in the declaration of Lord Holland, “ that the in-
sinuations upon the conduct of Mr. Fox had been
so repeatedly proved to be absurd, that nothing but
the perverse spirit, which had been manifested that
night, could have again brought it up.” I cannot
however forget, dear Sir, that Mr. Burke was the
first person to bring forward the odious charge
against Mr. Fox and Mr. Adair formally and pub-
licly, that it is recorded in his writings which are
likely to be read by many distant generations, that
a great officer of the crown has been pleased to in-
troduce it gravely in parliament, and that a malig-
nant spirit of party may hereafter induce other ac-
cusers to employ it to the discredit of both our
friends.

Four most distinguished loyalists, most expe-
rienced statesmen, and most enlightened and ho-
nourable gentlemen, Mr. Windham, Lord Spencer,
Lord Fitzwilliam, and Lord Grenville, have within

* Richard II,

CHARLES JAMES FOX. 83

this two years formed a part of the same adminis-
tration not only with Mr. Fox himself, but with
Mr. Fox’s jacobinical confederate, (as in effect Mr.
Burke describes him,) Lord Howick, and than Lord
Howick, a better subject, a sounder patriot, and an
honester man never set foot in the English parlia-
ment or the English court.

The Duke of Portland I grant did not enter into
any conspiracy with the old or new associates of Mr.
Fox, for giving effect to his jacobinical principles,
and accomplishing Mr. Burke’s prediction by the
ruin of his country. I leave other men to praise
the magnanimity and patience displayed by his
Grace in renouncing for a season the profits of
office, and in waiting for the opportunities which
perhaps in his opinion were not very unlikely to
occur, for employing his own talents and loyalty in
the service of anew and more permanent adminis-
tration. Virtue in the noble Duke certainly has
not been left to its own reward.

If we ought to believe the reproaches so ve-
hemently urged and so widely disseminated, no
predilection for political theories can even extenuate
the rashness of Mr. Fox. If we ought to disbelieve
them, no difference in political opinion can justify
the acrimony of Mr. Burke. From him who pro-
fessed to write gravely upon subjects so grave as
the interests of society, the principles of morality,
and the sanctions of religion, we have a right to ex-
pect deliberation at least, if not candour, before he
brandishes the weapons of accusation; and even to
the freedom which a sense of our common imper-

G 2

84 CHARACTER OF

fections induces us to pardon in public debate, some
boundaries are prescribed by the common sympa-
thies and usages of civilized man.

After the outrages to which I have adverted, Mr.
Fox himself stood in little need of any concession or
any praise from Mr. Burke; and the friends of Mr.
Fox as will presently appear, had little cause to be
pleased with a second instance of .commendation for
which Mr. Burke has lately been made responsible,
and in the republication of which a sort of claim ap-
pears to have been set up for the.credit not only of
his taste but of his justice, and perhaps his placa-
bility.

When Mr. Burke mentioned Mr. Fox as one
“who by slow degrees had become the most bril-
liant and accomplished debater he had ever seen,”
he spoke not, and he must have been conscious
of not speaking the whole truth. A man so con-
versant as the philosophical writer upon the sub-
lime and beautiful has shewn himself, in explor-
ing the powers of words to convey ideas under
all their possible modifications of precision and
laxity, amplification and compression, meridian
brightness and twilight dimness, must have known
that the epithets “ most brilliant and accomplish-
ed,” did not make the term “debater,” co-exten-
sive with the aggregate of Mr. Fox’s merit as a
public speaker. He must have known that ἃ.
Dunning, a Thurlow, and a North, might with
consummate propriety have been described as ac-
complished and most powerful debaters. He must
have known that he had himself seen in Mr.

CHARLES JAMES FOX. 85

Sheridan and Mr. Pitt, debaters more _ brilliant
if not more accomplished than Mr. Fox was, ac-
cording to the obvious and established significa-
tion of the words. He must have known that,
in the conceptions of such enlightened and expe-
rienced observers as himself, brilliancy was not
the marked excellence of Mr. Fox’s speaking.
He must have known that by the slightest touch
of his wand, the debater in the twinkling of an eye
might have been transformed into an orator. He
must have known that in the angry conflicts of
party, there were persons who would gladly seize
upon any expression which seemed to depress the
merits of Mr. Fox below their proper standard. He
must have known that long observation and ad-
vanced age would give additional sanction to any
judgments which he might himself pass upon his
former associate, when ordinary men were likely to
be surprised and charmed even at the smallest pit-
tance of praise bestowed by him after his unhappy
difference with Mr. Fox. But when political ha-
tred had deepened the gloom which intellectual
competition often spreads over the mind of man—
when the splendour of Mr. Fox’s name had begun to
emerge from the obscurity in which it had been in-
dustriously and mischievously enveloped—when the
sun of Mr. Burke’s glory had in some measure
ceased to be gazed at with admiration and fondness
for the radiance and warmth which it had formerly
diffused—when it was descending with unexpected
rapidity down the horizon, and was likely soon to
set in the darkness of the grave—at such a season

86 . CHARACTER OF

was that wonderful man Mr. Burke more disposed
to degrade Mr. Fox by what he suppressed, than to
honour him by what he acknowledged. Yes, dear
Sir, he was actuated by the same narrow and illiberal
jealousy which had induced some anonymous but
able writer in the Annual Register,** to notice very
slightly and very coolly a most impressive speech
delivered by Mr. Sheridan on the trial of Mr.
Hastings. He descended to the low and inglorious
artifice of “damning by faint praise,’ on a subject
where perfect fear, mingled with imperfect shame,
restrained him from venturing upon open assault.
He seems to have looked upon commendation large-
ly given to Mr. Fox, as a reward indirectly filched
from his own pretensions. He scantily, and perhaps
reluctantly, bore testimony to the intellectual powers
of a senator who had never been tardy or insidious
in applauding other speakers, and who had ascribed
much of his own political knowledge, and many of
his own oratorical excellencies to the aid of Mr.
Burke’s instructions and the influence of his ex-
ample.

I have often admired Mr. Burke when he “ ful-
mined over Greece” against jacobins and _ scorners,
and knowing him not to “be in sport,” I have
sometimes been disposed to forgive his want of caution
when he “ scattered firebrands” among the innocent
as well as among the guilty. But why did Atti-
cus give way to literary jealousy, against one whom
he knew to be completely exempt from it? Mr.
Burke had himself been the hearer and the ally of
Mr. Fox in many debates upon many subjects, and,

-“

CHARLES JAMES FOX. 87

whether right or wrong upon the general merits of
the question, he seldom failed to give some proofs
of a most active and richly-stored understanding.
Mr. Burke was himself an orator of the highest
order, and would he have been content to be called
“a most brilliant and accomplished debater ἡ ἢ
Would he have discerned much candour or much
sagacity in any critic who should have attempted to
justify the application of the term, by saying that
promptness in reply, dexterity in evasion, a keen
perception of the strong and of the vulnerable parts
in the speech of an opponent, quickness in anticipa-
ting objections and sturdiness in repelling them,
were the characteristics of a great debater, and that
practice would ultimately bring them within his
reach? No. The experience of Mr. Burke as an
orator must have told him that Mr. Fox was more
than a great debater, and the common sense of other
men will tell them that to become even a debater
of such a kind and im such a degree, something
more and something better was requisite than long
use. We shall find it in the Divite vena ingenii to
which use was superadded.

In the opinion of Mr. Burke, the fame of Mr.
Fox as a brilliant and accomplished debater, Crevit
occulto velut arbor evo.* But if slowness be mea-
sured by comparison with the progress of many
other men, the reputation of Mr. Fox as a great
speaker struck its root deeply, spread its branches
widely, and bore fruit abundantly, by degrees that

* Horace, lib. i, Carmen 12.

88 CHARACTER OF

were not slow. The state of public affairs, the dis-
pute with America, the comprehensive and impor-
tant questions to which that dispute gave rise, and
in the discussion of which Mr. Fox without very
frequent or very marked inferiority to Mr. Burke
co-operated with him, assisted probably and accele-
rated the growth of Mr. Fox’s powers, not. merely
as a debater but as an orator. Whatsoever may be
my opinion upon the comparative excellencies of
Mr. Pitt and Mr. Fox as great speakers, the pro-
gress of Mr. Pitt as a debater was I think equally
rapid, and perhaps it was even more so in conse-
quence of the arduous part he had to sustain
against a phalanx of such assailants as Mr. Grey,
Mr. Sheridan, Lord North, Mr. Fox, and Mr. Burke.
But no man, however prejudiced, who attended to
Mr. Fox’s speeches, from his first appearance in
parliament to the conclusion of the American war
discerned in them, “Illud ingeniorum velut pre-
cox genus, quod non temere unquam pervenit ad
frugem.” We may say indeed, without any gross
partiality, “ neque stabat profectus, neque admiratio
decrescebat.” *

I am not disposed to dispute about the import
of mere words, unless their ambiguity seem to be
studied for some purpose of which I do not approve ;
and that Mr. Burke used such words about Mr.
Fox “in a work written after their unhappy differ-
ence,’ is the very circumstance which induces me to
point out such ambiguity and to defeat such purpose.

* Quintilian, lib. i. cap, 3.

CHARLES JAMES FOX. 89

If those words had been used in conversation
only, they might have been accompanied by other
terms of praise, which might have protected them
from misapprehension; but they were written, it
seems, they were published, and therefore they have
all the external as well as internal evidences of
deliberation. By the author of the sketch they
were selected for republication, and therefore, he
too must be considered as acting deliberately—
I know not the work in which they are to be found.
But I give Mr. Burke’s panegyrist the credit of fide-
lity in his quotation, and as he has not availed him-
self of any other words, to correct the bad effects of
those which he has brought forward, I suppose that
he met with none.

When Mr. Burke spoke of “ slow degrees,” he
evidently meant, that as Mr. Fox spoke oftener, he
spoke better. Thus much will be granted without
prejudice to Mr. Fox’s abilities, because more can
be said, and it might also have been granted with-
out prejudice to Mr. Burke’s candour, if he had
been disposed to say more. In eloquence, doubt-
less, as in politics, in literature, in the sciences, and
all other iutellectual attainments, the advantages of
exercise are considerable, and Mr. Fox, in common
with other speakers, had a considerable share in
those advantages. He must have acquired greater
skill in defence, greater confidence in attack, quicker
views of general and particular questions, greater
copiousness and greater precision of language, and
amore ready adaptation of his matter to the temper
of his audience, the characters of his opponents,

90 CHARACTER OF

and the peculiar exigences of times and seasons.
But for the various and splendid powers which Mr.
Fox displayed upon so many subjects, and against
sO many antagonists, and durmg so many years, he
was not less indebted, surely, to a native strength
of understanding, to a liberal education, to exten-
sive reading, to habitual reflection, to familiar in-
tercourse with the learned in all sciences, and the
wise in many nations, and let me add, to an ardent
inextinguishable love of liberty, justice, and huma-
nity, which he esteemed the choicest blessings of
man and the noblest gifts of God. In truth, dear
Sir, the intellectual and the moral properties of his
mind, as I have before remarked to you, acted upon
each other. His solicitude for the welfare of his
country and of mankind led him to explore all the
causes by which it is impeded or promoted, and his
knowledge of those causes in its turn increased that
solicitude. When the welfare of thousands and
myriads depended upon the guidance of truth, he
was upon the alert to chace her, whether she were
to be found in her wonted habitations, or her most
secret haunts, in the highway of generalities, or the
bye-paths of particulars, upon the summits of
science, or in the vale of common-life, in the gloomy
labyrinths of negociation, or the rugged thickets of
debate.

If, then, readiness in the application of general
principles to particular occasions—if the fruits of
long and laborious research into the usages of par-
liament, into the spirit of jurisprudence in our own
and foreign countries, into the laws of nations, into

CHARLES JAMES FOX. 9]

the national character and national resources of
allies and foes, into the opinions, practices, and me-
morable sayings * of the most renowned statesmen
in all governments, popular and regal, and all ages,
ancient and modern, and into the causes and circum-
stances of all the great events by which great em-
pires have been raised or depressed—if copiousness,
and even felicity in illustrating—if earnestness in
enforcing—if vehemence in refuting ; if plainness of
language without vulgarity, and grandeur without
bombast: if these be the constituents of oratory,
Mr. Fox has a most indisputable claim to the name
of an orator. Whether, indeed, the merit of Mr.
Fox be measured by his ability to enlighten a senate,
or assist in a cabinet, to accommodate speculation
to action, or combine utility with truth, we see the
same unclouded perspicuity in his statements, the
same undisturbed regularity in his reasonings—the
same peculiar and varied colours in his diction, and
the same correctness, fertility, and originality in his
conceptions. Yes, he was a wonderful statesman,
and in perseverance, patience, placability, and pro-
bity, a most wonderful man.

We cannot forget the lofty tone of triumph, the
dexterous mis-statements, the invidious exaggera-
tions and pointed sarcasms to which Mr. Pitt some-
times had recourse in the conflicts of parliament.
But in no one instance which occurs to my me-
mory, did this extraordinary man speak of Mr. Fox
as merely an excellent debater. Though a mono-
polist of power, Mr. Pitt was not a pilferer of fame.
In the hearing of all parties, he frequently professed

92 CHARACTER OF

to admire, while he fiercely opposed, his mighty
rival, and in the society of his private friends, if I
am not much misinformed, he sincerely did justice
to those talents which were congenial to his own,
to some virtues, which perhaps were not, and to all
that assemblage of excellencies, which conciliated
the affections of so many adherents, and softened,
it may be, the antipathy of so many enemies. To
the honour of Mr. Fox, also, be it spoken, that he
argumentatively, and sometimes impatiently resisted,
the declamations of partizans, and the refinements
of critics, when they appeared to him to undervalue
the abilities of Mr. Pitt. Ihave been present at
such conversations, and taken, let me confess, an
active part in them against our friend.

In the happy application of sound, solemn, saintly
morality to political subjects, in variety of allusion,
in richness of imagery, in copiousness and magnifi-
cence of diction, and in all the higher graces which
invention, itself the highest faculty of the human
mind, can bestow upon human compositions, the
eloquence of Mr. Burke never has been, nor, I be-
lieve, ever will be excelled. At the same time I
should not be conscious of doing him any injustice
if I were to say, that he wandered too suddenly and
too often from his subject; that he leaped too far
beyond the bounds of decorum in his reproaches,
and of probability in his descriptions; that he
availed himself too seldom of the unexpected, and
sometimes unpleasant incidents, which in a popular
assembly should induce a speaker desirous of popu-
larity to retreat, or to pause; that he sympathized

CHARLES JAMES FOX. 93

too little with the prejudices and humours of his
audience ; that he soared too much and too long
above the level of their ordinary conceptions, and
therefore, that he was less successful than Mr. Fox
is supposed to have been in debate, as the word is
generally and properly employed. But this very
distinction implies, that in addition to the argumen-
tative talents which mark and even constitute a
powerful debater, other and great qualifications are
necessary to make a great speaker; and my com-
plaint is, that Mr. Burke has been penurious of
praise to those qualifications, as they really existed
in his great contemporary.

The province of a debater is to convince rather
than to persuade, to prove than to adorn. But
were these the sole, or upon some occasions even the
leading properties of Mr. Fox’s speeches? The
office of an orator, like that of the poet described
by Horace, is, “ et prodesse, et delectare.” But do
we not find both these properties in the sentiments
and language of Mr. Fox, when great subjects
roused him to great exertions ; when, having satis-
fied the judgment, he proceeded to exercise his
mastery over the passions ; when he unmasked im-
posture to make it despised; when he pleaded for
misery to makeit pitied ; when he asserted the eter-
nal claims of justice ; when in the liveliest colours
he painted the blessings of liberty and peace, and
when he held up the crimes of tyranny to our detes-
tation, or the ravages of war to our compassion and
our fears? Atchievements of this kind are beyond
the power of a mere debater, and he that remem-

94 CHARACTER OF

bers the effects wrought upon himself, or witnessed
the eager curiosity and varied emotions of other
men while Mr. Fox was speaking,** will readily
allow that such atchievements were not beyond the
reach of his mind. Some speakers delight the ear,
others captivate the imagination; but to win the
heart by simplicity of manner, to warm it by earnest-
ness of appeal, to stir up one strong feeling after
another in quick succession, and to stretch none
beyond their proper tone; these are excellencies*
in regard to which Mr. Fox had little to dread from
comparison with any orator of any age.

Upon the evidence adduced for facts, and the ar-
guments employed to develope their properties, our
reason is nearly at all seasons in a state of equal
preparation to form a right estimate. Distance of
time, indeed, if it make any difference, is favourable
to our decisions, because subsequent events may
have arisen to throw new light upon the origin and
consequences of those facts, or because our minds
may have been gradually set free from those latent
ties by which the occurrences of the day are en-
twined, more or less, with our partialities, antipa-
thies, hopes, and fears. In all such operations of
the understanding, the speeches which Mr. Fox de-
livered long ago, may be criticised with great advan-
tage to his character as a debater.

But upon topics which more immediately find
their way to our passions, contiguity in time, if I
may without pedantry use the language of Mr.
Hume, is accompanied by efficacy more direct, in-
deed, and more intense, but much more transient.

»

CHARLES JAMES FOX. 95

While some great and long-expected event is sus-
pended, or some important interest is at stake, we
are impressed instantaneously by the slightest as
well as the weightiest considerations which a skilful
orator may set before us. After those events have
gone by, or those interests have ceased to be impli-
cated in the discussions of any political question,
our attention languishes, and our indifference gene-
rally passes from the question itself, to every object
associated with it in the speeches, the writings, or
even the actions of men. But wheresoever this is
not the case—where after a lapse of time, after the
cessation of all personal concern, and in the absence
of immediate sympathy with a speaker of an audi-
ence, we feel as it were his ideal presence—where
the anticipations of memory furnish gratifications
not less enchanting than novelty itself—where the
illusions of imagination convert the past into the
present—where the affections preserve a kind of
elastic force after impulse upon impulse, and vi-
brate again and again in the same direction, with
undiminished vigour, can we require a more deci-
sive proof of genius in the orator, who can at will
thus call into action every strong and every agree-
able emotion? Let the merits of Mr. Fox’s ablest
orations be tried by this test. For my part, when I
look into them by mere chance, I cannot quit the
mingled nourishment and luxury of the intellectual
repast, till I come to the close of the banquet. Lay-
ing before me clearly all the links between cause
and effect; opening up to me all the principles by
which the most momentous concerns of life are go-

96 . CHARACTER OF

verned; abounding with inartificial, but most im-
passioned addresses to the best feelings of the soul,
and elevated by the proper application of those hal-
lowed maxims, which, if introduced without the
rant of fanaticism, or the whine of hypocrisy, can-
not fail to remind us that we are moral beings,
destined to act and to be acted upon amidst other ~
beings endowed with the same faculties and sub-
jected to the same responsibility, those speeches
both instruct and interest me now, not less than
they instructed and interested me upon the first pe-
rusal when many external circumstances might be
supposed to concur in accelerating and augmenting
their effect.

I have conversed with other men, who have ac-
knowledged their experience to be similar to my
own. Perhaps they would liken the speeches of
Mr. Fox to some fine pieces of music,*® which upon
the first hearing, produce a sort of confused plea-
sure from their grandeur, or a faint one from their
simplicity, and which, after some interval, are, upon
a second and a third hearing, more distinctly under-
stood and more exquisitely relished. But if I were
permitted to express the entire and peculiar influ-
ence of them upon my own mind, 1 should venture
to have recourse to other imagery—I should say,
that they carry with them, at once, the freshnsss of
a blossom and the mellowness of fruit.

Distinguished by other, and it may be, not infe-
rior beauties, some of Mr. Burke’s speeches in their
nobler parts affect me nearly in the same manner
and to the same degree. I will not, therefore,

CHARLES JAMES FOX. 97

wrong that wonderful man, by calling him an in-
genious, or animated, or gorgeous declaimer. No
—Mr. Burke was an orator—Mr. Burke was born
to be admired at home and abroad, and by friends
and foes. The happiest effusions of Mr. Burke’s
eloquence, prepared by judicious correction for the
press,*9 are not far removed from perfection,°° and
they deserve to be called, in the well-known lan-
guage of Thucydides :

““Κτήματα és αἰεὶ μᾶλλον ἣ ἀγωνίσματα és τὸ παραχρῆμα ἀκούειν."

A. xy. 55.

The mantle of Mr. Burke was of celestial texture,
and it may serve to deck out some future claimant
not unworthy of inheriting the precious insigne,
and trained to the sacred office in the schools of
the prophets—but where shall we find the favoured
mortal, upon whom a double portion of Mr. Burke’s
spirit may be expected to descend?

If I had been told, that Mr. Burke had described
Mr. Fox as a most accomplished and brilliant de-
bater, in conversation only, and had used no other
terms of praise, I should have thought of his words
as I now think, and for the sake of the speaker I
should not have produced them before the public,
without the most urgent and palpable necessity.
Even in writing to you, dear Sir, I should not have
disturbed the manes of Mr. Burke, if they had not
been invoked to descend from that glorified state,*
to which some Platonists supposed that the souls of
illustrious men were exalted immediately after

* Vid. Maxim, Tyr, Dissertation 27, and the Notes.
VOL. IV, H

98 CHARACTER OF

death, and had not been employed in performing
the part of a tutelary genius to the reputation of
Mr. Fox.

But, Amicus Foxius, veritas etiam magis Amica,
and for the strictures which have fallen from my
pen, the responsibility, in the first instance, lies with
that person, who, depending upon the merits of a
good cause, or on his own gigantic strength and
magic skill to support a bad one, has challenged the
severities of investigation.

It were useless, and perhaps unbecoming, to in-
dulge any conjectures upon the motives which led
the writer of the sketch in question to look for any
sanction to his own present opinions of Mr. Fox, in
the qualified or unqualified concurrence of Mr.
Burke. Great, indeed, are the talents of both Mr.
Burke and his encomiast, and to both should I have
listened most attentively and most respectfully, in
any honest application of those talents to great sub-
jects. Upon any other occasion, I might have been
pleased with that encomiast on his making those
acknowledgments which were once made by Mr.
Fox, for the instruction and delight, which, in com-
mon with every scholar of every party, he may have
himself derived from the speeches and the writings
of Mr. Burke. Reasons he may have for professing
to make a common cause with that extraordinary
man upon the demerits of French politics; but
surely upon the merits of English eloquence, there
is no visible temptation to seduce him from rigo-
rous and uniform impartiality, even into seeming or
momentary compliance with the lurking prejudices

CHARLES JAMES FOX. 99

of such a favourite as Mr. Burke now appears to be
in his estimation.

I condemn not Mr. Burke, nor any other man,
who has undergone a real “change in the general
complexion of his mind,’* or a change “in the opi-
nions” which he professes to hold, and endeavours
to disseminate—even a change so great as to raise
suspicion in common observers, that he is ashamed
of his former exertions for the people.” I shall en-
deavour to vindicate Mr. Burke from a part of that
charge against the reviewer, and I should be very
reluctant indeed to alledge a similar charge against
other men. The reasons for their change may be
very solid—the motives to it may be honourable—
the effects of it may be useful at once to the indi-
viduals and to the community.

It is unjust to say that inconsistency is, in all
cases, the infallible criterion of insincerity—it is
unjust to tie down manhood to those tenets which
have been ingenuously avowed, but perhaps hastily
adopted, in youth—it is unjust to shackle men of
genius with any other restraints than those which
are necessary for the observance of decorum, ho-
nour, and the strictest fidelity—it is unjust to debar
any human beings from the moral or intellectual
benefits which may arise from greater accuracy of
information, or greater maturity of judgment—it is
flagrantly unjust to blame them for discharging
those new duties which are really imposed upon their

* See the Monthly Review, to be quoted hereafter in the
Notes,

H ὦ

-

100 CHARACTER OF

consciences, by new and disinterested views of con-
troverted and important questions. But conversion
would not be disgraced by its circumstancial accom-
paniments, if converts were to pause a little, before’
they pronounce the whole truth to lie upon one side
only—if, reflecting upon their own situation, and
communing with their own hearts, they should be
impressed with an humble and fearful sense of that
fallibility which is inseparable from our common
nature—if they would vouchsafe sometimes to se-
parate the proofs and the consequences of opinions,
from the moral characters of the persons who hold
them—if they would extend to other men the same
credit which they claim to themselves, for sincerity
of conviction, and uprightness of intention—if they
would avoid every unseemly appearance of that ver-
satility which for the sake of popularity is content
to exchange sweet for bitter and bitter for sweet,
and of that shrewdness, which, for the sake of con-
venience, is prepared occasionally to halt between
right and wrong—and above all, if they were to be
very wary in suspecting, and very tender in censur-
ing, any unfortunate followers, who may have been
swayed by their arguments to adopt their opinions,
and to imitate their example. Such candour would
atone for many of their former errors, and such
prudence might serve to restrain their present and
their future zeal.

The sketch of Mr. Fox’s character which I men-
tioned to you, if considered as a literary composi-
tion, 1s indisputably worthy of the writer to whom
it has been assigned by common fame. The general

CHARLES JAMES FOX. 101

excellence of it consists in the judicious selection of
topics, in the luminous arrangement of the matter,
and in diction®! most agreeably diversified, and
most exquisitely polished. It is calm without lan-
guor, flowing without redundance, and elegant
without gaudiness. But the particular passages to
which I have adverted, were evidently introduced
with great deliberation—they have produced, and
were intended to produce great effect; and as the
judgment which Mr. Burke passed upon Mr. Fox
as a debater is not accompanied by any mark of
dissent or disapprobation, the well-wishers of Mr.
Fox may be excused for discussing the real import
of the compliment paid to him upon this occasion
by Mr. Burke. To me, indeed, it appears probable
that the more judicious admirers even of Mr. Burke
himself, will not be very highly pleased by the re-
publication of a remark which reflects very little
credit upon the magnanimity of him who made, or
the discretion of him who would disseminate it.
The writer to whom I allude, has himself shewn
Mr. Fox to have been more than “a brilliant and
accomplished debater,” and his manner of shewing
it entitles him to my praise, for the clearness of his
discrimination, and the beauty of his language—I
would therefore cherish the hope that he remem-
bered what he does not entirely approve, and that
he has recorded what he would not deign to imitate.
But I cannot suffer the charms of his style, or the
celebrity of his name, to give undue weight to the
words he has seiected from the writings of another
man, or eventually to injure that character which,

102 CHARACTER OF

according to his own words, “ he has delineated with
accuracy and fidelity.” If he meant to exalt Mr.
Burke, as I suspect he did, his attempt was not
wise; if he meant to lower Mr. Fox, as I earnestly
hope he did not, it was not good. If his sensibility
should not for once quite overpower his sagacity, I
think that, upon reviewing the whole of his state-
ment, he can hardly fail to discover some traces of
dissimilitude between the sentiments of Mr. Burke,
and his own. Was Mr. Fox a most brilliant and
accomplished debater only? Or, was he in other
respects a great speaker? If Mr. Burke be right,
the author of the sketch has ascribed to Mr. Fox
too many excellencies—if that author be not wrong,
Mr. Burke has ascribed to him too few... Why
then did the learned author of the sketch run the
hazard of counteracting the stronger praise which
was bestowed by himself, by the introduction of
the weaker praise, which was bestowed by Mr.
Burke?

Thus, dear Sir, I have endeavoured to discharge
a necessary, but most painful duty. Painful indeed
it has been for me to assume the language of con-
troversy, especially as in assuming it I have been
compelled to lay open the imperfections of the dead,
and to censure, but I hope without asperity, the
imprudence of one who is alive. But it was neces-
for me to develope very fully, all the latent proper-
ties of an expression, which, having been used by
one celebrated man, and selected for republication
by another, might ensnare common readers into im-
perfect or erroneous conceptions of the uncommon

CHARLES JAMES FOX. 103

talents by which Mr. Fox was distinguished as a
public speaker. The context itself, as I have al-
ready observed to you, contains sufficient matter to
refute the insinuation, if they be diligently com-
pared. But ordinary readers are not always upon
the alert to make such comparisons, and the insi-
nuation, protected by the high authority of the
speaker, and the seeming assent of the sketch-.
writer, is quite as likely to sink into the memory,
and vibrate upon the ear, as the context.

If these strictures should ever be read by the dis-
tinguished person whom I believe to be the author
of the sketch, let him not impute them to the pre-
judices of a partizan, or the acrimony of an enemy.
His present partiality in favour of Mr. Burke’s po-
litics is much greater than my own. His habitual
admiration of Mr. Burke’s talents is not. The com-
mendation he has lately bestowed upon Mr. Fox,
and upon one who inherits all his virtues, and no
inconsiderable share of his abilities, is, Iam con-
vinced, sincere. He is himself a scholar of no or-
dinary class, and a philosopher of the highest.
In the courts of justice he has already shewn him-
self to be a most accomplished debater, and were he
in Parliament, he would rise by rapid degrees to the
most honourable situation among the orators who
have survived Mr. Pitt, Mr. Burke, and Mr. Fox.

The frequent, and indeed unavoidable mention of
Mr. Burke’s behaviour to Mr. Fox, makes it very
necessary for me to communicate the opinion I en-
tertain of his political conduct at the time of a se-
paration, which you, dear Sir, and I, shall ever de-

104 _ CHARACTER OF

plore as an event most afflictive to the feelings of
our departed friend.

In the controversy which arose about a late revo-
lution, Mr. Burke is entitled. to my gratitude and
my respect, for spreading before the world many
adamantine and imperishable truths, which are quite
worthy of protection from his zeal, and embellish-
ment from his eloquence—many, which unfold the
secret springs of human action, and their effects
upon human happiness—many, in which he unites
the ready discernment of a statesman with the pro-
found views of a philosopher—many, which at all
times, and in all countries, must deserve the serious
consideration of all governors .and all subjects—
many, which at a most important crisis, might have
averted the outrages and the calamities we have to
lament in a neighbouring kingdom—many, which
the principles of our own constitution amply justi-
fied, and in which the good morals and the good
order of society were interested, deeply and perma-
nently. But I contend, that in a cause to which
judicious and temperate management would have
ensured success, he was impatient of contradiction, —
dogmatical in assertion, and intolerant in spirit—
that his judgment and his imagination were under
the tyranny of his undisciplined and angry passions
—that he infused into his writings the same unex-
ampled and unrelenting violence which burst: forth
in his speeches—that his raillery was sometimes
tainted with the venom of vulgar malignity, his
statements encumbered with hideous exaggeration,
and his metaphors” bloated and disfigured by the

"Ὁ

CHARLES JAMES FOX. 105

introduction of the most loathsome images **—that
in describing the primary agents in the French revo-
lution, he uniformly confounded their better and
their worse qualities in one dark and wild chaos. of
invective—that, astounded with a spectacle of “ con-
fusion heaped upon confusion, to which war seemed
a civil game,” with the wreck of all the. materials
which hold together the fabric of government, and
the extinction of all the charities which sweeten
private life, he descried very dimly the intenseness,
direction, and numbers of those powers, which en-
able states, like Antzus, to recover from their fall,
and which if a Hercules had been at hand to strug-
gle with them, should have been combated by other
stratagems of skill, and other feats of prowess, than
those which we have witnessed—that in his general
reasonings, he frequently lost sight of those intricate
causes in the moral world, by which great and rapid
evil is sometimes made the precursor of great and
progressive good—that in treating of French politics
he foresaw, indeed, much, but predicted ** far too
much—that in adverting to English politics, he often
applied very ill, what he expressed very well, and
inflamed, *> where he should have been content to
instruct and to warn—that some of the principles
he then endeavoured to disseminate were notori-
ously at variance with those upon which he had long
and avowedly given his support to many of his wise
and virtuous countrymen—that the unexpected, and
almost unparalleled change in public circumstances,
was not sufficient to warrant the undistinguishing
and total change which marked his public ha-

106 CHARACTER OF

rangues, and his public conduct—that in his pamph-
leteering attack upon the late Duke of Bedford, he
trampled on the ashes of the dead, in order to wreak
his spleen against the living—that he played off the
most formidable artillery of argument and ridicule
that ever was pointed against the interests of that
aristocracy which he had undertaken to defend ;
and that loosely, but insidiously appealing to history
for the proof of facts which historians have no
where recorded, he for once was guilty of calumnies
which an acute and elegant critic suspected upon
the first glance, and traced through all the ramifica-
tions of rhetorical mistatement to their root, in the
want, “not of veracity, but of other qualities, the
opposite of which are as adverse to truth as false-
hood itself, in that levity and rashness of assertion
which may be as uniform as fraud, and therefore as
constantly repugnant to truth,” °°—that he was in-
solent and vindictive against several of the old
whigs, such as you and I are, and severe even to
savage scurrility against all the new—that he in-
sulted and exasperated, instead of endeavouring to
enlighten and conciliate, the lower ranks of the com-
munity —that he threw an artificial, sombrous,
sullen air of mystery,’ over those rules of govern-
ment which every man is authorised to explore
coolly and respectfully, while he is required to ob-
serve them, and which, if pourtrayed by the mighty
genius of Mr. Burke in his calmer hours, would
have appeared reasonable, equitable, and amiable, to
every reader of every class—that he laboured to ex-
tort obedience by compulsion, where it might have

CHARLES JAMES FOX. 107

been won from conviction—that he laid rather too
great a stress upon those privileges which uphold,
I grant, and endear, as well as adorn society, and
too little, upon those popular rights which are
essential, not merely to the improvement or to the
preservation, but to the very existence of all that is
intelligible, or attainable, or desirable, in genuine
freedom. Other duties, I grant, were to be done
by Mr. Burke, and many of them were done with
great ability, when the times loudly called for them
—but the duty of explaining and vindicating those
rights ought not to have been left undone, and the
spur, as it is called, of the occasion, was not only a
very unsatisfactory, but in my view of certain con-
comitant circumstances, a very suspicious excuse for
neglecting it.

New connexions, new panegyrists, and new re-
wards, will now and then enable us to account for
the reiterated profession of new opinions, or new,
elaborate, and fallacious modifications of old ones.
Proselytes, dear Sir, after a few misgivings, soon
glow with the real or pretended fervour of zealots.
Zealots, expecting opposition, cool into determined
bigots, and bigots meeting with it, rankle into per-
secutors. In order to obtain protection against the
indignation of the persons whom they have deserted,
they adopt every prejudice, inflame every passion,
and minister indiscriminately to every good and
every bad purpose of the party to whom they have
delivered over their interests and their honour.
But if they happen to be gifted with keen sensibi-
lity, most salutary is the warning which they furnish

108 CHARACTER OF

to men who are yet hesitating on the threshhold of
guilt: for, in sudden wealth, or fleeting popularity,
they. receive a very precarious recompence for the
want of those gratifications which honest ambition
had formerly supplied. Impatient of that dreary
vacuity, which in active minds follows the loss of
their wonted employments, they prowl for some
prey to their growing appetite for mischief, and dis-
cerning it in the associates whose regard they sup-
pose to be alienated, they spring with equal fury
upon their defects and their accomplishments, their
failmgs and their virtues. They are too stiffnecked
to propose any reasonable terms of accommodation,
and too high-crested to accept forgiveness, even
when they are required to forgive—they brood in
silence over the wrongs they have committed, and
the retaliations they have provoked—they find them-
selves alike insensible to the comforts of solitude,
and the joys of society—they vainly call to their aid
the visions of self-delusion, and the blandishments
of flattery, when they would bar the avenues of
their hearts against the intrusions of remorse—they
hate where they are conscious of not being loved,
and try without success to love, where they are
doubtful how long they may be themselves esteemed
—worn out at last with unceasing inquietude, they
are numbered among the dead, with scarcely one
sigh from those whom they have abandoned, or one
blessing from those whom they have courted. Such
are the effects of a wounded spirit, and happy it is
for us to remember, that Mr. Fox neither felt, nor
deserved to feel them.

CHARLES JAMES - FOX. 109

It is not for such men as Mr. Fox and Mr. Pitt,
to spend their last breath in dying speeches and
confessions—They had weightier duties to perform,
and I trust that with a deep and composed sense of
their imperfections and their accountableness, they
performed those duties well. But if either of them
had chanced to be on the brink of dissolution in the
presence of the other, I hope, and I believe too,
that his lips in unison with his heart, would have
pronounced an affectionate farewell.

In regard to the behaviour of Mr. Burke to Mr.
Fox, for some time before his death, take, dear Sir,
if you please, the full benefit of such pleas as are
ordinarily admitted for difference of temper, opi-
nion, and voluntary, or involuntary situation. Grant
the largest indulgence which withont fatuity or hy-
pocrisy can be granted to the eccentricities of
genius, the blindness of party, the ardour of recent
conversion, and the impetuosity of enthusiasm. But
mark, I beseech you, the behaviour of the two men
—Mr. Burke not only ceased to act with Mr. Fox,
but had begun, aye, and continued to vilify him—
Mr. Fox, on the other hand, continued to speak with
tenderness of Mr. Burke’s former friendship in pub-
lic and in private; he deplored, but rarely censured
the political change of Mr. Burke; he praised Mr.
Burke’s intellectual endowments, mourned for his
domestic loss, and left, as long as was possible, an
opening for personal reconciliation. Closed it was
not, till the charge of a “high treasonable misde-
meanor in Russia,’ demonstrated the bitterness of
Mr. Burke’s resentment, and the restlessness of his

110 CHARACTER OF

hostility. That charity, which had endured many
other things, could not patiently endure this one
most deliberate wrong.

You, dear Sir, and I, and other consistent friends
of Mr. Fox, have not memories so bedimmed, or
feelings so benumbed, as never to bestow a thought
upon the impressions which such ungracious treat-
ment made on his sensibility. We do not, indeed,
take any common interest in the triumphs of that
ingenuity which spreads a many-coloured varnish
of conjectures and distinctions, and qualifications,
over the backslidings of bad men—of trimmers, I
mean, who in all changes of opinion, leer most vigi-
lantly upon all chances of preferment—or of so-
phists both in theory and in practice, who whether
they stir up the rude storm, or partake the soft
gale, are never at a loss for reasons to justify them-
selves to themselves, and to a shameless crew of
apologists, lying upon the watch for opportunities
to be imitators—or, of hirelings, who with equal
obsequiousness, and with equal importunity, tender
their services to “two masters”—or of seers, who
without a blush, “ can prophecy things smooth,” or
things rough, at the nod of their employers, and
without a pang, bow the knee to “God and Mam-
mon’—but we do feel a common indignation,
against rudeness leagued with implacability. To
our judgments, the sprinklings of praise which drop
from caprice in a fit of indolence, or envy in a state
of confirmed ill-will, must now and then betray
unequivocal marks of the taint contracted at their
source.

CHARLES JAMES FOX. 111

You, dear Sir, may be inclined to ask, as other
persons have often asked from other motives, was
not Mr. Fox ambitious? Yes, I shall answer with-
out hesitation, and he may be said to have been so
almost from the cradle to the grave. But ambition
in him ** was not that head-strong passion which
tosses away all considerations of duty and decorum
—which hails—a friend only in a partizan—which
crouches to the mighty only that it may trample
upon the feeble—which truckles for office by the
barter of principle, and varies with the varying
opinions and humours of unfeeling rulers, and an
unthinking populace. He was led to look up to
high employments in the state by those early and
strong associations which distinguish and perhaps
produce the characters of individuals—by the ex-
ample of a revered father, by the influence of edu-
cation, by splendid connexions upon his first en-
trance into the bustle of politics, and by the inward
consciousness of talents adapted to exigencies the
most trying, and situations the most elevated. He as-
pired to power because power would open to him a
wider range for the exercise of wisdom and bene-
volence. He valued fame,*? because fame is the
legitimate reward of extraordinary merit. But
neither power nor fame carried with them irre-
sistible charms to his mind, when they were to be
purchased by the surrender of private honour, or
by the dissimulation of his real thoughts upon the
tendency of public measures to the public good.

When he was engaged in opposition, how meckly
did he bear that ascendancy, which it was impossi-

112 CHARACTER OF

ble for him not to gain by the superiority of his
abilities, and the dignity of his character! But the
most decisive proof of his moderation is, that when
employed as a servant of the crown, he was content
to bear the chief responsibility for measures without
vaulting into the chief official situation. He
humbled, but did not abase himself,and for the loss
of exaltation to the highest ministerial power, he
was abundantly repaid by the esteem of his col-
leagues, and the confidence of his party.
Whatsoever difficulties may formerly have per-
plexed us while our judgment was oppressed by our
fears, we can now be at no loss to account for the
singularity of his conduct amidst those tempestuous
scenes, in which the follies and the crimes of which
human nature is capable burst upon our notice in
their fullest magnitude and most shocking defor-
mity. While many of his well-wishers and oppo-
nents were scared by one common panic—while his
illustrious rival seemed in some instances to tempo-
rise for the sake of power—and while for the sake
of popularity, which soon passed away, he who had
once been the friend of his bosom stooped to many
of the meannesses, and plunged into many of the ex-
travagancies by which recent conversion would make
its zeal the measure of its sincerity, Mr. Fox con-
tinued to reason from the treasures of his own pro-
found knowledge, and to act from the dictates of his
own unbiassed judgment. At a most gloomy and
portentous crisis, and with the prospect of political
odium, and even personal danger, he addressed him-
self to his misguided constituents, to an incensed

CHARLES JAMES FOX. 113

parliament, and to a terrified people. He argued,
he supplicated, he warned, he ventured aimost to
predict.©© But he never confounded the use of li-
berty with the abuse; never seized upon sudden
and fleeting prejudices in order to undermine ancient
and solid principles; never provoked outrages for
the purpose of condemning and retaliating them,
nor attempted to extenuate those overt-acts, of in-
justice and cruelty which disgraced a cause not pal-
pably bad at its commencement—overt-acts you
will observe, which themselves owed their rise in
too many instances to unwise and intemperate op-
position, and which eventually baffled the expecta-
tion of many wise and virtuous men®! who had for
a time supported that cause, but who ceased to sup-
port it when it had furnished a pretext for those
crimes. If indeed the destiny of Europe (and for
once let me use this phrase) had permitted his
counsels to be adopted in the spirit which really
suggested them to his mind, and for the ends to
which alone he was anxious to direct them, the li-
centious uproar of popular phrenzy might have
been hushed nearly at the beginning of the contest
—the savage triumphs of profligate and sanguinary
upstarts might have been prevented—the constitu-
tion of France might at once have been reformed
and preserved, and the life of its amiable sovereign
might have been rescued from most unmerited de-
struction. That most deplorable event may have
surprised other men more than it surprised such
observers as Mr. Fox. But no Christian, however
pious, no loyalist, however ardent, no human being,
VOL. IV. I

114 CHARACTER OF

however compassionate, viewed it with more indig-
nation and horror than our virtuous friend.

Opinions may now be tried by the test of facts,
and the merits of measures may be decided without
undue partiality to statesmen who are no more. 1
ask only what intelligent and honest men will al-
ways be ready to grant, that moderation in principles
is very compatible with ardour in language. The
moderation of Mr. Fox then at the commencement,
and I add during the progress of the French revo-
lution, was the result of intense and serious medita-
tion upon the experience of past ages. But the er-
rors of his more ardent opposers have been detect-
edin the recent and melancholy experience ® of
our own times.

““ Quis est,” says Cicero, speaking of his own mis-
takes and his own unhappy times, “tam Lynceus,
qui tantis Tenebris nihil offendat? nusquam incur-
rat?”* Upon a subject so complex, and in many
respects so novel as the revolution in France,
where the interposition of foreign powers was
marked at once with indecision and rashness, where
great and general views were suddenly crossed by
local considerations or selfish motives, and where
the immediate agents at home, were numerous,
restless, discordant in their purposes, and infuriate
in their passions, no observer could, at the outset,
be purely and entirely right. At this distance of
time, therefore, the proper enquiry is, who among
our countrymen was least wrong? Upon some

* Epis. ad Famil, lib. ix, Epis, 2,

CHARLES JAMES FOX. 115

questions in theory, and many contingencies in
practice, all disputants I think lie open to the im-
putation of error. They thought too well or too
ill of the contending parties. They acted too little
in some respects, and too much in others, and toa
long and frightful catalogue which history supplies,
they have added one striking instance, that the
wisest of men may plume themselves too highly
upon their foresight, and that man is doomed to call
much of his real knowledge by the just, though
humble name of ᾿Επιμηθία.

But we are led, surely, by the venial, I had al-
most said, the amiable instincts of our nature, to
feel a bias in favour of those persons who from ge-
neral principles wish well to the liberties of man-
kind, who recommend peace to governments, and
who are solicitous rather to persuade than compel,
and to conciliate rather than inflame.

The measures which Mr. Pitt proposed have been
tried—those which Mr. Fox pointed out have not.
But no candid man will refuse to Mr. Pitt the praise
of right intention. Yet upon a dispassionate and
serious review of the comparative merit to be as-
cribed to Mr. Fox, few intelligent men would now
venture upon direct and unqualified contradiction, if
that statesman, with some alteration of . Cicero's
words, had been induced to say, “Se et’plus vidisse,
et speravisse meliora.”*

He that in the intercourse of private. life could
“be angry and sin not,” may be readily supposed to

* Vid. Phil. ii. par. 7.
12

_

116 CHARACTER OF

separate every malignant feeling from measures of
political hostility, and to make allowances for the
unsuspected and complicated motives of those ac-
tions which, disguise the deformity of ambition from
its votaries, and which, under the most specious pre-
tences, too frequently disturb the tranquillity of the
world. But knowing every unnecessary war ® to
be pregnant with inconveniences and mischiefs
which baffle calculation,°* he was disposed by re-
flection and by habit to check rather than to rouse;
and to assuage rather than to provoke, the fiercer
passions of mankind—he rested national glory upon
the broad and strong foundation of national security
—he laboured to appease, and by appeasing to pro-
tect, his irritated, and perhaps injured countrymen,
at the hazard of offending their pride,® and forfeiting
their favour—he preferred dispassionate negotiation
to precipitate violence, in his conduct towards fo-
reign powers; in the pursuit of redress, he steadily
kept in his view the possibility of reconciliation—
he weighed in the balance of impartial justice every
complaint of the accuser, and every plea of the ac-
cused—he dismissed what was triflimg—he ex-
plained what was doubtful—he asserted what was
clear and equitable—he employed moderation as
the harbinger of vigour, and if compelled to un-
sheath the sword, he would have discerned, wel-
comed, and improved, every opportunity which the
course of events might have afforded him for hold-
ing out the olive branch. In order to secure the
usual relations of amity and peace, he would have |
endeavoured to preserve or restore the usual rela-

CHARLES JAMES FOX. 117

tions of men to men, and of states to states, in the
struggles of war. “Ipsam quoque pacem esse ju-
dicasset, non in armis positis, sed in abjecto armo-
rum (et injuriarum) metu.”* Like a wise man®
of whom we read, he, in times of apparent tranquil-
lity, would not have been wholly unprepared for
war. But he would have made peace, and tried to
keep it, in the spirit of peace. For the attainment
of this difficult, but honourable purpose, he, in his
negociations with foreign courts, would have em-
ployed gentlemen, not upstarts; experienced men,
not striplings and sciolists; men of observation
upon political characters, measures, and causes, ra-
ther than novices who understand not what they
see, andspies who often report what they see not.

The western world ®7 has, therefore, to lament
that this accomplished statesman was not sooner
called into office, where his sound and generous po-
licy might have prevented the mistakes ® of his il-
lustrious competitor, and where, by carrying into
effect his favourite measure, peace, he might have
restrained that military power, which, generated by
the enthusiasm of revolution, has transferred the
desperate courage of self-preservation to the hardy
enterprizes of ambition ;° which has gathered in-
crease of strength from increasing resistance ; which
has formed fresh projects after every instance of
fresh success, and which now threatens? speedy
and total subjugation to the convulsed, dismayed,
and infatuated continent of Europe.

* Vid. Cicero, Lett. 6, to Plancus, lib. x.

118 CHARACTER OF

Though every passing day gives us occasion to
regret that the serious and reiterated warnings of
Mr. Fox were not more favourably received. and
more diligently followed; yet must it afford you
some consolation, that justice will be done ultimately
and amply to the rectitude of his intentions, and the
wisdom of his counsels. The pacific spirit which
he recommended, the sage observations which he
enforced, the immutable principles upon which he
reasoned, the unfeigned and affectionate earnestness
with which he pointed out to England the true, and
indeed the sole path to safety and to glory, amidst
the disasters of the American, the last, and the pre-
sent war, will not be lost in oblivion. Even to the
latest posterity, they will continue to be subjects of
useful and interesting investigation to politicians and
patriots, who are animated by the same honest desire
to consolidate the interests of governors and the go-
verned—to substitute plain-dealing for 1mposture,
and protection for oppression—to soften some of
the harsher effects arising from the multiplied ine-
qualities of condition—to correct inveterate abuses,
and gradually to improve and secure social order, by
extending and perpetuating the precious blessings of
social life.

Surely, then, dear Sir, we shall not be accused of
very unreasonable partiality in transferring to our
friend the dignified and comprehensive praise, which
was once bestowed upon Collatinus, “ uno ore’ cui
plurime consentiunt gentes Populi Primarium fu-
isse Virum.”’*

* Vid, Cicero de finib, lib. il, par. 33, and de Senectute, par. 17.

CHARLES JAMES FOX. 119

History, doubtless, will unite the name of Mr.
Fox with the names of Demosthenes and Cicero,
who, in distant climes, and to distant ages, shed a
lustre over the annals of their country—each of
them transcendantly superior to the most eminent
characters of their own times, and of the generations
succeeding them—each alike reviled by the venal,
and defeated by the crafty, in their endeavours to
preserve public liberty—each the most eloquent
speaker, and the most skilful statesman that ever
adorned the most enlightened and civilized nations
of antiquity.

It is pleasing, and I think instructive, to trace
points of resemblance, and points of difference be-
tween those personages who have filled a broad space
in the public eye,

Quique sui memores alios fecere merendo.*

From popular governments we may without im-
propriety derive illustrations of that character, which
among ourselves owed the greater part of its splen-
dour to the defence of popular principles; and in
speaking of a man to whom the writings of Greece
and Rome were familiar, I shall not descend to the
childish affectation of apologizing to you, when I
employ from them such passages as occur to my
memory. If, then, the most virtuous man living
had risen up in parliament to oppose Mr. Fox, he
would not have been subject, as Demosthenes was in

* JEneid 6.

120 CHARACTER OF

the presence of Phocion, to the mortification of
whispering in the ear of his friend,

Ἡ τῶν ἐμῶν λόγων κοπὶς ἀνίσταται. Τ'

There have been times when, should certain an-
tagonists have said to him tauntingly, “the people
will kill you, if they are enraged up to madness,”
he might have replied with Phocion,

Ὑμᾶς δὲ ἐὰν σωφρονῶσι.

Perhaps in foresight he was not very inferior to
Themistocles, qui et de instantibus (ut ait Thucy-
dides) verissime judicabat, et de futuris callidissime
conjiciebat. 7?

Here the comparison must stop, for the patriotism
of Mr. Fox was not quite so unscrupulous as that
of Themistocles ; and if it had been proposed to him
to burn the fleet of a neighbouring state, and thus
to obtain the dominion of the seas, he in all proba-
bility would have given the same answer which im-
mortalized the name of Aristides—Tijs πράξεως ἣν ὃ
Θεμιστοκλῆς πράττειν διανοεῖται, μήτε λυσιτελεστέραν
ἄλλην, μήτε ἀδικωτέραν εἶναιιδ The Athenians, dear
Sir, as you remember, were for once prevailed upon
to prefer substantial justice to immediate advantage.
But if Mr. Fox had given the same advice with
Aristides, would he have met with the same suc-
cess? Perhaps he would, if he could have commu-

* Plutarch, ed. Xyland, vol. i. p.’744. vol. ii. p. 803.
+ 1d. vol. i. p. 746. t Corn. Nep. in Vit, Themistocles.
ὁ Plutarch, in Vit, Aristid, vol. i. p. 322.

CHARLES JAMES FOX. 121

nicated to his hearers the same conviction which he
must himself have felt, that so flagrant a violation
of justice might lead to very disgraceful and very
disastrous consequences. But for the present many
of our countrymen seem content to say, victorize
rationem non reddi.*

“ Hephestion,” + said a great conqueror, “ loves
Alexander, but Craterus loves the king.” The truth
of this observation has been seen and felt by the
powerful in all ages. But the experience of Mr.
Fox supplies one cheering and solitary exception.’*
For reasons which it is unnecessary to state, few
who acted with him could be much influenced by
the expectation of patronage. Their attachment,'*
however, reconciled them to the loss of profit and
of power, and it is, I believe, generally allowed that
the adherents to his party were the friends alike to
his private?> and his public virtues. Such was his
singular felicity through life, and I hope not to be
accused of any unbecoming partiality when I notice,
as others have done, some peculiar circumstances
which after his death do honour to his memory.

Strong and agreeable as are the feelings of admi-
ration, yet, unless they be sustained by the appro-
bation of moral qualities in their object, they gra-
dually languish, and at length subside into cold in-
difference. Though wit for a time may amuse, and
genius delight us, the good sense and justice of
mankind induce them to take a permanent interest

* Tacit. Hist. lib. iv. par. 14.
¢ Plutarch, in Vit, Alexand, p, 691.

122 . CHARACTER OF

only in the disposition of the heart. Mr. Burke,
who by the sorcery of his eloquence had captivated
the senate, agitated a whole people with indignation
and terror, and stirred up sovereigns to hostile con-
federacies, is at this hour almost forgotten by those
whom he had endeavoured to please, and those
whom he had wantonly provoked—by the supple
race of courtiers, and by the “ swinish herd.”7¢
Mr. Pitt seems to be less censured by his former
adversaries, and less idolized by his former panegy-
rists. The gratitude of some for favours received,
the predilection of others for the system of politics
which is now thought to prevail, the pleasing re-
membrance of personal friendship, and the sincere
participation of that respect which all his country-
men felt for his magnanimous contempt of pelf,”
preserve some degree of veneration, and I add, af-
fection for his name. No man was ever more ap-
plauded in the zenith of his power, and conspicu-
ous, most assuredly, will be his talents in the re-
cords of history. Yet the brilliancy of many of his
speeches has fainted with the freshness of the occa- —
sion which produced them, and the sentiment of
popular admiration, which during his lifetime was
most lively, has undergone a partial decay. But
Mr. Fox, who had little to give beyond good
wishes, and little to receive from other men beside
the same wishes as the recompence of his good
meaning, even now keeps a hold, which from the
regret that mingles with it, is stronger, perhaps,
than that which he had when he was living, upon
our attention, esteem, and love. He will long con-

CHARLES JAMES FOX. 123

tinue to keep it, because his actions were not at va-
riance with his professions, because his political
virtues were not disproportionate to his political
abilities, and because his errors and infirmities were
not accompanied by cowardice, fickleness, dissimu-
lation, or venality.

“ Felix Agricola,” says Tacitus, “ non vite tan-
tum claritate, sed etiam opportunitate mortis.” The
force of this reflection I have sometimes felt, when
for the purpose of alleviating my own sorrows I
have pondered, and exhorted others to ponder, on
certain circumstances in the time of Mr. Fox's
death. Having lived long enough to soften, we
may hope, though I fear not to overcome, the pre-
judices of his sovereign, of the nobles, and of a
deluded and ungrateful people—having remained
long enough in office?’ to exhibit a mind stored
with a perfect knowledge of the complicated rela-
tions’9 in which the British empire stands to foreign
powers—having manifested, even in the few mea-
sures which he proposed, and in the spirit which he
suddenly infused both at home and abroad, the ex-
traordmary superiority of his practical abilities—
having again and again given the most unequivocal
proofs of that disinterestedness and magnanimity
which made him regardless of popularity, fortune, and
power, when opposed to the real and permanent wel-
fare of his country, Mr. Fox was overtaken by a most
painful and dangerous illness. But the prospect of
approaching dissolution served only to enliven his
zeal, and to accelerate his exertions. In his cor-
respondence with the wily and eloquent minister of

194 CHARACTER OF

France, written as it was under the pressure of dis-
ease, and even on the verge of the grave, we still
see the same noble qualities of his heart co-operating
with the same wonderful powers of his judgment.
We see in it no vestiges of that ambiguity upon
which the cunning rely for success, and the base for
shelter—no subtleties of sophistry—no artifices of
reservation—no arrogant assumption of false dig-
nity—no insidious abandonment of that which is
genuine and becoming—no deviation from those
sacred rules of sincerity and truth, which extend
the authority of their obligation over the whole
agency of moral beings, and diffuse their happy in-
fluence over the pursuits of individuals, and the ne-
gociations of statesmen.

Might we not rest the credit of our friend’s saga-
city, moderation, steadiness, and honour, upon his
manifesto to the court of Berlin, about the seizure
of Hanover? I read it six times attentively, and
with fresh satisfaction from every fresh perusal. I
have heard of the serious impression which it made
in the best informed circles at home, and in every
court upon the continent. But how shall I describe
it? Shall I say that it was conceived and expressed,
more majorum ? It was so—Shall I add, as Dr.
Young said of Johnson’s Rasselas, ‘ that it was a
mass of sense:” it was that, and more. Let me
characterize it then in the emphatical words of an
ancient critic— |

Πολλῆς ἦν πείρας τελευταῖον ἐπιγέννημα.Ἑ

* Longin. sect. vi.

CHARLES JAMES FOX. 125

You and I have long been convinced, that man-
ners, and the spirit which regulates them, have a
very extensive influence over the affairs of public as
well as private life; and of that influence we saw
the very happiest effects in the proceedings, not of
Mr. Fox only, but of other persons who were lately
his associates in power. They were men of sense,
men of letters, gentlemen, and statesmen. Their
language was sometimes elevated without arro-
gance, and sometimes temperate without pusillani-
mity. They restored the old and venerable charac-
ter of a free, a just, and strong government in the
view of the people and of Europe. When I think
of Mr. Canning, Lord Harrowby, and Lord Chat-
ham, I shall not say that their predecessors engros-
sed “ all the talents.”. They never themselves har-
boured such a presumptuous thought. They never
uttered such a silly expression. But their inten-
tions were honest, their measures were wise, and
their fall was unmerited by themselves, though not
unexpected by those who have observed of what
stuff court-favourites and novi homines are some-
times made.

Some men will ask, was I not personally inter-
ested in the continuance of their power? For
aught I know, I might be, and for aught I know, I
might not be. But thus much I do know, and to
those who would insult me with the question I
should confidently say thus much, from my youth
upward to the present moment, I never deserted a
private friend, nor violated a public principle—that
I have been the slave of no patron, and the drudge

126 ' CHARACTER OF

of no party—that I formed my political opinions
without the smallest regard, and have acted upon
them with an utter disregard to personal emolu-
ments and professional honours—that for many,
and the best years of my existence, I endured very
irksome toil, and “ suffered” very galling “ need ;”
that measuring my resources by my wants, I now
so “abound” as to unite a competent income with
an independent spirit, and above all, that looking
back to this life, and onward to another, I possess
that inward “ peace of mind, which the world can
neither give nor take away.” ἐμῷ

But let us return from this digression, to a more
important subject.

After enjoying health of body, and serenity of
mind, to an advanced period—after tasting the
purest pleasures of friendship and literature—after
deserving the confidence of his countrymen—after
obtaining the respect of surrounding nations—after
devoting a long and laborious life to the freedom of
England, the tranquillity of Europe, the abolition of
the African slave trade, the correction of Asiatic
enormities, and the general happiness of all his
fellow-creatures, Mr. Fox was doomed to pay the
last debt of nature. But he died, let us remember,
before his. faculties had been impaired by gradual
decay—before the comprehensive and salutary plans,
which he was beginning to execute, had been coun-
teracted by domestic intrigues, or foreign violence—
before the baneful systems of authorized corruption
and protracted war, which he had so loudly. con-
demned, and so firmly resisted, were once more

CHARLES JAMES FOX. 127

brought into action—before the multipled and ag-
gravated calamities which he foresaw, and was
endeavouring to avert, had overspread the political
hemisphere—before the errors of his secret rivals,
and the machinations of the common enemy, had in
every quarter hastened those evils, the presence of
which must have wrung with anguish his benevolent
and tender heart.

Uncorrupted by the fascinations of praise, undis-
mayed by the clamours of slander, sighing for peace
to an exhausted world, and bequeathing to posterity
an example fitted to impress the purity, simplicity,
and grandeur of his own character upon that of his
countrymen, he expired amidst the tears of his
friends, and the affectionate embraces of his nearest
and most beloved relations. “O Fallacem homi-
num spem fragilemque fortunam, et inanes nostras
contentiones: que in medio spatio sepe frangun-
tur, et corruunt, et ante in ipso cursu obruuntur,
quam portum conspicere potuerunt. Nam qui an-
nus ab honorum perfunctione primus, aditum Crasso
ad summam auctoritatem dabat, is ejus omnem
spem, atque omnia vite consilia morte pervertit.
Fuit hoc luctuosum suis, acerbum patrie, grave
honis omnibus. Sed ii tamen rempublicam casus
secuti sunt, ut mihi non erepta L. Crasso ἃ Diis
immortalibus vita, sed donata mors esse videatur.
Non vidit” *—but I forbear, not so much from in-
ability to accommodate much of the remaining

* Vid. Cicero, de Oratore, lib. iii. par. 2.

128 CHARACTER OF

matter in Cicero to the present times, as from un-
willingness to exasperate a set of men who seem to
prefer the very harshest discipline of experience to
the instructions of sober reason.

To close the scene, the funeral of Mr. Fox was
attended by persons of the highest distinction for
science, learning,®° political abilities, and hereditary
rank. The procession was marked by a deep and
solemn silence, which evinced the unfeigned sorrow
of all spectators ; and his remains were interred in
Westminster Abbey, the hallowed repository of de-
parted sages, heroes, patriots, and kings.

Away with those politics, and that philosophy,
which would steel our hearts against the honest feel-
ings of nature. Why, dear Sir, should we dissem-
ble, or indeed how can we forget what we expe-
rienced when the lifeless body of our friend was
“committed to the ground” near the grave of a
rival who, but a few months before, had fallen from
the heights of fame and power into the “ valley of
the shadow of death?” Was it not melancholy and
awe, mingled with a sort of wonder which, restrained
and attempered by circumstances, soothed, rather
than ruffled the observer, and with solemn reflec-
tions upon the appointed end of genius, ambition,
and all sublunary glories? Reviewing and cherish-
ing what we then felt during the hallowed rites of
burial, why should we hesitate to apply to these
extraordinary men some striking words, which, in
the last century, were quoted with singular felicity,
but with allusions less fayourable, at the interment

CHARLES JAMES FOX. 129

of a celebrated exile * from the country, and the
sepulchres ®! of his fathers ?

“« Hi motus animorum, atque hec certamina tanta,
Pulveris exigui jactu compressa quiescunt.” {

The death of Mr. Fox, accompanied as it was by
the sweet remembrance of benefits so recently con-
ferred, or intended to be conferred, on so large a
portion of the human race, will ever be interesting
to my mind. When contrasted with the toils, dis-
appointments, and unmerited indignities®? which
he had been doomed to endure for many years, it
resembles a well-executed drama, in which some
distinguished personage has, through a series of
sharp trials, preserved his consistency to the close,
and meets at last with that justice which had been
long withholden from him. In the bosoms of those
who attended him in his last moments, it must ex-
cite the most serious wishes, that their own end
“ may be like his,” and to himself, we trust, it was,
in the language of Milton, “a gentle wafting to
immortal life.” “Si quis piorum manibus locus,
si, ut sapientibus placet, non cum corpore exstin-
guuntur magne anime, placide quiescat. Nos
Amicos suos ab infirmo desiderio, ad contempla-
tionem virtutum suarum vocet. Is verus honos, ea
conjunctissimi cujusque pietas. Id quoque Uxori,
Nepotique ejus praceperim, sic Mariti, sic Avunculi
memoriam venerari, ut omnia facta dictaque ejus
secum revolyant, famamque ac figuram animi magis

* Bishop Atterbury, + Georg. iv.
{ See Paradise Lost, book xii.
VOL, IV. κ

130 CHARACTER OF C. J. FOX.

quam corporis complectantur. Non quia interce-
dendum putem imaginibus que marmore aut ere
finguntur. Sed ut vultus hominum, ita simulacra
vultus imbecilla ac mortalia sunt, forma mentis
eterna, quam tenere et exprimere, non per alienam
materiam et artem, sed tuis ipse moribus possis.”*

They who pursue the plain and straight course
from which he never swerved, will do just homage
to his moral and intellectual excellencies, and will
obtain to themselves immortal honour for their sa-
gacity, their fortitude, and their integrity. But they
who strike aside into the dark and crooked bye-
paths which he always shunned, will stand convicted
of insulting his memory, of sacrificing patriotism to
selfishness, and of heaping disgrace and destruction
upon that empire which his principles had adorned,
and which his counsels might have preserved.

To you, who feel as I do, the unusual importance
of the subjects which I have had occasion to discuss
in this letter, no apology can be necessary for the
unusual length of it. It is written with that sin-
cerity which becomes a real friend of Mr. Fox, and
with which I shall ever be ready to prove myself,
dear Sir,

Your well wisher, &c.

December 6, 1807.

* Tacit. in Vit, Agric.

NOTES.

Note I, p. 15.

Marcus Antonius, in the only book he ever wrote, professes
** disertos se vidisse multos, eloguentem omnino Neminem,”
and Cicero, who records this observation,* seems in several pas-
sages to assent toit. But having described the “ varia officia
Oratoris,” he says, ‘‘ inventus profecto est ille eloquens, quem
nunquam vidit Antonius. Quis est igitur is? Qui et humilia
subtiliter, et magna graviter, et mediocria temperate potest
dicere.” And again, “‘ qui poterit parva summisse, modica tem-
perate, magna graviter dicere.” +

Surely the foregoing words remind us of the variety which
appeared in Mr. Fox's speeches, and the adaptation of his mat-
ter to his subject. Yet, as Cicero acknowledges, and very justly,
that no speaker really possessed all those qualities in the high
degree of excellence which he and Anthony could conceive, and
then professes to return, in Platonic language, ad Rei Formam
et Speciem, | am content to say, that Mr. Fox only approached
the character of a perfect orator. But what did he actually
reach? I answer, with very little fear of contradiction from im-
partial and intelligent critics, that he possessed ‘“‘ Genus dicendi
subtile in probando, modicum in delectando, vehemens in flec-
tendo, in quo uno Vis omnis Oratoris est.” +

Or, 1 would say of Mr. Fox, as Cicero, referring to his own
work called Brutus, did of Demosthenes, ‘‘ Recordor me longe
omnibus unum anteferre Demosthenem, qui vim accommodarit
ad eam quam sentiam eloquentiam ; non ad eam quam in aliquo
ipse cognoverim. Hoc nec gravior exstitit quisquam, nec cal-
lidior, nec temperatior.Ӥ I see great excellencies in some of

* Cicero, Orator. par. 18. t Ibid. par. 70, 71. edit.
Gronov. 1 Ibid. par. 69. § Ibid. par. 23.

K 2

139 τ NOTES.

Mr. Fox’s contemporaries ; but the fault which I chiefly impute
to them is τὸ πανταχοῦ κώδωνας ἐξῆφθαι.Σ

Note 2, p. 17.

“Ὥστε καὶ μεγαλύφρων καὶ μεγαλοπράγμων οὐκ ἐκ κενοῦ av-
χήματος; ἀλλ᾽ ἐξ ἐχεγγύου διανοίας δοκεῖν εἶναι." fF

Nore 3p.

“‘ Genus eloquendi secutus est elegans et temperatum : vitatis
sententiarum ineptiis, atque inconcinnitate, et reconditorum ver-
borum, ut ipse dicit, foetoribus. Precipuamque curam duxit,
sensum animi quam apertissime exprimere,” ἢ

Note 4, p. 17.

To Mr. Fox, as a writer of History, we may by anticipation
apply what Cicero says of a Dialogue which he had composed, and
assigned to fictitious speakers, ‘‘ de optimo Statu Civitatis, et de
optimo Cive.” “ Hi Libri cum in Tusculano mihi legerentur,
audiente Sallustio, admonitus sum ab illo, multo majore Auctori-
tate illis de Rebus dici posse, si ipse loguerer de Republica, pre-
sertim cum essem, non Heraclides Ponticus, sed Consularis; et
is qui in maximis versatus in Republiczee Rebus essem.’§ In
one of my letters to Mr. Fox, when I had mentioned to him the
impatience of the public to see his History, and had expressed
my wish that he would take his own time in preparing it, I de-
sired him to read what Cicero said of an historical work, which
his friends importuned him to undertake. You will not be
sorry to see it. ‘‘Postulatur a te jamdiu,” says Atticus, “vel
flagitatur potius Historia—atque ut audias quid ego sentiam,
non solum videris eorum Studiis, qui Litteris delectantur, sed
etiam Patria debere hoc Munus.’’ Among other reasons which
Cicero assigns for declining the task, he gives one which 1 par-
ticularly urged to Mr. Fox for not being in haste with his work :

-----

* Longin. sect. 23. + Dio Cassius, Fragment. 56,
+ Sueton. in Vit. August. parag. 85.
ὃ Epist. ad Quint. frat, lib, iii. Epist. 5.

NOTES. 133

“Historia nec institui potest, nisi preparato otio, nec exiguo
tempore absolvi : et ego animi pendere’ soleo, cum semel quid
orsus, traducor alio, neque tam facile interrupta contexo, quam
absolvo instituta.” *

If I am not greatly mistaken, we shall find in Mr. Fox’s His~
tory that exemption from all foreign idiom, and all affected
phraseology, which Photius ascribes to Herodian: “ ἔστι δὲ τὴν
φράσιν σαφῆς καὶ λαμπρὸς καὶ ἡδὺς, καὶ λέξει χρώμενος σώφρονι;
μήτε ὑπεραττικιξούσῃ, καὶ τὴν ἔμφυτον ἐξυβριξούσῃ χάριν τοῦ
συνήθους, μήτε πρὸς τὸ ταπεινὸν ἐκλελυμένῃ, καὶ τὴν ἔντεχνον
ὑπερορώσῃ γνῶσιν." fF

Whether my conjectures about the style of Mr. Fox’s History
be right or wrong, I am sure that the matter contained in it
will furnish us with additional opportunities for deciding on the
justness of Polybius’s remark, when he tells us “τὰ τῆς ἱστορίας
ἔξει τότε καλῶς, ὅταν οἱ πραγματικοὶ τῶν ἀνδρῶν γράφειν ἐπι-
χειρήσωσι τὰς ioropias,t not negligently, but with the whole
force of their minds, with the aid of long experience, and under
the conviction that they must be unequal to the difficulties of
their task, unless they brought with them τὴν ἐξ αὐτῶν τῶν
πραγμάτων ἕξιν. As to the spirit of our friend’s History, we
most assuredly shall not find in it the τὸ μνησικακεῖν imputed to
Thucidides by Dionys. Halicarnass. in Epist. ad Pomp. nor the
faults which Polybius so earnestly and so frequently imputes to
Timzus, who “παρεσκοτισμένος ὑπὸ τῆς ἰδίας πικρίας, τὰ μὲν
ἐλαττώματα δυσμενικῶς καὶ μετ᾽ αὐξήσεως ἡμῖν ἐξήγγελκε, τὰ δὲ

κατορθώματα συλλήβδην παραλέλοιπεν." ὦ

Note 5, p. 18.

I have lately heard that Mr. Fox left one volume of his His-
tory fit for publication, and that it has been sent to the press.
Though his principles and general habits of thinking will, I am
persuaded, be discernible in this work, the character of the com-

* Quint. liv. i, de Legib. par. 2, 3.
+ Vide Phot. Biblioth. sect. civ.
{ Vide Polyb. Megal. Histor. lib, xii. sect. 6,

134 ᾿ NOTES.

position will be adapted to history, of which Quintilian says, and
which Mr. Fox well knew, ‘“‘scribitur ad narrandum, non ad
probandum ; totumque opus non ad pugnam presentem, sed ad
memoriam posteritatis, et ingenii famam componitur.” *

Norte 6, p. 13.

You will not be displeased with me for applying to our friend
that which is recorded of Basil and Gregory Nazianzen, two
venerable Fathers of the Christian Church, who united great
learning with great activity in their labours for the benefit of
mankind: “γραμματικῆς μὲν αὐτοῖς, οὐδοτιοῦν παρεῖτο λαθὸν,
ov μέτρων ἐπιστήμη, οὐ ποιητικοὶ σκοποὶ, καὶ τροποὶ : οὐχ ἱστορίας
πλῆθος, οὐ πολιτικῆς λέξεως καθαρότης : ῥητορικῆς δέ τὸ τῆς φρά-
σεως κάλλος ἀπανθησάμενοι, τὸ ψεῦδος ἐξέκλιναν." F

Note 7, p. 19.

These seeming repetitions in Mr, Fox’s speeches, which of-
fended shallow critics, were real excellencies. You remember
the distinction made by Carneades, when he said, “ Clitoma-

chum eadem dicere, Charmidam autem eadem eodem modo
dicere.” 1

Note 8, p. 20.

I differed from our friend upon the comparative merits of the
Greek and Roman orators, and shall state my opinion in the
words of Mr. Hume: “The manner of Demosthenes is much
more chaste and austere than that of Cicero. Could it be
copied, its success would be infallible over a modern assembly.
‘Tis rapid harmony, exactly adjusted to the sense. "Tis vehe-
ment reasoning, without any appearance of art. “Tis disdain,
anger, boldness, freedom, involved in a continued stream of ar-
gument: and of all human productions the orations of Demos-

* Lib. x.c. 1.

+ Vide Greg. Nazianz. Vit. p. 15, prefixed to his works in
the Paris edit. 1630, vol. i.

¢ Cicero, Orator, par. 158.

NOTES. 135

thenes present to us the models which approach the nearest to
perfection.” *

Norte 9, p. 20.

The passages which, in this and the following paragraph, are
marked with inverted commas, are to be found in the third
volume of Boswell’s Memoirs of Johnson.

Norte LO, p. 27.

I admit the convenience of a rule, and in the absence of more
direct principles we must often be content with the aid of ana-
logy. But Dr. Paley, I find, was struck, as well as myself, with
the dimness of the analogical reasons at times employed in Judi-
cial pleadings, and says, “‘ Whoever takes up a volume of Reports,
will find most of the arguments it contains capable of the same
analogy which the Dr. himself had employed in the controversy
about literary property ;” but he adds, “ the analogies, 1 con-
fess, are sometimes so entangled as not to be easily unravelled,
or even perceived,” +

Nore 1], p. 28.

“Non illi imperium pelagi, sevumque tridentem,
Sed mihi sorte datum: tenet ille immania saxa,
Vestras, Eure, domos : illa se jactet in aula,
/Eolus, et clauso ventorum carcere regnet. ἢ

Nore 12, p. 29.

To say the truth, my own opinion does not very widely differ
from that of Mr. Burke, and I shall avail myself of his eloquent
language in expressing it: “1 a man with such a masculine
understanding, such a stout and resolute heart, and of ambition
so noble and generous, as Mr. George Grenville, had any defects
not intrinsical, they must be rather sought in the particular
habits of his life. He was bred ina profession. He was bred to

* Hume's Essay on Eloquence, vol. i. + Cap. ix.
: Aneid, lib. i, line 142.

136 NOTES.

the law, which is in my opinion one of the first and noblest of
human sciences—a science which does more to quicken and invi-
gorate the understanding than all the other kinds of learning put
together ; but it is not apt, except in persons very highly born,
to open and to liberalize the mind exactly in the same propor-
tion.”*

Nore 13, p. 32.

The Commentary of Aquinas extends through the eight books
of Aristuotle’s Politics ; it was corrected after the collation of
many MSS. and it is accompanied by the Latin translation of
Leonardus Aretinus, to which another translation, yet older, is
subjoined. Julianus Martinus Rota added four books written
by T. Aquinas, De Regimine Principum. The angelic doctor
contends stoutly for the superior usefulness of monarchy, and,
to say the truth, many of his observations are just, profound, and
worthy of serious attention from royal and imperial readers.

Note 14, p. 33.

Mr. Fox knew, as you and J do, that Cicero, who in his speeches
for L. Murena, and A. Cecinna, laughed at the impertinent in-
troduction of legal terms, and the solemn self-importance of
those whom he calls Rabulas de foro, and Leguleios, had been
himself accustomed a primo tempore etatis juri studere—that he
allowed those persons, ‘‘ summos fuisse in civitate sua viros qui
id interpretari populo et responsitare soliti essent”’—that even
where he says, eos magna professos, in parvis esse versatos, he
grants, Munus eorum qui consulerentur, esse populo necessarium
etiamsi esset exiguum ¢—that he praised the well-acquired and
well-regulated knowledge of Aquilius in the very oration where
he sarcastically taunted an antagonist who had endeavoured
eum ex campo equitatis ad istas verborum angustias et ad omnes
jitterarum angulos revocaret—that he was the correspondent of
Sulpitius,§ and not only addressed some of his letters, but dedi-
cated his Topics to Trebatius, who, before his connection with

* Burke's Works, vol. ii. p. 389. 1 Vid, lib. i, de legibus.
τ Vid. Orat. pro Cecinna.
§ Vid. Οἷς, Ep. ad Famil. lib. iv, 13.

NOTES. 137

Julius Cesar, “ must have laid the foundation of that juridicai
learning, which, in the reign of Augustus, had made him es-
teemed the first lawyer of his ρα. ἢ

Note 15, p. 33.

To the really superficial, who at the same time are really venal,
and to such persons only, would I apply the animated language
of a great writer. ‘‘ Little does the peace of society require the
aid of those lessons which teach men to accept of any thing as a
reason, and to yield the same abject and indiscriminating ho-
mage to the laws here which is paid to the despot elsewhere.
The fruits of such tuition are visible enough in the character of
that race of men who have always occupied too large a space in
the circle of the profession—a passive and enervate race, ready
to swallow any thing, and to acquiesce in any thing—with intel-
lects incapable of distinguishing right from wrong, and with
affections alike indifferent to either—insensible, short-sighted,
obstinate—lethargic, yet liable to be driven into convulsions by
false terrors—deaf to the voice of reason and public utility—
obsequious only to the whisper of interest, and to the beck of
power.’ +

I do not agree with the writer of the foregoing paragraph,
when in a moment of controversial ardour he seems to think that
a large space in the circle of the profession has always been oc-
cupied by a race of men to whom laziness, shortsightedness, ob-
stinacy, credulity, and venality are to be imputed. But when I
consider how much the rights of individuals, and the welfare of
the community, depend upon the profession to which he alludes,
I hold that a very small space occupied by a very small number of
such persons as he describes is too large for the public good.
May we never see the day when it can be justly said of our
own country, ‘ nec quicquam publice mercis tam venale fuit,
quam advocatorum perfidia.” t

ee δ δΦὋᾳέῴάι.,

* Vid. Cie. Ep. lib. vii. and Middleton's Life of Cicero, vol. ii,
p. 108, and Gravina, vol. i. p. 84.

t See Preface to a Fragment on Government, p. XViii,
$ Tacit. Annal. lib. xi. par. 2.

138 NOTES,

Nore 16, p. 33.

The usefulness which I assign to laws, the reverence which I
fee] for them, and the obedience which I would pay to them, are
not incompatible with any of the foregoing observations upon
certain peculiarities in the political speeches of the persons by
whom they are administered. But they who hold, as I do, the
indissoluble connection between good laws and good morals, will
reflect on the importance of the following observation: “ Σχέ-
δον γὰρ τὰ πολλὰ τῶν νομίμων τὰ ἀπὸ τῆς ὅλης ἀρετῆς προστατ-
τόμενά ἐστι" καθ᾽ ἑκάστην γὰρ ἀρετὴν προστάττει ξῆν, καὶ καθ᾽
ἑκάστην μοχθηρίαν κωλύει ὁ νόμος. "ἢ

With exceptions, many, I confess, and serious, to the crimi-
nal code of this country, both in its provisions and even its ad-
ministration, I should generally adopt the language of Dr. John-
son, that “ Jaws,” enacted for the protection of property and life,
‘* are the last result of human wisdom, founded upon human ex-
perience for the benefit of mankind.” While thev are unrepealed
by the authority of the state, a good man will inculcate obedi-
ence to them, not only ‘‘ for wrath, but for conscience’ sake,”
and balancing general against particular convenience, he will
carry his own personal submission nearly to the extent for which
Socrates pleads with the most impressive eloquence in the well-
known dialogue with Crito. Whatsoever disproportion he may
see between crimes and punishments, and whatsoever measures
he may employ to lessen that disproportion by the force of argu-
ment, he will yet remember that jurisprudence is seldom at di-
rect and unqualified variance with morality, that every crime
forbidden produces some mischief to society, and that every
punishment inflicted confers some security.

I believe this reasoning to be exact, and I trust that your
cenduct and my own will be strictly conformable to it. I can-
not, however, dissemble from you, that my humanity shudders,
and my sense of justice recoils at the recollection of certain
““ things as they are,’ in a country which boasts of its freedom,
jts generosity, and its unrivalled progress in useful knowledge.
If those boasts be, as I think they are, well-founded, the lenient

* Aristot. Ethic. ad Niomach, lib, v. cap. 2.

NOTES. 139

and equitable expedients for which many wise and good men *
have pleaded again and again, might be proposed with the
greater safety and the surer result. If that knowledge be real,
how can it be better employed than in teaching men te view the
physical evil of punishment, not less than the physical evil of
crimes, as a real deduction from the general stock of happiness—
in calculating, so far as our limited insight into motives will per-
mit us, the share that is to be assigned to infirmity, as well as
malignity, in unlawful action—in substituting, as other nations
have done successfully, the restraints of shame for the dread of
death—in presenting to common minds, distinctly and forcibly,
the gradations of guilt by correspondent gradations of rigour—
and in lessening the temptations to greater offences, when the
commission of them seems to facilitate escape from equal penal-
ties denounced against the less? If the summum jus be the
summa injuria in the transactions of individuals, who are con-
demned for yielding to the suggestions of the selfish and malig-
nant passions, is it not possible that a state, armed as it ought to
be with irresistible power, and governed, as the judicial con-
cerns of it must be, by frail and fallible men, may sometimes
step beyond the bounds of real necessity in the sanction it
affixes even to the most whulesome laws? May not the rulers of
it be now and then actuated by the secret love of that power
which is more precious as it is more exempt from controul,
and which, as self-delusion is always ready to suggest to the
possessor, is most salutary when it is most extensive? May not
the very absence of corruption and venality in the administration
of public justice decoy men into a delusive sort of self-compla-
cency, and may not the very consciousness of impartiality in ad-
herence to a known and fixed rule make them insensible, or at
least inattentive, to the suggestions of compassion ?

When the philosophy of ethics has been called down, as was
said of the Socratici + sermones, from the sky+ to the earth—
when the principles of it, in the language of Bacon, “ have been
brought home to men’s business and men's bosoms”—when the

* Viz. Sir Thomas More, Erasmus, Johnson, Beccaria, Eden,
Dagge, Voltaire, ἄς,

+ Horace, od. 19. lib, iii.
t Cicer. Academ, Quest. lib. i. section 4,

140 NOTES.

rugged and austere rules of law in civil questions have been oc=
casionally mitigated by corrective maxims drawn from equity—
when our prisons by their goodly appearance display the munifi-
cence, if not the humanity of the country—when the miseries of
the persons confined in them are in many respects alleviated, and
when the ruthless and ‘steeled jailor is converted into a gentle
provost, the friend of men” *—why do persons who upon other
occasions shrink from palpable injustice and palpable cruelty—
why, let me ask, in the exercise of their good sense and their
benevolence for the welfare of their countrymen, do they stop
short at the very point where life is to be taken away? All the
information I have been able to collect from writers upon juris-
prudence both foreign and domestic, ancient and modern—all
the conversations I have holden with persons, whether of com-
mon or uncommon sagacity—all the dangers either to the mo-
rals of individuals, or to the safety of the community, or to the
authority of the laws themselves, which I have been able to trace
as consequences of that uncertainty which makes even the
sharpest statutes “their perch, not their terror, to the birds of
prey’ t—consequences which must inevitably arise, when the
head and the heart forbid the execution of a sentence which the
lips are compelled to pronounce—all these considerations forci-
bly convince me that some change is practicable, and therefore
desirable. Why then are we left to deplore in some of our older
laws, the savage ferocity of barbarous ages, and in many of our
new ones the cool, but undistinguishing and unrelenting jea-
lousy, with which selfishness guards every avenue against en-
croachment upon its well-earned or ill-earned stores?) Why do
we in practice lose sight of Beccaria’s observation, that “though
the interest of commerce and property should be secured, com-
merce and property are not the ultimate end of the social com-
pact, but the means of obtaining that end; and that to expose
all the members of society to cruel laws in order to preserve
them from evils necessarily occasioned by the infinite combina-
tions which result from the actual state of political societies,
would be to make the end subservient to the means, a paralo-

* Measure for Measure. + Ibid.

NOTES. 141

gism in all sciences, and particularly in politics?”* I admit
the danger of many political reforms, which have been recom-
mended by arguments rather specious than solid: I admit the
indirect efficacy of political events and political measures in cor-
recting political abuses, while laws unrepealed remain, and in
truth ought to remain, undisturbed by the interposition of pri-
vate judgment, and the influence of local and temporary circum-
stances; and upon this very property of stability I should
ground the necessity of the utmost possible precaution in enact-
ing them: I admit the danger of sweeping alterations in that
code which provides for the security and the transfer of pro-
perty in all its various modes: I admit that the increase of those
variations, arising from the increased means of accumulation
and the increased diversities of enjoyment, may call for new re-
gulations: but on the subject of our penal code, and upon
this only, I must, in common with many other calm and reflect-
ing observers, wish for the ‘‘ una litura.” Ὁ

Do not suppose, dear Sir, that for one hour I would Jeave the
public without effectual protection, or that I forget a custom
recorded of the Persians, among whom the laws upon the death
of their sovereign were suspended for the space of five days, in
order to mark the necessity of resuming and enforcing them.t
No—that litura should be instantaneously followed by a well-
considered system of jurisprudence, in the preparation of which
professional men, such as have been tried and approved amongst
us, should sustain the part of assessors to sages such as I could
name, and to the provisions of which we might upon the best
ground apply the best definition of law I ever read: ‘* Νοῦς ἄνευ
ὀρέξεως πᾶς ὁ νόμος éori.’ §

I hope, dear Sir, that neither you nor any other intelligent
man will put a captious interpretation upon my use of the em-
phatical phrase “ una litura.” I have employed it with much
deliberation. Ido not mean by it that any of the offences,

* Vide note to chap, xxxiv. ed. iv.
+ ‘Non multe possunt nostros, Faustine, liture
Emendare Libros; una litura potest.”——-MarrTiav.
t Vide Stobzus, p. 294, and Sextus Empiricus, adv. Mathe-
mat. p. 70.
§ Aristot. de Republica, lib. iii. cap. 16.

142 ᾿ NOTES.

which the laws now restrain as injurious to society, should meet
with impunity, or that the penalties now affixed to treason, to
murder, and a few other heinous crimes, should be mitigated.
But I do mean, that of the milder punishments some should be
softened, and others increased; that transportation or imprison-
ment, or punishments carrying with them great pain or great
infamy, should be substituted for death; that death should be
denounced by the authority of the laws themselves, rather than
inflicted by the discretion of the executive government, against
the third or fourth repetition of many crimes which are now in
the first instance capital; that this principle, which now is
adopted in a few cases, should be extended to more; and that,
in order to prevent the useless and numberless disputes which
in the discussions of a popular assembly are likely to arise from
the proposed repeal of penal statutes one after another in detail,
the new code should be ushered in by a most precise and most
wary preamble, revoking all former statutes in the mass, and
declaring that crimes should hereafter be punished under the
circumstances and according to the degrees stated in that code,
I suppose not only the code itself to be sanctioned by parliamen-
tary authority, but the persons who prepare it to be appointed
by the same authority, without the smallest respect to party dif-
ferences, and from a firm conviction that they who are called to
this momentous task are really and largely endowed with every
intellectual and every moral qualification, I hope not to be
thought romantic in expressing a farther wish, that once or
twice every year, upon the approach of the assizes, an abridg-
ment of the code itself should be read in every parochial church,
and that this ceremony should be accompanied by a judicious and
most solemn homily, composed by the most enlightened ecclesi-
astics, and sanctioned by the public authority both of the church
and the state. Such a practice would give real propriety and
real efficacy to the well-known maxim, ‘‘ ignorantia legis nemi-
nem excusat.”’

“The punishment of a crime,’’ says Beccaria, ‘* cannot be just
(that is, necessary) if the laws have not endeavoured to prevent
that crime by the best means which times and circumstances
would allow.”* But can it be doubted that promulgation is

* Chap. xxi.

NOTES. 148

one among the necessary means of prevention? False and per-
nicious is the doctrine that men are slaves, when they are re-
quired to obey laws made by other men. But they surely must
be deficient in the duties of good subjects, when they are called
upon to obey laws not understood nor even known by themselves.

In respect to the civil code of this country, the proceedings at
law by the statute 4 George II. chap. 26, ‘‘ were done into Eng-
lish in order that the common people might have knowledge and
understanding of what was alleged or done for and against them
in the process and pleadings, the judgments and entries, in a
cause.” Yet we are told by Biackstone,* “" that he knows not
how well it has answered the purpose, but he is apt to suspect
that the people are now, after many years experience, altogether
as ignorant in matters of law as before.” How far a remedy
may be applied to that ignorance in matters of property I know
not. But the promulgation which I recommend would exclude
all such pleas of ignorance upon those statutes which create
offences and command punishments.

“There needs,” says the same writer, “no formal promulga-
tion to give an act of parliament the force of a law, as was
necessary by the civil law with regard to the Emperor's edicts ;
because every man in England is in judgment of law party to
the making an act of Parliament, being present thereat by his
representatives.” + Blackstone’s antagonist comments very sharp-
ly on the foregoing passage. “Ἅ This,” says he, “ for aught I
know, may be good judgment in law, because anything may be
called judgment of law that comes from a lawyer that has got a
name. It seems, however, not much like anything that can be
called judgment of common sense.” ἢ

If by the force of a law be meant the right of exacting obedi-
ence from subjects, the reason assigned by Blackstone seems to
me also far-fetched. It might involve many idle disputes about
actual and virtual representation, and leave room for many ab-
surd claims of exemption from obedience among those who
should be inclined to contend, that not being actually repre-

* Commentaries, vol. iii.
+ Comm. vol. i. chap. ii. p. 178.
{ See Pref. to a Fragment on Government, p. 27.

144 NOTES.

sented, they were no parties to a statute, and are therefore not
bound by it. Force, as meaning the right of demanding obedi-
ence, is communicated to laws directly and solely by the autho-
rity of the legislature itself. But administration is necessary to
give efficacy to laws, and without promulgation it were unjust
to administer them. For how shall] subjects obey that in which
they have not believed? ‘ Or how,” as St. Paul reasons, “ shall
they believe that of which they have not heard? Or how shall
they learn without a teacher? And how shall they teach, ex-
cept they be sent” and commissioned to do so?

If the subject were not of such infinite importance, I should
be content to smile at the refinement or fiction of Blackstone,
when he states the supposed presence of every subject at the
enactment of laws, to supersede the necessity of formal promul-
gation. Magistrates, when they are required to execute statutes,
are furnished with copies of them. But subjects, when they are
forbidden to commit an offence, and threatened with exile, or
imprisonment, or death, for committing it, are left to find out
the meaning and very existence of a statute as they can. The
fact is notorious, and I remember the perilous situation of two
unhappy young men who had ignorantly subjected themselves
to death by violating a recent provision against a particular kind
of forgery.

The dogmas which with so much confidence of assertion, and
so little conformity to facts, are every day advanced upon pro-
mulgation, example, and other matters closely connected with
the lives of men and the safety of society, compel me to look for
refuge in the judgment of a writer who, beyond all his contem-
poraries, is entitled to the honourable appellation bestowed upon
Thaleleus, “‘ qui ob scientie prestantiam dictus fuit νομικῆς
o~0adpos.”* ** Punishments must be inefficacious where the
penal provision is not conveyed to the notice of the person
on whom it seems intended that it should operate. Such is the
case where the law has omitted to employ any of the expedients
which are necessary to make sure that every person whatsoever,
who is within the reach of the law, be apprised of all the cases

* Gravina, vol. i. p. 135,

NOTES: 145

whatsoever in which (being in the station of life he is in) he can
be subjected to the penalties of the law.”*

We read of a Roman Emperor, “ Qui proposuit quidem le-
gem: sed et minutissimis literis et angustissimo loco, uti ne cui
describere liceret.’+ An English legislator would shudder at
the thought of imitating Caligula’s deliberation. But his negli-
gence in giving notoriety to coercive laws which create offences,
impose obligation, and command punishment,} must tend to
produce a similar effect. Common sense and common huma-
nity require that the ‘‘utmost possible care should be taken to
lay before every man, of whom obedience is required, the clearest
and most accurate view§ of that ideal object of which the part,

a ο΄“ 06 ΄-΄΄ἴΠ΄΄ῤὖ΄ῤὖ΄5ῤῤῤ. . ὃ ὃ ὃ ὃ ᾽ῊῊ᾽.

* Bentham’s Introduction, chap. xiii.
+ Suetonius in Vita Caligule, parag. 41.
t Vide Bentham, p. 329.

§ The Athenians, with a mixture of gratitude and admira-
tion, were anxious to distinguish by a peculiar name the laws of
Solon from those of Yraco. They called the former νόμους,
and the latter Gecyovs.—See the authors quoted by Meursius,
cap. 13, de vita, legibus, atque scriptis Solonis. But there can-
not be many persons now living who would commend the con-
duct of Solon in framing laws with studied obscurity, or acqui-
esce in the reason assigned for it: ““λεγέται καὶ τοὺς νόμους
ἀσαφέστερον γράψας, καὶ πολλὰς ἀντιλήψεις ἔχοντας, αὐξῆσαι
τὴν τῶν δικαστηρίων ἰσχύν. Μὴ δυναμένους γὰρ ὑπὸ τῶν νόμων
διαλυθῆναι περὶ ὧν διεφέροντο συνέβαινεν ἀεὶ δεῖσθαι δικάστων,
καὶ πᾶν ἄγειν ἀμφισβήτημα πρὸς ἐκείνους, τῶν νόμων τρόνον τινὰ
Kuptevoyras. —Plutarch, in Vit. Solonis, vol. i. p. 88, ed. Sylburg.

Such a measure might in Solon’s estimation be suited to So-
lon’s countrymen in Solon’s age. But if it were proposed
during the enactment of a Statute in the English Parliament, it
would be indignantly rejected ; and yet 1 remember something
like an indirect and incidental approbation of the principle, in a
speech which about the year 1780 was delivered in the Borough,
and in which a sort of insinuation was thrown out, that it might
not be wholly inconvenient for the common people to remain
ignorant of the legal differences between riot aggravated by
plunder, and treason.4] The observation, when 1 read it in the
newspapers, seemed to me most unbecoming in an open court

—— [ὃὃὃὕὕὅὕἙἝἝ. .. ee

---

{ Though Socrates eloquently pleaded the cause of Minos, and other
departed lawgivers, as the benefactors of mankind, I doubt whether be
would have admitted the person to whom 1 allude into bis catalogue of
worthies.—Vide Plat. in Minoe, vol. ii. p. 319, edit. Serran,

VOL, IV. L

140 NOTES.

the whole, the multiple, or an assemblage of parts, wholes and

of judicature, and to this hour animus meminisse horret. But at
present there sits not, I am firmly persuaded, on the English
Bench, one person who is capable of applying or uttering, or
even harbouring in his mind, with the smallest degree of assent,
so dangerous a rule for the administration of public justice.

Penal laws ought to be too clear to be misunderstood by any
man of plain common sense and common attention—too strong
to be violated with impunity by the audacious—too precise and
definite to be evaded by the crafty, or perverted by the tyranni-
cal, and too just to be enforced without the prompt and general
approbation of society. Who controverts these trite and obvious
truths? No one. But have lawgivers never neglected them ?
Have our forefathers never supposed the Judges of their day to
usurp indirectly the office of lawgivers, to strangle the ordinary
import of words and sentences in tight and intricate swaths of
technical maxims, and to draw out from the body of a statute
those vital energies, which they wished to see employed in giv-
ing strength and activity to all the huge and uncomely limbs of
interpretation affixed to it by themselves? Have cunning vil-
Jains never baffled the efforts both of judges and lawgivers, while
for the commission of crimes similar in appearance, but far in-
ferior in malignity, a wretch almost ignorant of his political
duty, and quite unskilful in eluding danger, has suffered death ?

The Roman law is indebted for much of its precision to the
language it adopted from the Stoics, who were eminently dis-
tinguished by their accuracy in the use of terms. But Mr. Ben-
tham has well observed that, in one instance, even the Roman
lawyers utterly abandoned the original sense of dolus, which
*‘implies deceit, concealment, clandestinity;” and in order to
distinguish between dolus, and culpa sine dolo, applied the for-
mer word to “‘ open violence,” accompanied by “ intentionality.”
—Elements of Jurisprudence, p. 92.

The best explanation I have ever seen (for it was not in-
tended to be a defence) of the phrase dolus malus is in a most
learned work of Heraldus. ‘‘ Dolus,” says he, “* et dolus malus
multo latius extenditur. Sed in lege Cornelia (de Sicariis et
Veneficiis) est πρόνοια, que etiam in foro Attico dicebatur ézi-
βουλὴ, proprie, dolus. Dolus malus excludebat impetum et
casum, quomodo et πρόνοια, et ideo homicidium dolo malo
factum dicebatur, quod non furore factum, impetu, et casu, sed
proposito, quod est πρόνοιαβ. Πρόνοια in eriminibus βούλευσιν
significat, dcavolay, éxiovd)y.’-—~Animadvers. in Salmasii Ob-
servat. ad Jus. Att. et Rom. lib. v. cap. iii.

In a subsequent page I shall have occasion to notice the
objection made by Mr. Penn to another phrase, malus animus,

᾿

NOTES. 147

soultiples, mixed together, is exhibited by a statute.”* A judge
might then with better effect enquire, Quo animo fecerit, in re-
ference to the legal, rather than the moral properties of an

action.
«The learned and humane observer on the ancient statutes

has suggested that a reformation of the English law can never
be effectually carried on without the assistance of able lawyers
not members of the legislature. With such assistance it might
perhaps be easy to frame separate declaratory statutes relative to
each class of crimes, comprehending all the descriptions and de-
grees of each crime, with their proportionate punishments.
Every such declaratory statute should be attended by a supple-
mental bill, repealing all prior provisions relative to the class of
crimes in that statute contained. It seems superfluous to point
out the many collateral good effects which might arise from this
method of seeking the end proposed. The repeal of particular
statutes without such preparatory caution will be found a mere
palliative remedy, which may tend indeed to abate the symptoms
of the disease, but from which a radical cure cannot be ex-
pected.” T

I see with much satisfaction, that between the excellent writer
above guoted{ by Mr. Dagge, and myself, there is no very wide
difference in principle. I wish, as Mr. Barrington does, men in
parliament to have the assistance of lawyers who are not in par-
liament. They may bring equal abilities to the task, and per-
haps in some cases they may be able to devote more time to it.
But I think that the labours of both will be facilitated, and their

as vague, indistinct, and unfit to regulate the measures of law-
givers in fixing the crime of murder. Mr. Bentham, with his
usual acuteness, thus censures the same expression: “ It is not
unfrequent to meet with the phrase malo animo, a phrase still
more indeterminate, if possible, than any of the former” (dolus,
dolus malus, culpa sine dolo, culpa lata, levis, levissima, &c.)
“It seems to have reference to intentionality, or to conscious-
hess, or to the motive, or to the disposition, or to any two or
more of these taken together, nobody can tell which; these being
objects which seem to have never hitherto been properly dis-
tinguished and defined.”—Elements of Jurisprudence, p. 92.

* Vide Bentham, p. 328, t See Dagge, vol. iii. p. 7S.

¢ Mr, Barrington.

L2

148 _ NOTES.

regulations improved by the farther assistance of studious per-
sons whose talents have long been employed on the general
science of jurisprudence, whose legal knowledge is accompanied
by extensive reading in history, and by a spirit truly philosophi-
cal, and whose minds are wholly exempt from those prejudices
which always arise more or less from professional pursuits,
thoughts, and actions. It is plain that Mr. Barrington believed
many amendments in our penal statutes to be necessary, and
from the multiplicity and variety of the subjects which must be
discussed by those who would reform them, I am led to think
that a general repeal, followed up by a general re-enactment,
would be more easy and more efficacious than a series of separate
declaratory statutes. When the whole body of the code was under
contemplation, it would be more practicable, not only according
to the opinion of Covarravias, ‘‘to observe the rule of distribu-
tive justice in different species or degrees of the same crime, but
to introduce the same measure of distributive justice between
one crime and another.”*

In opposition to these opinions, persons, I am aware, will not
be wanting, who, like Cato the Censor, “‘legem ullam omnino
abrogari indignentur ;” and to such persons I should reply in
the words of Valerius, “ Quemadmodum ex iis legibus, que non
in tempus aliquod, sed perpetue utilitatis causa, in eternum
late sunt, nullum abrogari debere fateor, nisi quam aut usus
coarguit, aut status aliquis reipublice inutilem fecit, sic quas
tempora aliqua desiderarunt leges, mortales, ut ita dicam, et
temporibus ipsis mutabiles esse video.’+ It were absurd to talk
of danger from a general repeal of former statutes, when it is to
be immediately succeeded by the enactment and promulgation of
new ones.

‘*There are certain aphorisms,” says Dagge, ‘‘ which men of
weak minds or interested views are always ready to apply, for
want of solid reasons to support their objections. When any
scheme of improvement is offered, hundreds will tell you that
innovations are dangerous, for one who is capable of pointing
out where the apprehended danger lies.”

““ Should this maxim prevail in the extent to which some are

* Dagge, vol. i. p. 258. + Liv. lib. xxxiv. par. 6,

NOTES. 149

desirous to stretch it, our laws would become, like those of some
Eastern nations we read of, immutable. But innovations are
then only dangerous when they are not founded on reason and
justice, and when they are not introduced at a proper time and
with suitable caution.”

“In truth we are apt to be swayed too much by political
maxims and the pretended necessity of things; there are many
principles in the administration of government inconsistent with
right-reason and strict justice, which political casuists attempt to
vindicate by the general plea of necessity, and by making subtle
and extravagant distinctions between political and moral virtue,
which have no real foundation in nature.”

“The bulk of the people, from their indolence and incapacity,
judge every model to be perfect to which they are accustomed,
and think whatever is, is necessary to be done. They are ene-
mies to innovations because they are too short-sighted to per-
ceive the good which may result, or too inert to oppose the in-
conveniencies which may ensue from a change.’”’*

But let us hear what are the sentiments of a writer who is far
superior to Dagge in depth of research, and precision of reason-
ing, and from whose work, as it is now very scarce, 1 shall not
apologize for the length of the following quotation.

It is wonderful how forward some have been to look upon it
as a kind of presumption and ingratitude, and rebellion and
cruelty, and I know not what besides, not to alledge only, nor to
own, but to suffer any one so much as to imagine, that an old
established law could in any respect be a fit object of condemna-
tion. Whether it has been a kind of personification that has
been the cause of this, as if the law were a living creature, or
whether it has been the mechanical veneration for antiquity, or
what other delusion of the fancy, I shall not here enquire. For
my part I know not for what good reason it is that the merit of
justifying a law when right should have been thought greater,
than that of censuring it when wrong. Under a government of
laws what is the motto of a good citizen ? To obey punctually, to
censure freely.

“Thus much is certain; that a system that is never to be cen-

* Vide Dagge’s Considerations on Criminal Law, cap, iii, and ii.

150 NOTES.

sured will never be improved ; that if nothing is ever to be found
fault with, nothing will ever be mended; and that a resolution
to justify every thing at any rate, and to disapprove of nothing,
is a resolution which pursued in future must stand as an effectual
bar to all the additional happiness we can ever hope for; pursued
hitherto would have robbed us of that share of happiness which
we enjoy already.

““ For is a disposition to find ‘ every thing as it should be,’ less
at variance with itself than with reason and utility? The com-
mon place arguments in which it vents itself justify not what is
established in effect any more than they condemn it : since what-
ever now is establishment once was innovation.’*

If a reflecting and benevolent foreigner were to examine our
Statute Book, where Death is commissioned ‘‘ to keep the fatal
key” of so many cells, and “‘ to shake a dreadful dart” in so
many directions, his soul would be wrung with anguish: and,
unless he were told that common sense wages a perpetual war
with positive institutions, and that the malefactors annually exe-
cuted fall very short of the number aunually condemned, he would
suspect that every accuser isa Lycurgus,{ every judge a Cassius,§
and every legislator a Draco. ||

Tarda sunt, we read in Tacitus, que in commune expostu-
lantur. The day of reformation among ourselves is, I am told,
very distant. The pride of communities, like the pride of indi-
viduals, is wounded by the bare mention of their inconsistency,
and their ingenuity supplies them abundantly with arguments
from real mischiefs, when they are intent upon providing against
such as are imaginary or exaggerated. The actual multiplication
of penal statutes—the lapse of a century without the repeal of
more than two or three, even under an enlightened governinent,

* Preface to Fragment on Government, p. 14.

+ Milton. :

{ I mean the Athenian orator, who is called by Cicero, in
Brutus, ‘ accusator vehemens et molestus.”’ See Dr. Taylor's
Preface to Lycurgus.

§ Lucius Cassius, the Roman Pretor, “ cujus tribunal propter
nimiain severitatem scopulus reorum dicebatur.” See Val. Max.
lib. iii. cap. 7.

|| Vide Gravina, vol. 1. p. 233.

§] Annal. lib, iv. par, 7. edit, Lipsic.

NOTES. 151

and among a public-spirited people—the prompt and courtly ac-
quiescence of large bodies in every suggestion of dangers from
quarters where professional experience is presumed to carry with
it sound and dispassionate judgment—the stubborn prejudices of
those who confound the right and the ability to administer laws
with the numberless qualifications which are requsite to enact or
to modify them—the languid sympathy of the higher orders with
the lower upon the sight of evils which they are themselves under
little or no temptation to incur—the unfeeling temper which is
generated among all ranks by growing wealth and growing
luxury—the systematic severity exercised against some classes of
crimes, which though bearing a common name are accompanied
by countless diversities of extenuating as well as aggravating cir-
cumstances—nay, the conscious superiority of a constitution
which is daily and hourly recognized in its beneficial effects, and
which reconciles our vanity and our indolence to the continuance
of many concomitant abuses—these and other causes which it
were invidious to enumerate, lead me to apprehend that in one
race of glory this country will be outrun by some neighbouring
states, where the recent mitigation of their punishments affords
some compensation for their political thraldom,

Blackstone did not indiscriminately condemn the infliction of
death; nor was he indifferent to the reputation of the English
laws. But can we suppose that he had no view to the reform of
those laws, and that he meant, not to hold up an example, but
merely to state a fact, when he thus wrote, ‘¢ Was the vast terri-
tory of all the Russias worse under the late Empress Elizabeth
than under her more sanguinary predecessors? Is it now, un-
der Catherine II. less civilized, less social, less secure? And yet
we are assured that neither of these iilustrious princesses have,
throughout their whole administration inflicted the penalty of
death ; and the latter has, upon full persuasion of its being use-
less, nay even pernicious, given orders for abolishing it entirely
throughout her extensive dominions, But indeed were capital
punishments proved by experience to be a sure and effectual re-
medy, that would not prove the necessity (upon which the just-
ness and propriety depend) of inflicting them upon all occasions

when other expedients fail. I fear this reasoning would extend a
great deal too far.”*

I ee ππαπαπ κπππίαπο πππασααπτυπα,»......»

* Book iv, chap. i.

152 NOTES.

- The measures of the two Russian sovereigns excite greater sur-
prise, and call for stronger approbation, when we reflect that at
no very distant period the Czar Peter, ‘* though actuated with a
noble genius and smit with the love and admiration of European
arts, yet professed an esteem for the Turkish policy in one parti-
cular, that he approved of such summary decisions of causes as
are practised in that barbarous monarchy, where the judges are
not restrained by any methods, forms, or laws; and that he did
not perceive how contrary such a practice would have been to all
his other endeavours for refining his people.”*

I well know the facility with which despotic power enabled the
successors of Peter to reform the laws of their subjects. But it
were strange to suppose that a free people are not equally capable
of using, and equally desirous of obtaining a mild system of legis-
lation, with men who are inured to slavery. It were indecent to
assert that the councils of any foreign sovereign should have the
power of doing that suddenly and gratuitously, which the en-
lightened Parliament of an enlightened nation can not do delibe-
rately and effectually.

Montesquieu had observed before Blackstone, “ how indus-
triously the Russian government endeavoured to temper its arbi-
trary power by breaking their numerous guards, mitigating cri-
minal punishments, erecting tribunals, entering into a knowledge
of law, and instructing the people.” +

A despotic government has thus stept before our own free go-
vernment in the mitigation of capital punishments. The Duke
of Tuscany is said to have introduced a similar regulation { in his
dominions, nor have I heard of any great public inconvenience
arising from it. Future writers on jurisprudence, therefore, will
not fail to remark that the experiment has been made both in an
extensive and a small state. I am aware that the example of
America may not be quite conclusive in reasoning upon the laws
of England—but the general approbation with which the Ame-
rican States looked upon those laws, gives great weight to the
opinion which they had formed of our penal code.

‘«Though both the penal and common laws of England are

oo

* Hume, Essay 14. + Book v, chap. 14.
: Murder and treason only were to be punished with death.

NOTES. 153

generally adopted in the United States, the punishments differ
materially ; but it will be admitted that they are sufficiently pro-
portioned to the crimes. In very few cases indeed, in any state,
is the punishment of death inflicted. Legislative bodies consider,
that the laws of man should seldom extend to the extermination
of that life which was given by the Almighty, [In Pennsylvania
of late years capital punishments are remitted in all cases, I be-
lieve, except treason, or murder in the first degree, and in the
latter case, death is seldom inflicted.”’*

«Though law,” says Mr. Hume,f ‘ the source of all security
and happiness, arises late in any government, and is the slow pro-
duct of order and liberty, it is not preserved with the same diffi-
culty with which it is produced, but when it has once taken root,
is an hardy plant, which will scarce ever perish through the ill
culture of men, or the rigour of the seasons.’ Happily for man-
kind the observation of Mr. Hume is very true, as applied to
those laws which are the real sources of social happiness, ‘* What
is profitable,” as the same writer says, ‘‘to every mortal, and in
common life, when once discovered, can scarce ever perish, but
by the total subversion of society, and by such furious inunda-
tions of barbarous invaders as obliterate all memory of former
arts and civility.’ But the misfortune is, that from mistaken
views of public security, tares will be sown with the wheat, and
that having once taken root they too become hardy plants, which
are slowly extirpated by the culture of reason. Of this we have a
notable instance in the laws against witchcraft, of which the long
continuance is a disgrace to our statute book, and the very late
repeal illustrates my position, that in governments less free than
our own, rational jurisprudence sometimes makes a quicker
progress.

It was enacted by statute 9th of George II. that no prosecu-
tions should be carried on for the future against any person for
witchcraft or enchantment. But let us not forget that the sta-
tute of Henry VIII. against this crime, and another statute of
James I. of which Blackstone, ἢ gravely tells us that he did not
class it under the head of improvements made in that reign, had

* Vide Janson’s Stranger in America, p. 182.
+ Essay 14. t Book iv. chap, 84.

154 NOTES.

long continued in force. True it is that exeeutions for this
crime, which Blackstone most unaccountably calls dubious, and.
which every Judge now upon the bench would call impossible,
are atanend. But it so happens that in this instance of legis-
lation, as well as in many other instances of arts and science,
France has the praise of invention, and England only that of imi-
tation. Many an honest Englishman, who disbelieves witchcraft
and boasts of his own constitution, would feel some surprise when
he was told, on the authority of a learned judge, that in protect-
ing old women from the gallows for being witches, the legisla-
ture of France had taken the Jead of our own, ‘ which,” as
Blackstone says, “" at length followed the wise example of Louis
XIV. in France, who thought proper by an edict to restrain the
tribunal of justice from receiving informations of witchcraft.” *
No human being can reverence more than I do the excellence
of the English constitution, But I am unwilling to accept that
excellence as a compensation for the severity of our penal code,
and I suspect the justness of that reasoning which employs our
Jiberty as a pretext for continuing that severity. Dr. Paley, I
remember, tells us, ‘* that the liberties of a free people, and still
more the jealousy with which they are watched, and by which
they are maintained, permit not those precautions and restraints,
that inspection, scrutiny, and controul, which are exercised with
success in arbitrary governments, where, in proportion as they
render the commission or concealment of crimes more difficult,
they subtract from the necessity of severe punishment.”’f I shall
never allow that the liberty of a people increases the necessity of
severe punishment, till all other expedients, from hard labour,
from infamy, from long imprisonment, or solitary confinement,
have been tried in vain. I shall not allow the validity of that
reasoning, till experience has shewn whether a stricter police be
not compatible with the preservation of our political liberty.
The argument of Dr. Paley applies chiefly, if not solely, to those
crimes which are accompanied with violence. But a very consi-
derable portion of the offences for which malefactors suffer among
us, are perpetrated without violence; and for the prevention of
those which are committed with violence, persons who look with

* Book iv, chap, 4. + Chap. ix.

NOTES. 155

ἃ jealous eye upon the invasion of our liberty, have often ex-
pressed their wishes for a more vigilant and active police. To
me it seems, that in the administration of such police we should
have little reason to be alarmed about the loss of our liberty, be-
cause the crimes against which that police is pointed have a
more intimate and more visible connection with the happiness
and security of men in private life, than with the peculiar inte-
rests of the government. If the experiment were made we might
find that the diminution of capital punishments, together with
the increased security of the public from a stronger police, would
be accepted as an ample compensation for all concomitant incon-
veniences. Such a police would not require the summary pro-
ceedings of ‘‘ military law.” Our streets and public roads need
not be “ travelled and patrolled by soldiers ;” but they might be
guarded by other persons, who should be appointed, not by the
Sovereign immediately, but by the Magistrates—who should be
paid, not from the public treasury, but from County Funds—
who should wear, not the dress of a soldier, but some other badge,
which should mark their office. Thus appointed, thus recom-
pensed, and thus accoutred, they would not appear to us the in-
struments of despotism. Suspected persons might, without in-
jury to our freedom, be in some cases detained longer than they
now are. Men might be apprehended, not on “ mere sugyes-
tions,” but upon strong proofs of ‘idleness or vagraney.” Ac-
counts of a man’s time, employment, and means of subsistence
might be demanded, not at the arbitrary ‘‘ pleasure,” but the sound
discretion of the magistrate ; and the responsibility of the magis-
trate himself would afford reasonable security against the abuse
of his power We might recall and modify that ancient institu-
tion which Mr. Eden pronounces to be “ full of reason and hu-
manity, and which dividing the people into certain classes, com-
pelled the several neighbourhoods or divisions of men to become
mutual pledges for the good behaviour of the individuals who
composed them; and consequently when any offence was com-
mitted within their district, either to produce the offender, or
become liable to such penalty, as might be thought proportion-
able to the peace of society.’’* Many other expedients, neither

* See Eden’s Penal Law, chap. 8, and the quotation from Wil-
kin's Leges Edwardi.

156 NOTES.

arbitrary nor rigorous, might be employed with effect, and’ that
effect would appear to be very good, not only as preventing the
commission of crimes, but as subtracting from the necessity of
punishing them severely, when they were committed and de-
tected.

I hope that the constitution of England will always be al-
leged as a reason for increased lJenity in the laws, and my opinion
is supported by such authority as should protect me froin the
imputation of rashness. Montesquieu * observes, “ that all laws
should be relative to the principles of the government, to the
nature of the climate, to the morals, manners, and religion of
the people, and to the number of inhabitants.” My concern is
with the first only, and my sentiments upon them in relation to
our criminal laws, shall be given in the words of Mr. Dagge.
““1τ would be easy to prove,” says he upon the authority of Mon-
tesquieu, ‘‘ that in all, or almost all of the states of Europe the
rigour of punishments has diminished or augmented in propor-
tion as they approached towards or deviated from liberty.”

Dagge illustrates this proposition by various instances drawn
from history. He quotes a remark of the Chinese writers, that
on the eve of a revolution there was always a great increase of
rigorous punishment, and that a corruption of morals kept pace
with their progressive severity. He contrasts the laws of Draco
with those of Solon among the Athenians, and states as the result
of his inquiry, “ that the rigour of the Athenian laws was miti-
gated in proportion as liberty gained strength and ascendancy.”
He then examines the Roman government, where the laws were
mild and the morals comparatively pure in the days of freedom :
but where offences multiplied with penalties, and severity, from
its natural tendency to debase the mind, destroyed the dignity of
virtue, when tyranny and usurpation lorded it over the liberties
of a corrupt people.

After tracing the imperfection of our own law under the old
feudal system, and the causes of that imperfection, he thus pro-
ceeds: ‘‘ It is remarkable that the first who restrained the benefit
of the clergy was Henry VII. a politic and ambitious prince, who
supported a precarious title by rigorous institutions ; and by late

* Book i. chap. 3.

NOTES. 157

statutes it is entirely taken away in a multitude of offences. But
what appears most extraordinary and unaccountable is, that the
greatest part of the crimes for which offenders are excluded from
their clergy, have been declared capital since the Revolution. If
the proposition above quoted is true, ‘ that in all or most coun-
tries of Europe the rigour of punishments has diminished or aug-
mented in proportion as they favoured or discouraged liverty,’ *
then how shall we reconcile this practice since the Revolution
with the principles of the constitution ?

“Tt is well known that at the Revolution the plan of liberty
was extended, and our religious and civil rights at that time re-
ceived confirmation and enlargement. Here then one might
conclude there was room for a milder system of government.

““ Nevertheless we find that the sum of capital punishments
has been considerably augmented since that happy period, and
there must certainly be an error in legislature when laws are en-
acted against the principles of the constitution.

“The ruling principle of government in this kingdom is
allowed to be liberty; but our criminal laws seem rather calcu-
lated to keep slaves in awe, than to govern freemen. They seem
to contradict all notions of justice, and confound all distinctions
of morality. By the ignominy they impose in many cases they
bend the mind to the lowest state of servitude: by the rigour they
indiscriminately inflict they adopt the principles of despotism,
and make fear the motive of obedience.

““ Despotism itself may indeed teach us milder institutiuns ; for
we are told that in Russia during the reigns of the late Empress
Elizabeth, and the present Empress Catharine II. no malefactors
have been put to death.

“τ may be affirmed that were the injured themselves to be
intrusted with the right of revenge, their sentence would not, in
general, be so rigorous as that of the law, for few men in the
present civilized state have that violent resentment against many
offences which the law has expressed, and we find that they ra-
ther suffer crimes to go unpunished, than to be the instruments
of punishing them too severely.

*« Thus by impunity wicked men are confirmed in the habitude

* See Montesquieu, book vi. chap. 9.

158 NOTES.

of evil till they become totally corrupt and abandoned, and thus
the laws counteract their own end. They tend to corrupt rather
than reform the morals of the people ; they are repugnant to the
dictates of reason and justice, and diametrically opposed to the
principles of our constitution.” *

The facts stated by Mr. Dagge are so important, and the re-
marks he makes upon them so just, that I shall not apologise for
quoting them so largely, from a work which I believe not to be
read so extensively as it deserves,

By the direct and indirect, the constant and occasional, the
visible and invisible agency of those causes which connect the
affairs of private and public life, the genius of every government
will impress much of its own character upon the opinions and
manners of the people; and wheresoever under the protection of
laws and the influence of custom, real freedom is, there will be
found many powerful aids to real virtue. Hence the tendency of
such a constitution as our own is, to make men good subjects,
not only to earthly powers, but to the moral government of
God ; not only to increase the number of good men, but to
counteract the example, and to soften, in some measure, the
malignity of the bad. If, therefore, the rulers of this world
would reflect deeply and seriously on the whole process of that
government, and the whole moral frame of the beings who are
to live under it—if they felt, that punishment is justifiable in
the degree, and only in the degree, in which it is experimen-
tally found to be corrective—if they kept a watch on the latent
deceitfulness of that vindictive spirit, which in its undisguised
deformity they always disclaim, they would see that man acts
both a wiser and a better part when he discerns at once the
folly and the impiety of ““ biting laws,” when he marks, but
is not ‘‘extreme to mark what is done amiss,” and when hav-
ing, and being known “ to have, mercy, he is therefore to be
feared.”

The spotless and peerless integrity of English Judges in the
decision of civil cases is ἃ subject of well-founded exultation to
every Englishman who considers that property is one great
bond of society, and that security under judicious and effectual

* Consideration on Criminal Law, vol. i. chap. 7.

NOTES. 159

Jaws is perhaps the most precious quality of property itself. But
our penal code I must confess, presents to my mind the image
of a gloomy cave, where Death enthroned represents the majesty
of Justice, and where, as he stretches forth a scroll crowded with
hhuge and hideous characters of condemnation, and scarcely af-
fording to the eye, wearied in its descent through accumulated
horrors, even a momentary relief by one-erasure, he scares away
the curiosity of every humane observer from contemplating the
dreary scene,
* Ubi nos vestigia terrent
** Tot mortem adversum spectantia, nulla retrorsum.”

Yet, in the administration of that very code, I have witnessed
many painful struggles between the feelings of nature and the
duties of office ; and I have also seen some instances in which
the infirmities and informalities of compassion were ill exchanged
for that, which in my scale of morality falls little short of
blood-guiltiness.

*¢ Qui fruitur poena, ferus est, legumque videtur

““ Vindictam prestare sibi.” *
At this very hour do I shrink, when my imagination presents to
me the spectres of three furred ανδρόκτονοι; in whose abilities as
exercised in trials for capital offences, “ποῖ light but darkness
visible, served only to discover sights of woe.”

With learning, taste, and genius which adorned the head, but
improved not the heart, one of them was a sober, subtle, inex-
orable interpreter and enforcer of sanguinary statutes. With a
ready memory, keen penetration, barren fancy, vulgar manners,
and infuriate passions, another indulged himself in the gibberish
of a canting fanatic, and the ravings of an angry scold before
trembling criminals. With sagacity+ enough to make the
worse appear the better cause to superficial hearers, and with
hardihood enough not to profess much concern for the bodies of

* Claudian de Mallii Theod. Cons. 1. 224.
tT “ οἱδ᾽ ἀκροώμενοι
Τῶν ἀντιλογιῶν, καὶ λογισμῶν, Kae στροφῶν
Ὑπερεμάνησαν, κἀνόμισαν σοφώτατον."
Aristoph, Rane, line 786,

100 NOTES.

men or their souls, the third carried about him an air sometimes
of wanton dispatch and sometimes of savage exultation,* when
he immolated hecatombs at the altar of public justice. Armed
with “‘ giant strength,” and accustomed ‘‘ to use it like a giant,”
these protectors of our purses transferred to thievery that seve-
rity which the court of Areopagus employed only against cut-
throats, and they did so, where judges were not bound by a pe-
culiar, direct, sacred oath adapted to the peculiar character of
the tribunal, and where offenders had not the chance, as among
the Athenians, of a more favourable issue from appeals to Thes-
mothetz, nor that privilege of going before trial into voluntary
exile, which, on the first institution of this court, had been
granted to them by legislators, who “ εἴθ᾽ “Howes ἦσαν, etre θεοὶ
οὐκ ἐπέθεντο τοῖς ἀτυχήμασιν, ἀλλ᾽ ἀνθρωπίνως ἐπεκουφισαν, eis
ὅσον εἶχε καλῶς, τὰς συμφοράς. ἢ

Ifa Βῶμος ᾿Ελέου, like that at Athens, had been placed in the
avenue to our Englishcourts, these δικασπόλοι ἄνδρες would have
differed from each other in their outward demeanour, and yet have
remained equally guiltless of ‘‘ bearing the sword in vain.” Ela-
phocardius upon approaching the hallowed spot might have paused
for a second, winced under a slight stroke of rebuke from the mo-
nitor within, and quietly sneaked by on the other side. Carda-
moglyphus would have wrung his hands, lifted up his eyes to
Heaven, implored forgiveness to himself as a miserable sinner,

ct a @ } Pee ar Py ΚΑ ‘ δὲ ἐ ee ΄ Εν ,.Δ
σπερ τινα ἀρετὴν ουσαν TO μῆ €ev Tats μιαιφονιαις υπὸο
τινὸς ἡττᾶσθαι." --- Οῖο Cassius, Fragm. 157.

¢ ““ Originally the Areopagi took cognizance of all sorts of
homicides ; but afterwards their jurisdiction was confined to
murders committed with premeditated design. A few ages after
the Areopagus, another tribunal called Delphinium, was erected
to try those who confessed the homicide, but justified it. After-
wards the Palladium was established, where they were tried who
committed an involuntary murder.” — See Dagge, Notes,
vol. ili.

The Athenians distinguished between involuntary homicide
and homicide ἐκ προνοίας, and if the murderer withdrew before
conviction into banishment he was subjected to a total forfeiture.”
—See Eden, p, 222.

1 Vide Demosthen. Orat. advers, Aristocrat.

NOTES. 161

and before sunset would have boasted of “ not being as other men
are,” regraters, sabbath-breakers, libertines, and more especially
as that execrable criminal who stood before him at the bar. But
the steps of Cynopes would not have been turned aside to the
right hand or to the left ; his eye would have darted upon the
emblems of the altar with a glare of fierce disdain; he would
negligently have swept the base of it with the skirts of his robe ;
he would have laughed inwardly at the qualms of one of his com-
peers, and scoffed without disguise at the mummeries of the
other. Happily these arbiters of life and death are new no more ;
they have left an example* not very likely to beimitated by their
venerable successors, and my hope is that the mercy which they
showed not to others in this world, may in another world be
shown to them.

Sir Matthew Hale was too wise to be pedantic, and too honest
to be artificial. Knowledge, reflection, and a lively sense of mo-
rality and religion had elevated his mind far above the petty gra-
tifications which high office supplies to the weakness of vanity,
and the restlessness of ambition. But I suspect that in order to
sooth some unquiet misgivings and some tender yearnings of his
soul, he by frequent efforts of recollection summoned to his aid
those maxims which might lighten the burthen of his painful
office as a judge. Hence, in his Contemplations, moral and di-
vine, we read, ‘‘ There must be duly considered the difference be-
tween a private person and a public person, whether minister or
magistrate; the former, namely the private person, humility
must teach him compassion, charitableness, gentleness ; but the
latter being intrusted in a public ministration, doth alterius
vices agere ; his personal humility, as a private man, must teach
him to be charitable, but yet not to be remiss or unfaithful in
the exercise of his office.” +

Doubtless for Hale “ when finding himself swayed to mercy,

* “Tous πολίτας, ἐξ ov 6, re Σίννις, καὶ ὁ Σκείρων, καὶ ὁ Προ-
κρούστης ἀπέθανον, οὐδεὶς ἔτι ἀδικεῖ, Xenoph. Memorab. lib.
i. cap. 1, In the original the word is ξένους, for which I substi-
tute πολίτας, in order to accommodate the passage to my pur-
pose.

t See Hale on Humility, p. 208.

t See Hale's words quoted in a note of Johnson’s on Shak-
speare’s Measure for Measure, Act. ii. Scene 7.
VOL. IV. M

102 NOTES.

to remember that there was a mercy likewise due to the country,”
was ‘‘a branch and parcel of his oath ;” and perhaps as he was
officially bound to administer laws which had been made by other
men, and of which he might not himself entirely approve, he
might often have been disposed to recal this sentiment as a pre-
servative against the suggestions of pity, and even of equity not
quite: reconciled to positive institutions, But such a’ reader as
Hale was in the great volume of human life, and such a believer
too in “a judgment to come’ must have remembered much
more. He must have known much more from the frequent op-
portunities, which in the course of his private studies and his
public duties had been afforded him for observing what passed
within the breasts of lawgivers, judges, prosecutors, culprits, and
spectators.* He must have known that profound writers (I
mean those who lived before Butler) <‘ upon the capacities and
relations in which men ought not to be entirely deaf to the ‘calls
of affection,” speak very doubtfully on the propriety of excepting
even the judicial character,—that “ the proneness of mankind to
excuse insensibility or rigour makes it necessary for general
rules and exhortations to be on the other side,” —and that in the
entire absence of compassion even from the mind of a judge, the
practical consequence might be, not that he would be guided by
“the calm dictates of reason,” which alone could compensate for
such absence, but that he would ultimately fall under the influ-
ence of some less amiable, and less useful affection.t He must
have known that “ however pity, as a passive impression, may be
weakened, while, as a principle of action, it is strengthened by
exercise,” in the ordinary course of human affairs, yet, even as a

* There was a very humane maxim in the Civil Law of the
Romans, “ Favorabiliores rei potius quam actoris habentur.”
The natural reluctance of men to take away the lives of their
fellow-creatures judicially is stated very luminously in the pro-
blems ascribed to Aristotle : ‘*"Exaoros ἡμῶν μᾶλλον ἄν προέλοιτο
τοῦ ἀδικοῦντος ἀποψηφίσαθαι ὡς οὐκ ἀδικεῖ, ἢ TOU μὴ ἀδικοῦντος
καταψηφίσθαι, ὡς ἀδικεῖ" oiov εἴ τις φεύγει δουλείας, ἢ ἀν δροφο-
vias: τούτων γὰρ ἑκάστου ὄντων, ἅ κατηγορεῖ ἀυτῶν, μᾶλλον ἄν
ἀποψηφίσασθαι ἐλώμεθα, ἢ μὴ ὄντων καταψηφίσασθαι." Pro-
blemat. sect. 29.

+ See Butler’s Sermons, 5th and 6th,

NOTES. 163

passive impression, it must in every situation be weakened by
total disuse, and so weakened as to be eventually severed from
the practical principle of benevolence, which principle itself de-
pends for its first movements upon our passive impressions, which
being always accompanied by such impressions more or less for-
cible, and more or less perceptible, is only strengthened by ha-
bitual exertion, and which must, together with the impressions
themselves, be gradually impaired by long-continued inaction.*
He must have known that the remark which he himself made
on trials for rape, must sometimes have been applicable to other
eases, “* where the heinousness of the offence may transport the
judge as well as the jury with so much indignation that they are
overhastily carried to the conviction of the person accused there-
of, by the confident testimony of sometimes false and malicious
witnesses.’ + He must have known that writers on penal laws
have by their subtleties encouraged the rash decisions of passion,
when they dictated this inhuman maxim: “ In atrocissimis, le-
viores conjecture sufficiunt, et licet judici jura transgredi.”t
He must have known, that if Judges are accustomed to express
the warm and honest indignation they feel against flagitious
crimes, they may with equal propriety permit and acknowledge
themselves to be susceptible of pity for inconsiderate youth, for
grinding penury, for sudden anger, and all other extenuations
which may accompany the criminal breach of unwholesome sta-
tutes. He must have known that in well informed and well
regulated minds, neither indignation nor pity impedes the clear
discernment of proofs, or the adaptation of judicial rules to well
attested facts ; that in the ordinary course of human affairs they
operate, not during the trial, but after the sentence, and that
their proper effect isnot to expose the accused party to unmerited
conviction, nor to protect him from it, if it be merited, but
to produce the plenary infliction of punishment upon the very
wicked, and the partial relaxation of it to the very unfortunate.
He must have known that the plea of imperfection, as insepara-
ble from all human contrivances for human happiness, is subject

* See Butler’s Analogy, ch. 6.
T Hale, as quoted by Blackstone, book iv. chap. 15.
¢ Beccaria, chap. 13.

M 2

164 NOTES.

to many limitations. He must have known that however in
compliance with the captiousness of prejudice, or the authority
of usage, political restraints may be permitted to continue be-
yond the occasions from which they took their rise, jurisprudence
is not entitled to the same discretionary latitude, or the same ar-
bitrary decision, which are granted in politics ; that in very severe
punishments the visible fairness and visible simplicity of the laws
which ordain them increase their efficacy ; that they generally
fall with the utmost weight upon the uneducated and the friend-
less; that they go far beyond restrictions upon personal freedom
or diminutions of temporal advantage ; that they involve the
very greatest of physical evils to which humanity is subject in the
extinction of life itself.

Hale must have known that life is a thing sui generis ; that
man alone is endowed with power to calculate the importance
of life in reference to every actual and probable, every present
and future, capacity of enjoyment ; that even the merit of resign-
ing life consists in the voluntary sacrifice of what we conceive to
be the choicest blessing; that to our experience, our reason,
and our instinctive sentiments, the act of taking away life un-
justly, appears the most heinous outrage man can offer to man ;
that such injustice against life is possible at least in the deliberate
ordinances of states, as well as the sudden resolves of. indivi-
duals; that the indiscriminate or inconsiderate destruction of
life-for the purpose of punishment, forms one of the leading dis-
tinctions, not only between a barbarous and a civilized people,
but between a tyrannous and an equitable government; that all
questions concerning life have inherent and specific properties,
which are in some respects incommunicable to any other ques-
tions ; that we can remove or mitigate bodily pain as well as in-
flict it; that we can decree the restoration as well as the for-
feiture of liberty and property, but that we cannot give life at
all; that upon the discovery of circumstances favourable to the
sufferer, we cannot restore life when once taken away,* and
therefore that the utmost caution becomes us, as sensitive, as

* “Τῶν μὲν ἀξιολόγων ἁμαρτημάτων, μεγάλαι καὶ al κολά-
σεις εἰσίν" ὥστε ἀδίκως καταψηφισαμένοις καὶ μὴ γνοῦσιν, οὐκ
ἔστιν ἐπανορθοῦσθαι, καιρόν λαβόντας." --ο Λυδοί, Prob, sec. 29.

NOTES. 165

social, and as religious beings, before we authoritatively deter-
mine the conditions upon which a fellow-creature is to be sub-
jected to a violent and ignominious death. He must have known
that temporary alarms have often given rise to penal laws, the
rigour of which has not been relaxed when the real or the seem-
ing danger had passed away. He must have known that even
in the solemn process of legislation the passions of men are
sometimes more than a match for their reason, and that sudden
fear oversteps the boundaries which discretion, at once calm and
vigilant, would prescribe. He must have known that long usage
produces an unwillingness to relax and even review, or I should
rather say an alacrity in enforcing, a stubbornness in retaining,
a proud and captious jealousy in vindicating, those penalties
which long trial shows to have been inefficacious for the preven-
tion of offences. He must have known that remissness or error
more frequently occasions feeble laws than deliberate lenity, and
that greater evils arise to society from the negligent or unsteady
administration, than from the total want of those laws which are
rigorous.

If, in the nature of things, as Andronicus tells us,* it is impos-
sible ““ ra κατὰ μέρος πάντα περιλαβεῖν ἀόριστα ὄντα" ---ἰξ the
lawgiver is obliged “ τὸ ἐπὶ πλεόν περιλαμβάνειν,᾽᾽ and if the
Jaws themselves are compelled “ καθόλου διορίξεθαι;᾽᾽ or as Aris-
totle says, “ περὶ éviwy οὐκ οἵοντε ὀρθῶς εἰπεῖν καθόλου,“ Hale
must have known that for these very reasons the general sanc-
tions of the law should be in sume degree accommodated to the
incalculable differences of demerit in particular actions, and
that in order to become so, they should partake rather of mild-
ness than severity. He must have known that “ the conceptions
of men on the gradations of criminality are greatly affected by
the promiscuous application of punishments ;” that by “ with-
holding distinctions in the nature of those punishments, we
inure their minds to confound the higher and the lower measures
of guilt ;” that “ the law of nature, where there is no conven-
tion to the contrary, limits the right of the magistrate to the

* Vid."Andronic, Rhod. cap. 16, lib. v.
+ Aristotel, Ethic. lib. v. cap, 2.

160 NOTES.

use of such measures as are necessary to the defence of the inno-
cent or the prevention of wrongs; that all severities employed
beyond those limits,” are inconsistent with the fundamental con-
ditions implied at least in that very convention, into ‘* which
men enter when societies are formed ;” and that, ““ after the ex-
istence of express conventions, the magistrate can have no right
to inflict more punishments than are necessary to obtain the pur-
pose for which the parties contracted, that is, more than are ne-
cessary to restrain crimes, and keep the peace of society ;” that
a just gradation of punishment has for its object not ‘ to let
liberty pluck justice by the nose,” but to restrain justice from
““ bruising to death,” where by “ cutting keenly” it can “‘ give
fear to use and liberty,” * not to ‘ let the guilty escape, but to
make the innocent eventually more; safe,” by regulations in
which the purposes of lenity and expediency are alike consulted,
and of which the guilty and the innocent would alike approve,
if the grounds and tendencies of such regulations were proposed
to their calm and unbiassed reason; and that ‘‘ although the
principle of defence strictly applied would justify that punish-
ment, whatsoever it may be, which is necessary to repress ἃ
erime, yet, in some instances, prudence as well as humanity
would reject this authority, and recoil at. the application of a
punishment against which human nature would revolt more than
against the crime itself.” Hale must have known some few
instances of legislative reasoning not very dissimilar to the logic
of those ecclesiastical disciplinarians, who, “* because the church
of Rome was constructively guilty of idolatry in the doctrine of
transubstantiation and the practice grounded upon it, and be-
cause under the Jewish law prophets who persuaded to idolatry
were to be slain,’’ reeommended by implication the same whole-
some severities to Christians; and surely in opposition to argu-
ments so futile, applied to purposes so terrible, he must have
thought with Bishop Taylor, ‘‘ here we must deliberate, for it is
concerning the lives of men.’ ὦ

* Shakspeare.

+ See Ferguson's Principles of Moral and Political Science,
part 2. chap. iii. sect 10, and chap. iv. sect, 3.

} Liberty of Prophesying, sect. 20.

NOTES. 167

Hale must have known, that in cases of very aggravated
thievery, the injured party puts a much higher value upon his
own existence than upon his own property. He must have
known, that the claims of individuals to redress for a particular
wrong, and of society to protection from a repetition of it, rest
upon general principles of justice, in which every member of
the community, yet innocent, has a contingent, as every guilty
one has an immediate interest, and which forbid us to inflict the
heavier punishment, where the lighter would upon the whole be
equally efficacious for the commonweal—he must have known,
that our just and habitual indignation against a general class of
actions* is easily set in motion, and suddenly runs into excess

* I have observed that in trials for capital offences the counsel
for the accusation is permitted to make an opening speech, and
that he often introduces general and declamatory matter, which
powerfully affects the minds of the Jury, and to which no reply
can, according to the practice of the Court, be made by the
counsel for the prisoner. Upon these occasicns I have often
recollected what Cicero says in defence of his client Celius; and
though the accusers of Czelius adverted only to subjects of licen-
tiousness, the principle upon which Cicero argues may be ap-
plied to all general observations upon the nature of crimes, when
they have a tendency to mislead and inflame the Court against
an individual, ‘* Ut tibi ream neminem, sed vitia proponas, res
tamen ipsa et copiose et graviter accusari potest: sed vestre sa-
pientiz est, judices non abduci ab reo ; nec quos aculeos habeat
severitas, gravitasque vestra, cum eos accusator erexerit in rem,
in vitia, in mores, in tempora, emittere in hominem et in reum.”
(Orat. pro M. Celio, Paragr. 29.) From this mischievous dis-
play of talent there is a most powerful dissuasive in Hales’s re-
marks concerning the gifts of elocution.”’ Much as I have been
delighted and interested by the representations which Plato and
Xenophon have given of their illustrious contemporary Socrates,
I confess myself to have been equally delighted and more inter-
ested by Hale’s ‘* Account of the good steward,” in which the
above-mentioned remarks may be found. “ It is the very pic-
ture,” as says the editor, ‘‘ wherein representing the good stew-
ard passing his account, it was impossible for him not to give
a lively representation of himself;” and rarely do we meet with
an instance in which any man speaks so unreservedly and- so
largely of his own opinions and actions with so much propriety.
“ His words are significant, perspicuous, manly, vox non ex ore,
sed pectore emissa,’’ Upon every account of matter, style, and

168 NOTES.

against the persons who are accused of committing them; that
it warps the operation of our judgment in balancing the probabi-
lities of circumstantial evidence, and calculating the niceties of
circumstantial extenuations; that it pushes a part even of our
benevolent affections into a sort of violence quite inconsistent
with the proper duties of benevolence itself; and that to our af-
frighted imaginations and our misguided conscienceit palliates and
even recommends cruel retaliation,* by associating the effects
of it with our regard to public utility, and the motives to it
with our sincere and virtuous hatred of cruelty itself—he must
have known, that man is often the creature of involuntary eir-
cumstances, which more or less usurp an undue control over his
voluntary actions, and which, therefore, bring his weakness as
well as his wickedness under the consideration, not of pity only,
but of sound and impartial wisdom—he must have known that,
under the influence of that moral sense to which all legislators

spirit, itis a work which deserves to be read every year by every
** Light of the church, and every sage of the law” in Chris-
tendom.

* Such was the just, but excessive, indignation of the Ro-
mans ‘‘ qui dedi Decemviros equum censebant, vivosque igni
eos crematuros minitabantur:” but the legati well observed to
them, “ire vestre magis ignoscendum quam indulgendum est,
quippe qui crudelitatis odio in crudelitatem ruitis.’””—Liv. lib. iii.
sect. 53. Such, too, was the language of Heraclea to the Syra-
cusans, when actuated by a just but undistinguishing rage
against the execrable oppression of Hieronymus, they had ob-
tained a decree for the extirpation of his whole family: ‘‘ omis-
sis pro se precibus, puellis ut saltem parcerent, orare institit, ἃ
qua etate etiam hostes iratos abstinere, ne tyrannos ulsciscendo,
que odissent scelera, ipsi imitarentur.”—Livy, lib. xxiv. sect. 26.
Possible it is, that in seasons of sudden and tumultuous alarm,
from the prevalence of crimes affecting the interests of private
life, well-meaning legislators may now and then have been im-
pelled to the same severities, which in the instances above-men-
tioned are recorded of blind and infuriate multitudes. |

The aversion of George II. to capital executions is well
known, and to the honour of the reigning Sovereign be it
spoken, his prerogative has for many years past been frequently
exercised in favour of condemned criminals, and without any
known danger to the authority of the laws or the security of the
public.

NOTES. 169

and all judges appeal, upon the presumption that however en-
feebled, it is not wholly extinguished, even culprits form some
vague notions of proportion* between offence and punishment ;
that the errors of such men are more to be dreaded, because
they are more immediately connected with practice; that from
the suggestions of self-delusion they will be more exposed to
error by the continuance of severities, which wiser men than
themselves discern and lament ; that their own remaining re-
spect for justice will be weakened more and more by visible in-
justice in those laws which they have themselves violated, and
which even others who obey them are unable to approve; that
to their minds, labour, confinement, infamy, banishment, may
appear more formidable, as well as more reasonable penalties,
than the infliction of death; that even death itself, when con-
templated at a distance, and when alone it can operate as a re-
straint, may be considered as a release + from hunger and thirst,
from cold and misery, from cheerless prisons and gailing fetters,

* We have proportion in view, when in common language we
say that a man suffered the punishment due to his crime. The
Aristotelian school used peculiar terms for justice in the distri-
bution of rewards and punishments: ‘ Καλεῖται δικαιοπράγημα
μὲν πᾶσα πρᾶξις δίκαια, κἄν re ἀδικίας ἔκτισις ἡ, κἄν τε ἀρετῆς ἀν-
ταπόδοσις᾽ δικαίωμα δὲ ἰδίως, ἡ τῆς ἀδικίας riuwpia.”—Andronic,
Rhod, Eth. Nicomach. Paraphr. lib. iv. cap. 11. In conformity
to this distinction, we read, “‘‘O μὲν ἀδικῶν κολαξόμενος ἀκου-
σίως δικαιοῦται" ὁ ἀδικούμενος ἐκδικούμενος, ἑκουσίως δικαιοῦται.
—Id. cap. 13.

+ In an extract from the Danish ritual, given us by Dr. Ni-
cholls, in the second volume of his Commentary on the Common
Prayer, it is directed that ‘‘ when a malefactor is to be led to
the place of execution, he be exhorted heartily to rejoice that
every step he makes brings him nearer to his liberty, where he
shall see no sorrow, no fetters, no prisons any more.” But
these very circumstances, which console the dying malefactor,
may, under another aspect, embolden the offender, when before
the commission of a crime he looks upon the punishment of it
as a deliverance from “ sorrow, fetters, and prisons.” We natu-
rally wish for some alleviation of impending evil, and the mis-
chief is, that we find encouragement to wickedness in that
which ought to be only a solace to grief. Legislators ought to
take into their calculations this well-known and most perni-
cious propensity of the human mind.

170 NOTES.

from the frowns of the prosperous and the menaces of the
powerful; that from the prospect of death, while it continues to
be painful, they may endeavour to find some relief. by aceustom-
ing themselves to sullen indifference or gay defiance; and that
even their fears, if they degenerate into cowardice, may not lead
to reformation, but induce them to substitute a mischievous
cunning for that boldness which is not always incapable of ἃ
temporary alliance with virtue. Hale must have known that the
appearance of heroism is captivating to common minds, and that
it is supposed to consist, not in the patient endurance of long-
continued evils, be they chains, or solitude, or dungeons, but in
that firmness of soul which bears up against one vast and mighty
danger, from which nature usually shrinks. He must have
known, that by the perversion of that constitutional courage which
animates better men to better things, a criminal might be led to
shake off the apprehension of death as a weakness disgraceful to
his nature, and by calling in the aid of pride and rage, to fortify
himself in a secret or open contempt of the last severity which
human authority or human vengeance can employ. He must
have known that when fear ceases obduracy begins, and gradu-
ally prepares men for perpetrating the greatest crimes with the
least compunction. Hale must have known farther, that “ au-
thority, though it may err like others, hath a kind of medicine in
itself, that skins the vice οὐ the top.” He must have known,
that in all ages and in all countries ‘‘ man, proud man, drest
in a little brief authority,” is sometimes ‘* most ignorant of what
he is most assured;” and that, measuring his duty by his power,
he will now and then ‘‘ play such fantastic tricks before high
heaven, as make the angels weep.” He must have believed,

«« No ceremony, that to great ones ‘longs,
Not to the King’s crown, nor the deputed sword,
The marshal’s truncheon, nor the judge’s robe,
Becomes them with one half so good a grace
As mercy does.”’*

Finally, he must have observed, and he must have felt, that
from the unseen, unsuspected, unalterable influence of moral

* Measure for Measure,

NOTES. 171

eauses upon a being so short-sighted and so imperfect as man, a
very slight difference in external situation may ultimately, though
imperceptibly, lead to most important differences in conduct, and
that if he had been himself placed and tempted, as many culprits
were, he might himself ‘like them,” have sometimes ‘ slipped.”

Under these awful impressions, the wise, humane, and pious
Hale must often have had occasion to exclaim, as Boerhaave was
said todo, when a criminal was condemned to die,* ‘* May not
this man be better thanI? If otherwise, the praise is due not
to me, but the grace of God.”

Such, dear Sir, are the fixed and serious sentiments of. one,
who for many years has been avery attentive observer of judicial
proceedings; of one, who is no stranger to the pleas usually
alleged for the rigour of our laws, or to the effects really pro-
duced by it; of one, who has often thought it “the charitable
duty of his Order,” to prepare malefactors for eternity by lessons
of resignation and repentance; of one who, while he soothed
them by consolation when they were about to taste ‘‘ the bitter-
ness of death,” rarely failed to explore the deepest recesses of
their hearts ; of one who, upon a view of all circumstances, has

* « A worthy prelate of the Church of England once said
upon seeing a criminal led to execution, ‘There goes my wicked
self.” Considering the vices to which the frailty of human na-
ture exposes whole families of every rank and class in life, it be-
comes us, whenever we see a fellow-creature led to public infamy
and pain, to add further, ‘There goes my unhappy father, my
unhappy brother, or my unhappy son.” I found the foregoing
passage in p. 17 of an Inquiry into the Effects of Public Punish-
ments upon Criminals and Society, published in Philadelphia
1787. I differ from the enlightened author of it in his objections
to the publicity of capital punishments, though I believe that in
some few cases privacy in the infliction of other punishments,
and even uncertainty as to their duration, might increase their
effect. But the experiment should be made with caution. Who
the prelate was I cannot determine ; but he understood human
nature, and what is better, he has exemplified the celestial rule,
γνῶθι σεαυτὸν.

Τ See Life of Boerhaave, p. 56. Part of the words are quoted
by Johnson in No. 114 of the Rambler, where the reader will

find many just and serious reflections on the rigour of our penal
laws.

172 NOTES.

been yet more rarely satisfied with that sentence which doomed
his fellow-creatures ‘ to die’-—‘‘ to go they knew not whither”
—to be sent to their last solemn account “ with all their imper-
fections on their head,” when from the scantiness of their edu-
cation, the untowardness of their habits, the inquietude of their
spirits, and the shortened span of their existence, little or no
“reckoning could be made.” Oh! horrible! most horrible !

Doubtless there are subjects upon which the maxim “sua
cuique in arte credendum est,” may be admitted to a great ex-
tent. But the general principles of jurisprudence, and the prac
tical effects of those laws which inflict death, are within the
reach of every man who has formed habits of reflection, and who
has been blessed with the advantages of a liberal education. But
if professional men should exclaim, as they are wont to do, con-
temptuously, “tractent fabilia fabri,” 1 should remind them,
that Iam speaking of those by whom laws are made, rather
than those by whom they are administered, and that for my opi-
nion upon this topic I can find protection in the wise and hu-
mane observations of a well-known and justly-celebrated writer:
«©The crimes of such a man as Barnardine, careless, reckless,
and fearless of what is past, present, or to come, may perhaps have
made him unfit to live; but he is certainly unfit to die. The
safety of the community, and the preservation of individuals,
may call for his execution; but the bosom of humanity will
heave in agony at the idea, the eye of religion will turn with
horror from the spectacle.

‘‘ Suppose the sufferer, on the contrary, to have been a valu-
able member of society, and to have erred only from some mo-
mentary impulse of our imperfect nature, one who in the recol-
lection of reason hath found repentance; who resigns with
cheerfulness that life which is become a forfeiture to the law,
and looks up in confidence to heaven for that forgiveness which
is not to be found on earth. The last footsteps of such a man
are watered with the tears of his fellow-citizens, and we hear
from the mouth of every spectator,

‘© Yes, I do think that you might pardon him,
And neither heaven nor man grieve at the mercy.” *

* Eden’s Principles of Penal Law, cap. iii.

NOTES. 173

At such a moment the most flinty-hearted man would be
ashamed to insist upon the topics which were recommended to a
mere pleader: “ Locus inducetur ille per quem hortandi judices
erunt, ut veterem famam hominis nihil ad rem putent perti-
nere, nam eum ante celasse, nunc manifesto teneri; quare non
oportere hance rem ex superiori vita spectari, sed superiorem
vitam ex hac re improbari, et aut potestatem ante peccandi non
fuisse, aut causam.’’*

For my general dissatisfaction with the penal law of England
I have the authority of a yet greater writer, who occasionally
found room to remark some particulars which seemed to want
revision and amendment, and which had chiefly arisen from
those causes to which in part I have myself applied them. It is
impossible to read his masterly chapter on the national crimes
and their punishments, without perceiving that he looked with
no favourable eye on the frequency of our capital punishments,
‘*upon too scrupulous an adherence to some rules of the ancient
common laws, where the reasons have ceased on which those
rules were founded; upon not repealing such of the old penal
laws as are obsolete or absurd; and upon too little care and at-
tention in framing new ones.” ‘It isa kind of quackery,” he
says, “in government, and argues a want of skill to apply the
same universal remedy, the ultimum supplicium to every case of
difficulty. It is, it must be owned, much easier to extirpate
than to amend mankind; yet that magistrate must be esteemed
both a weak and a cruel surgeon who cuts off every limb which
through indolence or ignorance he will not attempt to cure.” +
The language of Blackstone is, indeed, as it ought to be, wary
and temperate. But his real opinions and his real wishes are
sufficiently intelligible ; and they who for their own instruction
have read the conclusion of this chapter, may be content to read
it again, when produced, as it now is, for my own vindication.
** Robbers,” says he, ‘‘in England have a hope of transportation,
which seldom extends to murderers. This has the same effect

here as in China, in preventing frequent assassination and
slaughter.”

* Cicero de Inventione, lib. ii. vol. i, p. 77. ed. Gruter.
+ Blackstone, vol. iv. cap. i.

174 NOTES.

“Yet though in this instance we may glory in the wisdom of
the English law, we shall find it more difficult to justify the
frequency of capital punishment to be found therein, inflicted
(perhaps inattentively) by a multitude of successive indefensible
statutes upon crimes very different in their natures. It isa me-
lancholy truth, that among the variety of actions which men are
daily liable to commit, no less than an hundred and sixty have
been declared by Act of Parliament to be felonies without benefit
of clergy, or in other words to be worthy of instant death. So
dreadful a list, instead of diminishing, increases the number of
offenders. ihe injured thrcugh compassion will often forbear
to prosecute ; juries through compassion will sometimes forget
their oaths, and either acquit the guilty or mitigate the nature
of the offence ; and judges through compassion will respite one
half of the convicts and recommend them to royal mercy.
Among so many chances of escaping, the needy and hardened
offender overlooks the multitude that suffer; he boldly engages
in some desperate attempt to relieve his wants or supply his
vices; and if unexpectedly the hand of justice overtakes him, he
deems himself peculiarly unfortunate in falling at last a sacrifice
to those laws which long impunity had taught him to contemn.”*

The acute and indignant author of a Fragment on Govern-
ment will, I think, be ready to allow that in the foregoing pas-
sage Blackstone has sustained the part not merely of ‘an expo-
sitor who is to show what the legislator, and his under work-
man the judge, had done already,” but of “a censor, to whom
it belongs to suggest what the legislator ought to do in future.’’f
So strong, however, is the reasoning, and so just are the views
of the writer here mentioned, that I think myself bound to in-
troduce what he has written upon the propriety and usefulness
of revising our laws. I shall take the substance of his observa-
tions, but omit some sharp strictures which are interwoven with

them.
‘** Those who duly consider upon what slight and trivial { cir-

* Blackstone, book iv. chap. 1.

+ Preface, p. 10.

{ This remark may sometimes be applied to the interpreta-
tion of penal laws, See the case of a prisoner tried by Hale at

NOTES. 175

cumstances, even in the happiest times, the adoption or rejec-
tion of a law so often turn; circumstances with which the uti-
lity of it has no imaginable connection—those who consider the
desolate and abject state of the human intellect, during the pe-
riods in which so great a part of the still subsisting mass of in-
stitutions had their birth—those who consider the hackwardness
there is in most men, unless when spurred by personal interests
or resentments, to run a tilt against the colossus of authority—
those, I say, who give these considerations their full weight,
will not be zealous to terrify men from setting up what is now
‘private judgment,’ against what once was ‘ public;’ nor to
thunder down the harsh epithet of ‘arrogance’ on those who,
with whatever success, are occupied in bringing rude establish-
ments to the test of polished reason. They will rather do what
they can to cherish a disposition at once so useful and rare,*
which is so little connected with the causes that make popular
discontentment dangerous, and which finds so little aliment in’
those propensities which govern the multitude of men. They
will acknowledge, that if there be some institutions which it is
‘arrogance’ to attack, there may be others which it is effrontery
to defend. Tourreil has defended torture; torture, established
by the ‘ public judgment’ of so many enlightened nations. Bec-
caria has condemned it. Of those two whose lot among men
would one choose—the apologist’s or the censor’s ?"’

They who look to things rather than men, to reason than to
names, may derive, as I have done, the most valuable informa-
tion, and feel, as I have done, the strongest conviction, from
the works of the writer whose opinions I have just now pro-

Cambridge for burglary, when all doubts upon the nature of his
crime were removed by the trivial accident of some bricks hav-
ing fallen down the chimney through which he descended into
the house, ‘‘ Such deviations,” says Mr. Eden, ‘ of sound sense
into sophistry, are too often the effect of legal reasoning.”’—Page
526.

* « When Beccaria came, he was received by the intelligent
as an angel from heaven would be by the faithful. He may be
styled the father of censorial jurisprudence. Montesquieu’s was a
work of the mixed kind. Before Montesquieu all was unmixed
barbarism, Grotius and Puffendorf were to censorial jurispru-
dence what the schoolmen were to natural philosophy.”—Pre-
face, p. xix. to Fragment on Government,

176 NOTES.

duced. He holds a distinguished place in that small number of
sages who will “‘echo to the sentiments of Beccaria from the
bottom of their hearts, and co-operate with him in giving effect
to the voice, which if it be the voice of one philosopher only
might be too weak to be heard amidst the clamours of a multi-
tude blindly influenced by custom.” * But the progress of civili-
zation, science, and sound religion, has prepared even the mul-
titude for such punishments as are less offensive than those
which are now inflicted, to the sense of humanity and of justice.
Enlightened men, as we have seen, plead for some reform, and
the necessity of that reform was discerned long ago by a cele-
brated writer, under the shelter of whose name I will conclude
these remarks. Lord Coke, in his Epilogue to his third Insti-
tute, which treats of the Crown Law, after observing that fre-
quent punishment does not prevent crimes, says, “ What a la-
mentable case it is that so many Christian men and women
should be strangled on that cursed tree of the gallows ; insomuch
as if in a large field a man might see together all the Christians
that but in one year come to that untimely and ignominious
death, if there were any spark of grace or charity in him, it
would make his heart to bleed for pity and compassion.”

His Lordship then proceeds to shew, that the method of pre-
venting crimes is, “ first, by training up youth in the principles
of religion and habits of industry. Secondly, in the execution
of good laws. Thirdly, in the granting pardons very rarely, and
upon good reasons.” He then concludes, ‘ that the considera-
tion of this prevention were worthy of the wisdom of Parlia-
ment, and in the mean time expert and wise men to make pre-
paration for the same, ut benedicat eis dominus. Blessed shall
he be that layeth the first stone of the building; more blessed
that proceeds in it; most of all that finisheth it to the glory of
God, and the honour of our king and nation."’+

Long after I had written thus far, Sir Samuel Romilly, whose
name I never mention without veneration, moved in the House
of Commons for the repeal of the law against private stealing

* See Beccaria, chap. xxviii.
+ See Introduction to first edition of Dagge’s Considerations
of Criminal Law, p. 74, vol, ili.

NOTES. 177

from the person. He supported the motion with his usual accu-
racy of information and acuteness of reasoning. ‘The bill has
passed both Houses of Parliament, but with amendments in
which the mover probably acquiesced upon the principle of sur-
rendering a part lest the whole should be wrested from him.
The objections I should have urged against those amendments
seemed to me not unimportant, and therefore I shall proceed to
state them temperately but unreservedly, and to intermix with
them copiously such general reflections as they may incidentally
suggest to my mind.

Acts of legislation are too momentous in their consequences
to be debased by ostentatious courtesy, or wanton rudeness, to
any members or any classes of the community. In the discus-
sion of political topics, men of observation see only folly, or
affectation, or flattery, in the profession of separating measures
from men; and surely in the more solemn process of enacting
penal laws, the framers of them oughi to keep in view the pos-
sible imperfections of those who are to administer, as well as the
actual malignity of those who may violate them, Corruption, I
grant, would in English judges be a prodigy quite as rare as
parricide is said to have been among the old Greeks. ΤῸ none
of those venerable men, who now adorn our courts, deliberate
cruelty can be imputed in trials for capital crimes, and if it were
not invidious to particularize individuals, I should be happy to
pay the tribute of my praise to the great sagacity and great
lenity of some persons whom I could point out by name. But I
mean to give no offence, and I hope that none will be taken,
when I say, that upon questions by the decision of which the
life or the liberty of man is to be forfeited, it is more safe and
more becoming for legislators to trust in the energy of the laws
themselves, than to repose very large confidence in the discretion
of any one human being.

Let me not be accused of singularity, when I express my
concern that in the administration of public justice too much is
already granted to the persons who administer it. ‘ By the in-
dulgence of judges, not by the provisions of law, a prisoner in-
dicted for felony is now allowed counsel to stand by him at the
bar, and instruct him what questions to ask, or even to ask

VOL. IV. N

178 NOTES.

questions for him in matters of fact.”* But one judge may re-
fuse what another would grant, and the consequence of such re-
fusal may be the omission of questions, which, if well proposed
and well answered, might lead to the acquittal of the accused.
Hence, with all his real or all his supposed spirit of optimism,
Blackstone calls this ‘‘ a matter of too great importance to be
left to the pleasure of any Judge, and worthy of the interposi-
tion of the legislature.” He thinks that interposition necessary,
though he was sensible that in the absence of an advocate to
assist a prisoner, the judge is generally presumed to sustain the
office of a counsel.

In regard to cases not wholly unconnected with the views of a
ministry, or the spirit of a court, it would be unfair to prejudge
any body of men, especially as our constitution may be supposed
to invest us with the right of arraigning seriously and discussing
argumentively any real impropriety in their conduct, when such
cases occur. But in transactions between subject and subject
the history of our country, and indeed my own immediate obser-
vation, would induce me to give a confidence nearly unlimited,
where the collective wisdom of the twelve judges is employed in
ascertaining the import of a penal statute ; and well does it be-
hove every Englishman to remember, that when the dispropor-
tion of numbers between measures of lenity and measures of
rigour is not very wide, this circumstance, though it may not
produce direct acquittal, as an equality} of votes formerly did
before the tribunal of Areopagus, generally protects a culprit
from ignominious execution. Yet I have often wished, not per-
haps for the abolition, but the limitation of that discretion,
which is now exercised by single judges, and even single courts,
in decreeing the pillory or transportation, and in fixing the
quantity of a fine, or the duration of imprisonment, In truth, I
have never heard a satisfactory reason why the law could not be
so well understood by twelve honest jurymen, or so well inter-
preted to them, as to qualify them for proportioning the punish-
ment, when they have pronounced a verdict upon the crime.

* See Blackstone, book iv. cap. 27.
+ Euripid. Elec. verse 1269. Adschyl. Eumenid. verse 744,
and Aristotel. Problem, sect. 29.

NOTES. 179

“Where an established penalty,” says Blackstone, “is an-
nexed to crimes, the criminals read their certain consequence,
in that law which ought to be the unvaried rule, as it is the in-
flexible judge of their actions. The discretionary fines, and dis-
cretionary length of imprisonment, which our courts are enabled
to impose, may seem an exception to this rule. But the general
nature of the punishment, viz. by fine or imprisonment, is in
these cases fixed and determinate, though the duration and
quantity of each must frequently vary from the aggravations
or otherwise of the offence, the quality and condition of the
parties, and from innumerable other circumstances,” *

It affords but little satisfaction, I confess, to my mind, to be
told that the law has fixed the nature of the punishment, when
there may be many differences in the degrees of it, and when the
choice of those degrees is to be left to any one man. Laws we
may suppose in some countries so to fix by a general term the
nature of punishment for some offences, as to make it amount
to death. But shall it be left to the judge only to determine
whether that death should be inflicted by the rope or the axe,
the racking wheel, or the slowly consuming fire? The English
laws denounce imprisonment and transportation. But is it not
a question of great moment to delinquents, and to the commu-
nity, whether the imprisonment be for one or two or five years,
and whether transportation be to continue for seven or fourteen
years, or for life? What, J must ask, can in any offence be the
circumstances which a jury may not understand quite as well as
a judge? That the quantity of particular fines neither ought to
be, nor indeed can be, ascertained by any invariable law; that
the current value of money, and the greater or the less wealth of
the delinquent, will introduce material differences; that the
Bill of Rights has declared all excessive fines unfit to be imposed,
and all unusual punishments unfit to be inflicted, are facts quite
as intelligible, and restraints quite as powerful, to juries as to
judges, and surely upon all occasions with the assistance of the
judges, jurymen may give proper effect to the laws in fixing the
quantity of fines, and the term of imprisonment or transporta-
tion. Without any invidious retrospect to the decisions of the

* See Blackstone, book iv. chap. 29.
n 2

180 NOTES.

Star Chamber against Burton, Pym, and Bastwick, or to some
unprecedented proceedings in the reign of James II. intelligent
men tnay in later times meet with strong reasons to lament that
the adjudication of fine or imprisonment in criminal cases should
be left exclusively with the judges. It is the punishment, not
the mere trial, which deters offenders and secures the commu-
nity; and wheresoever such punishment is to be inflicted, I
should, mutatis mutandis, apply the observation of Sir Matthew
Hale upon capital punishments. ‘It were a most unhappy
case for the judge himself if the prisoner’s fate depended upon
his direction” in the quantum of the punishment, “ unhappy
also for the prisoner.” If the judge’s opinion alone is to fix the
punishment, the trial by jury is far less useful than it ought to
be in a country which boasts of such trial as the great palladium
of its social rights, and which has long found in it sufficient pro-
tection for the safety of unoffending individuals and the peace
of the community.*

Every judge, be it said with great reverence for his office, is a
frail individual, and whatsoever may be his wisdom or his inte-
grity, my observation upon human nature would never induce
me to invest him solely with the power of choosing between the
milder and the heavier punishment ‘‘ of the same nature.”
‘“More, in his Utopia, has declared himself freely and fully
against putting thieves to death. And in the same charitable
and reasonable way of thinking Erasmus agreed with him.” +
*“* But he was a notable tyrant,” said old Luther, indignantly and
justly. ‘“*He was one of the bitterest enemies,” says Burnet,
‘‘ of the new preachers, not without great cruelty when he came
into power, though he was otherwise a very good-natured man ;
and though, in the opinion of Dr. Jortin, ‘he had once been
free from that bigotry which grew upon him afterwards in life.”
Yes, the philosophy, the sagacity, the piety, the benevolence of
More, did not preserve him from the reigning prejudices of his
day against the crime of heresy ; and they who will consult Mr.
Lysons’s excellent work on the Environs of London, will be led
to many serious reflections upon human infirmity, when they
read the wanton cruelties which in More’s presence, or even by

* See Blackstone, book iv. chap. 27.
+ See Jortin’s Life of Erasmus, p. 174.

NOTES. 181

his own hand, were exercised against heretics at a tree which
he employed for this very purpose in his garden at Hammer-
smith. For his holy, but barbarous zeal, he could easily find
pretexts, such as disgust and shock us, when produced by other
apologists for rigour upon other occasions. Thus he writes in
a letter to Erasmus, ‘‘ Quod in Epitaphio profiteor me fuisse
molestum, hoc ambitiose feci. Nam omnino sic illud hominum
genus odi, ut illis, nisi resipiscant, tam invisus esse velim, quam
qui maxime, quippe quos indies magis ac magis experior tales,
ut mundo ab illis vehementer metuam.” *

Who would dare to dispute the erudition, the integrity, or
the wisdom of Sir Matthew Hale? Who can read with indiffer-
ence the reasons which, with his usual modesty and sincerity,
he assigns for declining the judicial office, and in which he re-
presents himself as having too much pity, clemency, and ten-
derness in cases of life, which may prove an unserviceable tem-
per for bustling ?” +

‘* Mitis precibus, pietatis abundans,
Peene parcus erat.” ἢ

Yet so far did he share in the credulity of his contemporaries
about witchcraft, that in the Suffolk Sessions of 1664 he not
only condemned two widows of Leystoff, but suffered judgment
to be executed upon them; and even the learned Sir Thomas
Brown, who wrote against vulgar errors, is said upon this occa-
sion to “ have declared himself in court to be clearly of opinion,
that the fits of the patients were natural, but heightened by the
devil co-operating with the malice of the witches, and to have
confirmed that opinion by a similar case in Denmark, and so far
influenced the jury that the two women were hanged.” §

I know not that Judge Powel was a weak, or a hard-hearted
man. But I do know that in the Augustan age of English lite-
rature and science, when our country was adorned by a Newton,

* See Life of Erasmus, p. 190.

+ See p. xi. of Mr. Hargrave’s interesting Preface to vol. i. ofa
Collection of Tracts relative to the Law of England, from MSS.
first *‘ edited” by him in 1787.

1 Claudian de IV. Cons. Honor. 1. 113.

§ See Gough’s British Topography. The cases mentioned in
the next paragraph may be found in the same book, vol. ii. p.255.

182 NOTES.

a Halley, a Swift, a Clarke, and an Addison, this judge in 1712
condemned Jane Wenham at Hertford, who in consequence per-
haps of a controversy that arose upon her case, rather than from
any interposition of Powel, was not executed; and that four
years afterwards he at Huntingdon condemned for the same
crime Mary Hickes and her daughter Elizabeth, an infant of
eleven years old, who were executed on Saturday the 17th of
July, 1716. At the beginning of the same century, of which
English philosophers and English scholars talk with triumph,
two unhappy wretches were hung at Northampton, the 17th of
March, 1705; and upon July the 22d, 1712, five other witches
suffered the same fate at the same place. The judges who tried
them might be very wise and upright men, But they were terri-
fied at witchcraft, and employed all the wholesome severities
which the laws had provided against it. We are no longer scared
at witchcraft. But can it be said that we are none of us subject
to unreasonable and excessive prejudice against other offences,
real or supposed?
“ὁ Suus cuique attributus est error ;
Sed non videmus mantice quod in tergo est.” *

From original temperament, from early education, from expe-
rience of personal inconvenience, and from various other causes
scarcely known to ourselves, we all of us feel a stronger aversion
to some offences than to others. One man is alarmed at public
robbery, another takes fright at private stealing, a third startles
at heresy as bordering upon infidelity, a fourth kindles at repub-
licanism as teeming with treason; and each, if it were in his
power, would wreak the utmost of his vengeance upon the of-
fender. But can it be right that the life, or the liberty, or the
fortune of any human being should be dependent upon the greater
or less degree of these moral idiosyncracies ?

‘Quid leges sine moribus vane proficiunt,” was the question
of one + who had Jooked with an attentive eye upon human life.
But there is another question of equal importance. What avail
the best laws without judicious and steady administration? Slow
as may be the growth of useful laws themselves, 1 am convinced

* Catullus, Carm. 20. + Horace.

NOTES. 183

that the art of administering them well is yet slower. The sug-
gestions of zealous and ingenious men, the temporary exigencies
of society, a spirit of emulation in one state towards another,
often give rise to the enactment of laws which in appearance
tend to the public good. But the previous habits and opinions
of a people may for a time present unforeseen and stubborn ob-
stacles to the execution of them: and long it sometimes is before
the prejudices or the corruptions of society are sufficiently sub-
dued for the regulations of lawgivers to produce their proper
and full effect. For this reason I have ever been anxious that
the administration of laws among ourselves should stand free
from every well-founded objection. Sure I am that in other
countries, where some of the laws may appear more excellent
than our own, the general method of administering them is much
less correspondent to the original views of the legislator, and
much less favourable to human happiness. My wish is to extend
and to confirm the claims of my countrymen to this peculiar and
noble praise.

In my remarks, then, on the practice of our Courts, where the
nature of the punishment as appointed by the laws is not
changed, but the extent of it is in many cases reserved for the
discretion of Judges, I do not mean to insinuate that power is very
frequently abused ; and in the vigilance of public opinion, as
well as in the virtue of Judges, 1 see many checks upon that
abuse. But the mere possibility of it is an evil ; and while juries
are employed, I am acquainted with no good which could not be
easily and constantly obtained, if the evil, to which I advert, were
wholly removed. Were the attempt to remove it made by a firm
and enlightened legislature, | am confident that the approbation
of the public, founded on their progressive experience, would
give additional weight to the authority of a statute.

* It is a maxim in politics,” says Mr. Hume, “ which we readily
admit as undisputed and universal, ‘That a power, however
great, when granted by law to an eminent magistrate, is not so
dangerous to liberty, as an authority, however inconsiderable,
which he acquires from violence and usurpation.’”* But there
is a gradual and silent extension of power, which in its effects

------------..- .. .

* Vol. i. Essay 10.

184 NOTES.

is scarcely less pernicious than usurpation, when under specious
pretexts of necessity, it has been permitted to answer other pur-
poses than those for which it was primarily conferred, and when
having imperceptibly obtained the force of immemorial usage,
it represses all investigation into its comparative merits and de-
merits in the actual business of life. Whatsoever in the degrees
of punishment has been negligently overlooked or imperfectly
defined in the laws themselves, leaves room for the discretion of
the judge to introduce severities for which particular cases will
often furnish particular reasons, One precedent not only pro-
duces direct imitation, but paves the way for other precedents
not expressly interdicted by the general rule ; and whensoever
bodies of men suppose their authority to be interested in the
continuance of the practice, advocates are always at hand to
set up usage in answer to utility, and even to maintain, in oppo-
sition to facts, that the existence of usage itself is always a pre-
sumptive proof of utility. But he that looks back to the history
of mankind will often see, that in politics, jurisprudence, reli-
gion, and all the great concerns of society, reform has been
usually the work of reason slowly awakening from the lethargy
of ignorance, gradually acquiring confidence in her own strength,
and ultimately triumphing over the dominion of prejudice and
custom.

In conformity to the opinions I have just now stated, I must
confess, that instead of approving the modifications lately reeom-
mended by a most excellent man,* I should have been better
pleased if the power of assigning a greater or a less punishment
for private stealing had been vested jointly in the judge who
presided, and the jury who tried the cause—or, if the jury,
after hearing and considering the arguments of the judge, had
been permitted to decide ultimately; and as in this statute the
degree of punishment is less definite than upon other occasions,
the inconvenience of such uncertainty might be lessened, if in
any case where the aggravating circumstances were doubtful,

* Sir Thomas Plomer, now Solicitor-General ; and highly es-
teemed, when a young man, for his classical learning, by the late
Dr. Foster, Master of Eton, Sir William Jones, and the writer of
this note.

NOTES. 185

some interval had been directed to pass with the consent of both,
between the verdict and the sentence. A general fact may be
easily understood. But the minute and numerous circumstances
upon which the gradations of guilt, and of the chastisement to
be inflicted upon the guilty, must often depend, ought to be
weighed with the utmost care, and at a season, let me add, when
the remembrance of evidence is fresh, and when the judgment
is quite unclouded by any of those passions which in the course
of a trial are frequently excited in the breasts of the most com-
passionate and the most intelligent. I speak not of the incon-
venience which may now and then arise where the crime and the
punishment are definite, and where, if the fact be found by the
jury, the law gives no alternative to the judge. The crime, in-
deed, of privately stealing is now made definite, so far as a class
of things can be described in legal terms. The punishment,
however, for very wise and humane reasons, is in some respects
indefinite. But if the lover of power, or predilection for a pro-
fession be disclaimed, I am at a loss to conjecture any solid rea-
son why it should be granted to the jury to decide upon the
crime, and left with the judge indiscriminately and exclusively
to appoint the punishment. Is it meant to furnish a precedent
for all future proceedings of the legislature, when death is to be
commuted for a penalty less severe? I hope not. Is there any
peculiar property in the offence of private stealing, which ren-
ders it unfit for juries to decide on the greater or the less guilt of
the criminal? I see it not. Have not juries the same interest
with judges in the prevention of offences, the same regard for
the general welfare of society, the same veneration for the sanc-
tity of an oath, and the same capacity to calculate upon such an
occasion the physical effects of pain, as upon other occasions they
are allowed to have in determining the illegal qualities of actions?
It were an insult to the judicial character even to insinuate that
they who now sustain it can never be touched with ‘a sense of
our infirmities,” and in the instance of private stealing the insi-
nuation were untrue, as well as contumelious. Pity, we know,
has produced an habitual and a visible unwillingness in juries to
enforce with all possible strictness, the law, as it formerly stood
against that offence. But the same pity has also induced judgres
to search for circumstances of extenuation, to found upon them

180 NOTES.

distinctions which might lead to acquittal from the capital part
of the charge, and in appearance, at least, to evade the very laws
which they were sworn to administer. ‘‘ Magis valebant acumina
ingeniorum, quam auctoritas legis.” * In this way has their
wisdom been employed on the side of mercy ; and why should it
not continue to be so employed, in pointing out to juries the
gradations of a sentence by which the offender should not be
punished excessively, the community not be endangered, and the
letter, as well as the spirit of the law not violated? If a differ-
ence re integra is to be made by the legislature, let the represen-
tive of the Sovereign be exclusively entrusted with a privilege re-
sembling the glorious prerogative of sovereignty itself. Let him
be invested with the power of acting from the more amiable feel-
ings of his nature, and protected from the chance of following the
Jess. Let him have the right, not of fixing arbitrarily the severest
punishments, but of selecting the mildest, when the dictates of
his own enlightened mind suggest to him that he can be at once
compassionate and just. He can do so now without controul,
But he can also do the contrary with impunity, and whatsoever
respect we have, and, I am sure, ought to have, for the know-
ledge and the humanity of the present generation, we can have
no security for equal knowledge and equal humanity in their
successors at some distant period. “ Omnia mala exempla ex
bonis initiis orta sunt; sed ubi imperium ad ignaros aut minus
bonos pervenit, novum illud exemplum a dignis et idoneis ad in-
dignos et non idoneos transfertur.’’+ Experience has long shewn
to us the danger of entrusting any great public interest to the
prejudices and habits of single classes. When laws are to be
enacted, we have the consent of Commons, Peers, and a King,
whose different judgments, as affected by their different situa-
tions, are counteracted by each other, and who, after delibera-
tion, are influenced by one common sense of duty, directed to
one common object in the public good. When laws are to be
administered, we have a jury to try the facts according to those
laws, and we have a judge to explain in what extent, and upon

* Bacon de Augm. Scient. quoted by Eden, chap. ii, of Princi-
ples of Penal Law.
+ Sallust. Bell. Catalin.

NOTES. 187

what conditions the laws are applicable to those facts.* Time
has evinced the safety of the practice, and therefore I was sorry
to find that in a new statute, when the plea of usage could not
be urged directly, the right of fixing the sentence + should be
consigned to the judge, who unquestionably will understand the
case, but refused to the jury, who with his assistance are equally
capable of understanding it, and who have an equal interest with
him, and all their other fellow-subjects in endeavouring to un-
derstand it well.

In the course of the debate on Sir Samuel Romilly’s motion,
it was proposed that persons convicted of private stealing should
be subjected to hard labour or not at the will of the Crown.}

* « The court,” says Judge Foster, “ not the jury, is to judge
the malus animus, which is to be collected from all circum-
stances,” and bringeth the offence within the denomination of
wilful murder, whatever might be the immediate motive to it.
But this doctrine is not warranted by general practice, and, as
Eden observes, “ is inconsistent with Foster’s statement that the
mischievous intention is a matter of fact to be collected from cir-
cumstances. But if it be a matter of fact, not a matter of mere
Jaw, the jury, and not the court, are to collect it. Juries, by the
advice of the judge may find special verdicts; but I have never
met with any clear and express statement of a general principle
that in trials of capital offences juries, if their consciences permit
them, are not authorised to decide upon the point of law as well
as the point of fact, and it is the peculiar province of the judge to
enlighten the ignorance and to correct the mistakes of juries, if
they make any, upon questions of Jaw as applicable to the cause
which they are trying.’’—See Eden, p. 228.

+ Hale, who supposes that “ the power and authority of the
court and the judges would go a great way in the reformation of
things amiss in the law, without troubling Parliament, afterwards
adds, that in ‘ the remedies that are given by Parliament the law
should be particular, and as little left arbitrio judicis as may be.’”
—Cap. iv. of Hale on the Amendment of the Laws. 1 this pre-
caution be expedient in the amendment of our civil code, where
it is recommended by Hale, yet more important must it be in
every reform of our penal code, and in every statute which is
added to it previously to such reform.

¢ Such introduction of the Sovereign's name in Parliamentary
debates ought not to pass unnoticed. The suggestion which I
condemn, has fortunately not been admitted into the new statute.
But it deserves to be vemarked as a very unusual stride in legis-

188 NOTES.

But I suspect that such a proposal is not quite agreeable to the
spirit of our constitution, or the usage of our laws. According
to the constitution, the prerogative has been hitherto employed
not in the ungracious office of aggravating, but in the more ami-
able task of mitigating punishment. The strength of that pre-
rogative may be felt in its justice, but should be seen in its mer-
cies rather than in itsterrors. The King, according to the usage
of our laws, may substitute transportation or imprisonment for
death. But so jealous were our forefathers of placing too much
in the hands even of the Sovereign, that if death be inflicted, he is
not permitted in ordinary cases to alter the nature of that death,
and is forbidden to mitigate or sharpen the pains of the sufferer
by a discretionary power similar to that, which enables a judge to
extend or to shorten the terms of imprisonment and transporta-
tion. The murderer must be dissected, or hung in chains—the
traitor must be conveyed in a different manner from other male-
factors to the place of execution, and must be embowelled* and

lation, that the whole punishment of a crime formerly capital,
should be at once deposited in the judge or court only ; and that
a discretionary power of extending the penalties to accomplices
should be granted so largely. After repealing so much of the
statute of the Sth of Elizabeth as takes away the benefit of clergy
from persons stealing privily from the person of another, the
statute contains the following clause for more effectually prevent-
ing the crime of larceny from the person:

‘And be it further enacted, That from and after the passing
of this act, every person who shall at anytime or in any place
whatever, feloniously steal, take, and carry away any money,
goods, or chattels, from the person of any other, whether privily
without his knowledge or not, but without such force or putting
in fear as is sufficient to constitute the crime of robbery, or who
shall be present, aiding, and abetting therein, shall be liable to
be transported beyond the seas for life, or for such term not less
than seven years as the judge or court before whom any such
person shall be convicted shall adjudge, or shall be liable in case
the said judge or court shall think fit to be imprisoned only, or
to be imprisoned and kept to hard jabour in the common gaol,
house of correction, or penitentiary house, for any term not ex-
ceeding three years.”

* I find two exceptions—Ashton in 1690, and Matthews the
printer, in 1719, were hanged until they were dead, without any
subsequent quartering or beheading. But the general practice is

NOTES. 189

quartered, though he be previously strangled. Even in the ex-
cepted cases of condemned noblemen, the King may remit a part
of the punishment, but can make no addition to it; and the re-
maining part which is executed must always be included in the
sentence, and therefore apparently proceeds, not from the arbi-
trary will of an individual, but from the impartial authority of
the laws. Why then in the punishment of private stealing should
the Sovereign be invested with new and extraordinary power, to
be exercised, if it should so please him, on the side of severity ὃ
The introduction of the Sovereign's name appeared to me un-
necessary and improper. All the ends of public justice would
have been secured, if the statute had expressly doomed the of-
fender to hard labour, and tacitly left it to the general preroga-
tive of the Crown to permit or to mitigate this part of the punish-
ment.

As my objection to the amendment of the new statute chiefly
relates to the power which it bestows upon Judges, I am very so-
licitous to avert the imputation of disrespect to their office.

Now Dr. Paley, whose veneration for that office was not
greater than my own, states some instances in which “ more
exact justice might be rendered to the suitors, if the determina-
tion were left entirely to the Judges, provided we could depend
upon the same purity of conduct when the power of these ma-
gistrates was enlarged, which they have manifested in the exer-
cise of a mixed and restrained authority.” ‘‘ But this,” says he,
“ig an experiment too big with public danger to be hazarded.” *
Upon the same principle, too, I reason, when I disapprove of a
Jaw which gives to Judges the exclusive power of assigning the
punishment for private stealing, and indeed for any offence
which juries are appointed to try. But the opinions I hold of
their responsibility to the public are mingled with sincere and
profound reverence for their office. ““ He that has struck a ma-

not to execute strictly that part of the sentence which directs
traitors to be hanged by the neck, but not till they be dead. If
the execution of any criminal so varies from the judgment, as to
aggravate the punishment beyond the intention of the law, it
would be murder in the sheriff.—See Eden, p. 208.

* Chap. viii.

190 NOTES.

gistrate,” says an ancient writer, “ τὴν τάξιν τῆς πολιτείας ἀνεῖ-
λεν," “ and deserves to be punished not with blows, but death.”*
The principle, I grant, extends from actions to all false and slan-
derous words uttered against those persons who “ execute judg-
ment,” not ‘‘ with violence, but according to truth.” The force
of that principle ¢ is recognised, not only in the authoritative re-
gulations of states but in the sober reflections of all mankind.
Yet the application of this, as of every other moral rule, may be
controlled by external circumstances. They to whom the hap-
piness of man is entrusted, must, in some way or other, be an-
swerable to the serious and unperverted judgment of man for
the discharge of that trust. The prudential and decorous habits
which we acquire in the civilized state, will often induce us to
spare the individual for the sake of the office, though in foro con-
scientie the office may enhance the guilt of the individual. In
the ordinary and quiet flow of worldly affairs we know from ex-
perience, that shame is a more efficacious remedy than those
legal penalties from which it is sometimes invidious to seek re-
dress, and sometimes difficult to obtain it. We know, farther,
that Judges, like other moral agents, stand in need of allowances
for mistakes and frailties, that the summum jus, if perpetually
exercised against them, would be summa injuria, and that fre-
quent impeachments would gradually break down that respect
which answers many public as well as private purposes, and which
not only protects the persons and characters of Judges from
licentious insult, but gives additional weight to their most wise
and equitable decisions. On the other hand, it were idle to talk
of responsibility in those to whom the sacred task of adminis-
tering the laws is committed, if gross partiality, if abject servi-

* Vid. Andronic. Rhod. lib. v. cap. 6, and Aristotle’s Ethics,
lib. v. cap. 5.

+ “ Thou shalt not revile the Judges.”—(Exod. cap. xxii.
ver. 28.) Our English version gives Gods in the text, but
Judges is placed in the margin. ALEIM is the word in the origi-
nal. It occurs also in verses 8 and 9 of this chapter, and is there
properly translated Judges. Great as was the licentiousness of
speech among the Athenians, they were not permitted to speak
sarcastically of the court of Areopagus.—(Vid, Petit. Leg. Att.
lib. iii, title II. par. 26.)

NOTES. 191

lity, if the profligate exactions of a Dudley and an Empson, if the
obdurate cruelty of a Jeffries, or the brutal ferocity of a Page,
were exempt from every kind and every degree of reprehension.
No honest Judge would wish for that exemption, and in a land
of freemen and Christians a dishonest one would claim it in vain.

The natural sentiments of mankind may be collected from
their uniform practice; and to those communes intelligentiz,
which are much surer criteria of right and wrong than the the-
ories of philosophers or the decrees of potentates, what senti-
ment can be more congenial than that “ the powers which are
ordained by God” should be exercised steadily and solely for
the benefit of God’s creatures? Every subject has a deep and
permanent interest in the measures of every sovereign; and if
under every legitimate government he is accustomed in some
form or other to express his disapprobation as well as approba-
tion, surely he is entitled to speak with equal freedom about the
representatives of the sovereign in that administration of justice,
which stands among the most important functions of sovereignty
itself. Circumspection, I allow, mingled with a spirit of can-
dour and dutifulness unfeigned, becomes him alike as a good
citizen, and a good man. Yet the ground of every legal and
every moral obligation for him to be circumspect is the supreme
usefulness of the judicial office, and the consequent necessity of
protecting it from the misrepresentations of the turbulent, and
even the suspicions of the virtuous. ‘The dignity of that office
itself is most firmly secured, and its best purposes are most effec-
tually promoted, when they who are most interested in those
purposes make just distinctions between the protector and the
oppressor. Some occurrences which I can neither slight nor
forget, furnish me with weighty reasons for pursuing this
subject.

I have now and then met with persons, who, if the subject of
responsibility in Judges was mentioned, would preserve a sort of
systematic taciturnity, which betrayed at once their consciousness
of the fact, and their unwillingness to have it discerned by the
vigilant, or discussed by the inquisitive. They frowned, as if it
did not exist, while they perhaps would have acted as if it did.
They never ventured to deny the right of observation and censure,
and yet were always on the watch to detect and condemn the

199 NOTES.

slightest error in the exercise of it. But their captiousness was
at the expence of their consistency. For where is the propriety
of throwing our courts open to subjects of every age, every sex,
every condition, and every employment, if it were not meant
that ““ hearing with their ears, and seeing with their eyes, and
understanding with their hearts, they should be saved”’ from
every kind of injustice ? Where, let me ask, would be the pub-
lic safety itself, if in cases in which decisions often supply prece-
dents, and in which the community is always endangered by
wrongs done to the individual, there is no controul from the
public opinion? Where is the possibility of controul itself if
opinion is to be stifled in sullen and dastardly silence? Where
is the chance for opinion itself to be right, if men are always for-
bidden to investigate ? Where is the mischief of even the strict-
est investigation, if Judges have been really just and impartial ?
Mistakes may be corrected as well as committed in the course of
free and dispassionate enquiry ; and in the absence of those nar-
row jealousies which pervade the concerns of private life, our
minds are so formed that we readily become converts to truth,
once interesting and agreeable to us, make a kind of common
cause with the guardians of the public weal, and rally round
them with increased attachment. when their conduct has been
fairly and fully vindicated. But if resentments, originally ex-
cited by provocations, which the stretched out arm of power
could not reach, were to be let Joose with unrelenting fury upon
other offences committed against other men, or covertly to aid
in chastising the real libeller beyond his real demerit—if all the
tricks of rhetorical exaggeration and technical sophistry were to
be employed in extracting circuitously and invidiously the mo-
tives of our actions from doubtful phrases, and detached or mu-
tilated passages—if warmth of temper were to be miscalled de-
pravity of heart—if hasty censures were to be confounded with
deliberate calumnies—if mistakes, unaccompanied by personal
antipathy, or seditious intention, were to be tortured into crimes
by the subtleties of lawyers, and punished as such by the authority
of the laws—severity, in any of these supposed cases, would be un-
warrantable, and eventually might aggravate the mischief which
it was designed to avert. In contests between man and man,
cunning may be defeated by cunning, and force may be repelled

NOTES. 193

by force. But oppression under the colour of justice is always
more formidable from the arts which are used to disguise malig-
nity. It exasperates the restless and disheartens the obedient.
It leaves men of almost every condition helpless and hopeless.
It accustoms them to look upon their best securities, as perverted
into instruments for the worst purposes by those who can be, and
who ought to be, the best protectors of their social interests and
social rights. It compels them to exchange love for hatred, con-
fidence for distrust, and submission for resistance. These con-
siderations, dear Sir, though obvious enough to our common
sense, may not always in our practice be regarded with sufficient
seriousness, and the artificial, slavish, delusive maxims some-
times opposed to them cannot be watched too narrowly, or sifted
too closely, or reprobated too sharply. On the other hand, it
were scandalous, and it were perilous to lose sight of those sim-
ple but solid principles upon which our reverence for the mi-
nisters of the law becomes most reasonable and most salutary ;
and if regulations inconsistent with those principles should any
where exist, we cannot be mistaken in supposing that the respec-
tability of the government, and the welfare of the community
will be promoted by their removal rather than their conti-
nuance.

Let me not be suspected of the smallest intention to lower the
dignity of the Judicial office, or to undervalue the usefulness of
those qualifications which study, experience, independence on
the favour of the Crown, and a sense of responsibility to the opi-
nions of a vigilant and enlighted people must tend to produce
among our countrymen, I scorn to be the apologist of deli-
berate slander, either in the private or public concerns of human
life. Icontend for the strict observance not merely of truth,
but decorum. Though an advocate for mere justice * to the
dead, whose good or evil qualities may sometimes be developed
in order to recommend or to counteract their example, I would
mingle deference and tenderness with impartiality towards the
living. I acknowledge the contempt I should otherwise feel

* The restrictions 1 state will prevent all violation of Chilo’s
well-known rule, “ τὸν τεθνηκότα μὴ κακολογεῖν." Diog. Laert.
lib. i. segm. 70.

VOL. IV. O

194 NOTES.

to be converted into indignation, when flippant buffoonery or
venomous sarcasm is employed to estrange the lower classes of
mankind from the confidence they are wont to repose in useful
men, and the reverence they ought to entertain for useful
things. Far be it from me, therefore, to maintain that there are
no seasons in which prosecutions may be instituted, even in op-
position to the wishes of the calumniated party, and for reasons
which deeply affect the interests of the community. But if such
prosecutions were, as among ourselves they are not, very fre-
quent, they would be injurious eventually to the salutary freedom
of the press—if conducted with arrogance, or virulence, or fero-
city, as by Crown lawyers they sometimes are, they would be
deservedly odious—if followed up by measures of extreme ri-
gour, they would in process of time call aloud for investiga-
tion and restraint from the wisdom of Parliament. There is,
indeed, searcely any species of power which a people jealous of
their liberties, and anxious not to abuse them as a “ cloke for ma-
liciousness,”” ought to watch more attentively, because there is
none which marches with such firm and silent steps of methed:
retires behind such strong ramparts of authority, or sallies forth
with such formidable hosts of precedents. ‘ Quod hodie exem-
plis tuemur, inter exempla erit.” * 7

Presumptuous it were for me to censure any man, who
knowing the importance of his office, and willing to discharge
the duties uf it well, should avail himself of the succour which
the laws hold forth to slandered innocence and insulted dignity.
But I may be permitted surely to bestow equal commendation
upon the magnanimity of those distinguished statesmen, who
in our own days have suffered scandal to spend its strength
without using any other expedient to defeat it than calm and
determined perseverance in not deserving it. In truth, dear
Sir, I have often observed, and perhaps I have experimentally
found, that innocence, which for the most part is finally sup-
ported by the moral sympathies of mankind, affords sufficient re-
dress to individuals ; and I have suspected that, upon the whole,
greater evil than good arises to governments from promptness

a a a a Δ... ϑὕἍὍὦὉὁὋὮὉ] ὦ.

* Tacit. Annal. lib, xi. par. 8,

NOTES. 195

of accusation,* however well founded, and frequency of pu-
nishments, however legal. In the triumphs of the strong Τ᾽ over
the weak, a sudden impulse of self-preservation turns aside the
minds of men from the merits of the cause to the inequality of
the parties. There is always a lurking suspicion, that less of
lenity or less of impartiality has been preserved than in dis-
putes between equals. ‘There is always a painful apprehension
that the power which to-day protected right may to-morrow be
wielded with equal alacrity and equal success in defence of
wrong. Sometimes there is a confused and angry remembrance
of a caution laid down by the son of Sirac, “ Μὴ δικάξου μετὰ
κριτοῦ" κατὰ γὰρ δόξαν αὐτοῦ κρινοῦσιν αὐτῷ. But lenity,
which in private persons may sometimes be imputed to indo-
Jence, or to vanity, or.to imbecillity of character, when found in
governments is rarely appreciated below its intrinsic merit. In
this land of freedom and civilization it would not be confounded
with that licence which good-nature conspiring with policy in-
duced Julius Cesar to tolerate among a people “ gui nec totam
servitutem pati poterant, nec totarn libertatem,’”’§ and which the
regni novitas || did not permit his crafty successor to check
suddenly and entirely. With the highest advantage to our rulers
it might be compared with those capricious and cruel restraints
which some Jater Roman Emperors imposed upon the speeches
and the writings of their subjects, and which have been imitated,
I fear, too often in certain nameless parts of Christendom. O,
my friend ! this celestial virtue brings with it blessings innu-
merable and inestimable. It soothes the unquiet, and charms
the benevolent—it is welcomed as an appeal to the good sense
and the gratitude of mankind rather than their fears—it calls

* « Plerique mortales, etiam in impiis bominibus sceleris
eorum obliti de poena disserunt, si ea paullo severior fuerit.’’-—
(Vid. Sallust in Bell. Catalin.) Mischievous as might be the po-
litical views of Cesar in his speech about the conspirators, his
general observations are just.

t “Τὴ omni certamine, qui opulentior est, etiamsi accipit in-
juriam, tamen, quia plus potest, facere videtur.”—Orat. Micips.
in Sallust, de Bell. Jug.

t Chap. viii. ver. 14, ὃ Tacit. Hist, lib. i, par. 4.

|| Virg. AZo, i.

02

190 NOTES.

forth our admiration, reverence, and affection—it binds our
judgments and our hearts to the seat of justice, and the throne
of majesty—it is ascribed to conscious integrity reposing on its
own substantial worth, and conscious strength disdaining alike
to seek and accept any foreign succour.

Happily, dear Sir, in this empire spectacles of judicial tyranny
are very rare, and sooner or later its consequences would be dis-
cussed and its advocates would be condemned. The genius of
the people and the spirit of their laws are, upon the whole, fa-
vourable to rational freedom of enquiry upon every topic of ju-
risprudence, legislation, politics, and religion. Peculiar and
preeminent are the advantages which we enjoy, and if duly esti-
mated they will be found to make it safe as well as honoura-
ble for the legislature to employ its wisdom in applying either
gentle palliatives or vigorous remedies to any evil under which
we may labour. Glad I am that in the course of my reflections
upon a recent statute, I have been led to these general observa-
tions upon our old and sacred rights.

The mention of those rights suggests to my mind another
subject well deserving the attention of those, who, while they
would rectify the faults, ought not to overlook the excellencies
of our judicial proceedings.

Upon the objects or ends of penal justice there is little differ-
ence in the statements of any writers: but they are expressed
with peculiar precision by Mr. Bentham in the following words :
«‘ Example—prevention of similar offences on the part of indi-
viduals at large, viz. by the repulsive influence exercised on the
minds of bystanders by the apprehension of similar suffering in
case of similar delinquency.”

““ Reformation—prevention of similar offences on the part of
the particular individual punished in each instance, viz. by
curing him of the will to do the like in future.”

““ Incapacitation—prevention of similar offences on the part
of the same individual by depriving him of the power to the .
like.”

““ Compensation or satisfaction—viz. to be afforded to the
party specially injured when there is one.”

To these Mr, Bentham adds “ economy,” which in his work
on the principles of legislation is explained at large. ‘ But of

NOTES. 197

all the foregoing ends, example,” he observes, ‘ is beyond com-
parison the most important. In the case of reformation and in-
capacitation for further mischief, the parties in question are no
more than the comparatively small number of individuals who
having actually offended, have moreover actually suffered for
the offence. In the case of example the parties are as many
individuals as are exposed to the temptation of offending ;
that is, taking the calendar of delinquency in the aggregate, the
whole number of individuals of which the several political com-
munities are composed—in other words, all mankind.” *

I would add, that the end of example is in this country pro-
moted indirectly by the publicity of our trials.

« Publicity is not less auspicious,” says Bentham, “ to the
veracity of the witness than to the probity of the Judge.
Without publicity all other checks are fruitless; in comparison
of publicity all other checks are of small account. It is to pub-
licity more than to every thing else put together, that the
English system of procedure owes its being the least bad system
as yet extant, instead of being the worst. It is for want of this
essential principle more than any thing else that the well-meant
labours of Frederick and Catharine in the field of justice have
fallen so far short of the mark at which they aimed.” Ὁ

This advantage, then, the inhabitants of England preeminently
enjoy, and the value of it has been beautifully illustrated by two
celebrated writers.

“Α fourth requisite,’ says Paley, “in the constitution of a
court of justice, and equivalent to many checks upon the dis-
cretion of Judges, is that his proceedings are carried on in pub-
lic apertis foribus ; not only before a promiscuous concourse of
bystanders, but in the audience of the whole profession of the
law. ‘The opinion of the Bar concerning what passes will be
impartial, and will guide that of the public. ‘The most cor-
rupt Judge will fear to indulge his dishonest wishes in the pre-
sence of such an assembly: he must encounter what few can
support—the censure of his equals and companions, together

?

* See A Letter to Lord Pelham.

Tt See Bentham’s Observations on the Draught of a Code for
the Organization of a Judicial Establishment in France, p. 26.

198 NOTES.

with the indignation and reproaches of his country.”* Deeply
struck with the importance of the subject, Mr. Bentham sud-
denly elevates his style to an equal strain of eloquence. “ Pub-
licity,”’ says he, “is the very soul of justice. It is the keenest
spur to exertion, and the surest of all guards against improbity.
It keeps the Judge himself while trying under trial... Under the
auspices of publicity the causes in the court of law, and the ap-
peal to the court of public opinion are going on at the same
time. So many bystanders as an unrighteous Judge, or rather a
Judge who would be otherwise unrighteous, beholds attending
in his court, so many witnesses he 8668 of his unrighteousness,
so many condemning judges, so many ready executioners, and
so many industrious proclaimers of his sentence. It is through
publicity alone that justice becomes the mother of security. By
publicity the temple of justice is converted into a school of the
first order, where the most important branches of morality are
enforced by the most impressive means; into a theatre where
the sports of the imagination give place to the more interesting
exhibitions of real life.’+ If our penal code were reformed,
would not the same circumstance of publicity accelerate and
ensure the best effects of such reformation, and supply the defi-
ciencies which Mr. Bentham imputes to the regulations of Ca-
tharine and Frederick ? In our capital punishments publicity is
strictly observed, and it perfectly answers two great purposes,
it shows that death is inflicted upom the person who had been
really condemned, and in the manner really prescribed by the
Jaws. Yet from my observations. upon the more immediate
effects of public exeeutions, I am convinced that some improve-
ment in the mode of conducting them ought to be attempted.
Curiosity is now gratified. Pity is excited. That Terror is not
sufficiently impressed, seems to be owing to the frequency and
sameness of the spectacle, to the want of solemnity in its forms,
to the disgusting coarseness or shocking insensibility of the
persons whose agency falls within the direct notice of the be-
holders, and to the absence of those vivid and lasting associa-
tions, which are likely to be produced by contiguity of place in
the crime and the punishment.

* Paley, chap. viii, 1 Draught of a New Plan, ἃς, p, 26.

NOTES. 199

I by no means adopt the splenetic rant of some unknown per-
sonage in an ancient comedy, by whom νόμοι are enumerated
with “ aywriac, δόξαι; φιλοτιμίαι;᾽᾽ among the ““ ἐπίθετα τῇ φύσει
κακά." * -

But if it be worth while for any state to lessen the number
of its members by the destruction of criminals, consistent and
sound economy seem to require that every expedient should be
tried for making the example of their sufferings widely and per-
manently efficacious. No human blood need be shed to wound
the sensibility of the spectators. No additional pain need be in-
flicted upon the offender. But alterations might be introduced
with good effect in the choice of ceremonies and places for the
execution of malefactors.

The new statute against private stealing, though encumbered
with some doubtful amendments, will always be considered by
me as supplying a most desirable alternative for the infliction of
death.

«« Hac me exempta juvat spinis de pluribus una.” Ὁ

I rejoice too, that the generosity of the English character,
however restrained by that decorum which ought to accompany
the awful task of legislation, was conspicuous through the whole
debate in the House of Commons. But 1 cannot dissemble the
concern | felt at the resistance made to the motion of Sir S.
Romilly by some gentlemen of the long robe, and without ven-
turing to answer for the correctness of a newspaper representa
tion, I shall set before you a striking passage which I read in the
Evening Mail of June 17, 1808 :

“Το prove the prevalence of this species of confederated
plunderers in other parts of the kingdom, as well as the metro-
polis, he stated that in the Spring Assizes at the Court Palatine
of Chester, in 1806, there came before himself and the magis-
trate a kalendar of forty prisoners, amongst whom were seven-
teen boys, between the ages of twelve and sixteen tried, some for
minor and some for capita! offences, and it appeared that they
were regularly trained to the business of robbery, going forth ἴον
gether in gangs, concerting their plans and setting projects of
vigilance for each others security. Four of those boys were con-

* Vid. Menand. + Hor, Epist. ii, lib. 2,

200 NOTES.

victed, two of them capitally, and he was convinced that those
who were acquitted owed their escape rather to the lenity of their
prosecutors and the jury who tried them, than to their own
innocence: the two boys capitally convicted suffered judgment,
and the good effects were manifest in the prevention of similar
confederacies ever since. From this circumstance he was per-
suaded, that if the present bill passed it would be considered by
such criminals as a proclamation of impunity, and if he was in-
duced to commute the capital punishment in such cases, it must
be for some other little short of capital, such as transportation
for life, which it would be for his Majesty to remit or mitigate as
he should think fitting, according to the degree of the offence,
for fourteen or seven years with or without hard labour.”

Upon enquiring who the speaker might be, I was told that he
is much connected with the very respectable Duke of Marlbo-
rough, that he has represented one or other of the Oxfordshire
boroughs in several Parliaments, that he bears the reputation of
being a sensible lawyer, and is now Chief Justice of Chester.
When, therefore, he thought it incumbent upon himself to com-
municate the results of his own personal experience, and
the motives of his own official conduct, before the mem-
bers of a legislative assembly at the very moment when they
were deliberating upon a question of life and death, he must
have been aware that no remark, no statement, no argument
brought forward by such a man upon such a question, could fail
of engaging peculiar attention from his audience, and from the
public. I would pay all the deference that is due to his station—
I have no doubt of his sincerity—I commend his frankness—I
give him credit for his readiness to transfer to the new statute
the same fidelity and zeal which he manifested in administering
the law lately abolished ; and he in return will not be displeased
with me for adverting to his speech. My hope indeed is that his
name will never be forgotten. I trust that to the merit of his
action in directing two very young persons to suffer judgment for
private stealing, and to the validity of his reasons for thus inflict-
ing a punishment confessedly severe, and confessedly rare, the
most ample justice will be done by his contemporaries, and by
their children’s children. It must be his own wish as well as
mine that the comparative humanity of the new law may be
equally efficacious with the acknowledged rigour of the old. He

NOTES. 201

will think it his duty to distinguish between ringleaders and
their accomplices—between those who immediately “< steal from
the person, and those whe shall be present aiding and as-
sisting therein’”—between rash noviciates of fourteen or sixteen,
and hardened adepts of thirty or forty.

Large are the allowances J would make for ardent language
when the debate turns on subjects merely political; and the spirit
of party under restrictions is by the common consent of mankind
considered as venial. But in grave deliberations, the result of
which is to affect the life or the personal liberty of man, I cannot
look with indifference on rhetorical hyperboles, especially if they
happen not to be uttered on the side of Jenity, which in truth
does not stand in need of them, and if they proceed from those
respectable persons who are officially authorised according to
their discretion to destroy or to spare a convicted malefactor.
With surprise therefore, I read that the abolition of the greater
punishment for private stealing would in the opinion of the
speaker amount to a proclamation of impunity. To me, on the
contrary, it appears that the new statute carries with it an autho-
ritative and most alarming assurance, that the less punishment
will be inflicted, though with increased or diminished rigour ac-
cording to circumstances, It combines policy with justice—it
substitutes frequency and certainty of punishment for excessive
severity—it averts the evil which the experience of every day
proves to be real, when, as Mr. Eden says, ‘‘ the excess of the pe-
nalty flatters the imagination with the hopes of impunity, and
thus becomes an advocate with the offender for the perpetrating
of the offence.”

By admitting the principle of circumstantial exaggeration, the
statute is destitute of that precision which it must have had, if
death had been pronounced. But delinquents must know that
some punishment will be inflicted, and in order to remedy some
of the inconveniences which may proceed from uncertainty in
the degree of it, I have ventured to express my wish that the
juries rather than the Judge, or, conjointly with him, should
have been authorised to fix that degree. Atall events, there is
less danger when the human mind is left to calculate upon the
greater or the less extent of the punishment now ordained, than
upon the probability of escaping from the heavier punishment of
death which the laws had before appointed, and to which the

202 NOTES.

compassion of the jury rarely permitted them to expose the ac-
cused, An offender who now hopes for mitigated punishment
formerly reckoned upon the chance of complete acquittal. Hence
cunning, rashness, and progressive obduracy were the effects
usually produced upon the criminals by the unsteady administra-
tion of capital punishments.

A recent instance of this deplorable state of mind has fallen
within my notice. A youth of twenty-two had deserted more
than once—he betook himself to robbery. He anticipated death
as the probable punishment of his thievery or his desertion. He
neither cared, nor professed to care at what time or in what man-
ner it might overtake him. He despaired. He plundered. He
defied the wrath of man. He frowned at the mention of God.
‘‘ He laughed at a violent death as the affair of a moment.” *
And without shewing the smallest sign of shame, or compunc-
tion, or terror, he underwent the sentence of the law.

Public executions are intended, I suppose, as was said of Tra-
gedy, ‘dc ἐλέου καὶ φόβου περαίνειν τὴν τῶν ἀνθρωπίνων παθη-
μάτων κάθαρσιν." + But that the execution of an offender in a
narrow lane and amidst a few spectators, should operate as an
example, exceeds, [ must confess, my powers of belief, and even
comprehension, “ ob φοβερὸν, οὐδὲ ἐλεεινὸν τοῦτο ἀλλὰ μιαρόν
ἐστιν. | A general rule, I grant, must not be suspended on
account of every particular case. But is it unworthy of our
wisdom or our humanity to calculate the general effects of the
general rule itself? The wretch of whom I am speaking no
longer annoys society. But no attempts prescribed by the laws
were made to render him useful to it. He was cut off from ex-
istence at a time when from his youth and his strength he might
have been compelled to be useful. He was hurried into eternity
for which he was little prepared; and are these light considera-
tions? He must be something more, or something less than ‘a
man, who would dare to call them so.

“ΠΕ pains of death,” says Blackstone, and perpetual disa-
bility by exile, slavery, or imprisonment ought never to be in-
flicted, but when the offender appears incorrigible, which may

* Beccaria, cap. xxviii. tT Aristotle, Poet. cap.vi.
1 Aristot. Poet. cap, xiii,

NOTES: 203

be collected either from a repetition of minute offences, or from
the perpetration of some one crime of deep malignity which of
itself demonstrates a disposition without hope or probability of
amendment.” I do not assent to the principle that the incorri-
gibleness of the offender is a necessery condition for the inflic-
tion of death. Men not radically and habitually vicious are pre-
cipitated by sudden temptations into heinous crimes by which
the public safety is endangered, and for which alone they may de-
serve todie. Blackstone was too sagacious to talk of capital
punishment as “ meant for the amendment of the criminal, be-
cause this end is absolutely defeated when we put him out of the
world.” * He would not, I suppose, have maintained that
“human judgment can determine whether it be for the be-
nefit of a delinquent deemed incorrigible to be excluded from so-
ciety or to remain in it.” ‘* Possible it is at least that the delin-
quent whom we suppose irreclaimable, might, if indulged with
life, forsake the habitude of evil ; and we assume greater sagacity
than belongs to our finite comprehension, whether it is better
for a criminal with respect to himself alone, to die or live.” ¢
The criteria, then, which Blackstone lays down are to me quite
unsatisfactory. Who by any general rule can adjust the precise
number of smaller offences which make a man irreclaimable ὃ
Who that recollects the quick and strong impulses under which
great crimes are sometimes perpetrated, will maintain that in the
future absence of similar temptation the offender may not be
more than ἃ harmless member of society, and that, stung by re-
morse for his past misconduct, he will not endeavour to expiate it
by amendment of life? Who has thrown open to the eye of man
the whole chain of those events, which in the moral order of
things may gradually or instantaneously work together for the
good of the vilest transgressor? Who does not know that in the
common course of worldly affairs the pains of sickness or the
shocks of calamity have wrought the most powerful effects upon
persons who in appearance were quite callous?) Who can calcu-
late the influence which solitude, hard labour, and occasional
encouragement mixed with occasional restraint may have upon
the stoutest spirit ? Who has not been told of criminals who afier

* See Dagge, vol. i. p. 215. t Ibid.

204 NOTES.

arriving, as we think, at the most excessive pitch of profligacy
have yet reformed? Who has not seen instances in which the
rigour of the laws has driven them to despair ?

To capital punishments beyond all others the rule of Tully is
applicable: “Οἱ poena ad paucos, metus ad omnes perveniat.” *
In regard to other men, spectacles of death may have their use,
not only by shewing the danger of an enormous crime, but by
restraining men from those lighter offences which may lead to
the commission of it. In regard to the sufferer the prospect of
that death, not the infliction of it, might be intended for his
benefit. Dr. Paley, who looks for little effect from punishment
in the way of amendment, and who seems to think that male-
factors return more hardened in their crimes and more instructed
from imprisonment and exile, pain and infamy, yet supposes
that ‘‘ the horrors of impending death may cause such a wrench
in the mental organs of a confirmed villain as to give thema
holding turn:” he even thinks “ it probable that many of those
who are executed would, if they were delivered at the point of
death, retain such a remembrance of their sensations as might
preserve them, unless urged by extreme want, from relapsing
* into their former crimes. ‘This however is an experiment that
from its nature cannot be repeated often.’ But what I ask is
to preserve them from such want in a country which has not only
neglected hitherto to secure a maintenance for those criminals
who are even willing to work for it, but in which ‘* public punish-
ment,” according to Dr. Paley’s own confession, ‘‘ precludes
them from all manner of honest support.” If an unhappy wretch
who had been reprieved under the gallows were afterwards de-
tected in the commission of a capital crime, little attention
would be paid by the generality of the world to the peculiar cir-
cumstances of the temptation to it, and he would be pronounced
incorrigible. But the judgment we thus confidently pass upon
him might be erroneous and unrighteous. ‘Though pierced with
the sharpest taunts of an earthly judge, and though insulted in
his passage to death by the execrations of those ‘* who deck
themselves in purple and fine linen, and who fare sumptuously
every day,”’ the sufferer may carry with him such a plea as wil

* Pro Cluentio. + Chap, ix.

NOTES. 205

not be rejected by that Being ‘“ to whom all hearts are open,’
and all causes are known. ‘“ I had no means, nor incitements,”
he might say, ‘ to gain a little reputation, because a stamp of
ignominy had been indelibly fixed upon me, before I was thrown
back upon an injured and incensed world. I fled from solitude
and reflection, because the past afforded me no satisfaction, the
present sustained my sinking spirits by no consolation, and the
future cheered me with no hope. [I associated with wicked com-
panions, because good men shunned me. I wandered, because
I had no home. I loitered, because no man would employ me.
I stole, because the importunate and irresistible cravings of na-
ture would not permit me to starve. A suspected vagrant in
every lonely village, a detested outcast in every crowded city,
cold and naked, hungry and thirsty, I no longer can desire to
live, nor fear to die.” These excuses, so generally disbelieved
and rejected by man may be true, and if true, they are important,
and if important, they may plead ‘‘ trumpet-tongued” against
the revilers of the unfortunate, when they meet together before
the tribunal of Heaven.

Policy is never at a loss to find materials of justification in an
inexhaustible storehouse, which I could never explore without
distrust and loathing. But when the life of a fellow-creature
may depend upon the opinion we form of his utter incorrigible-
ness, the decrees of nature and the oracles of religion pronounce
the same warning—“ μὴ κρίνετε τὰ κατὰ πρόσωπον βλέποντες
ἵνα μὴ κριθῆτε."

“Those who have been witnesses to the solemn manner in
which executions are conducted in some parts of Europe, speak
of the impression arising from that circumstance as wonderfully
strong. Dr. Moore describes such an execution which he was
present at in Rome, and mentions in strong language how deeply
the populace were affected by it.”* Mr. Howard remarked the
same thing in Holland: and accounting for the few executions
which take place in the United Provinces says, ‘‘ one reason of
this, I believe, is the awful solemnity of executions, which are
performed in the presence of the magistrates, with great order
and seriousness, and great effect upon the spectators.’’+

* See Letter 44, vol. iv. + Prisons, p. 45.

200 NOTES.

«« Whoever will contrast this with the manner in which execu-
tions have been heretofore conducted among us, will readily per-
ceive that though we exhibit this terrible spectacle, we do not
derive from it all the benefits it was designed to produce.” *

The foregoing observations are applicable to executions in
our own country. As to Rome, murders are said even now to
be common there: but the police is very imperfect, and the so-
lemnity of executions is counteracted by their frequency. ‘ In
Denmark,” says the writer of an Inquiry into the Effects of public
Punishments upon Criminals and Society, ‘* uncommon pains
are taken to prepare criminals for death, by the conversation and
instructions of the clergy. After this they are conducted to the
place of execution with uncommon pomp and solemnity. The
criminals under these circumstances suffer death with meekness
—piety—and sometimes with dignity. The effects of this, I
have been well informed, have been in several instances to in-
duce deluded people to feign or confess crimes which they had
never committed, on purpose to secure to themselves a con-
spicuous death and a certain entrance into future happiness.
There is something in the presence of a number of spectators
which is calculated to excite and strengthen fortitude in a suf-
ferer. ‘It is not so difficult a thing (said Louis XIV. to his
courtiers who stood around his death-bed) to die, as I expected.’
‘No wonder,’ says Voltaire, who relates this anecdote, “ for all
men die with fortitude who die in company.’” + The foregoing
statements are important, and the inference I should draw from
them is, not that public executions should be abolished, but that
they should be accompanied with such solemnities as may subdue
the fortitude of a criminal suffering before multitudes, or coun-
teract the effects of that fortitude if it be unsubdued, upon the
minds of the spectators—such as may convert their admiration
of his courage into horror at his obduracy. ‘There is little reason
to fear that Englishmen will often be seized with the fanaticism
which is said to precipitate the Danes into the perpetration or
confession of crimes which lead to death, and of which I have
read a striking instance—

** Non abs re forsitan fuerit, nec Lectori injucundum, referre

* Bradford, pp. 68, 69. t Page 5.

NOTES. 207

hic facinus novum, nec admodum credibile, nisi testium multo-
rum, ex quibus rem audivimus, fide niteretur, nec longo ante
adventum nostrum tempore in his locis paratum. Vir Succus,
mente sanus, probus, bene moratus, inter populares satis com-
modus, media luce quadrimulum puerum, ante fores paterne
domus, palam in vico inter equales colludentem corripit, cul-
troque in fauces adacto interemit. Comprehensus ille, et in ju-
dicium adductus, nec factum negavit, nec excusavit, nec facti
poenam deprecatus est. Imo vero, inguit, me commeritum esse
mortem scio, eamgque ut a vobis impetrarem hac arte usus sum,
cum probe norim vix tutiorem esse ullam salutis eterne adipis-
cende viam, quam cum sensibus integris, corpore valido nec
morbis debilitato, excedit anima, plis ad Deum religiosorum ho-
minum sublevata precibus, eorumque consiliis et adhortationibus
excitata et adjuta. Quod mortis genus ut per vos oppeterem
cum fieri non posse intelligerem, nisi aliquo delicto eapitali ad-
misso, levissimum id esse judicavi quod a me perpetratum est,
occiso puero nondum vite hujus corruptela infecto, parenti-
busque egenis, et numerosa prole onustis erepto. Quibus dictis
capite damnatus, letus ac renidens, sacrosque hymnos pleno ore
decantans, supplicio affectus est.” *

I shall not enter into a detail of the dangers which might arise
from private executions, or into a description of the dreadful
abuses which an oppressive government might make of sucha
custom. The most obvious consideratiou is, that punishment
would very much lose the force of example.

The merits of the whole question upon capital punishments
are well summed up by Mr. Bradford in the following words :
“If we seek a punishment capable of impressing a strong and
lasting terror, we shall find it in an execution rarely occurring,
solemnly conducted, and inflicted in a case where the feelings of
mankind acquiesce in its justice, and do not revolt at its seve-
rity.” Τ

I plead not for the light treatment of any iniquity which de-
serves *‘to be punished by the Judge.” { The intended pream-

SS sssssenseneeeees

* See the Commentary of Huetius de rebus ad se pertinenti-
bus, Amsterdam, 1718,

t+ Page 36. { See Job, chap. xxxi.

208 NOTES.

ble to the new law against private stealing, though incontrovert-
ible in point of fact, though admissible as a principle in general
reasoning on jurisprudence, and though worthy as such of the
most earnest attention from every legislator, may be unfit to
stand in the front of Sir Samuel Romilly’s statute. At the same
time it is conceivable that the dissolution of a confederacy formed
in a country town by boys who are between twelve and sixteen
years old, may be purchased at a price which humanity and
policy would be unwilling to pay—it is credible that the imme-
diate transportation of the four who were convicted at Chester,
and the unmitigated punishment of these who owed their escape
to the lenity of prosecutors and juries might have been nearly as
terrific to common minds, as the death of two—it is allowed
that the acquittal of thirteen did not counteract the effects of ex-
example in the dreadful fate of the striplings who perished, and
to me it is most improbable that a statute which exposes of-
fenders to the solitude of a prison, and the hardships of Botany
Bay, for the whole remainder of their existence, should be con-
sidered as “a proclamation of impunity” by any blockhead how-
ever stupid, or any thief however obdurate. The expectation of
such a punishment may be more terrible than even the “ pros-
pect of death to men who are tired of life in the manner they
hold it, who commit crimes to better their condition or put an
end to their being, who make their advances to the wickedness
they intend to perpetrate with a view of this alternative before
their eyes, and upon whom the terror of death hath not suffi-
cient influence to deter them from their desperate resolution.” *

** However political casuists,” says Dagee,t “* may pride them-
selves in subtilizing and reconciling moral repugnancies with
public necessity; we may venture to conclude that whatever
shocks the common sense and feeling of mankind is faulty in its
original establishment.” That the old statute inflicting death
was thus faulty seems to have been the opinion of those who
tried the criminals at Chester—they were aware that gangs ex-
isted in the neighbourhood—they knew that the danger was in-
creased by the frequency of the offence—they may be supposed

* See Dagge’s Considerations on Criminal Law, sec. ii. cap, 6,
t+ Ibid. cap. 5.

NOTES. 209

to have been under some temptation to administer laws, as, alas !
they are too often enacted, flagrante ira.* But that under such
circumstances they were induced to shew so much lenity to so
many offenders proves the truth and importance of an observa-
tion made by a Christian moralist and a profound philosopher,
whose name was not mentioned during the late discussion of
this question in Parliament. ‘‘ Whatever may be urged,” says
Dr. Johnson, “ by casuists or politicians, the greater part of
mankind, as they can never think that to pick the pocket and to
pierce the heart is equally criminal, will scarcely believe that
two malefactors so different in guilt can be justly doomed to the
same punishment: nor is the necessity of submitting the con-
science to human laws so plainly evinced, so clearly stated, or so
generally allowed, but that the pious, the tender, and the just,
will always scruple to concur with the community in an act
which their private judgment cannot approve.” + When punish-
ments shall be inflicted with the lenity for which Beccaria con-
tends, then, but not till then, would he, or any wise legislator,
plead for their certainty. Then too, and then only, would a
good man applaud himself for discharging the duties of a good
citizen, in compliance with Beccaria’s t well-known principle:
«Voluntary forgiveness of a small crime by the party injured
may be an act of good-nature and humanity, but it is contrary
to the good of the public. For although a private citizen may
dispense with satisfaction for his private injury, he cannot re-
move the necessity of public example. The right of punishing
belongs not to any individual in particular, but to the society in
general, or the sovereign who represents that society; and a
man may renounce his own portion of that right, but he cannot
give up that of others.’ Three times, let me confess, I have
myself suffered the most painful struggles between the sense of
private and of public duties ; and three times, dreading the seve-
rity of our law, I have yielded to my humanity conspiring with
my reason, when they forbad me, without rea} necessity, to shed
the blood even of the unrighteous, One of the offenders, after
leaving my family, ventured upon other crimes in other places—

* Dagge, sect. ii. cap. 6.
+ Rambler, No. 114. t Cap. 47.

VOL, IV. : P

210 NOTES.

a second by my suggestion entered into the army. I have
not been able to trace the conduct or the fate of the third. But
under a deep conviction of my responsibility to the tribunal of
Heaven, I shall ever look back with approbation to my own for-
bearance.

Among the opponents of Sir Samuel Romilly, one gentleman
introduced the venerable name of Dr. Paley, and bestowed upon
the Doctor’s writings the most ardent and just commendation.
It were rude to suppose that a senator would refer to a book
which he had not read, or that knowingly he would insist upon
one part, but stifle another. But it so happens that the zeal of
the person to whom I allude seems rather to have weakened the
power of his memory. Dr. Paley does say that ‘‘ great cities*
multiply crimes, by presenting easier opportunities and more
incentives to libertinism, which in low life is commonly the in-
troductory stage to other enormities, by collecting thieves and
robbers in the same neighbourhood, which enables them to form
communications and confederacies that increase their art and
courage, as well as strength and wickedness, but principally by
the refuge they afford to villainy in the means of concealment,
and of subsisting in secrecy, which crowded towns supply to
men of every description. These temptations and facilities can
only be counteracted hy adding to the number of capital punish-
ments.” I do not distinctly understand whether Dr. Paley
means that new statutes should be made, or that those now in
being should be executed with greater severity, to counteract
the temptations of which he speaks. I might perhaps with some
restrictions assent to the latter. But I should hope that the
steady infliction of the punishments already provided, or the
appointment of others yet more severe, but short of death, would

* The best corrective I have séen to the dangers which hang
over the public morals from large towns, is to be found in the
principle of the penitentiary system recommended by Mr, Ben-
tham :

“* The scene of punishment would be the vicinity of the me-
tropolis ; the very spot which contains the greatest number of
spectators of all descriptions, and in particular of those in whose
instance there is the strongest reason for wishing that the im-
pression may be made.”—See page 4 of the first Letter to Lord
Pelham.

NOTES. 211

answer the purpose. Be this as it may, Dr. Paley most certainly
affords no aid to the cause of the persons who resisted Sir Samuel
Romilly. “It is enough,” says Dr. Paley, ‘‘to vindicate the
lenity of the laws, that some instances are to be found in each
class of capital crimes which require the restraint of capital
punishment, and that this restraint could not be applied without
subjecting the whole class to the same condemnation.” But let
us observe what follows: ‘* There is, however, one species of
crimes, the making of which capital can hardly, I think, be de-
fended, even upon the comprehensive principle just now stated,
I mean that of privately stealing from the person, As every
degree of force is excluded by the description of the crime, it
will be difficult to assign an example where either the amount
or the circumstances of the theft place it upon a level with those
dangerous attempts to which the punishment of death should be
confined. It will be still more difficult to shew that, without
gross and culpable negligence on the part of the sufferer, such
examples are probable, or were ever so frequent as to make it
necessary to constitute a class of capital offences of very wide
and large extent.”

The introduction of Dr. Paley's most respected name upon a
subject on which he does not differ from Sir Samuel Romilly
reminds me of the anguish I suffered on reading in another part
of his celebrated work some observations to which it is impossi-
ble for me to give my assent. The question is so important,
that for the present I shall suspend my remarks upon the statute
against private stealing ; and beg your attention to my reasons
for not agreeing with Dr. Paley on another point.

*Vulgatum illud, quia verum erat, in proverbium venit.” *
“Tt is better that ten guilty persons should escape, than that
one innocent man should suffer.” This maxim is recognized by
the learned Commentator on the Laws of England, when he
says, “‘ All presumptive evidence of felony should be admitted
cautiously, for the law holds that ‘it is better for ten guilty per-
sons to escape than for one innocent man to suffer.’"+ It may
be illustrated mutatis mutandis by the humane language of
Julian, when he vindicates the relief which he had been accus-

* Livy, lib. xl. par, 46. + Book iv. cap. 27.
pP2

212 NOTES.

tomed to afford to the unhappy violators of the laws: “ οὐθὲν
γὰρ κωλύσει τὴν δίκην ἡἣ τοιαύτη φιλανθρωπία" χαλεπὸν γὰρ
ἂν εἴη, πολλῶν ἀποκεκλεισμένων ἐπὶ κρίσει, καὶ τῶν μὲν ὀφλησ-
ὄντων, τῶν δὲ ἀθώων ἀποφανθησομένων, μὴ διὰ τοὺς ἀναιτίους
οἶκτόν τινα νέμειν ἐν τοῖς πονηροῖς" ἀλλὰ τῶν πογηρῶν ἕνεκα καὶ
περὶ τοὺς οὐδὲν ἠδικηκότας ἀνηλέως, καὶ ἀπανθρώπως διαδε-
κεῖσθαι." *

Now Dr. Paley thus controverts this position: “If by saying
that it is better, be meant that it is more for the public advan-
tage, the proposition, I think, cannot be maintained. ‘The se-
curity of civil life, which is essential to the value and the enjoy-
ment of every blessing it contains, and the interruption of which
is followed by universal misery and confusion, is protected
chiefly by the dread of punishment. The misfortune of an indi-
vidual, for such may the sufferings or even the death of an inno-
cent person be called, when they are occasioned by no evil in-
tention, cannot be placed in competition with this object. I do
not contend that the life or safety of the meanest subject ought
in any case to be knowingly sacrificed. No principle of judica-
ture, no end of punishment, can ever require that. But when
certain rules of adjudication must be pursued, when certain
degrees of credibility must be accepted in order to reach the
crimes with which the public are infested; courts of justice
should not be deterred from the application of these rules by every
suspicion of danger, or by the mere possibility of confounding
the innocent with the guilty. They ought rather to reflect that
he who falls by a mistaken sentence may be considered as falling
for his country ; whilst he suffers under the operation of these
rules, by the general effect and tendency of which the welfare of
the community is maintained and upheld.” Ὁ

When I reflect upon the severity of our penal code, upon the
number of our penal statutes, upon the actual and almost un-
avoidable ignorance of many offenders as to the danger to which
they are exposed from the extension or multiplication of those
statutes, upon the rashness, weakness, cunning, and malignity of
witnesses, and upon the force of local or personal prejudices,
from which jurymen are not always free, I am compelled to

* Juliani Fragment. p. 533. Tt Cap. 9.

NOTES. 213

urge Cassianum illud—Cui bono is so much resistance made to a
maxim, the practical tendency of which is to render men cau-
tious in shedding the blood of their fellow-creatures. They
who are governed by that maxim, will readily admit that ‘‘ cer-
tain rules of adjudication must be pursued, and certain degrees
of credibility must be accepted, in order to reach the crimes
with which the public are infested.”. They do not mean, that
“courts of justice should be deterred from the application of
those rules by every suspicion of danger, or by the mere possibi-
lity of confounding the innocent with the guilty.” But they do
mean, that under certain circumstances there may be such a
suspicion of danger, such a remote probability of confounding
the innocent with the guilty, that for the community it is bet-
ter, by a lenient application of judicial rules, to let ten guilty
persons escape, than to make one innocent man suffer by the
rigorous application of them. They think the security of civil
life less interrupted by the aggregate consequences of sparing
ten men who have violated the law, than by the aggregate con-
sequences of saving one innocent man who is in imminent dan-
ger of destruction, though he has not violated it. They con-
trast the public welfare itself under one aspect, with the public
welfare under another aspect. They oppose, not merely the suf-
ferings of that innocent person himself, but the conscious secu-
rity of other innocent men to the advantages which society de-
rives from the punishment of ten or more guilty men. In the
absence of direct intention to destroy an innocent man, they
would, upon the discovery of his innocence, condemn themselves
for want of caution, and want of lenity, if they had not given
the fullest force to every circumstance which made his guilt in
any degree doubtful. And for giving such weight to such cir-
cumstances from motives of lenity and caution, they would not
condemn themselves, though under similar circumstances, and
from similar motives, they should be induced to acquit ten per-
sons whose guilt afterwards became manifest. The nature of
those circumstances, and the appearance they would assume to
an attentive and honest. juryman, must depend upon the case it-
self. But the general preparation of the mind to discern and to
weigh thein is, I think, a most important qualification for every
man who may be called pon to pronounce a verdict of death. The

214 NOTES.

controverted maxim may be vindicated as tending to facilitate
that preparation.

If, indeed, the punishment were less than death, there would
be less necessity for caution. But when it amounts to death,
the caution cannot be too great; and when the greatest caution
fails, would our conscience entirely acquit us, merely because we
had at the same time been sincere and earnest in our endea-
vours to rescue society from ten real transgressors of the laws ?
Should we not feel at least some temporary distrust in those
rules of adjudication, which, as applied by ourselves even with-
out any evil intention, had bereaved the community of an inno-
cent man? Some restless suspicion that we had attended too
much to unfavourable, and too little to favourable circumstances ?
Some secret anticipation that, if placed in the same situation
again, we should not again give the same verdict of guilty?
Should we not shrink when we approached the unsuccessful
assertors of his innocence?) When we beheld the tears of his
parents and his friends, and heard the unavailing moan of a
widow and her orphans weeping over their lifeless protector ?
Though Dr. Paley is content to call the death of such an
innocent person by the mild name of a misfortune, surely,
upon the discovery of his innocence, we must admit that
a wrong had been done to him. Though by a circuitous process
of reasoning we might consider him as “ falling for his country,”
we should remember that, among the clearest descriptions of
punishment, it is uniformly represented as an evil which ‘‘a de-
Jinquent incurs unwillingly,” and therefore our grief would not
be assuaged by the admiration we feel when the sufferings of a
political or religious martyr are voluntary, and therefore merito-
rious. Though we “allow the security of civil life to be essen-
tial to the value and the enjoyment of every blessing it contains,”
we should not be so panic-struck as to look for universal misery
and confusion as the consequence of a single or even numerous
interruptions. Though we might acknowledge that the escape
of ten guilty men has some tendency to interrupt the security of
society, yet we should not venture to deny that the punishment
of one innocent man is itself also an interruption of that secu-
rity, and if compelled to balance one inconvenience with another,
the soberest enquirer would meet with many galling difficulties

NOTES. 215

in proceeding to a final determination. He would experience
more reluctance and more diffidence than usually accompany
the results of moral calculations. He would find it scarcely pos-
sible so to conduct the processes of severe reason as not to be
checked again and again by misgivings from humanity. He
might slowly assent to elaborate arguments, and yet shudder at
the prospect of being personally employed in carrying them into
action. When acquiescing in the general rule, he might be dis-
posed to reserve the right of founding exceptions upon the kinds
and the effects of particular crimes, and upon particular circum-
stances which attend the commission of them. He might say,
for instance, that it is better for ten men guilty of murder to suf-
fer, than for one man falsely accused of robbery to escape ; and
better for ten men who are guilty of robbery to escape, than for
one man falsely accused of murder to perish. I cannot certainly
disapprove of distinctions which tend to mitigate the rigour of
the general principle. But I think the principle itself so dan-
gerous to society, and so shocking to the best feelings of the
heart, that I cannot accede to it under any qualifications what-
soever.

«Courts of Judicature,’ says Dr. Paley, ‘‘ ought rather to re-
flect that he who falls by a mistaken sentence may be considered
as falling for his country; whilst he suffers under the operation
of these rules, by the general effect and tendency of which the
welfare of the community is maintained and upheld !”

. I do not imagine that the considerations which Dr. Paley here
recommends to judges were in the sinallest degree necessary to
preserve their firmness in the administration of the laws; and I
hold that beyond all other men they are bound to view such con-
siderations with distrust, and even to advert to them with re-
luctance. Their skill in the laws, their experience in trials,
their opportunities for observing the depravity of offenders and
the effects of crimes, their consciousness of the high importance
belonging to their office, and the known watchfulness of the
public over themselves in discharging the duties of it, are, it
should seem, sufficient securities for the steadiness of their atten-
tion and the uprightness of their instructions. Even in juries, a
general detestation of wickedness, a general dread of the mis-
chiefs which crimes produce in society, a general regard to the
safety of their own property and their own lives, a general con-

210 NOTES.

viction of the usefulness and respect for the sanctity of the laws,
an immediate sense of the obligation which lies upon them to
attend to the suggestions of enlightened and experienced judges,
whom they are accustomed to venerate, and an awful remem-
brance of their responsibility to their country, when they are
sworn to protect it against the disturbers of the public peace—
these, I think, will in most cases supply motives strong enough
to put them on their guard against excessive compassion—
against deliberate negligence—against gross partiality.

The arguments suggested by Dr. Paley may, I think,:be ad-
duced with more propriety in consoling the sufferer than in vin-
dicating his judges, and doubtless such a sufferer ought to be
supplied with every reason which sound morality can furnish for
the mitigation of his sorrows. But, as human nature is usually
constituted, what, I would ask, is likely to be the effect of such
arguments on his mind? If he be a man of feeble intellect, or
confined education, can it be imagined that the immediate and
exquisite sense of the wrong done to him will be soothed by the
consideration that ‘‘ certain rules of adjudication must be pur-
sued, and certain degrees of credibility must be accepted, in
order to reach criminals”—that all human institutions are im-
perfect—that judges and juries are not infallible—that partial
evil is inseparable from public good—and that this good is ef-
fected for the benefit of many other men by the very same laws
under which he is himself suffering undeservedly the sharpest
evils? Men of deep reflection and very stout courage may, in a
few instances, so reason. Socrates* did reason so, and by the
singularity as well as the manliness of his conduct, has com-
manded the admiration of all succeeding ages. Examples yet
more sacred might be urged with effect at a season when, upon
the approach of death, the human heart is most susceptible of
religious inspressions. To a very enlightened man, who thought
himself unjustly condemned, I had myself occasion to state the
principle laid down by Dr. Paley, and to enforce it by the exam-
ples just now mentioned; and 1 pressed them with so much
earnestness as to prevent an act of suicide, which my unhappy
friend had determined to perpetrate on the morning of his exe-

a a en

* See the Crito of Plato.

NOTES. 217

cution. ‘* Memoriam quoque ipsam cum voce perdidissemus, si
tam oblivisci in nostra potestate esset, quam tacere."”"* That
silence I have hitherto preserved upon an event most afflictive
to my soul, and I have now found a proper opportunity for
breaking it.

Whatsoever may be, and whatsoever ought to be, the efficacy
of Dr. Paley’s reasoning to produce resignation in the breast of
an innocent sufferer, most unbecoming and most perilous it
were for legislators and judges to make it a subject of habitual
reflection to themselves. The frequent recollection of it tends
not only to diminish their sensibility, but to relax their caution.
It may teach them to forget, that the misfortune incurred by the
individual, and, as I shall always add, the wrong done to him,
may have other consequences than the destruction of his life.
The discovery of his innocence may lessen the respect of man-
kind for those laws which are intended to be “a terror only for
evil works,” and must disturb the confidence which every man
reposes in his own innocence. Every man is exposed to rash-
ness or malignity in false accusers—to erroneous or malicious in-
ferences from his general conduct — to prejudices} against his
temper, his manners, his employments, his religion, his party,
or his family. Every man may from unseen and uncontrolable
events be thrown into circumstances which furnish strong pre-
sumptions of guilt. Almost every man has suffered unmerited
reproach upon grounds not less probable than those which in a
court of judicature might affect his life. It is therefore danger-
ous to familiarize the belief of Dr. Paley’s argument to witnesses,
or juries, or judges; and the portion of truth which it may con-
tain is a very inadequate compensation for the shock it would
give to the general feelings and judgment of mankind. Most
fallacious, also, is it to contend, that the question lies between
the individual only and the community. Every other innocent

* Vide Tacit. in Vita Agric.

t “ Plerumque innocentes recenti invidia impares.’’-—Tacit.
Annals, iv. par. 18, edit. Lips.) ‘The history of every country
would, I suppose, supply numerous instances of persons, ‘ Qui-
bus, in cause dictione, magis que extra questionem erant, no-
cuerunt, quam innocentia sua opem tulit,”—Valer. Max. lib, viii.
cap. 1.

218 NOTES.

man, as I have before remarked, is interested in the acquittal of
one innocent party; and by the destruction of one innocent
party every member of the community is molested in that sense of
personal security which is classed among the choicest blessings
of society, and among the noblest ends which the laws themselves
are intended to promote.

** Erit intactis quoque cura
Conditione super communi.” *

From defects in the evidence, quirks in law, reluctance in pro-
secutors, or misplaced tenderness in juries, offenders are some-
times acquitted; and though it be known that they are likely to
return to their vicious courses, the public mind is rarely much
incensed, or much alarmed at their escape. In cases of common
robbery, the magnitude of the punishment is compared with the
seeming lightness of the offence, and we are content to absolve
offenders, not lest they should suffer at all, but lest they should
suffer too much. In cases of murder, the certainty and just seve-
rity of the punishment are compared with the imperfections of
the evidence, and we are slow to condemn. But shall it be said
that we are therefore careless about the authority of the laws
which protect our liberties and our lives, and that we allow every
suspicion of danger to prevail over every rule of adjudication and
against every degree of credibility? If our caution in con-
victing men whose guilt was not wholly improbable is approved
by the general sentiment of those who have the deepest interest
in restraining their crimes, who shall set bounds to our indigna-
tion when the want of such caution has exposed an innocent man
to a most painful and ignominious punishment?

Who that is anxious to obtain redress for the evils which
arise from the acquittal of guilty men would not seek it, if it
were possible, in other rules of adjudication and in other degrees
of credibility, rather than in those which may involve the inno-
cent with the guilty? If such redress by such means be unat-
tainable, let us deplore the imperfections of human justicee—but
let us beware of discouraging that caution and that tenderness
which seem to me most salutary in preventing men from. being
even unknowingly the destroyers of the innocent.

Oe _ .-- Ὁ... π1..----Ψβ.ὕ..ὄ..........

* Vid, Horat. Ep, 1. lib. ii.

NOTES. 219

It is not easy to restrain the eagerness of ingenious men to
improve upon supposed discoveries, or to control their fondness
for apparent consistency in the application of a favourite rule to
circumstances which did not present themselvesto the mind, when
the grounds of that rule were originally approved. They pro-
fess, perhaps, in the heat of controversy no more than they at the
moment believe—but they will stoutly vindicate far more than
they would deliberately practise, and their arguments, laying hold
on the vanity or credulity of weaker men, may have a more pow-
erful infiuence than their example. Zeno helda very high rank
among the “ doctores Sapientiz, yui uulla bona nisi que ho-
nesta, nec mala nisi qué turpia judicabant.” * Yet of Zeno we
read, that when urged by some alarming consequences of his
own hypothesis, he avowedly maintained the harmlessness of
some crimes most shocking to our nature.”t Persons amongst
ourselves might be found, who, sacrificing their benevolence to
their acuteness, would theoretically push Dr, Paley’s principle to
an extent to which it is not expressly carried by himself. ‘They
might say that the comparison lies, not between one innocent
man and ten or fewer guilty men, but between any number of
innocent men who suffer death, unknowingly to those who try
them, and that number of guilty men whose merited punish-
ment on the whole produces more good to the community than
the unmerited punishment of the others produces evil. They
might contend that the same rules of adjudication which may
have caused even ten times ten innocent men to be put to death,
form a part of those laws ‘“‘which by their general effect and
tendency uphold the welfare of the community,” and that upon
many occasions they had “reached the crimes with which the
public are infested.” He that is embarrassed or affrighted with
such a conclusion would do well to investigate the premises on
which it is founded, and to take care lest his caution in particu-
lar cases should be lulled asleep by considerations of public
utility, which in my opinion have been applied to one side of the
question only.

* Tacit, Hist. lib. iv. par. 4,

+ Vid. Sext. Empir. Comment. lib. x, et hypotypos, lib, i. de
octavo modo, et lib, 111, cap. 24. ν, 25.

220 NOTES.

In opposition to Dr. Paley’s general position then, that the
popular maxim cannot be maintained, I shall always respectfully,
‘but firmly assert, that for every practical purpose it can.

The rarity of the case may make us inattentive to the unsound-
ness of the reasoning, and forgetful that the very same circum-
stance of rarity proves not only the general efficacy and general
equity of those laws which uphold the general welfare of the
community, but the absence of any real necessity to secure that
efficacy, by controverting a maxim, which in point of fact ‘is sel-
dom or never abused. Upon a subject so momentous I will not
employ the Sorites of logicians, nor “ demens unum item et
unum” * will I enquire, whether it be on the whole better for
one innocent man to suffer, or ten, or five, or two guilty men to
escape? The heart of man shrinks at first from grave calcula-
tion. But if the appeal were made to experience, the question
might be decided on the very same principle of proportion which
Dr. Paley has introduced. Let us then suppose that in the as-
sizes of any one year ten innocent men were put, and afterwards
known to be put to death, in order to sustain such rules of adju-
dication as prevented the escape of a hundred guilty men. The
magnitude and simultaneousness of the evil would, I am sure,
excite immediate and universal alarm. The public voice would
be raised for some alteration in the degrees of punishment or the
rules of evidence. The safety of innocent men would be pur-
chased even at the hazard of diminished security from the depre-
dations of the guilty. 1 believe too, that the anguish which our
venerable Judges must suffer from such a number of events would
efface from their minds the ingenious reasoning of Dr. Paley, and
induce them to co-operate with the legislature in preventing the
recurrence of similar wrongs and similar misery.

They would be solicitous to lessen, though it might not be in
their power wholly to avert, the dangers which spring from the
mere possibility of confounding the innocent with the guilty.
They would pursue such rules of adjudication, and assist jurymen
in forming such right intentions and right judgments as should
leave the meanest subject in the least possible peril of being
« unknowingly sacrificed.”

* Hor, de Arte Puet,

NOTES. 221

No principles of judicature, as Dr. Paley admits, can require
that such a misfortune as capital punishment should befall an in-
nocent man with the knowledge of those who expose him to it;
and indeed human nature revolts from the contrary supposition.
The laws, I should also admit, would be substantially and exten-
sively useful, though such punishments were now and then in-
flicted unknowingly. Dr. Paley is anxious to vindicate them
when they are so inflicted—I am solicitous to prevent them if
possible, from being inflicted at all, and I also think that the old
maxim which Dr. Paley resists, is a most powerful and salutary
mean of such prevention.

Has the popular sentiment, I would ask, such an influence
upon the official conduct of men who try capital offences, that in
order to make them understand the usefulness of laws, and assist
in supporting it, they should be disturbed in their belief of such
a principle as is likely to avert the frequent recurrence of cases in
which the innocent would share the fate of the guilty? Amidst
the acknowledged and the experienced efficacy of public justice,
would there be any real danger of that universal confusion which
Dr. Paley describes, or even of a growing disregard to the
laws which prevent it, if, according to the actual or the probable
number of such cases, we should let ten men who are probably
guilty escape, lest one man who in our estimation at the moment
is possibly innocent, should suffer? Is there not danger that
unmerited condemnations would be multiplied, if men should be
weaned from their attachment to a rule which is rarely called into
direct action, and which, if so called, produces the advantage of
justice to one party, with more or fewer inconveniences arising
from the relaxation of judicial rigour towards ten? Are the in-
conveniences from a contrary process counterbalanced to the in-
dividual, by the consideration that he falls for his country, or to
the community, by clear and decisive proofs that his country
could not be protected by any other alternative than his death ?
The wisdom of the sufferer could not be much impeached by his
doubts upon the validity of the justification proposed to him.
The morality of the spectators is more likely to be improved by
their sympathy in his sorrows, than in his patience. The inte-
rests of society would not be very materially injured by the es-
cape of ten guilty men as the condition of safety to one innocent
man. Evenin crimes not punished with the rigour of death,

222 NOTES.

there is some violation of the laws “ which uphold the welfare of
the community.” There is some “ interruption of the general
security”—there is some tendency to produce in part that “ uni-
versal confusion” of which Dr. Paley speaks—there is a visible
necessity for ‘‘ some restraint from the dread of punishment”—
there is some actual, though imperfect restraint from that dread.
But as all those crimes have more or less of all those malignant
properties just now mentioned, would it therefore be right to
make those restraints yet more effectual by extending the penalty
to death? Blackstone teaches me to “ expect a better reason
than the loose one which is generally given, that it is found by
former experience that no lighter penalty will be effectual ;” and
he farther tells us, that “ though the end of punishment is to
deter men from offending, it never can follow from thence that it
is lawful) to deter them at any rate, and by any means, since there
may be unlawful methods of enforcing obedience even to the
justest laws,” *

If then the security of the community is not incompatible with
the imperfect operation of penalties less than death, would it be
very extensively endangered, if ten guilty persons were permitted
sometimes to escape, lest one innocent man should suffer ?
Would there be any distinct vestiges of the frightful competition
which Dr. Paley mentions, between the safety of one innocent
man purchased by impunity to ten guilty men on the one
hand, and the general authority and usefulness of the laws on the
other hand? Would the usual rules of adjudication be no where
regarded? Would the usual degrees of credibility be no where
admitted? Let us then beware of reasoning confidently and in-
discriminately from partial, obscure, and very remote tendencies
to obstruct the course of those rules, and to perplex the degrees
of that credibility, when we are in quest of arguments to bring
our humanity into subjection to our acuteness, and to discover
palliatives for an evil so very great, though it be not very fre-
quent, as the destruction ofan innocent man. Crimes will be
hated—criminals will be feared and watched—punishments will
be inflicted, and bad men will continue to be deterred by them,
though jurymen and Judges should be disposed to act in confor-

* Book iv. cap. 1.

NOTES. 223

mity with the real import and real spirit of the principle which
Dr. Paley has opposed. The guilty men who now escape, rarely
owe their acquittal to a full conviction of their,innocence, but to
such doubts upon it as are suggested by the magnitude of a
punishment which in many cases exceeds our notions of propor-
tion between crimes and penalties ; and byan uneasy feeling that
we who condemn, expose an offender to more rigour than in our
apprehension he deserves. But the evil arising from their ac- —
quittal might be diminished by a change, not so much in the
rules of adjudication, as in the degrees of a penalty, which if mi-
tigated would be more likely to be inflicted.

The actions of men plainly shew that their judgments will not
bend down to the dogma of Cato the Censor. Hominem impro-
bum non accusari tutius est, quam absolvi.”* His acquittal may
have been effected with extreme difficulty, which other men will
observe, though he should not feel it. A small change in the
colour of facts, or the bearings of testimony, may exclude him
from being acquitted again, if he should again offend. ‘The re-
membrance of a former offence nearly proved will lessen his
chance for mercy, after he has been fully convicted. But if for
the same purpose of bringing condemnation ‘on the guilty,
Judges were to insist upon the same general topics for which Dr.
Paley contends, we seldom could listen to them without dissap-
probation, especially if it should appear, that in consequence of
such topics having been introduced and sanctionedt+ by such high
authority, the scruples of jurymen had been vanquished, and the

* Livy, lib. xxxiv, par. 4.

+ I put a case not very likely to happen in our English courts,
But if it ever should happen, the same feeling might be excited
against the Judge, which the brutal language of an accuser once
provoked : ‘‘ Quintus Flavius Augur a Caio Valerio edili ad po-
pulum reus actus, cum quatuordecim tribuum suffragiis damna-
tus esset, proclamavit se innocentem opprimi. Cui Valerius
seque clara voce respondit, nihil sua interesse nocensne an in-
noxius periret, dummodo periret. Qua violentia dicti reliquas
tribus adversario donavit. (Vid. Valer. Max. lib. viii. cap. 1.)

The Roman tribes had no partiality to Flavius, nor were they
indifferent to the offence charged upon him. But they thought
it better to curb the savage spirit of the accuser, than to punish
the probable guilt of the accused.

2294 NOTES.

sentence of death had been passed and executed. upon persons,
who, after the misfortune, as Dr. Paley calls it, were found to be
innocent. But if it were known that an innocent man owed his
escape to the same caution which had operated in favour of the
guilty, even the speculative conviction we might have upon those
topics in our closets, would in a court of justice be practically
overpowered by an instantaneous and lively sentiment of ap-
probation.

If in reality guilty men seldom escape Jest the innocent should
suffer, the popular maxim does no great harm. But if innocent
men often suffered lest the guilty should escape, the absence of
that maxim would be most injurious to individuals and most
alarming to the community. Again, if guilty men should often
escape lest. the innocent should often suffer, great danger, I
grant, would arise, and great alarm. But the frequency of
either of the two last cases would produce the same happy
effect. In consequence of our fears that the guilty would injure
ourselves, and that we should ourselves be the authors of injury
to the innocent, our present rules of adjudication would be care-
fully revised, and some expedients would be contrived for making
the future punishment of the guilty more compatible with the
future safety of the innocent.

That Being who foresees and controls all events, may permit,
and (with the deepest reverence be it spoken) may even ordain
evil, “ that good may come.” But great indeed ought to be the
probability, and great the quantity of good—obvious, too, and
most iniperious ought to be the necessity of obtaining it, before
such a creature as man knowingly runs the smallest hazard of
committing such a mistake as subjects the innocent with the
guilty to the loss of life—before he pleads his own ignorance and
imbecility in vindication of a measure against which the previous
consciousness of that ignorance and that imbecility should have
put him most strictly upon his guard—before he assumes that
the general good as intentionally produced by himself, will in all
cases, or to every extent, compensate the particular evil uninten-'
tionally inflicted by himself—before he presumes to treat lightly
the possible aggravations of that evil, from repetition facilitated
by precedent, or from general inquietude excited by general in-
security—before he forgets that the general usefulness and au-
thority of the laws are experimentally known το be maintained,

NOTES. 225

though from error or even design certain rules of adjudication
are not in some instances pursued, and certain degrees of credi-
bility are not admitted—before he allows that they could not be
maintained, if ten guilty men were sometimes to escape, lest one
innocent one should suffer—before he believes that they could
be maintained very long, if one innocent man often suffered,
lest ten guilty men should as often escape.

The remote possibility of such a case as I have been now con-
sidering, supplies an additional reason against the multiplication
of capital punishments. If the penalty were less than death,
there would be room for some compensation to the feelings and
the secular interests of the party when his innocence was known ;
and who shall say that continuing to exist, and standing upon
the watch to avail himself of every favourable opportunity for
discovery, he is not the likeliest person to search for every kind
and every degree of proof by which that innocence can be es-
tablished ? Much may be done by the zeal and activity of his
friends or his family. But in time, place, and many other cir-
cumstances of action, there are innumerable particulars which
the agent alone is able to explain, and of which he to-morrow
may give an explanation more satisfactory than could be given
to-day. When an innocent man has been condemned to die,
we must prove that, according to the established degrees of cre-
dibility in evidence, there arose strong probability of his guilt.
Hence, guided by the same principle upon which I have been
reasoning, Beccaria has proposed such an expedient as seems to
me far more equitable than the sentence which Dr. Paley would
permit to be executed, when in the view of a court of judicature,
there is “a mere possibility’’ of innocence. ‘‘ Banishment,”’
says Beccaria, “‘ should be the punishment of those, who being
accused of an atrocious crime, are probably, but not certainly
guilty.” For this purpose would be required a law, the least
““ arbitrary, and the most precise possible, which should condemn
to banishment those who have reduced the community to the
dreadful alternative, either of fearing or punishing them un-
justly: still, however, leaving them the sacred right of proving
their innocence.”* Such a law well-administed would avert

* Cap. 25.
VOL. IV. Q

296 NOTES.

from the accused a grievous wrong, and give to the community
all necessary security.

“ That moral certainty which excludes the possibility of inno-
cence, and which determines every man in the most important
transactions of life, is,” I grant, with Beccaria, * ‘‘ only proba-
bility τ᾿ and I would farther grant, that the imperfect proofs by
which the innocent might clear himself, but does not, become
perfect, by which I understand, the best adapted under certain
circumstances to a certain end. But as even under those cir-
cumstances they sometimes answer ends the very contrary to
those for which any evidence is admitted, or any laws are made,
the utmost care should be taken to prevent such a contingency,
or to alleviate the effects of it when it occurs. Evidence can
seldom or never amount to certainty. But the punishment in-
flicted on account of evidence is a real and a certain evil to the
sensibility of a sufferer, and in the view of a Judge. And there-
fore we cannot be too cautious in inflicting that evil which in
the estimation of legislators is greater than all others, and which
beyond all others is irreparable.

The subject I have been now considering may be most usefully
illustrated by the remarks of Mr. Bentham upon remissibility as
a property of punishment. ‘ The general presumption,” says
this great writer, “6 is that when punishment is applied, punish-
ment is needful: that it ought to be applied, and therefore’ can-
not want to be remitted. But in very particular, and those
always very deplorable cases, it may by accident happen other-
wise. It may happen that punishment shall have been inflicted,
where, according to the intention of the law itself it ought not
to have been inflicted : that is, where the sufferer is innocent of
the offence. At the time of sentence passed he appeared guilty,
but since then accident has brought his innocence to light.
This being the case, so much of the destined punishment as he
has suffered already there is no help for. The business is then to
free him from as much as is yet tocome. But is there any yet
tocome? ‘There is very little chance of there being any, un-
less it be so much as consists of chronical punishment: such as
imprisonment, banishment, penal labour, and the like. So much

* Cap. 14.

NOTES. 297

as consists in acute punishment, to wit, where the penal process
itself is over presently, however permanent the punishment may
be in its effects, may be considered irremissible. This is the
case, for example, with whipping, branding, mutilation, and ca-
pital punishment. The most perfectly irremissible of any is
capital punishment. For though other punishments cannot,
when they are over, be remitted, they may be compensated for:
and although the unfortunate victim cannot be put into the
same condition, yet possible means may be found of putting him
into as good a condition as he would have been in if he had
never suffered.” *

Dr. Paley + contends, that ‘‘ the proper end of punishment
is not the satisfaction of justice, but the prevention of crimes ;
and that prevention, which is the cause and the end of that
punishment, ought also to regulate its severity.” Such is the
epinion also of Beccaria, when he tells us 1 that “ though
punishments be productive of good, they are not on that account
just, but that to be just they must also be necessary ;” and that
‘* all punishments which exceed the necessity of preserving jus-
tice, or that bond which is necessary to keep the interests of indi-
viduals united, are in their nature unjust.Ӥ Though Dr. Paley
professes not to enquire in what sense, and seems to doubt whe-
ther with truth in any sense justice, may be said to demand the
punishment of offenders, I have little difficulty in understanding
what is meant in popular discourse by the satisfaction of justice.
But I disapprove of the principle contained in the phrase, and I
consider the phrase itself as an instance of the confusion intro-
duced into moral reasoning by the use of metaphor and personi-
fication. ““ Cautious,” says Beccaria, ‘‘ should we be how we as-
sociate with the word justice an idea of any thing real, such as
a physical power, or a being that actually exists.” So far, how-
ever, as the word implies the retribution “ of so much pain for so
much guilt,” I readily allow with Dr. Paley “ that the demand
of such retribution is not the motive or the occasion of human
punishments.”

* Bentham’s Introduction, chap, 15. on remissibility.
t Chap. 9. { Cap, 25. ὃ Cap. 2.
a 2

228 NOTES.

The example of Dr. Paley in contrasting the justice of man
with that of the Deity, will, I hope, warrant me in stopping
here to observe that I do not in all respects assent to the
distinctions which that excellent writer has made between them.
It appears to me that so much pain inflicted for so much guilt
unexpiated by repentance, would have been a proposition more
correct than that which he has employed when he is speaking of
the Divine justice. The conceptions of that attribute which our
views of the moral world suggest to us, and the conscious
limitation of our own foresight and our own strength, should,
I grant, teach us to reason with great caution and great re-
verence from the judicial dispensations of the Deity to human
laws. I cannot, however, dissemble that the representations
which Dr. Paley has given both of Divine veracity and Divine
justice appear to me, I do not say erroneous, but defective.
Upon the latter we must argue from the light of natural re-
ligion, and upon the former we must appeal to the evidence sup-
plied by revelation. Now, if justice requires that so much pain
be inflicted for so much voluntary guilt, it seems also to require
that so much pain should not be inflicted after so much ex-
piation made for guilt by voluntary amendment. If the vera-
city of the Deity requires him to punish offenders, because he
has ‘‘ promised” so to punish them, it must also require that a
part, or the whole of their punishment should be remitted to
penitents, because he has likewise promised to accept their
sincere and active endeavours to repent. ‘‘ In the sight of the
Deity, that repentance may not only be a bridle to prevent the
sinner from going astray, but a spur* to make him advance
with more speed in the road to perfection.” In the sight
of the Deity, that repentance may amount to a complete
change of all the immoral propensities or habits which
exposed the offender to punishment, and it may ultimately ren-
der him a fit subject even of reward. Man, it is true, cannot
so penetrate the hearts of his fellow-creatures as to calculate
the good effects wrought in them by remorse, and even if he

* See Pistorius’s Notes upon Hartley, p. 621, in the quarto
edition of Hartley.

NOTES. 229

could calculate them, the necessity of deterring other men from
similar offences would often compel him to punish more or less
where the Deity may have forgiven. Still, however, it is of im-
portance for us to remember, that the mercy of that Deity is
much oftener recommended to us as a model of imitation than
his justice; and though precepts of this kind may be consi-
dered as chiefly applicable to the conduct of private indivi-
duals, yet the principles upon which they are founded deserve
to be regarded by legislators so far as they can follow them con-
sistently with the common weal. It is, indeed, a salutary, an es-
sential, and even characteristic quality of justice* itself, that, in

* | have employed the word justice in the sense which it
bears, usually in popular discourses, and sometimes in philo-
sophical writings. We distinguish it, in our common apprehen-
sions, from Mercy; and our philanthrophy is gratified when
mercy triumphs over what we call justice. But, if mercy were
apparently to produce what we call injustice, we should disap-
prove of it. The secret ground of our disapprobation is our
sense of that very utility of which our philanthropy approves
when it is effected by means to which we give the name of jus-
tice. Mercy, also, under the circtumstances in which alone it
ought to operate, may itself be considered as a species of justice
in the extended signification which the term sometimes carries
with it, both in ancient and modern writers, and both of them,
as usually distinguished from each other, but referred to a com-
mon principle of utility, fall under the generic name of benevo-
lence. I wish not to disturb the received forms of language ;
and yet I would be understood to admit much truth in the fol-
lowing observations of Mr. Bentham:

They who adopt what he callsthe Principles of Asceticism and
Sympathy exclusively, ‘‘ set up,” he says, “a phantom of their
own, which they call justice, whose dictates are to modify, which,
being explained, means to oppose, the dictates of benevolence.
But justice, in the only sense in which it has a meaning, is an
imaginary personage, feigned for the purpose of discourse ;
whose dictates are the dictates of utility applied to certain par-
ticular cases, Justice, then, is nothing more than an imaginary
instrument employed to forward on certain occasions, and by
certain means, the purposes of benevolence. The dictates of
justice are nothing more than a part of the dictates of bene-
volence, which, on certain occasions, are applied to certain sub-
jects, to wit, certain actions,’—Elements of Jurisprudence,
p. 123.

230 NOTES.

providing expedients for the public security, it should be wholly
exempt from that vindictive spirit which obstructs the exercise
of mercy. Great I know to be the authority of Dr. Paley’s
name, and therefore I am anxious to guard his opinions from
the possibility of abuse and perversion by men who would rashly
argue “ as we cannot be like the Deity, it signifies little how
much we are unlike him.”

Prevention, as vindicated and illustrated by Dr. Paley, is I
allow, the chief end, and therefore ought to be the chief ‘* mea-
sure of human punishment.” JI do not, however, chuse to call
it the sole end, because where punishments can be so adminis-
tered as to correct the offender himself, as well as to deter other
men, Dr. Paley I am sure would have approved of them as
suited to this additional, though subordinate purpose. He would
farther have admitted, that punishments as well as crimes are
evils, and that, whether inflicted by man or by the Deity, they
must have good for their ultimate object before we could pro-
nounce them to be just. But that ““ so much pain should be
inflicted for so much guilt,” resembles the lex talionis of fallible
and vindictive man, rather than the measures of a perfect being.
Justice in the Deity must bear some resemblance to justice in
man. It cannot be supposed to accumulate the evil of punish-
ment upon the evil of crime without some ulterior purpose, and
if that purpose be called the satisfaction of the Judge who
punishes, we may still contend that this very satisfaction itself
must be founded upon the good which punishment at some
time or other, and in some degree or other, will produce to some
sentient being or other. It is difficult to conceive how the ad-
ministration of Divine justice in future punishments should
operate by example ; and it struck me very forcibly, that Dr.
Paley has not given the slightest intimation of their tendency
when inflicted, to correct offenders themselves. Perhaps, upon
this point he did not see any immediate necessity for commu-
nicating his own opinion, But as the comparison which he has
introduced between the justice of God and that of man una-
voidably turns the attention of every reflecting mind towards a
subject most important to us, I feel myself not only autho-
rised, but almost required to state my own sentiments; and
happily for me, they have been expressed with the greatest clear-

NOTES. 931

ness and precision by the acute and learned Pistorius in his notes
upon Hartley. *

** The attributes of righteousness and justice, if properly con-
sidered, are by no me4ns so adverse to benevolence as might be
inferred from the active satisfaction of the Deity in truth and
order, and his equally active dislike to whatever departs from
them. The most righteous and just ruler may also be the most
benevolent, if he be the most powerful. His benevolence, it is
true, would not be displayed in a similar manner to his dutiful
and undutiful subjects ; he would not reward the latter as the
former ; but his good will towards them would show itself in
such dispositions and regulations as would render them equally
obedient, and by these benevolent, though forcible measures,
would he reveal his justice and righteousness, maintain the
authority of his wholesome laws, and promote the well-being of
his whole kingdom. He must punish; but his punishments
would be corrections. We may admit, not without grounds,
that the distinction betwixt punishment and correction, the end
of the former being to prevent the spreading of wickedness by
warning and deterring others from it, and of the latter, to amend
those to whom itis applied, is founded on the weakness of mortal
rulers, and not applicable to God. Mortal rulers are not always
able to punish in such a manner as to amend those on whom
they inflict punishment. ‘They cannot in the same action consult
the private advantage of the individual and the public benefit of
the whole, so that they are obliged to distinguish the two, and
for the general good sacrifice the less to the greater. Buth these
ends, indeed, may be compatible with each other. We may so
punish that the punishment may be a mean of reclaiming the
punished, and at the same time prevent the spreading of vice
by serving as a warning to others. Thus when we distinguish
punishment from correction, this distinction will only hold, it
appears, whilst we speak of human correction and punishment:
since the distinction arises not from the nature of the things
themselves, but from the weakness of mankind. Even amongst
men a sovereign would unquestionably be deemed good, wise,
and just, who knew how to punish so as not only to prevent

——EE

* See the quarto edition of Hartley's Works, p. 597.

———

932 NOTES.

transgressions, hinder the spreading of vice, and maintain order,
peace, and security, throughout his dominions, but likewise to
amend the criminal himself, and render him an instrument of
his own happiness, and an useful member of society, by the
same punishment which served as a warning to others, But
if this cannot be done, and the sovereign by shewing kindness
to a single criminal must do an injury to the whole community,
in preferring the less to the greater good, being unable, from
his limited power, to prevent the extension of vice, but by the
sacrifice of the guilty; the idea of the justice of punishing, as a
virtue in the sovereign, originates in his want of power ; a justice
which, though beneficial to the whole, is a hardship to the party
that suffers, and consequently not so perfect and goodas it would
be were it at the same time beneficial to society and to the
offender. Let it not be supposed, that this inability to correct
in every case of punishment is so universal as to extend to
God; it is proper to man alone, and proceeds from the fol- Ὁ
lowing causes. We have not time, space, and means sufficient
so multifariouwsly to diversify our corrections as to place the
offender in as many various unpleasing situations as are requi-
site ultimately to bring him to a serious reflection on his real
good and permanent attention to it. We cannot render his
punishment so intense as to make the desired impression upon
him, without its becoming fatal. Finally, too, we are per-
suaded that certain offenders, particularly dangerous ones, must
be punished with death, if we seek the security of society. Would
slighter punishments serve in such cases, punishments that
would not destroy the transgressor, but preserve him an use-
ful member of society, no rational or well-minded man would
justify capital punishments, but hold them equally pernicious
and detestable. We may even hope, that when the benevolent
and more enlightened eye of philosophy shall have inspected
that important part of legislation, the distribution of punish-
ments, this will become less and less destructive, without being
less efficacious, and be gradually converted into correction of
offenders. Unless we ascribe human weakness, and the shackles
of humanity, to that all-wise and omnipotent God, whose moral
sovereignty over his intelligent creatures is not confined to the
narrow limits of time, whe has unnumbered, and to us inscruta-

΄

NOTES. 233

ble ways of leading his subjects to his purposes, who, since
they actually are, and must eternally remain dependent on him,
ean place them in such circumstances that his designs in them,
and through them in others, must be accomplished, we are
forced to allow, that with respect to him our distinction be-
twixt punishment and correction is inapplicable, and that all
his punishments at least may be at the same time corrections.
And since this may be, we ought from the perfection of his
benevolence to expect, that so it wili be.”’

But to whatever extent I may differ from Dr. Paley’s expla-
nation of ‘‘ a rule which befits the absolute and perfect justice
of the Deity,” I think with him that “it is a rule which ought
not, without the greatest caution, to be pursued by human
laws,” and that ‘‘ the cause of human punishment appears to
be chiefiy founded in the necessity of preventing the repetition
of an offence.” It is, however, painful for me to reflect that
in the pursuit of such prevention human laws are often carried
beyond the limits of real necessity; and of this excess I will
lay before you a striking instance in which the possibly inno-
cent were condemned to suffer death as well as the guilty.

When Virgil says of Rhadamanthus “ castigatque auditque
dolos,”* he meant to adapt his words to the convenience of his
verse, rather than to describe the real order of events. But
even if the words of the Poet were to be understood literally ac-
cording to their present position, the rashness of mankind would
supply us with a practical illustration of them. Ina book of tra-
vels, which was written by Dr. Edward Brown, the learned son of
a more learned father, Sir Thomas Brown, and to which Johnson
gives the praise of scrupulous and exact veracity, I met with this
striking passage: ‘*‘ Among the odd customs + of Carinthia there
isan old one delivered of this place, (Clagenfurt, the capital,) that
if a man were vehemently suspected of theft they hanged him,
and three days after judged of the fact; if he were found guilty,
they let his body hang till it be corrupted ; if otherwise they
took down the body, buried it upon the public account, and said
prayers for his soul.”~ Brown refers in the margin of his work

* JKn. vi. t See Appendix, Nore A,
{ See Brown's Travels, p. 123.

234 NOTES.

to Aineas Sylvius for the fact which he recorded, and he evidently
believed it. The Carinthians, it seems, spared not the possibly
innocent lest they should be annoyed by the guilty, and the
custom imputed to them was far. more cruel than that of the
Danes, ‘‘ among whom a person who was detected flagrante de-
licto and with the mainour, might be taken and hanged on
the spot without accusation or trial.’’*

Compelled as I am to differ from Dr. Paley in his opposi-
tion to a popular maxim, the merits of which I have endea-
voured to unfold, I would not be understeod to impute to
this excellent man a criminal insensibility to the sufferings of
his fellow-creatures; and it is with the highest satisfaction
that I shall now produce from his works two proofs of his hu-
manity. In chapter vit. he speaks of the unanimity required
in the verdict of juries, as ‘‘one of the peculiarities in the
judicial constitution of this country which do not carry with
them the same evidence of propriety that recommends almost
every other part of the system.’ ‘* Nevertheless,” says he,
“the effects of this rule are not so detrimental, as the rule
itself is unreasonable. In civil suits, when the conference of
jurymen with one another does not seem likely to produce in the
jury the agreement that is necessary, they will naturally close
their disputes by a common submission to the opinion de-
livered from the Bench.” This practice no doubt corrects in
part the unreasonableness charged upon the rule, and 1 state
it for the purpose of contrasting it with another effect which
Dr. Paley imputes to the same rule on another subject.
‘‘In criminal prosecutions it operates considerably in fa-
vour of the prisoner; for if a juror find it necessary to sur-
render to the obstinacy of others, he will more readily resign
his opinion on the side of mercy, than of condemnation.”
Dr. Paley here puts a case which may shew the unreasonableness
of the rule, but which also, shews something more. A juror has
no doubt upon the guilt of the accused. He finds it necessary
to surrender his opinion to what he thinks the obstinacy, and I
might think the conscientious firmness, of other jurors. He re-

* Sce Blackstone, book iv. chap. 23.

NOTES. 2395

signs his opinion on the side of mercy. Does Dr. Paley directly
condemn such resignation? He does not. Does he advise that
the jury, as in civil cases, should close their disputes in common
submission to the opinion of the Judge? He does not.. He
produces the submission of him who would condemn to those
who would acquit, as, in effect, beneficial indeed to the accused,
but detrimental perhaps, to the public, and yet not so detri-
mental as the rule itself is unreasonable. He would not call
the effect detrimental at all, except in cases where the juror
who surrenders is right, and they who resist and prevail
over him are wrong, in their respective judgments on the
accused. He must allow, that the presumption for truth is in fa-
vour of eleven as opposed to one—he must farther allow that in
cases where the judgment of one juror is sound, and that. of
eleven is erroneous, the cause of that erroneous judgment may
sometimes be wariness rather than obstinacy, the cause of that
sound judgment may be a previous disposition to severity rather
than to lenity, and the rule which suffers the wary to prevail over
the severe, must be in its general effects less detrimental, than
a rule with opposite tendencies. He, in truth, has stated the
very circumstances of yielding on the side of mercy as making
the rule Jess detrimental, though it be a rule in itself unreason-
able. ‘‘ Though there be less assurance that the verdict is founded
in reasons of apparent truth and justice, than ifthe decision were
left to a plurality or some certain majority of votes,” still Dr.
Paley has not proposed to remedy this inconvenience by leaving
our decisions upon life in criminal prosecutions to such plurality
or majority, however judicious a regulation of this kind may be
in civil cases.

Again, Dr. Paley condemns “ acts of attainder, of confiscation
in bills of pains and penalties, and all ex-post-facto Jaws what-
ever, in which Parliament exercises the double office of legisla-
tor and Judge.” He thinks that whoever understands the va-
Jue of the rule by which those offices are separated, or collects
the history of the instances in which it has been invaded, will be
induced to acknowledge that it had been wiser and safer never
to have departed from it, and that nothing but the most
manifest and immediate peril of the commonwealth will justify
a repetition of these dangerous examples. If the laws in being

236 NOTES.

do not punish an offender, let him go unpunished ; let the legis-
lature, admonished of the defect of the laws, provide against the
commission of future crimes of the same sort. The escape of
one delinquent can never produce so much harm to the commu-
nity as may arise from the infraction of a rule upon which the
purity of public justice, and the existence of civil liberty essen-
tially depend.”* Iam aware of numerous and important differ-
ences between the case here stated, and that of an innocent man
condemned by Jaws enacted previously to the crime with which
he is charged, and not administered by those who enacted them,
But let us remember, that the offence committed by the delin-
quent of whom Dr. Paley is speaking, is generally more malig-
nant than that of common offenders—that his guilt is asumed by
Dr. Paley—that the danger arising from the double office of Le-
gislator and Judge in those who are to punish him ought to have
acted as an additional restraint upon him, and yet, that in the
view of Dr. Paley his escape produces less harm to the commu-
nity, than the infraction of a rule. I honour the wisdom, equity,
and humanity of such a writer, and the remembrance of his in-
tellectual and moral endowments makes it more painful for me
to find him engaged in opposing the long established maxim,
‘«« That it is better to the community for ten guilty men to escape
than one innocent man to suffer.” If Dr. Paley had left this
opinion unmolested, and if he had also balanced the mischiefs
of frequent executions, with their actual conveniences, I should
say of him as Cicero said of Cato: “ Non is quidem vir sapientior
fuisset, nec melior, neque enim esse poterat; sed paullo ad le-
nitatem propensior.’’t

Let me now return to the debate on Sir Samuel Romilly’s late
motion, By the new statute private stealing may be accompa-
nied by aggravations which subject the offender to transportation
for life: and shall it be said again, as in the House of Commons
it once has been said, that such punishment carries with it “a
proclamation of impunity?” Thatstatute has the peculiar merit
of endeavouring to adapt a gradation of punishment to the gra-
dation of malignity in crimes called by one common name. For

* Chap. 8. ¢ Cic. pro Murena.

NOTES. 337

my part, I welcome transportation as a substitute for death. But
with the general properties of it as a punishment I am by no
means satisfied. When offenders were first sent to North Ame-
rica ‘‘ they went to a country where being unknown they might
not be very often reproached for their crimes, where a little
would maintain them, where their expences would be moderate-
ly low, where the price of labour was high, and where if a man
reform, his reformation would produce for him many comforts
and conveniences.”*

But the system now adopted at Botany Bay, whatever may be
its other properties, certainly carries with it a degree of severity
rarely experienced by those who were formerly banished to our
American colonies. The defects of it have been most clearly
pointed out by Mr. Bentham, they have suggested to his active
and sagacious mind a plan which, in my opinion, is likely to an-
swer all the best purposes of punishment, both in correction and
prevention ; and the day I hope is not very distant, when the
particulars of that plan will be submitted to the wisdom of Par-
liament.

“ Exile,” says Dr. Paley, ‘ is in reality a slight punishment to
those who have neither property nor friends, nor reputation, nor
regular means of subsistence at home.” t+ This observation, I
believe, to be sometimes just. Yet there may be cases in which
it is difficult for us even in imagination so to place ourselves in
the situation of the persons transported as to determine whether
exile be to their sensibility a light punishment. They leave be-
hind them relations, friends, scenes more or less endeared by
early association, and a country to which, in the midst of all
their depravity, they may retain some confused notions of attach-
ment and duty. But if those notions are in all cases extirpated,
would it be prudent to employ offenders, so often as they are
employed, in the army and the navy ?

Where Mr. Eden condemns the practice of hanging criminals
for returning from transportation, when it was ‘not in the na-
ture of a conditional pardon, but directed by positive law,” he
considers such severity ‘‘as an attack upon the natural senti-

* See Smith’s History of New York, quoted by Dagge, vol. iii,
p. 177. t Cap. 9.

238 NOTES.

ments of the heart,” and supposes that they to whom even pa-
rents, children, and relations may be no longer dear, are seldom
so abandoned, as ** patriam non desiderare.” * If, indeed, extir-
pation from the society of their fellow-subjects be a punishment
so light, as Dr. Paley seems to think it, how shall we account for
the eagerness of men to return to that country where they must
be conscious of having neither property nor reputation, and
where the repetition of their former crimes must, as they well
know, expose them to more rigorous treatment from the laws?

My objections to transportation, as a punishmeat for private
stealing, or indeed any other offence, are chiefly founded on a
reason which has been forcibly insisted on by Dr. Paley and other
writers. ‘It answers,” says Dr. Paley, ‘‘ the purpose of example
very imperfectly. The sufferings of a transported convict are
removed from the view of his countrymen, his misery is unseen,
his condition strikes little or no terror on those for whose admo-
nition or warning it was intended.” Beccaria also, in chapter
x1x, condemns the slavery of a transported criminal, “Κ΄ as an ex-
ample to societies which he never offended, an example absolutely
useless, because distant from the place where the crime was com-
mitted.”

In the debate upon the new statute, imprisonment was pro-
posed, and circumstances were to determine whether it should,
or should not, be accompanied with hard labour. But with the
reasons assigned for the imprisonment as a punishment I have
always been dissatisfied; for “‘ when men are immured ina !oath-
some prison they are of no service to society, and their sufferings
are 80 secret as not to operate on others by way of example.” Τ

By the humanity of Sheriffs care is usually taken that the un-
avoidable miseries of a jail may not be aggravated by the unre-
strained cruelty of the jailor, and the expectations which Mr.
Eden { formed from the industrious refinements of a sensible
age, have been in part fulfilled by improvements in the airiness
and extent of the buildings. But Mr. Eden agrees with Dagge
in considering ‘‘ imprisonment, when inflicted by law as a punish-
ment, as not conformable with the principles of wise legislation.”

* Cap, 14, 1. See Dagge, vol. ii. p. 179, 1 Cap. 6.

NOTES. 239

He assigns the same reason, “ because it cannot communicate
the benefit of example, being in its nature secluded from the eye
of the people.” He further remarks that “‘ it sinks useful sub-
jects into burthens on the community, and has always a bad
effect on their morals.”

I am persuaded that no legislator would seriously vindicate
the continuance of such a punishment as consistent with public
justice or public utility, if his mind were strongly impressed with
the luminous description which a celebrated writer has given of
its effects: ‘‘ The misery of jails,’ says Johnson, “ is not half
their evil; they are filled with every corruption which poverty
and wickedness can generate between them; with ell the shame-
less and profligate enormities that can be produced by the impu-
dence of ignominy, the rage of want, and the malignity of de-
spair. Ina prison the awe of the public eye is lost, and the
power of the law is spent: there are few fears: there are no
blushes. ‘The lewd inflame the lewd, the audacious harden the
audacious. Every one fortifies himself as he can against his own
sensibility ; endeavours to practise on others the arts which he
practised on himself; and gains the kindness of his associates by
similitude of manners.’’*

It is singular enough that the punishment for private stealing
by hard Jabour, which has lately been proposed as one of the sub-
stitutes for death, seems to have occurred, though indistinctly, to
the very legislators by whom the penalty of death was first ap-
pointed. By the statute of the Sth of Elizabeth this crime,
when committed clam et secrete, was excluded from the benefit of
clergy, and it is necessary for every indictment to contain those
words in order to subject the accused party to capital conviction.
Now this very statute in its preamble says, ‘‘ that it is made to
the end that the fraternity or brotherhood of cutpurses and pick-
pockets may not continue to live idle by the secret spoil of good
and true subjects. Does not then this preamble itself seem to
intimate that the proper remedy is to oblige the criminal to hard
labour?” +

My wish is that confinement should “ always { be accompa-

_ CS -..-,ο..ύ.ςς τ’ Πρ ---ὉῸὖῸὖῸ ὉἝὋἕὉΘ - --- ------.--Ἠ-ἤ ---.. --

* See Idler, No. 38. + See Dagge, νοὶ, ii. chap. 10. sect. 2.
1 Dr. Paley says, that ‘when jails are once provided for the

240 NOTES.

nied with labour.”’* longer or shorter, lighter or heavier, accord-
ing to the malignity of the offence. The last and highest degree
of this punishment would, 1 am sure, be a most desirable sub-
stitute for many of the capital punishments which are now in-
flicted. It would be more terrible to offenders, and more salu-
tary to society. ‘‘ Perpetual slavery,” says Beccaria, + ‘ has in it
all that is necessary to deter the most hardened and determined,
as much as the punishment of death. I say it has more. There
are many who can look upon death with intrepidity and firmness;
some through fanaticism, and others through vanity, which at-
tends us even to the grave; others from a desperate resolution
either to get rid of their misery or to cease to live. But fanati-
cism and vanity forsake the criminal in slavery, in chains and
fetters, in an iron cage, and despair seems rather the beginning
than the end of their misery. The mind by collecting itself and
uniting all its force, can, for a moment, repel assailing grief ;
but its most vigorous efforts are insufficient to resist perpetual
wretchedness.” ‘They who would shelter their dislike of chains
under pretended lenity, may tell us “ that perpetual slavery is
as painful a punishment as death, and therefore as cruel.” But
to such refinement Beccaria { has given a direct and invincible
answer: ‘‘ If all the miserable moments in the life of a slave
were collected into one point, it would be a more cruel punish-
ment than any other; but these are scattered through his whole
life, whilst the pain of death exerts all its force in a moment.
There is also another advantage in the punishment of slavery,
which is, that it is more terrible to the spectator than ta the suf-
ferer himself; for the spectator considers the sum of all his
wretched moments, whilst the sufferer, by the misery of the pre-
sent is prevented from thinking of the future.” After the com-

separate confinement of prisoners, the choice between solitary
confinement with hard Jabour and with nothing to do may soon
be determined by experience.” I think that for the punishment
of crimes which have endangered property, it were better in all
cases whatsoever to unite Jabour with confinement, and that
acute pain should be added where the offence is in its own nature
infamous, with diminished allowance fer the produce of work,

* See Dagge, vol. i. p. 327.

+ Chap. 28. t Ibid.

NOTES: 241

mission of the crime “ the sufferer may indeed find resources
and consolations of which the spectator is ignorant.” But the
important question with respect to an offender is, what effect the
expectation of such punishment is likely to have upon his mind
when ‘* he foresees that he must pass a great number of years,
even his whole life, in pain and slavery, a slave to those laws by
which he was protected; in sight of his fellow-citizens with
whom he lives in freedom and society. He makes an useful com-
parison between those evils, the uncertainty of his success, and
the shortness of the time in which he shall enjoy the fruits of his
transgression. ‘The example of those wretches continually be-
fore his eyes, makes a much greater impression on him than a
punishment, which, instead of correcting makes him more ob-
durate.” |

You will not forget the apology I offered for appealing to the
authority of celebrated writers in the defence or illustration of
my own opinion. Many of their observations I had been fortu-
nate enough to anticipate. But the clearness and precision of
their language deterred me from employing my own. The same
sentiments will naturally occur to men of reflection when they
are contemplating the same subject, and as the pursuit of truth
is more worthy of an ingenuous mind than the affectation of ori-
ginality, we may reasonably suppose that some of the writers
whom I have quoted, had availed themselves of all the assistance
they could derive from the labours of their predecessors. If the
principles for which they contend be founded in justice, and use-
ful to society, I shall never be ashamed of my readiness to adopt,
or my solicitude to disseminate them. Truth opposed to preju-
dice, reason to usage, and humanity to rigour, have many diffi-
culties toencounter. But every advocate not grossly unskilful
gives additional weight to their claims, and may hope for atten-
tion from the candid, though he should fail of impressing con-
viction upon the inconsiderate or the unfeeling.

The opponents of Sir Samuel Romilly laid great stress upon
the number of offenders who are guilty of “ larceny from the
person ;” and to their arguments I shall reply, what impartial
inquirers must often be disposed to say on other occasions, “ nec
nihil, neque omnia.” * They who admit the same premises are

---- ---- τ---- ----Ἑ- 6 ςὉὃῸΌῸὃῸὃῸ’ῥ’---- τ΄ τἝτἝ-τΠἷΠἕ“ο“ἷ“ἷ“ἕὝἽἿὙὙ΄Ἵ΄ἿἽ΄ἷὃἕὃἷὃ͵͵.. .

* Terent. Adelph. Act i. sc. 2.
VOL, IV. R

942 NOTES.

not always led by them to the same conclusions, and in the dis-
cussion of moral questions it often happens that difficulties arise,
not upon the truth of a general principle, but upon the degree
in which it is applicable to particular points of practice, and
upon the purposes for which it ought to be controuled by other
principles, equally comprehensive, or equally sound.

That the frequency of an offence is sometimes a solid plea for
enforcing and even enacting severe statutes, will, as a general
proposition, not be denied. And the utmost which a man of
reflection would require is, that when such frequency has been
long and considerably checked, such severity should be propor-
tionably relaxed.* You avowedly did not employ death, till cri-
minals were numerous—you should have ceased to employ it,
when they became fewer—you may resume it, when they become
numerous again.

Whether it be possible for some kind of small offences to be
so frequent as to justify capital punishment for the prevention of
the aggregate mischief produced by them is, also, a general
question, upon which good men will pause, before they decide
in the affirmative. In my view of the subject,

“« Mores sensusque repugnant,
Atque ipsa utilitas justi prope mater et equi.”’t

The number even of small crimes may render their tendency
very dangerous. But would that tendency have induced Black-
stone to retract or qualify his position, ‘‘ That it is not the fre-
quency only of a crime, or the difficulty of otherwise preventing
it, that will excuse our attempting to prevent it by a wanton,”
and, as I would say, unnecessary, and therefore unjust, “ effu-
sion of human blood?” Smaller crimes are, from their very
nature, most likely to be freyuent, and many who commit them
may make a jest of the light punishments denounced against
them. But shall it be said, that their severity therefore must be

* The principle of such relaxation is well stated by Valerius
Messalinus, ‘ Placuisse quondam Oppias leges, sic et tempori-
bus reipublicz postulantibus ; ; Temissum aliquid postea, et muiti-
gatum quia expedierit.” (Tacit. Annal. lib. iii. par. 7.)

+t Hor. Satyr. iii. lib. i

NOTES. 243

indefinitely increased? ‘‘ Is it not obvious,” says Mr. Dagge,
‘that if punishments are to be increased on this account, they
might be aggravated till all small crimes are made capital? But
such a system of legislation as this reasoning tends to establish
would indeed breathe the true spirit of Draco’s laws.”*

In a theological book I once met with an elaborate defence of
certain principles, according to which a schoolboy incorrigibly
mischievous in robbing orchards would be deservedly tormented
in hell-fire for ever and ever. The writer was a gooud-humoured,
wrangling, conceited visionary, who would have disdained to
shrink from the legitimate consequences of a favourite hypothe-
sis—who hungered and thirsted after mysteries in religion, and
paradoxes in philosophy—who clung to old opinions, merely for
the sake of displaying the new light which he fancied himself
able to throw upon them—who with mingled pity and contempt
prattled about Newton as a star-gazer, Locke as a sciolist, and
Dr. Clarke as a zany; and who would have spurned at the deci-
sions of Nominalists and Realists, of Aristoteleans and Rameans,
of Convocations and Conclaves, of Universities Protestant and
Catholic, and of Councils general and cecumenical, when opposed
to his own ingenuity in vindicating and illustrating his own dis-
coveries. Fortunately for his species he was doomed only to talk
about matters in which he had no power to act, and his extraor-
dinary zeal became at once ridiculous and harmless from his ex-
traordinary absurdity.

As to Sir Samuel Romilly,t who in all probability has more
sense, as well as more tenderness, than our sturdy theologian, I

* Vol. i. p. 259.

+ Hitherto he has not been scared by shallow and fretful
declaimers, who maintain, ‘‘ una si lex tollatur, ceteras infir-
mari; and though he would readily admit, ‘ nullam legem satis
commodam omnibus esse: id modo queri, si majori parti, et in
summam prosit,”” (see Livy, lib. xxxiv. par. 3.) yet I trust that
he will persevere in his endeavours.

The same observation has been made by Hale: “If a Jaw be
squared, so that it is fit ad plurimum, and doth more good than
harm, though it possibly pro nunc et tune may do some harm,
yet it isa good law.” (Cap. 2, on the Amendment of the Laws.)
Sir Samuel Romilly is eminently qualified to balance the harm
and the geod, nor will he suffer any insidious or dogmatical ap-

R 2

244 NOTES.

honour him for his noble effort, I anticipate the happiest effects
from the example of his success, and I suppose that his reputa-
tion will not descend to posterity with much less advantage than
that of other contemporary sages, whose names, somehow or
other, are invariably associated with every mention and every
recollection of those stricter ordinances which it has been their
good pleasure to recommend to the legislature. I dispute not
the rectitude of their intentions. I admire their abilities, But
I have no ambition to partake of their celebrity, because the
times in which I live present other objects for emulation, such,
at least, as I should be likely to feel.

The activity of Sir Samuel Romilly will preserve the lives of
my fellow-creatures. The perseverance of Lord Erskine in giving
precision to the Law of Libels has added fresh security to the
liberties of my countrymen. Both of them are most distin-
guished ornaments of a most useful profession, and the libera-
lity, fortitude, and benevolence of both must tend to rescue in
some measure that profession from the odium of an imputation
which the subject I am now treating recalls to my mind.

It has been said that reforms, whether in the church or in the
Jaw, are not to be expected from men who have risen to eminence
in either, that secular emoluments and honours destroy their
sensibility in the cause of virtue, and that their talents are always
employed, rather in stifling enquiry, than in exploring and dis-
seminating truth. This certainly is not a fit place for me to
give an opinion upon what ecclesiastics might now accomplish
with propriety, or upon what they ought to attempt from higher
considerations of duty. But so far as the observation just now
mentioned may be thought to bear upon the memory of their
forefathers, it is in many respects unfounded. If we except the
gloomy tyranny of Mary, and perhaps the troubled days of Charles
I. and Cromwell, we shall see that reformation in the English
church was conducted, slowly indeed, but surely, from the reign
of Henry VIII. to that of Charles IJ. when the angry conferences
at the Savoy put a stop to all farther progress—In the articles,

plication of Hale’s remark to deter him from stripping our penal
code, so far as he can, of all unnecessary severities—he will keep
in view the least probable harm, and the greatest probable good.

NOTES. 245

or in the public service of the Church, alterations, well adapted
to the exigences, or it may be, to the capacities of the times,
and fraught with the soundest wisdom and most genuine piety,
were proposed and adopted by enlightened and dignified eccle-
siastics. The diffusion of knowledge, and the advancement of
civilization, may be traced by vestiges yet more recent in another
quarter. If we look to our civil code, we shall find that in the
present age, and in others which preceded it, material improve-
ments have been introduced into that code, either by the dicta
prudentum in our courts, or in Parliament by the suggestion, or
with the approbation and aid of learned lawyers : and it is with
peculiar triumph that for the partial proof of this assertion I can
appeal to the freedom granted to slaves while they remain in
England, and gradually effected by a series of judicious and hu-
mane decisions. But the penal code, I must acknowledge, still
remains a soil in which

“ Infelix lolium, et steriles dominantur avene.”*

The harvest of rank weeds is abundant, and the “labourers” who
should pluck them up “are few.” Yet the discouragements to
their labours in the amendment of our Penal Code are less nume-
rous than those which present themselves to the reformers of
abuses, real or supposed, in other quarters. Clear it is that the
welfare of society is more immediately affected by inconvenient
or rigorous statutes which strike at the life of man, than by doc-
trinal errors (if such there be) which are more or less corrected
by the diffusion of general knowledge and sound criticism. It
is probable, too, that the repeal of such statutes by parliamentary
authority would be less offensive to public opinion than the inter-
ference of the state in theological tenets and ecclesiastical disci-
pline.

There is indeed one subject upon which I have already ex-
pressed my wishes that the legislature would so far interfere as
to employ the public ministers of the church in giving increased
notoriety and increased efficacy to our penal Jaws. I lately found
with great satisfaction that Mr. Bentham has proposed an expe-
dient similar to that which many years ago occurred to my own

* Virg. Georg. i.

246 NOTES.

mind. ‘It is highly necessary that at all times, and in particu-
lar immediately after the passing of a new law, means should be
used for impressing the contents upon the minds of those whose
conduct is to be governed by it. But what measure so simple or
so effectual as to send by the post a copy to the ecclesiastical mi-
nister of every parish, under a general order to read it to the
congregation the next church day, or the two next church days,
au prone, immediately after divine service ?”’*

I know not the effect which Mr. Bentham’s reasonings and
statements produced upon the fluctuating body of legislators to
whom he addressed them, nor can I calculate the attention which
may hereafter be paid to them under the form of government
now established in France. But I am sure that in our own coun-
try, the regulation of which I am speaking, might be introduced
without difficulty, and continued without inconvenience.

Let us not be dismayed by positive assertions, nor amused by
technical jargon, upon obstacles to that knowledge, the acquisi-
tion of which is necessary to the discharge of our social duties,
and to the preservation of our innocence, our liberty, and our
lives. Many are the complaints which I have heard from fo-
reigners upon the inequalities and rigour of our penal code; and
pained I was that Mr. Bentham, when writing to a self-appointed
and tumultuous assembly of legislators in France, should speak
with exact truth of his own country in the following terms:
“In England the business of promulgation is a very simple
affair. In the body of every act of Parliament a day is specified,
in which it shall be considered as being in force. Nothing is
done to circulate it by King, or Judges, or any body else; but
a copy is given to the King’s printing office, where it is printed
in an obsolete and obscure type, and inconvenient folio form, and
sold, as may be expected under a monopoly, at a dead price, and
there it lies for the use of any one that has money to spare to buy
it, and thinks it worth his while to do so, Every man is then
supposed to know and understand the law.”+

* See page 15 of Bentham’s Observations on the Judicial Es-
tablishment proposed in France.

+ Bentham’s Observations, page 15.

NOTES. 947

The facts above mentioned are equally notorious and lamenta-
ble I leave it with other men to determine upon the accuracy
of Mr. Bentham, when, speaking of persons who are supposed
to know and to understand the laws, he says, ‘ Juries excepted,
who, when they have taken upon them to pronounce a man
guilty of having violated the law, are held not to have decided
upon the law, it being impossible that they should understand it.”

All the good ends of promulgation might be answered, if sta-
tutes recently passed were read in every congregation soon after
the close of a session of Parliament, and if an abstract of the
penal laws, including both the old and the new, were communi-
cated in the parochial church of every county a Sunday or two
before the assizes. The expense of copies printed on a small
type might be defrayed by the parishioners themselves, and it
would not be very considerable, as new penal statutes are not
passed every year.

With improvements in the promulgation of our laws is con-
nected the use of such details, and, if possible, such terms as
may render them intelligible to the bulk of the community. I
adverted to this subject in page 144. But I think it is of such
moment, and I see such little attention paid to it in general
practice, that I shall venture to resume it.

If it be right to appoint well-educated instructors for explain-
ing and urging those duties which the moral faculties of the
mind most easily apprehend, and most readily approve, it must
be equally right to guide their judgments, to refresh their memo-
ries, and to alarm their caution upon those arbitrary modifica-
tions of justice which are introduced by penal statutes—modifi-
cations which do not and cannot present themselves to the un-
aided common sense of subjects—modifications, in the observ-
ance of which the welfare of society is supposed to be deeply
interested by the persons who framed them. We all know the
force of present objects, and there is reason to think that even
they who are too listless on the spiritual concerns of futurity
will seldom dare to be inattentive, if the conditions on which they
are exposed to imprisonment, or exile, or death, were to be set
before them at a season when the mind is unrufiled by any selfish
or unsocial passion, and in a place which is well adapted to
awaken the most awful reflections. Will not the observation

248 NOTES.

which every man has occasion to make upon local circumstances
or personal character, recall to his thoughts more or fewer of the
particulars which are contained in the penal code? Will not
every serious hearer find opportunities for turning such and such
a statute into a topic of conversation with his neighbours, and
with his friends? Will not every master of a family be disposed
to expatiate and insist in the hearing of his servants upon some
point or other which has struck his own mind forcibly, or is
connected with the bad propensities he has observed in those
around him? Will not every parent be anxious to communi-
cate to his children such instruction, and such warning, as may
save them from infamy, from a dungeon, or from a violent
death ?

Pertinent and salutary topics never can be wanting to those
enlightened men who might be employed in preparing that reli-
gious discourse, which, by the command of Diocesans, ought to
accompany the public reading of the laws. With deference to
my superiors, I will take the liberty of mentioning one general
principle, which it might be useful to illustrate and to enforce
upon such an occasion.

I enter not into the political objections which a skilful dis-
putant, by putting extreme cases, might successfully urge against
the unqualified application of Bishop Berkeley’s doctrine upon
the duty of submission to government.* But I am sure that
the moral distinction which he points out between commands
and prohibitions,t+ cannot be too frequently stated, nor too ear-

* See Bishop Berkeley’s argumentative Sermon upon Romans,
chap. xiii. ver. 2, entitled, The Christian Doctrine of not resist-
ing the Supreme Power proved and vindicated upon the Princi-
ples of the Law of Nature. In the life of this excellent prelate,
published in London in 1784, it is said that “ in 1712 the prin-
ciples inculeated in Mr. Locke’s Two Treatises of Government
seemed to have turned his attention to the doctrine of passive
obedience ; in support of which he printed the substance of three
Common-places delivered by him that year in the College Chapel,
a work which afterwards had nearly done him some injury in
his fortune.”

+ I know not whether Bishop Berkeley had read Jeremy Tay-
lor. Where Taylor is examining those laws of nature with

NOTES. 249

niestly enforced. I add, that upon clear and sound principles of
analogy much of his reasoning may be transferred from divine to

which the Deity can dispense, he writes thus: *‘ Tf all can be
dispensed with, the consequents will be intolerable: if not all, by
what are they to be separated, since they all seem to be esta-
blished by the bonds of eternal reason ὃ Some say that the pre-
cepts of the second table are dispensible, but not the first. But
that is uncertain, or rather certainly false, for, if God did please,
he might be worshipped by the interposition of an image; or if
he essentially should hate that, as indeed in many periods of the
world he hath severely forbidden it, yet the second command-
ment, and the fourth, have suffered alteration, and in some parts
of them areextinguished. Others say that the negative precepts
are indispensible, but not the affirmative. But this is not true;
not only because every negative is complicated with an affirma-
tive, and every affirmative hath a negative in the arms of it, but
because all the precepts of the second table, the first only ex-
cepted, are negative, and yet God can dispense with all of them,
as I have already proved.” (Taylor, book ii. chap. 1.)

Taylor in this place confines the power of dispensing either
with the affirmative or the negative laws of nature to the Deity,
and therefore he supplies no rule for human action, except in
those extraordinary cases in which the Divine will is communi-
cated to us by express revelation. But in another part of his
work, ‘On the Interpretation and Obligation of Christian
Laws,” he states very clearly, and urges very forcibly, the dis-
tinction for which I contend, between affirmative and negative
precepts for the conduct of life. See book ii. chapter 3, where
he shews ‘‘ how far in negative precepts the affirmative are com-
manded, and in affirmative commandments the negative are in-
cluded. Every negative does not presently infer every contrary
affirmative as a matter of duty. From a negative an affirmative
is not always inferred ina particular instance. From a negative
law the affirmative is drawn, but not with the same degree of
duty or necessity, because negligence in sins of omission is not so
bad as malice; but in sins of commission the cause is always
positive, and therefore always intolerable. The affirmative which
is inferred by the negative law of Christ is not absolute and un-
limited, like a negative, but modificated and limited by its pro-
per and extrinsic measures, To this purpose is that known rule,
that negative precepts oblige always, and to an actual obedience
in all times, But affirmatives, though they always oblige, yet
they can be obeyed but in their own season. So that although
every negative precept is infinite and hath no limit, yet the
affirmative have extrinsic measures and positions of their own,

250 NOTES.

human Jaws—those I mean in which certain actions are forbid-
den, and certain penalties denounced against the commission of
them.

᾿ς Commands admit many gradations of obedience. They some-
times depend upon external circumstances of opportunity, time,
and place. They sometimes are, and from the nature of human
affairs must be, left to the discretion of moral agents. They
sometimes require such self-denial, or such magnanimity, as falls
to the lot of few. They sometimes may be unobserved without
positive mischief te society, or very heinous guilt in the offender.
But comparatively few are the distinctions which can be applied
to prohibitions. Thou shalt not steal—Thou shalt not bear
false witness—-Thou shalt do no murder—These are plain and
peremptory rules, from which every deviation is declared to be
criminal by the laws of God ; and surely, when the laws of man
interdict any action, it is of the highest moment to inform every
subject from whom obedience is required, that every violation
will expose him to some punishment; and in order to make the
general impression more distinct, more lively, and more perma-
nent, it must be of great use to inform him, yet farther, that to
this or that kind and degree of violation, this or that kind and
degree of punishment has been affixed by the authority of the
legislature. The evil of ignorance may in many instances be
great ; but the remedy for it is obvious and easy. One short
sentence, or even one member of a sentence, judiciously inserted,
may suffice to point out to a fellow-creature the first approach to
danger, and to rescue him from the snares of temptations hitherto

something to make them Jaws to me and you, though the conse-
quence of the negative is sufficient to make them to be laws to
all mankind. So that although negative precepts may be mo-
ther of affirmatives, yet the child is a dwarf, and not like the
mother, and besides that, it is exposed to be pursued by chance,
and by circumstances, by strangers, and all the measures of con-
tingency.” (Book ii. chap. 3.)

It is plain, that Taylor and Berkeley agreed in their general
principles. If the opinions of Taylor were extricated from scho-
Jastic phraseology, and brought home to the apprehension and
the conscience of a common audience, they might be introduced
with great propriety in a discourse upon the authority of human
laws enforced by the sanction of human punishments.

NOTES. 251

unknown to him by his experience, or hitherto unresisted by him
in thought. To discern all the allowances which are to be made
for ignorance is the peculiar privilege of a divine legislator. But
it is the bounden duty of every human legislator to take the ut-
most possible care that no man whatsoever remain ignorant of
that which they require him to avoid, and that which they have
doomed him to suffer.

Though it be very useful to show men the path which has
been prescribed for them by written laws, the work, I grant,
would be done imperfectly, unless they be farther protected from
other dangers, which may spring upon them from the ambus-
cades of interpretation.

“Jn the original and natural sense of the word interpreta-
tion,” says Bentham, “‘ every man not only has a right to inter-
pret the law, but is forced to do so, in as far as he is bound to
square his conduct by it. In the technical sense, if the right of
interpreting the Jaw belongs to any man, that man is a legislator,
and a legislator of equal authority with him that made it.’*
Now when controversies arise in the interpretation of written
penal laws, they arise, as Paley says,t ‘‘ upon contingencies
which the composer of the law did not foresee,” or, I would add,
upon ambiguities in the phraseology which cannot be adjusted
without great sagacity, and “a memory stored with long-col-
lected erudition.” The liberty then “ of applying the law, which
is unavoidably in such cases assigned to Judges, and which falls
very little short of the power of making it, carries with it an
authority which appertains not only to the conclusions which the
court delivers, but to the principles and arguments upon which
they are built.” I believe, that English Judges generally do
look beyond the case before them, and reflect whether the prin-
ciples, miaxims, and reasonings which they adopt and authorize,
can be applied with safety to all cases which admit of a compa-
rison with the present. The decision of a Judge may be wise
and equitable, and being once made, it will necessarily have the
force of precedent in the trial of future offenders. But as the
bulk of mankind cannot be supposed to understand our penal

* See Observations on the Draught of a Code, &c. page 19.
+ Chap. 8,

952 NOTES.

law in the sense which had not been previously affixed to it by
the judges themselves, I think it very unjust that an offender
who stands condemned in the first instance of interpretation
should suffer death. Though the mens mala by which he was
actuated may be evident, yet he cannot be accused of having in-
tentionally violated a law which in truth was not understood by
himself, or by other men. But I fear that upon some occasions
the moral malignity of the offence has exposed the criminal to
the most rigorous consequence of legal interpretations, unknown
before even in our courts. As the interpretations of which I
am speaking have, and ought to have, the force of statutes, it
were well if the substance of them were compressed into clear
and correct language, incorporated with the abstract of our
penal code, and announced publicly in every parochial church.
But who, it may be asked, is to be employed in supplying that
language? Clerks in office are not easily weaned from their
fondness for the tedious tautologies, and crabbed phrases, which
pedants impertinently contrast with laconic conciseness, and
attic elegance. Attorney Generals are too keen in the chace of
their nobler game among the enemies of the State to waste
their skill in the petty and inglorious toils “τῆς Gwaypias.”
Learned and stately Judges, though in the cause of huma-
nity they might deign to exercise the authority of critics, can
not be expected to stoop to the drudgery of becoming epito-
mists. The case, however, is not quite hopeless. Let a man
gifted with sound sense and a tolerable degree of patience
stand at the elbow of a good Jawyer, who is not very supercili-
ous nor very pertinacious,

**Verbaque provisam rem non invita sequentur.” *

Is it possible that statutes for the infliction of death could
pass with the rapidity which we have sometimes witnessed, if
every legislator, laying his hand on his heart, were to reflect on
the sound and solemn language of Blackstone? “To shed the
blood of our fellow-creatures,” says he, “ is a matter that requires
the greatest deliberation, and the fullest conviction of our own
authority ; for life is the immediate gift of God to man; which

* Hor. de Art. Poet.

NOTES. 253

neither he can resign, nor can it be taken from him, unless by
the command or permission of Him who gave it, either expressly
revealed, or collected from the laws of nature or society by clear
and indisputable demonstration.” *

Yet it were an insult upon the national character to suppose
that our legislature either enacts severe laws, or abstains from
the discussion of those which ought to be repealed, in conse-
quence of deliberate or habitual inhumanity. But their inatten-
tion is much to be deplored. When laws either for the exten-
sion of power, or for the preservation of liberty, are proposed,
ambition or patriotism rouses the attention of speakers and
hearers, parties stand in array against parties, and the merits of
measures are discussed with ardour and precision. But if
the repeal of a penal statute be recommended, the timorous
shrink, the lazy retire, and they who reflect or feel are some-
times borne down by trite maxims, which are utterly inapplica-
ble to the question—or by pompous harangues upon the excel-
lence of the constitution, which neither directly nor indirectly
would be injured by a favourable result—or by tedious details
upon the remedial properties of capital punishment, while the
evil which it involves in the destruction of individuals, or by the
example of barbarity it affords, are under-rated, and while the
instances + in which it fails for the purposes of prevention are
overlooked. +

He must be a negligent observer of human life who supposes
that the superstition of man is confined to regulations which re-
spect religion. The reasoning of Cato upon such regulations
may be applied to other subjects. ‘‘ Ubi legum nomen preten-
ditur erroribus, subit animum timor, ne peenis, que iniquiz
sint, levandis sani juris aliquid immixtum violemus.Ӥ Upon
such occasions we seldom fail to meet with well-meaning objec-

* Book iv. chap. 1. + Beccaria.

¢ Afterall that has been written on the want of efficacy and the
want of proportion in our laws, it is most unreasonable for ob-
jectors to the revisal of them to talk ‘‘de causis incertis, eoque
difficilioribus remediis,”. Let the experiment be made. ‘ Nullus
- contentioni locus est in eo consilio quod nen potest laudari nisi
peractum.”—Tacit. Hist. lib. i, parag. 10 and 7.

ὁ Liv. lib. xxxix, par. 16.

254 NOTES.

tors whom, like Cato, ‘* oratores non solum graves, sed interdum
etiam truces esse scimus omnes, cum ingenio mites sint.” *

In legislation, as in all the other important concerns of social
life, I know “‘ bona consilia mora valescere,”’ + and doubtless, if
men could be trusted for perseverance in the pursuit of real
good, for readiness to embrace every real opportunity of obtain-
ing it, and for solicitude to distinguish between real and artifi-
cial difficulties, the exclusion even of seeming precipitation in
the amendment of our laws would be a most valuable advantage.
There is, however, little danger of such precipitation among
ourselves, because the public sentiment and the public language
of our countrymen have been long in favour of great and nu-
merous changes in our penal system, and because the task of
deliberating on such changes and preparing them for the view
of Parliament would, in all probability, be committed to men of
great observation, great sense, great honour, and great hu-
manity.

Speaking of other countries and other times, Beccaria has
eloquently described, ‘‘ that difficult and terrible passage from
error to truth, from darkness to light, when the violent shock
between a mass of errors useful to the few and powerful, and
the truths so important to the many and the weak, with the fer-
mentation of passions excited by the occasion, were productive
of infinite evils to unhappy mortals.” But have we much to
dread from such a shock? Can it be denied that upon the pro-
priety, and I had almost said the necessity, of revising our penal
code, persons distinguished by science and good sense, by pa-
triotism and loyalty, are alike accustomed to pour forth the most
serious complaints in their writings and their conversation?
Yet men, and 1 fear classes of men, may be found among us, not
only unwilling, as I have already said, to investigate, but un-
unwearied in their endeavours to repress investigation : and to
those who look deeply into the latent influence of prejudice,
habit, pride, and all the unsocial affections which are the usual
attendants of pride, it is not difficult to discover the cause of
this long-continued and much-lamented opposition.

* Liv. lib. xxxiv. par. 5.

7 Tacit. Hist. lib, i. par. 7. ¢ Cap. 42.

NOTES. 255

The repeal of the infernal statute de heretico comburendo, in
the time of Charles II. and a few other instances of repeal in
succeeding reigns, are events which every benevolent man will
contemplate with satisfaction. But in my mind they amount to
a very scanty compensation for the extension and enactment of
penal laws, which, in accommodation to the commercial in-
terests and the commercial spirit of the country, have been
strangely multiplied, and by which old and new felonies are
consigned to goodly correction from a personage who, by the
courtesy of Plato, has more than once been called * 6 ἄνθρω-
mos. * ‘© But what,” exclaims Beccaria, ‘‘ are the natural sen-
timents of every person concerning the punishment of death?
We may read them in the contempt and indignation with which
every one looks on the executioner,} who is nevertheless an in-

* Phzedo, parag. 65, et alibi, in Forster’s edition.

+ ‘ By the laws of the Romans,” says Mr. Eden, p. 327, “the
executioner was forbidden not only to appear in the forum, but
even to have any habitation in the city, and this was enacted
that the minds of the people might not be familiarized to the
idea of capital executions.” He quotes from Cicero, in his speech
pro Rabirio, the following words: ‘‘Carnificem non modo foro,
sed etiam ccelo hoc ac spiritu censorie leges, atque urbis domi-
cilio carere voluerunt.” I have heard that under the late French
monarchy the bourreau was compelled to wear his sword on the
right-hand side, as a mark of ignominious distinction,

In moderate governments,” says Montesquieu, “ἃ good
legislator may make use of every thing by way of punishment.”
—Book vi. chap. 9. But he can do more. While he takes care
not to violate our natural sentiments of justice and humanity,
he can infuse a greater portion of infamy into any punishment
without increasing bodily pain. He might employ the sabre,
not the axe, in the execution of murderers, and Englishmen,
like the Jews of old, might gradually be brought to think “ pe-
nam gladii esse turpissimam,’’—See Fabricii, Bibliothec. Antiq.
cap. 15. My readers may in the fourteenth and fifteenth para-
graphs of this chapter find a catalogue of the authors who have
written on the different kinds of punishment employed by
governments antient and modern. They who wish for informa-
tion de carnificibus veterum would do well to consult cap. 43,
vol. i. of Falster’s Amoenitates Philologice. If it be asked why
I so often refer to writers upon Crimes and Punishments, my
answer is, that not belonging to the profession of the Law, I am

256 _ NOTES.

nocent executor of the public will; a good citizen, who contri-
butes to the advantage of society ; the instrument of the general
security within, as good soldiers are without. What then is the
origin of this contradiction? Why is this sentiment of mankind
indelible to the scandal of reason? It is that in a secret corner
of the mind, in which the original impressions of nature are still
preserved, men discover a sentiment which tells them that their
lives are not lawfully in the power of any one, but of that neces-
sity only which with its iron sceptre rules the universe.” *

“Τὸ vindicate the multiplicity + of capital offences which the

unwilling deservedly to expose myself to any contemptuous
question, similar to that which a person who had been talking
confidently de rebus ccelestibus once provoked from Diogenes,
“* Ποσταῖος πάρει ἀπὸ τοῦ ovpavov.’—Diog. Laertius, lib. vi.

* Cap. 28.

+ ‘‘In the Lent Circuit of England no less than two hundred
and eighty-six persons were capitally convicted in 1786, and the
annual amount of those transported is from nine hundred and
sixty to a thousand.

“410 is needless to make observations on these striking facts,
which prove conclusively that the severity of the laws, instead of
preventing, is frequently the cause of crimes. The humanity of
mankind revolts at the strict execution of them, and the hopes
of impunity become a source of temptation. To this Mr. Howard,
among others, traces the mischief: ‘and yet,’ he adds, ‘ many
are brought by it to an untimely end, who might have been
made useful to the State.—Laz. 221. No one will deny the
justice of this last observation, when they learn from the mouth
of the Solicitor General of England, ‘ That of those who are exe-
cuted eighteen out of twenty do not exceed twenty years of
age.’—18 Parl. Reg. 22.

“115 difficult to conceive how a free, humane, and generous
people should so long have endured this weak and barbarous
policy.” —Bradford’s Enquiry how far the Punishment of Death
is necessary in Pennsylvania, p. 61.

The work from which the foregoing quotation is taken,
abounds with important observations upon jurisprudence, and is
written with great elegance of style. Mr. Bradford had for many
years holden the place of Attorney General in Pennsylvania, and
was called by Washington to fill the office of Attorney General
for the United States, His well-meant and well-directed labours
were not without effect in America, ‘The different form of go-
vernment, and the different interests and manners of society,

NOTES. 257

laws of England are accused of maintaining beyond those of
other countries,” Dr. Paley thinks it “‘ sufficient to vindicate the
lenity of the laws, that some instances are to be found in each
class of capital punishment which require the restraint of capi-
tal punishment, that this restraint cannot be applied without
subjecting the whole class to the same condemnation; that
these laws were never meant to be carried into indiscriminate
execution, and that the legislature, when it establishes its last
and highest sanctions, trusts to the benignity of the Crown to
relax their severity as often as circumstances appear to palliate
the offence, or even as often as those circumstances of aggrava-
tion are wanting which rendered this rigorous interposition ne-
cessary.’* Ido not know that in any European State Jaws in-
flicting death are intended to be indiscriminately executed. I
do know that under governments less mixed than our own
‘* clemency,” according to Montesquieu,f ‘‘is the characteristic
of monarchs, and that, however easier it may be to feel than to
describe when it is proper to punish, and when to pardon, dan-
gers from the exercise of clemency,” if great and real, “are
visible.” Far be it from me to intercept the mercy which among
ourselves flows from the Throne. But the frequent necessity of
exercising that which is called mercy, has induced many men to
suspect, that what is called justice in the laws sometimes de-
serves another name. Ifthe proportion between those who suf-
fer after condemnation, and those who are spared, were very
great, we should no longer endure the laws.t If it be, as Dr.

mnay require some caution in the application of his principles to
the English laws.. But his book deserves very serious attention
from every person who laments the severity of those laws, and
who may hereafter be engaged in the amendment of them. —

* Chap. ix. + Book vi. chap. 21.

1 Of ninety persons who in the space of twenty-three years
were convicted at the Old Bailey, previous to 1771, there were
but twenty-two executed, which is less than a fourth. See Jan-
sen’s Tables, and Bradford, page 62. But in other years the
catalogue of sufferers is more dreadful. From the Tables in
Howard's State of Prisons. we learn that, “ αἵ the different Assizes
within the Oxford Circuit, for seven years from 1764, six hun-
dred and ninety persons were tried, and six hundred and fifteen

VOL. IV. 5

258 | NOTES.

Paley justly describes it, very small, we shall find it difficult to’
justify the laws, as they now stand. The spirit of juries, the
spirit of judges, the spirit of the people, and the spirit of their

acquitted ; besides two hundred and ninety-three discharged by
proclamation. Within the Home Circuit, from 1764 to 1770
inclusive, one hundred and fifty-nine burnt in the hand, ninety-
six whipped, and three hundred and eighty-six acquitted. In
the Norfolk Circuit, from 1750 to 1772, four hundred and
thirty-four condemned to death, and only one hundred and
seventeen executed. In the same space of time, for the Midland
Circuit, five hundred and eighteen condemned to death, and one
hundred and sixteen executed. And at the Old Bailey, London,
from 1749 to 1771 inclusive, one thousand one hundred and
twenty-one sentenced to die, and six hundred and seventy-eight
executed.—This note is taken from page 78 of a Visit to the
Phiijadelphia Prison.

*‘Government,” says Mr. Bradford, page 13, “‘is an experi-
mental science: and a series of well-established facts in our
state is the best source of rational induction for us.” Mr. Brad-
ford has given us a Table exhibiting a view of the number of
persons convicted of all capital and certain other crimes in Penn-
sylvania, from 1779 to 1792. Ina work on the Prisons of Phi-
Jadelphia, published in January 1796, there is a Table of Con-
victs from January 1787 to March 1795. In the Appendix to
Mr. Turnbull’s book, called, A Visit to the Philadelphia Prison,
there is one table of punishments for several heinous offences, as
established by the laws of Pennsylvania, and another of offences
committed in the city and county of Philadelphia, from January
1, 1787, to June 1791, being a period of the last four years and
five months under the old criminal system. In page 266 of vo-
lume sixth of Liancourt’s Voyage des Etats-Unis D’Amerique,
fait en 1795, 1796, et 1797, there is a Tableau du nombre et de
l’espece des Convicts pendant les quatre derniéres années de
l'ancien systéme, et les quatre premitres du nouveau. I am ac-
quainted with no other tables of English convicts except Jan-
sen’s, published in Howard’s Lazarettos. If our penal code
should ever be reformed, I am sure that it will be thought right
to ascertain the effects of the measure by well-constructed tables;
and the perspicuity and precision of those which have appeared
in America furnish us with excellent models, The reformation
itself would be facilitated, if tables were prepared of convictions
at Quarter Sessions and Assizes in every county, of executions,
of pardons, of commuted punishments, and of the offences com-
mitted after the expiration of long imprisonment or exile, from
the restoration of Charles II. or at least the accession of Wil-

NOTES. 259

prince, are doubtless on the side of lenity. But if we look into
the penal code itseif, what do we read in almost every page?

“1, LICTOR, COLLIGA MANUS—CAPUT OBNUBITO — ARBORI
INFELICI SUSPENDITO.” *

Such, in this country, the land of arts, of freedom, and of a
pure and reformed religion, such, I say, is the ‘ lex horrendi
carminis” + against more than a hundred and seventy of-
fences. { But what, I ask, before earth and heaven—what is
the language of common sense, of philosophy, of humanity, of
religion, to a judge who should avowedly endeavour to enforce

liam III. to the present time. Conspicuous would be the figure
of acertain annus mirabilis between 1780 and 1790. ‘“ Then
stood up” common sense, ‘‘ and prayed,’ and in some quarters
‘* the plague ceased.”

They who have read Goldsmith’s Citizen of the World will not
think unfavourably of him as an observer upon national manners.
The rigours of our penal code, and the effects of it, did not escape
his notice. ‘‘I cannot tell,’ says he, “ whether it is from the
number of our penal laws, or the licentiousness of our people,
that this country should show more convicts in a year than half
of the dominions of Europe united.” Mr. Bradford, who quotes
the foregoing passage from Goldsmith’s Chinese Philosopher,
adds, ‘‘ Wendeborn, an intelligent German, who resided some
time in England, assures us that the punishment of death is
more frequently inflicted in England than in all Europe together,
in the same space of time.”—Bradford, page 60, 1 lately read
in one of our newspapers, that the King of Sweden, after be-
stowing high praise upon the constitution of England, the vir-
tues of its Sovereign, and the bravery, loyalty, and magnanimity
of the people, expressed deep concern upon the severity of our
penal laws. The opinions of foreigners, and especially of mo-
narchs, upon this subject, are more likely to be correct and im-
partial, than the judgment they pass upon political measures or
political principles,

* Vide Orat. pro C, Rabinio, par. 2.

t Vide Liv. lib. i. parag. 26.

1 Since the statement made by Blackstone, the number of
capital crimes seems to have increased, for in 1786 Capel Lofft,
as quoted by Jebb on Prisons (page 96), states them as follows :
* Felonies without clergy, one hundred and seventy-six ; felonies
with clergy, sixty-five.’ The number has since increased by
punishments for mayhem and forgery.

3s 2

_

260 NOTES,

such a system with undistinguishing and unabated rigour? It
was written upon the tablet which an upright and intrepid fa-
vourite sent to his Imperial Master presiding in a Roman tri-
bunal,

‘“ SURGE TANDEM CARNUFEX. *

I have been present when English Judges + sitting on the
bench, took occasion to mention the number of capital crimes ;
and it required little penetration to discern that with all their
rooted sense of official duty and decorum, and all their humane
solicitude to warn the surrounding multitude, they were inwardly
not quite at ease with some provisions in the laws which they
were authorised to administer, and of which they sufficiently un-
derstood the original grounds, and the practical effects. 1 have,
also, now and then witnessed very slight emotions of sorrow from
the ““ dreadful notes’ of a sentence, which, if it had been pro-
nounced by my own lips, would have tortured my mind, as it is
now formed, with anguish unutterable, and the recollection of
which would have disturbed my slumbers for days, and months,
and years. But it may sometimes be unfair to set up our own

* Vid. Dio Cassius, lib. lv. par. 7.

+ With the general conduct of our own Judges let us contrast
what we read of the Scotch Judges, when ‘‘ employed in the per-
secution of Congall and his intrepid followers. The effect of this
heroic constancy upon the minds of their oppressors, was to per-
suade them not to Jessen the number of executions, but to render
them more private, whereby they exposed the true character of
their government, which was not severity, but violence; not jus-
tice, but vengeance ; for example being the only legitimate end
of punishment, where that is likely to encourage, not to deter.
(as the government in this case seems to have apprehended),”
and “ consequently to prove more pernicious than salutary, every
punishment inflicted by the magistrate is cruelty—every execu-
tion, murder.” —Mr. Fox’s History of James the Second, chap. 2.
page 117.

I have already expressed my disapprobation of capital punish-
ments inflicted in private; and they are more especially to be
dreaded in real or pretended offences against the state. I repeat,
what I before said, that the cases in which even a lighter punish-
ment might be privately inflicted, must be very few. The offence
should not be heinous, and the sense of shame in the sufferer is to
be spared, lest he become hardened,

NOTES. 261

opinions and feelings as the measures of right to other men, and
it is always dangerous to assume, that in situations hitherto un-
tried, we should ourselves be superior to other men in circum-
spection, or philanthropy. If a larger portion of mildness were
infused into the laws themselves by the interposition of the legis-
lature, there would be less room for sternness in the judge, or
dissatisfaction in the observer.

In the administration of the civil code there is often little scope
for compromise between the contending parties. What one
gains the other must lose. “‘ That,” says Hale, ‘‘ which preserves
the rights and property of one man, may and must thwart what
another mistatingly thinks his right.” * But some rule or other
governs the decision, and the property remains in the state,
though the proprietors be changed. The regulation of the con-
ditions on which it is claimed may often be attended with great
difficulties, and therefore in the mixed and fluctuating state of
human affairs there must be great danger in very sudden and vio-
lent alterations, to which the opinions and the pursuits of men
could not be easily accommodated. But the reformation of the
penal code does not seem liable to similar objections. Punish-
ments may be mitigated, but not abolished. The offender must
still be doomed to suffer, and if the laws make his sufferings in
general opinion proportionate to his offence, he will have less to
hope from the ill-directed pity of those by whom he is to be
tried, and he will have more to fear from their well-directed
sense of justice.

As nations become more populous, and more civilized, fresh
difficulties in the administration of their civil code will inevitably
arise from the diversified modifications of property, and the mul-
tiplied collisions of interest. But I believe that with our own
growing population the number of offenders against penal laws
will not be found to be much increased, and after long inquiry I
am convinced that the malignity of their offences has been gra-
dually diminished by the progress of civilization, that men are
less accustomed to lurk in solitary recesses, that they are less able
to form and execute their plots in armed confederacies, and less

* Cap. 2, on the Amendment of the Laws,

262 | NOTE.

disposed to add sanguinary violence to open robbery. The class
of those who violate the laws made for the protection of the pub-
lic revenue is, perhaps, somewhat more numerous. But the
laws themselves have increased in number and severity, and I
shudder at the recollection of some instances in which they have
been executed with a degree of rigour not very honourable to a
free and a Christian country. Such laws, with such tremendous
penalties, ought to be passed with the utmost circumspection and
reluctance, because it is possible that the fleeting interests or the
corrupt views of statesmen will have a most undue influence
upon the execution of them, and because the fountain of mercy,
which is open to other and more depraved wretches, may some-
times be shut against the criminals of whom I have been speak-
ing.

Mr. Bentham, when pointing out the mischiefs resulting from
the unpopularity of a punishment, properly observes, that ‘< na-
tions are liable to have their prejudices and their caprices, which
it is the business of the legislator to study and to cure,—that
even the unmerited want of popularity introduces weakness into
the law, when the people being dissatisfied with it withhold their
assistance in the execution of it,—and therefore, that it is the duty
of the legislator to correct their unreasonable dislike, and to give
them such instruction as may prevent them from quarrelling
with their own interest.” * But the laws to which I advert owe
their want of popularity to the excess of their rigour, and it is
utterly impossible to defend them upon any principle of utility.
““ For it is a false idea of utility which, sacrificing things to
names, separates the public good from that of individuals.” Ὁ

It required an effort from me to believe that I was treading
on the soil of England, when the fate of a person who some time
ago had violated one of our modern statutes, was first made
known to me. The evidence upon his case, I thought, was clear
—the judge and jury were impartial—the sentence, after much
discussion, proved to be legal. But the law itself is very harsh.
The violation of it gives no great shock to our moral feelings,
and to prevent the crime forbidden in it by death, seems to set

* Vid. cap. 15. +t Beccaria, chap. 40.

NOTES. 263

political reasons at variance with our common apprehensions of
justice. As to certain persons, who from their official situations
might without impropriety have advised the mitigation of the
punishment to a first offender, it is quite impossible for me upon
this occasion to commend them as ministers, or to esteem them
asmen. But I confidently looked for better things from one
statesman, who in genius and magnanimity towered above all
his colleagues, and who has since been summoned before the tri-
bunal of that Being, who “hath no respect of persons,” and
“who turneth” not “ judgment into wormwood and gall.”

Eagerly, however, do I seize this opportunity of paying a
public and grateful testimony to the memory of the illustrious
person to whom I just now alluded.* Disregarding the differ-
ence of our political sentiments, he at my request gave the fullest
effect to my exertions for saving an unfortunate person who had
committed the crime for which he was on the point of suffering
death, but was guiltless of some aggravations hastily imputed to
him ; and who by the diligence, sobriety, and honesty which he
has uniformly manifested for the space of twenty-five years from
the time of his deliverance, has fully justified the opinion I had
formed of him, and amply repaid to society the mercy shewn to
hirn by the executive government.

If] had not known the want of caution (for I will not call it
the want of humanity,) which sometimes steals upon the minds
even of legislators, I should have supposed that some of my
countrymen had come fresh from their studies in the laws of
Japan,t where almost every offence is punished with death, be-
cause it is an offence against the great emperor, or that they had
been seized at the moment with the fanaticism of the Stoics:
*‘Horum sententie sunt ejusmodi; viri esse neque exorari
neque placari; neminem misericordem esse, nisi stultum, et
levem; omne delictum scelus esse nefarium, nec minus delin-
quere eum, qui,cum lex Cornelia nummaria vetuerit, pictas
chartas dolo malo insigniverit, quam eum, qui latro aut sicarius
fuerit.” Τ

--

* Lord Rosslyn,
+ Vide Montesquieu, book vi. cap. 18.
¢ Vid, Cicero, Orat. pro Murena, and Horat. lib. i. sat. 4.

264 NOTES.

Hard upon some occasions seems to be the lot of frail man,
beset upon one side by the moralist with his notions of guilt, and
on the other by the politician with his solicitude for prevention.
Are the most natural and salutary feelings of the heart wounded,
as in cases of murder and aggravated robbery? “ Let the offender
be cut off,” exclaim both the moralist and politician, for different
reasons, it should seem, but with the same effect. Are those
feelings languid, as in other cases they sometimes appear to be ?
‘«« Let the defect of their vigour be supplied,” says the politician,
““ and let us look for that supply where we are sure of finding it,
in capital punishments.”” To the legislator who reasons thus, I
should calmly reply, “ In the present state of things * I accede to

* I say the present state of things, because it is conceivable
that even in our own country, capital punishment may at some
distant period be abolished. I presume not to decide the awful
question, “‘ Has the legislature a right to enforce its own laws
by the death of the transgressor?’’ Blackstone (cap. 1. lib. iv.)
says, that ‘‘ persons of some abilities have doubted it;’’ and J
know men of very great abilities, who entertain the same doubt.
The horror of the human mind at murder is just and universal,
and we read of the wise and humane Solon, “τοὺς Δράκοντος
vopous ἀνεῖλε, πλὴν τῶν φονικῶν arayras.’—Vid. Plutarch. in
Vit. Solon, vol. i. p. 87. edit. Xyland. Now the purposes of ex-
ample among ourselves may sometimes require the punishment
of a murderer by death. But the principle of incorrigibleness in
the offender is certainly not the ground of his punishment.
‘« Murder is not an habitual crime, as theft is, and consequently
the amendment of the guilty is a subject of more reasonable
hope.”—See page 35 of Observations on the Prisons of Philadel-
phia, by an European. ‘‘ Murder,” says Mr. Bradford, “in its
highest degree has generally been punished with death, and it is
for deliberate assassination, if in any case, that this punishment
will be justifiable and useful.” (page 35.) ‘ When we consider,”
says the same writer (p. 38), ‘* how different in their degrees of
guilt offences held to be murder, are from the horrid crime of
deliberate assassination, it is difficult to suppress a wish that some
distinctions were made in favour of homicides which do not an-
nounce extreme depravity.” In that wish I sincerely sympathise,
and I fear, too, that the distinctions made by the English laws
are too obscure and too few. But to the list of capital offences
proposed by Mr, Bradford, surely without any violation of huma-
nity we might add wilful and premeditated parricide—private
poisoning, where the evidence of the fact is very clear, and where

NOTES. 265

your first principle generally, and even in the second I might,
under some circumstances, acquiesce to any extent that does not

the causes of death are ascertained before the court by the testi-
mony, not of village surgeons and apothecaries, but of two or
more physicians, eminent for science and experience—murder,
connected with burglary, or robbery by night—and high trea-
son, when the laws upon this subject are completely disencum-
bered from such a mass of intricate and oppressive constructions
as makes it impossible for the bulk of English subjects to under-
stand the statutes which, under the penalties of death in its most
tremendous form, and of confiscation, they are now required to
obey.

Pens long thought with Mr. Bradford, that murder in ju-
dicial construction is a term “‘ too broad and comprehensive,” and
that in the laws of William Penn the words “ wilful and preme-
ditated” murder were wisely substituted for the technical phrase,
“malice aforethought.” Ifthe penal code of England should he
revised, I hope that this subject beyond all others will be serious-
ly and strictly examined, and especially that part of it which in-
flicts death for child-murder.. The reluctance of English juries
to condemn persons accused of that crime, is a proof that some
alteration may be made with safety. Child-murder in Scotland
is, 1am told, not punished in the first instance with death. “In
Denmark, (Vid. Bradford, p. 40.) women guilty of child-murder
are no longer punished with death; but are condemned to
work in spin-houses for life, and to be whipped annually, on the
day when, and the spot where, the crime was committed.”
** This mode of punishment,” Mr. Howard assures us, (Howard
on Prisons, page 74,) ‘‘ is dreaded more than death, and since it
has been adopted has greatly prevented the frequency of the
crime.”

«¢ An attempt was made to introduce asimilar alteration in the
laws of Sweden. It was recommended by Gustavus III. in his
speech at the opening of the Diet of 1786. But this innovation
was warmly opposed by the clergy; and the patriots to whose
consideration it was referred, were unanimous in advising the re-
presentatives of the nation to continue the punishment of death.”
The heinousness of murder is recognised even in countries
where the penal code has teen corrected. Murder, in the first
degree, is now a capital offence in America; and in Russia, pain
more terrible than death, both to the spectator and the sufferer,
is employed to mark the punishment. I presume not to point
out any regulations in the English legislature. But I hope tobe
excused for remarking, that one circumstance in our punishment
of murderers has always appeared to me exceptionable, As the

206 NOTES.

amount todeath. Est locus sententize per quam neque impro-
bis hominibus delictum impune sit, et nos clementiz simul ae

—_

proof of the crime often depends upon circumstantial evidence,
and as that evidence from its very nature must be in some degree
doubtful, | never was satisfied with the execution of murderers
within the space of forty-eight hours after their sentence. Sure-
ly speediness* has been confounded with certainty. TIf, after a
time, which the wisdom of the legislature may prescribe either
generally, or with express reference to particular kinds of proof,
no facts favourable to the convicted party should be discovered,
let him suffer judgment—let him perish on the spot where he
offended—and let his execution be accompanied by peculiar so-
lemnities.

God forbid that I should attempt to lessen our natural and sa-
lutary horror at the shedding of human blood. But in the sen-
timents of mankind towards the crime of murder, I have ob-
served that a large portion of revenge is always mixed with
moral disapprobation, and reflecting upon the indiscriminate
eagerness of men to punish a murderer with death, I have found
it resolving itself ultimately into the lex talionis, and accompa-
nied of course with strange inequalities. An eye for an eye, a

* In the Treatise de Specialibus Legibus, Philo says that the law for-
bad murderers by poison to live ‘¢ a day or an hour after their sentence,”
—the secrecy of the deed, the number of persons whom it may affect
when they are taking their food, and the possibility of committing it
between condemnation and death, are the reasons which Philo gives for
the speediness of punishment (vol. ii. pp. 315,316, edit. Mangey). I think
that the crime of poisoning, when it has been clearly proved, ought to be
punished with some circumstance, which should mark the horrid nature
of the act, though I should be sorry to see any re-enactment of the sta-
tute which passed in the reign of Henry VIII. and ordained that the “ of-
fender should be boiled to death in hot water ;” which actually was car-
ried into execution against Margaret Davy and some other persons, but
on account of its severity was repealed by 1 Edw. VI.chap. 12, and 1 Mar.
chap. 1. (See Dagge, vol. ii. p. 74.) I have great doubts, whether
speediness be the most proper expedient for marking the crime even of
poison ; and it is to be observed that the English laws appoint speedy exe-
cution for every sort of murder. The law in this respect is not of avery
ancient date, and when 1 consider the frequency of those cases in which
sentence of death is passed upon merely circumstantial evidence against
persons accused of murder, I think that speediness ought not to be indis-
criminately employed,

NOTES. 267

severitatis non poeniteat.”* But this summary way of proceed-
ing by capital punishments, though it may assume the appear-

tooth for a tooth, blood for blood, is rather the language of rage
in an offended individual, than of deliberation in a wise le-
gislator.

It is surprising to find Blackstone and other grave writers in-
sisting upon that scriptural passage in which we read, ‘‘ Whoso
sheddeth man’s blood, by man shall his blood be shed,” and from
which it has been inferred, that blood can only be expiated by
blood. Mr. Turner, in the second volume of the Memoirs of the
Literary and Philosophical Society of Manchester, considers the
text as a prediction, not a law; and in an Inquiry into the effects
of public Punishment, published in Philadelphia, it is said that
“the language of it is simply, that such will be the depravity and
folly of man, that murder in every age shall beget murder.”
(Page 15.) I accede not to either of these interpretations. The
text and the context evidently suggest to us the notion of a pre-
cept, connected indeed with a prohibition to eat flesh
with the life thereof, which is the blood thereof,” The pu-
nishment extends to every beast which kills a man, as well
as to every man who kills a fellow-creature. Rosenmuller,
in his Scholia in Genesin, thus writes, on the passage which
relates to beasts: ‘* Volo, ita vos sanguinem animalium eden-
dorum effundere, ut crudelitatem interim vitetis, ne earum
carnem simul cum sanguine comedatis. Videtur hic utrumque
includi, ne aut membrum ex animante adhuc viva palpi-
tans, aut etiam sanguis adhuc palpitans edatur.” “ Quam-
quam poenae, que proprie dicuntur, in bruta non cadunt,
tamen ea quodammodo poenas Juunt, cum propter violatos homi-
nes occiduntur. Hoc autem Deus ideo dicit, ut significet, quan-
tum ipse abhorreat humani sanguinis effusionem, propter quam
ne bestiis quidem, ratione carentibus, parci velit.” (Cap. ix. p.
102.) ‘The text then says, ‘“ And surely your blood of your lives
will I require; at the hand of every beast will I require it ; and
at the hand of man, at the hand of every man’s brother will I re-
quire the life of man. Whoso sheddeth man’s blood, by man
shall his blood be shed: for in the image of God made he man.”
(Genesis ix. 5.6.) Inthe notes of Le Clere there is much learn-
ed criticism on some of the Hebrew phrases, and a clear account
of the arbitrary and absurd distinctions which the Jewish doc-
tors have introduced between the judicial dispensations of
Heaven, announced in verse 5, and human punishments pre-

* Tacit. Annal. lib. iii. par. 11.

208 : NOTES.

ance of vigilance and zeal in the: public service, is in reality too
well adapted to the indolence or the pride of men in making

scribed in the next verse. Le Clerc has given the following ex-
planation of the passage: ‘‘ Bruta quidem, quorum dominium
ad homines pertinet, occidere licebit ; at hominem, qui ad in-
star Dei iis dominatur, et nemini nisi Deo absolutum omnibus
numeris obsequium debet, temere interficere nefas.’””’ But where
there is nefas, there must be punishment, and the punishment
ordained here is evidently death. If, however, we maintain that
death ought to be the punishment of bloodshed in consequence
of this precept, are we at liberty to separate it from the other
precepts about destroying the beast, and abstaining from blood,*
though indeed, to the last interdict no special penalty is annexed ?
Are we not bounden (if at all) to follow the letter of the precept,
which does not even hint a distinction between manslaughter
and murder, in every case to shed the blood of him by whom
man’s blood has been voluntarily shed? If discretionary inter-
pretation is to be admitted, what are its limits or its rules? Is
the precept imperative to Noah, and permissive only to us? Does
the passage contain merely a proof to us by the example of the
patriarchal age, that homicide may be punished with death, or
an authoritative direction for us to imitate that example? The
plain fact is, that from a precept intended for the use of Noah
and his family, and adapted to a very imperfect form of society,
no general rule can be drawn, which carries with it the force of
obligation to a civilized community of Christians. Instead of
contending for legal conclusions which the principles do not

I believe the precept here given for abstaining from blood,
to have been obligatory only in the Patriarchal ages. A similar in-
junction was, indeed, afterwards laid upon the Jews. We should
remember, however, that not only a similar, but an additional reason is
assigned for it.

ἐς Levit.xvii. 11. The life of the flesh is in the blood, and I have given
it to you upon the altar, to make an atonement for your souls; for it is
the blood that maketh an atonement for the soul. Therefore I said unto
the Children of Israel, no soul of you shall eat blood, ἄς. Here appears
the reason of this strict and often repeated prohibition: blood was ap-
pointed for the atonement of sin ; it was set apart and sanctified for that
purpose ; and consequently, when the use of the altar, and sacrifices
ceased at the death of Christ, the probibition of eating blood should cease
also, and the precept in the Acts of the Apostles seems to have been pru-
dential and temporary.” (Jortin’s Remarks on Ecclesiastical History,

vol. i. p. 215.)

NOTES. 269

laws, which they are themselves under little temptation to vio-
late. It presents itself readily to the coarsest understanding,

ΓΕ ΡΝ ΓΕ Ὁ eee

clearly warrant, I should infer from the whole passage this moral
lesson, that great tenderness is due to the life both of man and
beast.

The capital punishment of murderers in England may be jus-
tifiable ; but does not depend for its justification upon a passage
to which writers on jurisprudence so often appeal. I am farther
at a loss to see how the penal laws enacted even in later times by
Moses, can have any direct authority in Christian countries, if
we reflect upon the theocracy peculiar to the Jewish government,
or upon the ignorance and barbarous manners of the people to
whom those laws were originally given, <“‘ Severity,” says Mr.
Turnbull, “ might be expedient for the government of the Jews,
but the same policy cannot be said to suit nations whose man-
ners have been meliorated by time, and the influence of the doc-
trines of the Prince of Peace. He gave us so many precepts of
morality and forbearance, that none can assume the title of his
followers, and retain at the same time practice and principles
which in his divine mission he so directly forbids.” (Page 86,
of a Visit to the Philadelphia Prison, published in 1796.) Mr.
Bradford,(page 21,) states some facts about a nameless, but
most odious, and among ourselves, happily, a most rare crime,
which always provokes just and fierce detestation, and which,
in the opinion of many wise and virtuous men, it were better for
the laws to restrain by the most indelible and dreadful marks
of infamy, than, according to the directions of a statute which,
was passed in the reign of an execrable tyrant, and perhaps was
intended to facilitate his system of rapine, by holding up a cer-
tain much injured and much slandered class of his subjects to
public hatred. ‘‘ Those facts,” says Mr. Bradford, ““ may teach
us, like the capital punishments formerly inflicted on adultery
and witchcraft, how dangerous it is rashly to adopt the Mosaical
institutions. Laws might have been proper for a tribe of ardent
barbarians, wandering through the sands of Arabia, which are
wholly unfit for an enlightened people of civilized and gentle
manners.”

If Christianity itself is allowed to contain, not political regu-
lations, but moral rules of conduct, why should legislators, as
such, assign any authority to the Jewish laws in countries where
the Mosaical religion never was established, and where the pro-
gress of men in civilization and knowledge, their social interests,
their manners, their opinions, and their forms of government,
are widely different from those of the Jews ?

The communes intelligentiz, which more or less influence the

970 NOTES.

and you fly to it with little reflection,* though upon a collective
view of all the circumstances which ought to regulate your mea-
sure, it will be seen to require the greatest. You will find it
difficult to persuade the mass of mankind, that in planting such
terrible penalties around regulations of mere policy, you are act-

moral sentiments of Jews, Christians, and indeed all men ina
state of society, ought not to be confounded with the provisions
which the Jewish Lawgiver expressly made for his own people,
and for them only. ‘ Even in that very people,” says Hale,
““ although the text of the judicial law was that which was the
basis and rule of their government and policy, yet the wisdom of
Almighty God, even in the very giving of that law and divers
times after, upon variety of emergencies, instituted a clause for
the accommodation of things in the same state according to the
exigence of things and emergencies, viz. the great council of
that people, their Sanhedrim, and the governors of that people,
their kings. Upon the whole, therefore, 1 conclude, that that
law was contrived with most perfect wisdom for that people, and
during that state; and therein consisted, in a great measure, the
wisdom of it, in that accommodation. But to translate that law
to another people, to whom it was not accommodate, were a
wrong to the Divine wisdom.’”—Hale on the Amendment of the
Laws, chap. 2.

* In page 138 I had occasion to quote a passage in which
Johnson speaks of human laws,as “ the last effort of human rea-
son providing for human happiness.” But to this general en-
comium he has himself supplied us with a principle of exception,
when he telis us, ““ Laws are often occasional, often capricious,
made ‘‘ always by a few, sometimes by a single voice.” (Idler,
No. 11.) My general principles are, let Jaws be well considered,
before they are enacted. Let them be enforced with firmness
not wholly excluding mercy, while they are unrepealed. Let
them be repealed, when they are experimentally found to be in-
efficacious, or oppressive, impracticable without public inconve-
nience, or unjustifiable without technical subtleties. _Demosthe-
nes denied in “ eo pesitas esse fortunas Grecie, huc, an illuc
manum porrexerit.”” (Cicero, Orat. p. 157, vol. i. edit. Gruter.)
1 hold, that the life of the meanest citizen ought not to depend
on the uncertain judgment of those, who can tie or loosen the
“¢ Juris nodos,” and warp or straighten the ‘“ legum enigmata,”’
(See Juvenal, Sat. 8.) according to the minutest variations in
circumstances, or the supposed exigencies of the times. I be-
lieve however, that no Judge now living would have decided, as
Hale did at the Cambridge assizes, on the burglary 1 mentioned
in page 174 note 1,

NOTES. 271
ing for the public weal, rather than for purposes of your own
personal ambition, or your own peculiar interests. You teach
common minds to confound moral rectitude with political expe-
diency. You shock virtuous men by an appearance of novel
and wide disproportion between the offence and the penalty.
You throw an air of artifice and austerity over those restraints
which the judgment of civilized man cannot approve, and you
run the hazard of weakening his general respect for the authori-
ty and equitableness of the laws. Is it quite safe for you to con-
fess, that in appointing punishments you pay more regard to the
efficacy of statutes required by the temporary exigencies of the
state, than to the general spirit of your constitution, and the
most amiable sympathies of human nature itself? May not such
confession induce the offender to stand absolved in his own
mind from the common laws of morality; and to calculate pro-
bable loss and probable gain when he is tempted to commit
a crime, and ultimately “‘ patrati malle, quam incepti facinoris
reum esse ?”* You may, it is true, find your way to his fears ;
but you lose every hold upon the remaining force of his
conscience. You compel him to form and execute his plans
with redoubled secrecy, and you enfeeble his sense of duty in all
the private relations of social life. You may indeed crush him
by your power. But this has been done on trifling provocations
by other men, “‘qui cum reges sint, equam rem non imperitant.’’¢
Do not suspect me of pleading for impunity to the rash persons
of whom I am speaking. Take, if you please, very largely, but do
not cast away all humanity when you are taking advantage of the
well known and much abused maxim, ‘‘ Nec quies civium sine
armis, neque arma sine stipendiis, nec stipendia sine tributis ha-
beri queunt.’’{ Do not inflict the sharpest pain where it is im-
possible for you to awaken a natural, or even an artificial senti-
ment of shame.

Do not by any indirect sort of fiction introduce into your
statutes the majestas imperii, and thus imitate the Roman Em-
perors, who not only commanded coiners and all their accom-

* Tacit. Annal, lib. ii. par. 16.
t+ Horat. lib. ii, Sat. 8, 1 Tacit. Hist. lib, iv. par. 74.

*

972 NOTES.

plices to be excluded from amnesties, and to be burned to death,
but in the abundance of their financial zeal, subjected the pro-
prietors of the land on which the offence was committed to
banishment and the forfeiture of their estates. I do not en-
treat you to soften the rigour of the Laws which you make for
the protection of taxation, by infusing into them a very abundant
portion of the spirit which led Theodoric to order the Director
General of his demesne to remit taxes themselves: “ Ilud am-
plius nostris utilitatibus applicamus, quod misericordi humani-
tati concedimus. Regnantis enim facultas tum fit ditior cum
remittit, et acquirit nobiles thesauros fame, neglecta utilitate
pecuniz.”* But upon questions where the servants of the
Crown and the peculiar interests of it readily present them-
selves to the mind, would there not, let me ask, be a peculiar
propriety in attending to the preamble of a statute passed in the
reign of Mary, where it tells us, “‘ That the state of every King
consists more assuredly in the love of the subjects towards the
Prince, than in the dread of laws made with rigorous pain ; and
that laws made for the preservation of the commonwealth, with-
out great penalties, are more often obeyed and kept than laws
made with extreme punishments?’ ‘The exigencies of the
state may not suffer you to be generous. But do they require
you to wield the uplifted scourge against any offender who by
contrivances merely fraudulent diminishes the value of your ree
venues ?

I forget not, as I wish you not to forget, that “many of
our corruptions arise from the impunity of criminals, rather than
the moderation of punishments.” { Disappoint, then, if you
please, the expectations of escape in this class of offenders, by
relaxing the rules of evidence. ‘Transfer to your statutes the
principle which has been ‘so efficaciously employed against
coining, and by which the possession of implements suited to the
purpose was made evidence of guilt.” § Try if experience shews
it to be necessary, many kinds and many degrees of painful pu-
nishment. But abstain from the infliction of death upon an of-

* Cassiod. Van. lib. i. cap. 6.
t See this Preamble, quoted by Blackstone, book v. cap. 1.
¢ Vid. Montesquieu, cap. 13. § Vid. Paley, cap. 9.

NOTES 273

fence, which endangers not the peace of the community, which
is not connected with their business, but their amusements,
which renders “ not the state of society unsettled, by a sense of
personal insecurity,’ and which, after all your refinements, con-
sists, and will appear to consist in fraud, without any actual or
any possible mixture of violence. No enlightened inhabitant of
a free and a Christian country will apply to such a punishment
what was once said by C. Cassius, upon the punishment of Pe-
danius Secundus the Prefect: ““ Habet aliquid ex iniquo omne
magnum exemplum, quod contra singulos utilitate publicA re-
penditur.’’*

Theories, which, I confess, are not without their charms to
my mind, when, like that of Beccaria, they breathe a spirit of
pure and enlightened humanity, would never lead me to pro-
mote sudden and violent changes in the established usages of
social life. I know that the love of our species ought to be
adapted to the collective interests of those among whom and for
whom we are doomed to act, and that in balancing those in-
terests we have need of reason and experience as guides to our
best affections in the pursuit of their proper ends, and as re-
straints upon our imaginations in the vivid conceptions of ob-
jects which are simple, or detached, or bulky and near. I am
aware that some crimes extend their malignant effects far beyond
the appearances which accompany immediate overt-acts, and
therefore I would not, for the present, recommend to an Eng-
lish legislator the example of the Emperor Maurice, ‘‘ who made
a resolution never to spill the blood of his subjects ;” or of Isaac
Angelus, “who, forgetting that it was not for nothing that he
was entrusted with the sword, took an oath that no man should
be put to death during his reign.’+ But I do wish you to re-
member the questions which I have already quoted from Black-
stone: “Is it found upon further experience, that capital
punishments are more effectual? Was the vast territory of all
the Russias worse regulated under the late Empress Elizabeth
than under her more sanguinary predecessors? Is it now,
under Catherine II., less civilized, less social, Jess secure? And

sss

* Tacit. Annal., lib. xiv. par. 12.
Tt Montesquieu, lib, vi. chap. 21.

VOL, IV. T

274 NOTES.

yet we are assured, that neither of these illustrious Princesses
have, throughout their whole administration, inflicted the penalty
of death ; and the latter has, upon full persuasion of its being
useless, nay, even pernicious, given orders for abolishing it en-
tirely throughout her extensive dominions.”* I should farther
Wish you to reflect on the wise and humane language of Gro-
tius: ‘* Neque abs re erit Christianis rectoribus, saltem ex parte
aliqua, imitandum proponere exemplum Sabaconis Hgyptii regis
pietatis nomine laudatissimi, a quo capitales poenas in damnatio-
nem ad opus mutatas felicissimo successu narrat Diodorus. Τ
Notat Balsamo leges Romanas que mortis poenam irrogabant
a posterioribus Imperatoribus Christianis mutatas plerasque in
alia supplicia, quo et acrius damnatis inuretur pcenitentia, et
magis ad exemplum proficeret poena diuturnior.”’ t

The commentator on Beccaria tell us, that “ political san-
guinary laws are temporary, because they are not founded in
truth.” § I hope to see the day when this observation can be so
far applied to one of our statutes as to produce a repeal of that
part by which death is now denounced, and has been once in-
flicted. When that day shall arrive, they who advised the law,
and they who have executed it, may, with my approbation, take
the full benefit of the plea which Machiavel supplies for a single
instance of cruelty. ““ Recte crudelitatem adhibitam esse dici
posset (si quod malum est, de eo quid boni pronunciari da-
retur) cum quis necessitate adactus semel tantum, quo securum
se reddat, crudelitatem exercet ; nec amplius in posterum in ea
insistendum ducit, sed in subjectorum majorem utilitatem, ut-
cunque fieri possit, commutat. Quz autem perperam adhiberi
dicitur, ea est que initio, etsi rara est, multiplicatur tamen tem-
poris progressu citius, quam exstinguatur. Qui priorem ratio-
nem servandam judicabit, is tum penes Deum, tum homines,
aliquid remedii, uti Agathocles, habere conceditur.” ||

“« When a question,” says Blackstone, ‘‘ arises, whether death
may be lawfully inflicted for this or that transgression, the wis-

* Blackstone, book iv. chap. 1.

t+ Diodorus, Sicul. lib. i. cap. 65.

t De Jure Pacis Belli, lib. ii. cap. 20. § Cap. 14.
|| Machiavelli Princeps, p, 45.

NOTES. 275

dom of the laws must decide it ; and to this public judgment or
decision all private judgments must submit.” *

Be it so. Let “the subject be bound to receive the inter-
pretations that are given by the sovereign power.” But let
those in whom the sovereign power resides remember, that
the ‘‘ guilt of blood, if any, must lie at the door of those who
misinterpret the extent of their warrant.” Let them consider
in every country, that great must be that guilt, if in decreeing
the summum supplicium they forget that ‘all punishment in
itself is evil; that as the evil of crime is already past and irrevo-
cable, punishment is both a spontaneous and additional evil ;
that, in order to answer the purposes of example, it usually in-
volves much more evil than is contained in crimes ; that it ought
only to be admitted in as far as it promises to exclude some
greater evil,” and that no task can be more difficult, or more
important, or more meritorious, than to determine well where
“punishment is groundless—where it is inefficacious—where
it is unprofitable—where it is needless’’+—and, above all,
where it is mischievous and odious, because excessive. In this
land of freedom, more particularly, let them reflect on these
most serious truths; that “ excessive punishment, which cor-
rupts even a despotic government, diffuses its malignant influence
in a government which is free ;’ that “‘ where the people do not
observe the laws, the corruption is less dangerous than when
they are corrupted by the laws,” because the evil lies in the
remedy itself; that “‘ however cruel punishments, employed by
violent governments to redress abuses, may seem for a time to
put a stop to the evil, the imagination grows accustomed to the
severe as well as the minor punishment; that where the
minds of the people have been in any degree corrupted by too
great severity of punishment, a wise legislator will, in particular
cases which admit of indulgence, mitigate the punishment, till
he shall be able to extend this mitigation to all cases: that ab-
surd and brutal practices have in all ages been justified on the
footing of pretended necessity,t and have received the sanction of

--

* Blackstone, book iv. chap. 1. + See Bentham, chap. 18.
+ In many countries certain classes of severe laws have been

Ὁ

276 NOTES.

laws ; that the essence of right and wrong does not depend on
words and clauses in a code or statute book, much less upon the
conclusions and explanations of lawyers, but upon reason and
the nature of things, antecedent to all laws; that virtue itself
is but perfect reason, and that an enlightened nation having rea-
son for its guide, will never call for general assent, or urge any
supposed necessity, in vindicating usurpations on the natural or
social rights of mankind.” *

Readily enough do we in our closets acknowledge the sound-
ness and the importance of the foregoing principles ; and if they
were engraven upon our hearts, when we are called to the
sacred duties of legislation, there would be less room for a
remark, which the best and wisest of men have been compelled
to apply to many regulations established in our own country,
and to some, perhaps, introduced in our own age. ‘‘ England,”
says Mr. Bradford, ‘‘ contenting herself with the superior wis-
dom, humanity, and justice of her Jaws in all respects but one,
and too fond of “ the ancient order of things,’ has alone remained
stationary. The nation, indeed. is fully sensible of the evil which
attends a multitude of sanguinary laws, and the government it-
self begins to be alarmed with the magnitude of the mischief.
Judge Blackstone was active in prosecuting a reform, and Lord
Ashburton, it is said, was prevented by his death from bringing
forward in Parliament a plan for that purpose.” +

“41 hold it,” says Montesquieu, ¢ “‘ to be an essential point that
there should be a certain proportion in punishments, because it
is essential that a great crime should be avoided rather than a
small one, and that which is more pernicious to society, rather
than that which is less.” Hence he concludes “ that some
difference should be made between the punishment of a person
who robs on the highway, and another who robs and murders.”

protected by the plea which was once adduced for false accusa-
tions, plunders of the wealthy, and other bad practices in the go-
vernment of the Roman Emperors; ‘ Que gravia atque intole-
randa, sed necessitate armorum excusata, etiam in pace mansere.”
—Tacit. Hist. lib. ii. par. 24.

* See Montesquieu, book vi. chap. 12 and 13, and Dagge,
chap. 5, sect. 1. + Page 51. t Book iv. chap. 12.

NOTES. 277

Beccaria carries the difference to the utmost point when he main-
tains, that “ the punishment of robbery, not accompanied with
violence, should be either pecuniary, or that kind of slavery
which makes society for a time absolute master of the person
of the offender, and of his labour to repair his usurpation over
the property of another, and that corporal punishments should
be added to slavery, when robbery is attended with violence.” *

No such distinction is made with us even in England, where
our crown law, according to Blackstone, + ‘‘ is supposed to be
more nearly advanced to perfeetion than in other nations.” It
were easy, surely, to introduce into our statutes some distinction ;
to appoint death for robbery in the first instance, when it is ag-
gravated by great violence, and to make simple robbery capital
upon a third or fourth repetition. ᾧ

“It has been proposed,” says Blackstone, § ‘‘ that in every
state a scale of crimes should be formed, with a corresponding
scale of punishments, descending from the greatest to the lowest.”
But Beccaria himself, by whom this scale was suggested, does
not seem to think that it could be applied with precision to the
obscure and infinite combinations of human action. He places,
indeed, in the first part, those crimes which immediately tend
to the dissolution of society; in the lowest, those which do
the smallest possible injustice to a private member of that
society ; and between these extremes he puts all actions contrary
to the public good, and which descend by insensible degrees, de-

* Chap. 22. + Book iv. chap. 4.

1 Speaking of thieves who had been discharged, and had re-
turned to their old vocation, Mr. Bradford observes: ‘* of all of-
fenders these are the most incorrigible. Other offences are
seldom repeated; but a person once devoted to any species of
theft is seldom reclaimed by any terrors he has undergone or
any mercy he has received. Reformation, though not impossi-
ble, must be the work of much time.”’—Page 98, Mr. Bradford
imputes these evils to the defects of the old system, and the fre-
quency of pardons. ‘ Those defects,’ he says, “ were corrected
by the system of 1790, the execution of which has been diligently
attended to by the inspectors ; and the prerogative of pardon,
since it has resided in a single magistrate, is no longer weakly
exercised.”’—Page 24.

§ Book iv. chap. 1.

278 | NOTES.

creasing from the highest to the lowest. But he adds, that it
will be sufficient for a wise legislator to mark the principal di-
visions, without disturbing the order, lest to crimes of the first
degree be assigned punishments of the last.” Blackstone, whose
theoretic notions were perhaps corrected by practice, doubts
whether a corresponding scale of punishments be not too roman-
tic an idea, But he in effect agrees with Beccaria, when he
says, that ‘‘a wise legislator will at least mark the principal
divisions, and not assign punishments of the first degree to
offences of an inferior rank.” Does not Blackstone admit that
death is the highest punishment which man can inflict, and
therefore is appointed for the murderer? But if the highest
punishment be also inflicted on the robber, the inconvenience
which Blackstone himself states has arisen, and ever will arise, that
when no distinctions are made in the gradations of the punish-
ment, ‘* the generality will conclude that there is no distinction
in the gradations of the guilt.” Such a conclusion they might
always draw if the law written on the tablets of their hearts
did not compel them to distinguish where the law had not ; for
as to the speediness of punishment, or dissection, or hanging in
chains, * they are aggravations of punishment which suggest no
idea of pain, and which bear very little proportion indeed to the
difference of guilt between the murderer and the robber.

** Nice and particular distinctions upon the degrees of guilt in
crimes of the same nature are particularly mentioned and observed
upon by Ant. Matthzus, Grotius, Puffendorf, and other writers ;
but an attention to such subtle distinctions does not properly
fall within the province of a legislator; for it is impossible for
laws to anticipate and distinguish the particular circumstances
which may palliate or aggravate the same species of offence.” +

* The supposed aggravations of punishment, however they
may disgust the spectator, rarely deter the offender. ‘* We do
indeed leave each other to rot, like scare-crows in the hedges ;
and our gibbets are crowded with human carcases. But it may
be doubted whether a forced familiarity with such objects can
have any other effect than to blunt the sentiments and destroy
the benevolent prejudices of the people.”—Eden on Penal Law,
Ρ. SO.

1 Vid, Dagge, book ii, sect, 3.

NOTES. 279

We are told, indeed, by Dr. Paley,* that ““ the legislature, when
it establishes its last and highest sanctions, trusts to the benignity
of the Crownf to relax their severity as often as circumstances

* Chap. ix.

+ ‘* This,’ says Blackstone, ‘ is, indeed, one of the great ad-
vantages of monarchy, in general, above any other form of go-
vernment ; that there is a magistrate who has it in his power to
extend mercy wherever he thinks it is deserved : holding a court
of equity in his own breast, to soften the rigour of the general
Jaw, in such criminal cases as merit an exemption from punish-
ment.” Happily in this country we can, and habitually do,
* look up to the Throne as the fountain of nothing but bounty
and grace. Whatsoever may be the inconvenience of frequent
pardons among us, the necessity of having recourse to them in
the present state of our penal code, is universally acknowledged ;
“and these repeated acts of goodness, coming immediately from
his own hand, endear the Sovereign to his subjects, and contri-
bute more than any thing to root in their hearts that filial affec-
tion and personal loyalty which are the sure establishment of a
Prince.”—Book iv. chap. 31. Thus far I agree with Blackstone.
But I must refuse my assent to the opinion which he delivers in
the following sentence: ‘‘ In democracies this power of pardon
can never subsist ; for there nothing higher is acknowledged
than the magistrate who administers the law; and it would be
impolitic for the power of judging and of pardoning to center
in one and the same person.” Many and weighty are the reasons
which induce me to prefer our own mixed form of government
to any democracy which has yet been known to exist, and to con-
sider the power of pardoning offenders as a very useful preroga-~
tive of the Sovereign, But I must deny the assertion that a
power of pardoning, equally effectual to the offender, and equally
safe for the community, cannot exist in a republic. I must con-
trovert the principle upon which the assertion is by implication
founded, that ‘* in democracies the power of judging and of par-
doning must center in one and the same person.” Whether the
first magistrate be elective or hereditary, whether his authority
be temporary or permanent, whether the government over which
he presides be monarchical or republican, it involves no absurdity
to say that he may be invested with the power of pardoning,
and excluded from the power of judging. But, instead of
insisting upon what we may conceive, 1 shall appeal to what
we know. The two offices of judging and pardoning are
now separated in America, and the right to pardon, as we learn
from Mr. Bradford, resides in a single person, who for the time
being is considered as the supreme magistrate. Perhaps Black-

280 NOTES.

appear to palliate the offence, or even as often as those circum-
stances of aggravation are wanting which render this rigorous

stone was Jed into the opinion which I oppose by his reflections
upon the Athenians and the Romans. Many evils doubtless
must have arisen from their administration of public justice.
But Montesquieu, in the fifth chapter of book the sixth has shown
the provisons that were made for the mitigation of those evils.
‘© The Roman legislature,” says he, ‘‘ gave the persons accused
permission to banish themselves before sentence was pronounced ;
and they ordained that the goods of those who were condemned
should be sacred, to prevent their being confiscated to the peo-
ple.” We may see in the eleventh book the other limitations
that were set to the power the people had of judging.

In the sixteenth and seventeenth chapters of that book Mon-
tesquieu gives a more luminous account of the executive and ju-
diciary power in the Roman government, which they who dissent
from Blackstone’s opinion would do well to consult. It will be
impossible for them not to reflect upon the concluding passage
of that part in which Montesquieu condemns the admission of
the Equestrian order to the right of sitting as judges. “A pro-
fession,” says he, ‘‘ that neither has nor can have any other view
than lucre; a profession that was always forming fresh demands,
without ever granting any; a deaf and inexorable profession,
that impoverished the rich, and increased even the misery of the
poor; such a profession, I say, should never have been intrusted
with the judiciary power at Rome.’ Mutato nomine, de quo
Fabula narratur? Not of any English judge who now sits upon
the bench, not of the many honourable persons who now adorn
the profession of the law, but of those wily, rapacious, mischief-
making wretches whom every judge would endeavour to restrain,
and every man of virtue would despise and detest.

Of the Athenians Montesquieu thus writes: “ Solon knew
how to prevent the abuse which the people might make of their
power in criminal judgments. He ordained that the court of
Areopagus should re-examine the affair ; that if they believed the
party accused was unjustly acquitted, they should accuse him
again before the people; that if they believed him unjustly con-
demnued, they should put a stop to the execution, and make them
rejudge the proceeding. An admirable law that subjected the
people to the censure of the magistracy which they most revered,
and even to their own!’’"—Book vi. chap. 5. Even an English
Parliament may sometimes derive instruction from the regula-
tions of states, which in their legislative, executive, and judiciary
forms were far inferior to our own. In regard to the observa-
tions of Blackstone, though untenable as a general position in

NOTES. 281

interposition necessary.” But the arguments of Dr. Paley never
appeared to me to vindicate what he calls “ the lenity of our
Jaws.” When pardons become, as among ourselves they have
become, frequent, and when to our sense of justice and com-
passion they appear necessary, the severity of punishments, in
the opinion of Beccaria, and in my own, implies “ some ab-
surdity in the laws.” To shew mankind that punishments are
often remitted, as again and again has been observed, is “" to
nourish the flattering hope of impunity,” and will lead the unen-
lightened and the depraved ‘‘ to consider every punishment in-
flicted as an act of injustice and oppression.” *

The reasons upon which the clemency of an English Sovereign
is exercised are seldom of sufficient notoriety for any useful pur-
pose. The force of those reasons will be differently apprehended,
according to the different degrees of sagacity and humanity in
the judge who reports the cases. The frequency of what is called
clemency itself, weakens the authority of the laws over bad men,
and compels the best men to suspect that laws so unsteadily ad-
ministered have not been judiciously and equitably framed.
When human wisdom has done its utmost, there will still be
room for different degrees of delinquency in the same offence,
and room, too, for occasional remission of punishment. But
this inconvenience, which perhaps is inseparable from human
justice, would be much alleviated if clemency were a virtue which
““ belonged oftener than it now does to the legislator, and not
to the executor of the laws.” There would be less room for that
benevolence which, if it be ill-judged, almost proclaims a public
act of impunity, and even when it is well-judged, may sometimes
resemble a tacit disapprobation of the laws. I do not say, with
Beccaria, that the executors of the laws should in all cases be
inexorable, and in appearance resemble Caligula, who boasted
of his ἀδιατρεψιά. Βιυΐῖ I do say, that the laws themselves

theory, and though refuted by facts in the laws and usages of
America, it is so true and so important, when applied to the
English government, that in any future amendment of our Penal
Code the legislature will never presume to place the power of
pardoning, however limited, in any other hands than those of the
Sovereign.

* See Beccaria, chap.46. { Vid. Sueton. in Vit. Cal. par. 29.

282 NOTES.

would be more just and more efficacious if legislators were more
tender, indulgent, and humane than we sometimes find them—
if, instead of considering every crime by itself, as they too fre-
quently do, “‘ they would examine it with reference to other of-
fences, and if they would regulate their punishments more ac-
cording to the rules of distributive justice than they hitherto
appear to have done.’’*

I have read statutes where the framers have, with the most
minute attention, pursued guilt through almost all possible mo-
difications, and where to each they have been careful ‘* nigrum
apponere theta.” + But can it be right to affix the last and hea-
viest punishment to every degree of the same offence? All cir-
cumstances of aggravation and extenuation cannot, I allow, pre-
sent themselves to the mind of a legislator. But the misfor-
tune is, that from eagerness to prevent the general crime all
distinctions are so often overlooked, and that so little atten-
tion is paid by the laws themselves to “repetition, cruelty, and
combination”’ in the selection of objects for condign punish-
ment. ἢ

We boast with good reason of our progress in knowledge and
civilization. But few and indistinct are the traces of corres-
pondent improvement in our classes of punishment. Even when
Blackstone’s Commentaries on the Laws of England must be sup-
posed to have been recently perused by every member of the
legislature, in 1770 ‘a statute was enacted by which any person
killing game between certain hours, and convicted thereof before
one or more justice or justices, on the oath of one or more wit-
ness or witnesses, shall for the first or any other offence be once
publicly whipped in the town where the jail or house of correction
shall be :” ““ and this,” says Mr. Eden,§ ‘‘ without any reserva-
tions or distinctions as to the rank, quality, or fortune of the of-
fender.” Mr. Eden, after mentioning this statute, says, “ the
tacit disapprobation of mankind consigns such laws to disregard
and oblivion, but they should be repealed.” Doubtless they
should, for they cal] to our mind the observation of Beccaria,
that ‘‘ the barbarity and ferocity of our ancestors, the Hunters of

* Dagge, vol. i. p. 200. + Persius, Sat. iv.
t Vide Paley, chap. 9. |
§ Principles of Penal Law, chap. 7.

NOTES. 283

the North, still subsist among us in part of our laws, which are
always several ages behind the actual refinement of a nation.”*

«< By statute 8150 of George 11. it is made felony without bene-
fit of clergy to set fire to any house, barn, or outhouse, or to any
hovel, cock, mow, or stack of corn, straw, hay, or wood.”
“ This clause,” as is well observed in the Principles of Penal Law,
*‘ is a strong instance of the vague, unfeeling, undistinguishing
carelessness with which Penal Laws have been composed even in
the most polished times. ‘The penalty should in all cases, if pos-
sible, bear some proportion to the malice and mischief of the of-
fence ; but every idea of proportion is obliterated when the same
degree of guilt and punishment is assigned to the incendiary of a
populous town and to the destroyer of a small heap of dried
grass.” ¢ Invitus hee tanquam vulnera affingo. But if from neg-
ligence, or false delicacy, or temerity, they are suffered to
fester with accumulated venom, ‘‘ sanari non possunt.” ¢

[τ might be shown froin many instances that the minds of our
countrymen, while they were progressive in political knowledge,
were retrograde in jurisprudence. In the reign of our immortal
deliverer William III. it was enacted, “ that al] persons who should
be convicted of any'theft, and should have the benefit of clergy
allowed them, instead of being burnt in the hand should be
branded in the most visible part of the left cheek, nearest the
nose,” What shall resist the charms of novelty and reform, es-
pecially when they are accompanied with an increase of power ?
The statute, it should seem, was executed with no less zeal than
it had been enacted. Offences were committed—offenders were
convicted—faces, old and young, ugly and handsome, carried
about them the outward and visible signs of the inward want of
grace. So, however, it happened, that in the fifth year of the
very next reign, our legislators, some of whom had perhaps
been employed in passing the statute, found the necessity of re-
pealing it, and they had the good sense and honesty to use a pre-
amble which might with consummate propriety be prefixed to
the repeal of other penal laws now in force. “It has been
found,” say they, “ by experience, that the said punishment hath

* Chap. 29. + Dagge, vol. iii. p. 176, and Eden, p, 271.
t Livy, lib. xxviii, par. 27.

284 | NOTES.

not had the desired effect, by deterring such offenders from the
further committing such crimes and offences ; but on the con-
trary, such offenders being rendered thereby unfit to be intrusted
in any honest or lawful way, become the more desperate.”

““ 18 Parliament,” says Blackstone,* ‘‘ had referred the bill to
some of the learned Judges, it is impossible that in the eighteenth
century it could ever have been made a capital crime to break
down (however maliciously) the mound of a fish-pond, whereby
any fish shall escape ; or to cut down a cherry-tree in an or-
chard. Were even a committee appointed but once in a
hundred years to revise the criminal laws, it could not have been
continued to this hour a felony, without benefit of clergy, to be
seen for one month in the company of persons who call them-
selves, or are called Egyptians,”

“ In the present age,” says the commentator on Beccaria,t
“we seem universally aiming at perfection; why then do we
neglect to perfect the laws upon which our lives and our for-
tunes depend?” Absolute or complete perfection is, in one
sense of the phrase, we all know, unattainable by limited agents ;
and even perfection, if the word be strictly analyzed, must always
be relative, and have for its measure the power and the condi-
tion of those who aim at it, which at different times and from
different causes will have incalculable varieties. Even this rela-
tive perfection will be comparative, as between one nation and
another, and between different ages and different forms of so-
ciety in the same nation. But if it be within our reach to lessen
the number, or to correct the quality of any inconvenient cir-
cumstances which enter into the comparison, the experiment
surely is not unworthy of a free and a civilized people:

*¢ Est quadam prodire tenus, si non datur ultra.’’§

In England that has happened which the same commentator
wished to happen in France. The laws of humanity have soft-

* Book iv. chap. }. t Chap. 22.

t «That is in truth perfect that is perfect in relation to
its use and end, cui nihil deest,—that may be useful and apposite to
that end.” (Hale on the Amendinent of the Laws, chap. 2.)

§ Hor. lib. i, Epist. 1.

NOTES.. 285

ened some of our rigorous customs without facilitating the com-
mission of crimes, and therefore it is not unreasonable to hope
for some reformation in those legal proceedings, ‘“‘ wherein our
legislators seem to have been influenced by too much severity,
and our criminal procedures appear in too many instances to
point only at the destruction of the accused.”

It were invidious to point out all the causes which in later
times have led to the multiplication of penal statutes. Too
much I fear has been granted to the interests and sentiments of
commercial men. But Jet us not forget that the trading and
commercial interests, by enlarging the wants of mankind, have
diffused the principle of benevolence, that “ if they have promot-
ed self-love, they have with equal pace advanced Union,”* and
that there is a tenderness and delicacy in the present state of
national virtue, which superficial and fantastic writers have
vainly endeavoured to resolve into effeminacy, pusillanimity, and
selfishness. Above all, let us consider that improvements in
arts and commerce have provided employment for the poor;
have raised their minds from the sullenness of discontent and the
gloom of despondency; have inspired them with notions of
cleanliness and decorum, which it is impossible for men under
the pressure of extreme penury to feel; have given them a sense
of their usefulness to society, and their claims to protection from
it; have supplied them with comforts which make existence de-
sirable, and rescued them from numberless temptations to the
violation of the law. The evils (for such they are) arising from
the increase of artificial wants, and from the assemblage of large
bodies in manufacturing towns, bear no proportion to the moral
and the political advantages which I have just now enumerated,
and many of which from their very nature carry along with
them correctives for idleness and thievery.

Crimes may change their form, as Physicians tell us, old
diseases retreat, and new ones succeed. But ifthe general health
of the body politic be invigorated, as it most assuredly is, by
progressive civilization, it seems to me that the sounder parts
may be preserved and the morbid healed, without precipitate
and frequent recourse to cauteries and amputations,

* Dagge, vol. i, p. 308.

280 NOTES.

In an age of ignorance and barbarism the laws will be
tinged with the spirit of the people, and their government.
They are capriciously relaxed, or severely enforced. Good
men acquiesce when they do not approve, and the bad may
be said to submit rather than to obey. Slaves are doomed
to suffer and to fear. But they are seldom accustomed to
reason, and never permitted to complain.* In free govern-
ments, on the contrary, the very act of enquiring into the
grounds and effects of laws is a direct proof of increasing
knowledge. It constitutes a presumptive proof of such im-
provements in the actual state of society, as render the
former code inconvenient or oppressive; and when the ex-
pedients proposed by intelligent men harmonize with the
silent wishes of the community, it becomes the duty of every
wise and honest legislature to supply what is defective, and
to correct what is mischievous.

My observations upon human life will not permit me to take
my station among the “ Laudatores temporis acti, se pueris.”f
It were a false statement, if I were to say, ‘‘ corruptissima Re-
publica plurime leges,”{ and it were false reasoning if I should

* From the concurrent testimony of travellers, who had op-
portunities to observe, and were under no temptation to deceive,
there is not any part of the known world, except Japan, where
less value is set upon human lite thanin Turkey. The character
of the people is debased and depraved by the ruthless obduracy
of their magistrates, and the sanguinary spirit of their laws.
They experience the worst effects which the doctrine of Predes-
tination can produce. They are careless about the preservation
of an existence, which caprice or cruelty may in a moment take
away. They are indifferent, and even adverse to all the intel-
lectual and moral improvements which might render that exist-
ence more dear to the possessor, and more useful to his species.
They are at once servile and turbulent, sluggish and rapacious,
superstitious and crafty. They disobey without incurring hatred,
and they perish without exciting pity. In sucha state of things,
as the laws have corrupted the genius of the people, neither the
experience nor the reflection of the people is likely to produce
any correction of the laws. In the mean time military tyranny
adds little to the security of the government, and judicial severi-
ties contribute yet less to the amendment of individuals.

+ Horat. Art. Poet. t Tacit, Annal. lib, iii, par. 7.

NOTES. 287

ascribe the improved morals * of my countrymen to the increased
severity of their laws, rather than to their religion, their freedom,
the mild spirit of their government, and their general progress in
science, in arts, and in all the various pursuits which multiply
the enjoyments and facilitate the duties of social life. These, co-
operating with other causes, will retard the moral resolution of
which a philosophical historian speaks with qualified assent.
““ Rebus cunctis inest quidam velut orbis, ut quemadmodum tem-
porum vices, ita morum vertantur ;”’f and my gray hairs will be
brought down with less sorrow to the grave because I can apply
to my countrymen what he said of his own age: ‘* Non omnia
apud priores meliora, sed nostra quoque ztas multa laudis et ar-
tium imitanda posteris tulit.’{ But it might not misbecome our
legislators to consider whether there be room for another obser-
vation made by Tacitus ; for, upon comparing the manners of
the present age with those of generations which have passed
away, intelligent men may be disposed to exclaim,§ ‘* ut antehac
flagitiis, nunc legibus laboratur.”

Mr. Hume, in his third essay, part 1, says, very truly, ‘‘ that the .
force of laws, and of particular forms of government, is so
great, and they have so little dependence on the humours and
tempers of men, that consequences almost as general and cer-
tain may be deduced from them as any which the mathematical
sciences afford us.” In this country the forms of government
are notoriously at variance with the spirit of our criminal laws,
and it cannot be too often repeated that the excellence of those
forms is perpetually, but most impertinently, adduced as a com-
pensation, and even an apology, for the rigour of that spirit.
But if civilization has improved the forms of governments, why
should it not be allowed to mitigate the harshness of laws ?
** When men had but newly resigned the privilege of revenging
their own wrongs,’ || it might behove the magistrate to make
punishments very severe. But if the causes which regulate hu-
man action were carefully considered, it would be found that

* « Multa duritie veterum melius et Jetius mutata.” (Tacit.
Annal. lib. iii. par, 5.)

Τ Vid. Tacit. Annal, lib. iii. par. 12. edit. Lips. t Ibid.

+
§ Par. 5. || Vid. Dagge, vol. ii, p. 164.

288 NOTES.

severity is less necessary when mankind are civilized—that the
cruelty of indiscriminate punishment itself counteracts the na-
tural effects of civilization—that instead of softening the fero-
city of depraved minds it tends to corrupt and to harden them—
and that bad laws act upon society as bad education does upon
individuals.

Complaints are made, principles are unfolded, regulations are
proposed, and yet penal statutes continue to be multiplied with-
out any visible diminution of the offences against which they are
pointed. The study of Beccaria, and other writers on jurispru-
dence, has prepared the best members of the community thus
to address their legislators: νομοθέτας καθίστατε, ἐν δὲ τούτοις
τοῖς νομοθέταις μὴ θῆσθε νόμον μηδένα, εἰσὶ γὰρ ὑμῖν ἱκανοὶ,
ἀλλὰ τοὺς εἰς τὸ παρὸν βλάπτοντας ὑμᾶς λύσατε. Ὁ Are we ἃ
brave people? Do not take advantage of this noble quality,
and inflict death upon fellow-subjects who, partaking of the na-
tional spirit, and influenced by a climate which perhaps aids it,
fear not to die, and who, under more auspicious circumstances,
might display their bravery in defence of the public, Are we a
free people? Do not make our liberty a plea for dooming us to
punishments more adapted to slaves, who in consequence of
their slavery “‘ become so obstinate,t capricious, and resolute, as
to defy all dangers ;” and beware of invading our natural right
to life, upon the pretence that our social rights are better se-
cured, and owe their security only to the severity of our laws,
If the subjects of Russia have not been corrupted by the remis-
sion of capital punishments, why should we look for a less favour-
able effect from such remission among Englishmen? If culprits
doomed to slavery and hard labour in Siberia have been reformed,
why should not confinement and hard labour produce the same
reformation among ourselves καὶ $

* Demosth. Olynth. ii.

+ See Montesquieu, book vi. chap. 13.

t In note x, upon page 35 of the work I have before quoted,
Mr. Bradford takes an historical view of ancient and modern
legislation, so far as it is connected with capital punishments. It
is worthy of the most attentive perusal ; and I shall select from
it that part of the edict by which the Duke of Tuscany abolished
the penalty of death, and in which are stated the reasons for that

NOTES. 289

I have already said that little good is to be expected from the
repeal of one or two statutes. The system itself must be
changed, and that change must be made by the general revision
of our penal code.

We read of an enlightened people among whom “ Thesmo-
thete quotannis in domo publica, ubi leges adservabantur, con-

abolition. ‘* We have seen with horror the facility with which
in the former laws the pain of death was decreed, even against
crimes of no very great enormity; and having considered that
the object of punishment ought to consist in the satisfaction due
either to a private or public injury; in the correction of the
offender, who is still a member and child of the society, and of
the state, and whose reformation ought never to be despaired of;
in the security (where the crime is very atrocious in its nature)
that he who has committed it shall not be left at liberty to com-
mit any others ; and finally, in the public example ; and that the
government, in the punishment of crimes, and in adapting such
punishment to the objects, towards which alone it should be di-
rected, ought always to employ those means which, whilst they
are the most efficacious, are the least hurtful to the offender;
which efficacy and moderation we find to consist more in con-
demning the offender to hard labour than in putting him to
death ; since the former serves as a lasting example, and the lat-
ter only as a momentary object of terror, which is often changed
into pity; and since the former takes from the delinquent the
possibility of committing the same crime again, but does not
destroy the hope of his reformation, and of his becoming once
more an useful subject; and having considered besides, that a
legislation very different from our preceding one will agree bet-
ter with the gentle manners of this polished age, and chiefly
with those of the people of Tuscany, we are come to a resolution
to abolish, and we actually abolish for ever, by the present law,
the pain of death, which shall not be inflicted on any criminal,”
&e. (Sect. 51.)

*« If any credit,” says Mr. Turnbull, “can be given to the au-
thorities of well-informed travellers, the fact of the wholesome
effects proceeding from a change of the penal laws of Tuscany
seems to be sufficiently established. ‘The intelligent Dr. Moore
speaks highly of it in his Travels, and no one with more precision
to persuade than General Lee in his Memoirs.’ “In short,”
says the latter, after dwelling on its policy, ‘‘ Tuscany, from
being a theatre of the greatest crimes and villainies of every spe-
cies, is become the safest and best ordered state of Europe.”
(P. 72.) See also Moore's Travels and Lee’s Memoirs as quoted
p- 56 by Mr. Bradford.

VOL, IV. U

200 NOTES.

veniebant, ut viderent ne qua lex alteri contraria legi extaret ; ne
qua irrita inter ratas, neve plures de una et eadem re. Si qua
abroganda lex erat, unicuique legi abrogandz quinque ex uni-
versis Atheniensibus eligebantur patroni. Populus, expensis
utrinque rationibus, sciscebat quas leges vellet e nomothetarum
consilio quibus tamen rem omnem committebat, vel antiquari vel
ratas haberi. Hoc legum examen erat valde necessarium in re-
publica Atheniensium, ubi Jeges cumulandi, abrogandi, sanciendi
pruritus et φιλοκαινία dominabantur.”* I am afraid that the
‘* pruritus leges cumulandi” may sometimes be imputed to the
fondness of our countrymen for checking new or old crimes by
new statutes which inflict capital punishment. But the love of
novelty is fortunately not quite so much the national characteris-
tic of an Englishman as of an Athenian. Proposals for the revi-
sion of our penal laws, as we shall presently see, cannot be
charged with novelty, and the example which the people of
Athens have set us, both for repeal and enactment, may be imi-
tated with perfect safety.

This subject did not escape the notice of the temperate,
learned, and sagacious writer to whom we are indebted for many
valuable observations upon our ancient statutes. He has favoured
us with a proposal for new modelling them, and at the same
time tells us, that by ““ the term reformation he does not mean
to make a new arrangement and institute of the whole body or
the law, as in the time of Justinian or Code Frederique.” I give
no opinion upon the propriety of reforming our civil code. But
the precedent which he mentions of an attempt to reconsider the
penal statutes of the realm, in the time of James I. will justify
me in expressing my hope, that in better times this great point
will “be sooner or later attended to.” Our penal laws are, I
am sure, not in a much better condition now than in the reign
of James. But the general principles of jurisprudence have been
more accurately investigated by learned foreigners, and by our
own countrymen. The state of society is more favourable to
increased lenity than it was in remote ages, and persons may be

* See Mounteney’s note on sect. v. of 2d Olynth. and the au-
thors there quoted by him. See also Harpocrat. in voc. θεσμο-
θέται.

NOTES. 291

found not Jess qualified for the task than the excellent men *
whom James selected. We are in no danger of a parliamentum
indoctum, such as our forefathers saw, nor shall we ever read a
royal proclamation in which “ the voters for members of Parlia-
ment are directed not to choose curious and wrangling lawyers,
who may seek reputation by stirring needless questions,” +

The House of Lords is a permanent body, and abounds with
well-informed men, whuse presence would give “ direction ” and
** valuable assistance,” as well as solemnity” ¢ to the revision of
our penal statutes. It would be a work of time and delibera-
tion. But I see nothing in the constitution of the House of
Commons which should prevent the appointment of a Commit-
tee,§ the labours of which should continue from year to year, and

* Lord Chief Justice Hobart, Mr. Serjeant Finch, Mr. Hene-
age Finch, Mr. Noye, Mr. Hackwell, and Lord Bacon himself,
were employed for a considerable time in this undertaking, and
had made some progress in it.—Barrington, p. 500.

+ See Barrington, p. 337. t See Paley, chap. 8.

§ Hale proposes, that in the amendment of the laws ‘ The
King, with the advice of both Houses of Parliament, should
require the judges and other sages of the law to prepare bills—
that no man should intermeddle in so great a business without
the most authentic injunction by the King and his supreme
council—that bills should be presented to the House of Com-
mons in the first instance—that when they have been once or
twice particularly debated in the Committee, the Judges should
be called toasolemn debate at the Committee of the Commons,
where they may give the reasons why they go so far and no far-
ther, and where their opinion will be asked touching any altera-
tions or amendments, and the reasons in relation thereto, lest a
very good and profitable bill be suddenly spoiled by a word in-
serted or a word expunged—and that when the bill comes to the
Lords, and is twice read and committed, all the Judges should
attend the Committee for the reasons above given.”—Ch. 4.

These are excellent regulations. The reform which I hope
will one day or other be accomplished in our Penal Code is so
extensive that it cannot be effected by the authority of Courts
and Judges, without troubling Parliament. My wish is, that
sages of the law should not be employed in it exclusively ; that
the Committee should consist not only of members in both
Houses of Parliament, but of able lawyers who are not in Par-
liament; that some of the Judges should form a part of the

u 2

292 NOTES.

in which vacancies made by the death of member, or by their
not being re-elected to Parliament, should be filled up. The as-
sistance of lawyers most assuredly should not be wanting, and it
would be well if some of them were ‘ persons not sitting in Par-
liament.” But 1 confess that I should expect little progress to
be made in so great a work, if only ‘one or two barristers
should be appointed, who from year to year might make a report
to the Privy Council, as likewise to the Lord Chancellor, the
Master of the Rolls, and the twelve Judges, of a certain number
of statutes which should either be repealed or reduced into one
consistent act.”*

When Mr. Barrington proposed the foregoing expedient, and
when Judge Blackstone + spoke of a Committee appointed but
once in a hundred years, they probably were influenced by pro-
fessional prejudices, which may be easily pardoned, but not very
safely adopted. Many enlightened men may not be prepared to ~
entrust the venerable persons of whom Mr. Barrington speaks

Committee ; that in cases of difficulty they should be consulted
by the Committee ; and that when the Code is brought before
the Lords, and while the merits of it are debating, the Judges
should attend in their places and give their opinions. After all,
if the business were undertaken seriously, it would be easy to
adjust any difference upon the duties which are to be assigned to
the Judges. So again, I should gladly give up my opinion upon
reforming the whole code at once, if I were convinced that the
legislature were earnestly bent upon revising and reforming every
part of it seriatim.

The cause for which I am solicitous has found a most able ad-
vocate in Dr. Colquhoun. ‘* Some steps,” says he, ‘* have indeed
been taken in Parliament towards a general revision of our sta-
tute law, (see the ‘ Report from the Committee of the House of
Commons on Temporary Laws,’ May 13, 1796, and also the
‘ Report from the Committee for Promulgation of the Statutes,’
December 5, 1796, and the ‘ Resolutions of a Committee of the
whole House,’ May 30, 1797,) and which, it is hoped, will ere
long be adopted. Whenever the time shall arrive that the ex-
isting laws, which form the present Criminal Code, shall be re-
ferred to able and intelligent men effectually to revise, consoli-
date, and adjust the whole ina manner best suited to the present
state of society and manners, the investigation will unquestion-
ably excite no little wonder and astonishment.”

* See Barrington, p. 503. + Book iv. chap. 1.

NOTES. 293

with a discretionary power of permitting or forbidding any
statute to be laid before Parliament.* But their opinions, when
delivered in Parliament, would deservedly have great weight,

ΚΙ fear the prejudices of professional men, when they are
exclusively employed as guides to legislators. ‘Coke thought it
would be a great defect in government to have such devilish abo-
minations as sorcery and witchcraft to pass with impunity.”
(Eden, p. 102.) Hale, who has made many judicious remarks
on the general unfitness of the Jewish laws in Christian coun-
tries, yet supposes it a murder, if a man wilfully suffers a beast
notoriously mischievous to wander abroad, and it kills a man.
His reason is, that by the Jewish law the offender was to die ;
and he mentions a report of a person who had been actually ex-
ecuted on this account. (Eden, p. 236.)

After printing my observations upon the punishment of an
innocent man, I met with a passage in Mr. Eden’s book which
had escaped my notice, and which I will here produce, as it is
materially connected with the subject which 1 was then dis-
cussing.

““ Let us suppose,” says Judge Foster, “Ἅ the case of an upright
and deserving man, universally beloved and esteemed, standing
at the place of execution, under a sentence of death manifestly
unjust. ‘This is a case that may well rouse the indignation, and
excite the compassion of the wisest and best of men. But wise
and good men know that it is the duty of a private subject to
leave the innocent man to his Jot, however hard it may be, with-
out attempting a rescue; for otherwise all governments would
be unhinged.” (Foster, page 316, quoted by Eden, page 327.)

“The worthy Judge,” says Mr. Eden, ‘‘ seems to have made
an unpleasing”’ (I say fallacious) ‘‘ distinction between the sta-
bility of governments and the private rights of the people. The
stating of the case now before us supposes absolute certainty as
to the injury, and excludes all possibility of popular misconcep-
tion. It is difficult to persuade oneself that in such a case the
resistance of the bystanders would be unjustifiable. (Page 238.)

Iam not fond of disputing upon extreme cases. But when
proposed by writers whose acknowledged virtues and distin-
guished talents give authority to their conclusions, they must be
treated according to their real merits.

In a single case, then, of this kind, I should admit the pre-
mises, and deny the inference. The individual may be rescued.
But the government would not be unhinged, and the laws would
be Jeft to their usual proper and full efficacy against real offenders.
If the cases were frequent, the laws, or the administration of
them, must be faulty ; and the government neglecting to remedy

204 NOTES.

and they might be occasionally consulted upon particular
questions by one or more members of the Committee. Our
Penal Code is not, like the Civil, burdened with subtleties and
distinctions which require the aid of professional education. In
both Houses of Parliament persons may be found, who with little

the evil ought to be altered—by persuasion, if it be possible ; or
if it be not, an humane and enlightened people would hardly fail
to accomplish the alteration by force. Even with the remote
prospect of such an event, a wise legislature would employ every
seasonable expedient to avert it.

As to wise and good men, they are likely to be more patient
under an iniquitous sentence executed upon themselves, than
upon other men; they would beware of forming any fixed rule
for their own conduct before the time of trial; and by nothing
short of manifest danger to the community would they be de-
terred from resisting such manifest oppression to an injured fel-
low-creature.

Fortunately in this kingdom we are in little or no danger of
being called upon by such an occasion to decide between obe-
dience to the magistrate, and justice not only to an unoffending
individual, but to all other of our fellow-subjects, who must ap-
pear to have a personal interest in his fate.

Strong must have been the influence of professional partiality
on the mind of Foster, when he stated such an unusual supposi-
tion, and assigned to it such consequences as men generally as-
cribe to the most flagrant overt-acts of high treason. But is it
quite safe to vindicate the ordinary and actual practice of juris-
prudence by extraordinary and hypothetical cases, which are
better adapted to the wildness of speculation ? Is it necessary to
secure the authority of the laws which give effect to a just sen-
tence, by pointing out the mischiefs of resistance to that autho-
rity, when a sentence it so glaringly unjust? The calm and dig-
nified discretion of a judge ought never to be lost in the misty
subtleties of a casuist, or the licentious exaggerations of a rheto-
rician. He may dogmatize without contradiction upon the
bench; but he cannot err in a book without the hazard of detec-
tion and reproof. Blackstone wrote his Commentaries in the
stillness of academic retirement: his timidity or his policy some-
times led him to acquiesce in received opinions ; and his eloquence
is now and then displayed in defending, when his reason should
have been employed in examining them. But the reports of
Foster are chiefly founded upon practice ; he was a soberminded,
upright, and truly conscientious judge, and therefore his decisions
even upon ideal cases might have the greater weight.

NOTES. 295

difficulty would know what “ provisions* the laws have already
made to remedy the mischief complained of; who could calmly
and maturely consider in what instances those provisions have
failed ;” who could appreciate justly the value of information
afforded them by persons of experience in the administration of
the Jaws, and who, to say the least, are quite as likely to judge
without prejudice on the probable consequences of proposed alter-
ations. If the Committee of which I am speaking were esta-
blished in this country, the duties of it would, 1 think, be dis-
charged most effectually by mingling professional men with other
persons whose experience in the affairs of common life was large
and various, and whose minds were richly stored with that know-
ledge which is supplied by the science of ethics, by the history of
ancient and modern legislation, and by the comparison of the
political and moral circumstances which influence our own nae
tional character with those which prevail in the other civilized
states of Europe. To men thus qualified to judge upon facts
and principles, causes and effects, the language of Gravina, on a
subject connected with the civil laws of Rome, would not be un-
instructive nor uninteresting: “ Quoniam nihil certi exploratique
comprehendere possumus, nisi quod hauriamus de fonte nature ;
ideo tantisper a matre veritatis philosophia facem illam arripiam,
qua per tenebricosum iter, et opinionibus obsessum libere per-
curram ad ea primordia, unde veritas protrahatur in lucem. Qui
enim adhuc scriptis suis imperii fundamenta jecerunt e juriscon-
sultis recentioribus, non tam abstrusas nature notiones, quam
auctoritates et opiniones pro certis firmisque principiis tradide-
runt: et que consequentia esse debuissent, pro antecedentibus
acceperunt.’ t+ ‘ Knowing,” says Mr. Eden, “ that political
wisdom is the result of experience rather than of theory, they
will consider the safety of the public as the supreme law of po-
licy, and, if compelled in any degree to deviate from the sacred
principles of justice and humanity, they will submit to the devia-
tion merely as an occasional result from the imperfection of our
nature. But they will never allow, that among the crimes of
equal malignity those which the offender has the strongest in-

* Blackstone.
+ Gravina de Orig, Jur. Civil. vol. i, p. 106.

296 NOTES.

ducement to commit should always be punished most severely.
They will consider it as a position both morally and politically
false, to maintain without limitation and without distinction,
that legislature may justify the infliction of whatever degree of
severity is necessary for the prevention of any particular crime.”*

‘** Trebonianus,” says Mr. Barrington,f “ has been much con-
demned by the writers on the civil law, who when Justinian had
allowed him and his assistants ten years for compiling the Pan-
dects, from a too great desire of dispatch, published the collection
in three.” The Penal Laws of England happily do not occupy
quite so large a space as the Pandects. They are more within
the reach of inquirers than the matter which Trebonian had to
select and methodize from a confused mass; and the task of re-
viewing and reforming them, if committed to enlightened and
truly patriotic men, might, without any improper “ desire of
dispatch,” be executed ina shorter time than Justinian allowed.

What errors, and what contradictions throng upon our view,
when we impartially look to the practices either of past ages, or
of our ewn! How much is there to humble and to affright us,
when we seriously reflect upon the marvellous lethargy or the
crooked abuse of our boasted faculties “ in the things which be-
long to our peace!” Man, a frail and fallible being, will some-
times be content to let his “ strength be the law of justice,” and
sacrifice the sweet charities of social life to the fascinations of
that ‘‘ fear which is little else than a betraying of the succours
which reason offereth.” + But the Deity, as I have read in a
most wise and holy book, “ delighteth not in the destruction of
the living: He knoweth of what we are made,” and hath di-
rected his creatures not only “to judge with the judgment of
truth,” but to ““ shew compassion every man to his brother ;’’ not
only “‘ to do justice, but to love mercy,”

What the unknown writer of the Dialogue de sui szeculi ora-
toribus says of his intereourse with Marcus Afer and Julius Se-
cundus, you and I must have experienced towards some illus-
trious persons of our own days. ‘‘ Eos in senatu non modo stu-
diose audiebamus, sed domi quoque, et in publico affectabamus,

* See Principles. of Penal Law, chap. 2.
t Page 503. { Wisdom,

NOTES. 297

ut fabulas quoque eorum, et disputationes, ct arcana semote
dictionis penitus exciperemus.” *

About four years ago I was present at a most interesting con-
versation between a very learned person who presides in our
Ecclesiastical and Admiralty Courts and Mr. Fox, upon the rigour
of our Penal Code, and upon the responsibility of those who ad-
minister it to the judgment of the public. That conversation
gives me abundant reason to believe that Mr. Fox, if he were now
among us, would dissent from scarcely one of the opinions which
I have here submitted to your consideration.

If Mr. Fox had lived to assist in allaying the storm by which
Europe is now agitated, that mind which had provided redress
for African slaves, would, I trust, have been turned with due
wariness, but due firmness and activity, to the relief of those un-
happy wretches at home, who “ in the world, and the world’s
law”’ often “ find no helper;” who are pitied for a moment,
and in a moment forgotten; and who perish without leaving
any lasting impression of terror from their sufferings, which
almost cease to be exemplary, when they are frequent, excessive,
and promiscuous. He would have transferred to legislation the
spirit of a passage in which an ancient writer pleads for the
equitable and humane administration of the laws. ‘ Nolo ac-
cusator in judicium potentiam afferat, non vim majorem aliquam,
non auctoritatem excellentem, non nimiam gratiam. Valeant
hzec omnia ad salutem innocentium, ad opem impotentium, ad
auxilium calamitosorum. In periculo vero et pernicie civium
repudientur.”’ +

He would have brought to the task an understanding quite
unfettered by professional and national prejudices, undismayed
by dastardly and fantastic fears, enlarged by historical, philoso-
phical, and practical views of human nature, uncorrupted by the
insolence of wealth and power, exquisitely sensible of the allow-
ances to be made for human frailty, and anxious to blend the
general security of society with the exercise of lenity to indivi-
dual offenders, ““ Accustomed,” like the enlightened Guardian
of the Laws whom Beccaria describes,} ‘‘ to behold truth and

* ‘Tacit, Dialog, de Orat. + Orat, pro Murena.
1 Chap. 42.

208 NOTES.

not to fear it, and contemplating mankind from the most ele-
vated point of view, he would have considered the nation as his
family, and his fellow-citizens as brothers.” Knowing with
Montesquieu,* that ‘‘ in moderate governments the love of one’s
country and the fear of blame are restraining motives, capable
of preventing a multitude of crimes, and that the laws therefore
do not require so much force and severity,” he, like a good legis-
lator, would have been less bent on punishment than on preven-
tion, and more attentive to inspire good morals than to inflict
penalties.”

He would have considered “the implacability of a Judge as
becoming’ a virtue only,” ¢ when it is joined to a mild legislation.
The same accuracy of judgment which ia the present state of
things represented clemency to him ““ 85 the noblest prerogative
of the Throne, but at the same time a tacit disapprobation of the
laws,’’ would have induced him to recommend and to practise it
“as a virtue which peculiarly belongs to a legislator, and which
ought to shine in the code rather than in private judgment.’

Though in political discussions he might have distinguished
between the spirit and the letter of the laws, yet in framing them
he would have guarded against the dangers practically arising
from the distinction, and by giving precision and perspicuity to
the letter, he would ‘* have put a stop to that fatal liberty of ex-
plaining, by which the life and the liberty of a delinquent may
become victims to the false idea or ill humour ofa Judge who mis-
takes the vague result of his own confused reasoning for the just
interpretation of the laws.” § He would have endeavoured ‘* by
a judicious penning of the laws, to create a detestation of the crime
forbidden, and by dint of reason and persuasive argument to con-
vince the judgment that the prohibitions and penalties included
in them are just and expedient for the good of society.” He
would have pondered again and again upon the sage observation
of Montesquieu, that ‘‘a legislator desirous of remedying an
abuse thinks of nothing else ;” that ‘‘ his eyes are open only to
this object, and shut to its inconveniences ;” that, “ when the
abuse is redressed, only the severity of the legislator is seen, yet

* Book vi. chap. 9. + See Beccaria, chap. 27.
1 Lbid. chap, 46. § See Beccaria, chap, 4.

NOTES. 299

an evil springing from it remains in the state, where the minds
of the people have been corrupted, and are become habituated to
despotism.’’* He would have remembered that “men in mode-
rate governments especially are more to be led by reason than
terror; and that the compassion mixed with indignation which
the execution of a criminal excites, occupies the mind much
more than that salutary fear which the laws should endeavour to
inspire.” + Wishing to follow ‘‘ nature, who has given shame ἢ
to man for ἃ scourge,” he would have employed this “ best in-
strument for the promotion of morality, and the extirpation of
vice,” in many classes of crimes upon which death is now in-
flicted with little effect: and to the most odious of those classes
he would have assigned very great pain united with very great
infamy. But he would have used the same instrument with eco-
nomy and discretion, by confining it to offences which from their
own nature are shocking to our feelings; ‘* not frequently, be-
cause the power of opinion grows weak by repetition; nor upon
many persons at the same time, because the infamy of many may
ultimately resolve itself into the infamy of none.’§ He would

* See Montesquieu, book vi. chap. 12.

+ See Beccaria, chap. 28, and Dagge, chap. 3. sect. 2.

{ The effects of shame are well described by Bishop Taylor :
*« There cannot easily be a great shame amongst men, but there
must be a great fear of vengeance from God; and the shame does
but antedate the Divine anger, and the man feels himself entering
into it, when he is enwrapped within the other. A man commit-
ting a foul sin, which hath a special dishonour and singular dis-
reputation amongst men, is like a wolf espied amongst the sheep ;
the outcry and noises amongst the shepherds make him flee for
his life, when he hears a vengeance coming. And besides, in this
case it isa great matter that he perceives all the world hates him
for his crime, and that which every one decries must need be
very hateful and formidable, and prepared for trouble.”—Ductor.
book 1. chap. 1.

I am sorry that I omitted that rape was a high aggravation of
the guilt of robbery, in the wicked youth to whose case I ad-
verted in page 202, But this circumstance does not alter my
opinion upon the inefficacy of his death as an example, when it
was inflicted with so little publicity, Surely Judges would not be
blameable, if they occasionally gave directions about the time,
place, and manner of executing criminals.

§ See Montesquieu, book vi. ch.12. Eden on Penal Law, ch, 7.
Dagge’s Criminal Law, chap. 9. sect. 2 ; and Beccaria, ch. 23.

300 NOTES.

have looked back to the past with pity, and with solicitude have
provided for the future. He would have prevented the first ad-
vances to guilt, by furnishing the lower classes of men with that
instruction which points out to them the usefulness as well as
propriety of diligence, temperance, and honesty; and the danger
as well at the loathsomeness of every vicious habit. He would
have made their relapse into guilt, after the commission even of
great crimes, more difficult and more inexcusable, by supplying
them with employment, which from the defects of the police, or
the suspicions of individuals, it is impossible for them now to
find, and by giving them encouragement so to persevere in a
better course of life as gradually to recover the good opinion
and good will of their fellow subjects, and ultimately to make
reparation for the wrongs they had done to the community.

I have stated my opinion upon various circumstances which
seem to me favourable to the speedy revision of our penal laws.
Obstructions there may be from the nature of power itself,
“‘which in all countries, and at all times, is on the watch for
every opportunity to extend its own sway, and maintain by ter-
ror what it acquired by force or cunning: from the prejudices
of education, which induce men to think those regulations just
and expedient of which their forefathers had approved: from
that indolence which leads men who cultivate the arts and
sciences to leave the wheels of government to chance: from that
timidity or indifference to public concerns which makes other
persons tacitly acquiesce under institutions which their judg-
ment condemns: from that courtesy which many ingenious and
learned writers have expatiated with more liberality than reason
on the merciful disposition of the English government; as if it
were their object rather to write the panegyric than to make
known the imperfections of the constitution:* and perhaps
from the jealous and captious resistance, it may be, of certain
classes in which prepossession, or vanity, or ambition may have
created a real or an imaginary interest in the continuance of
imperfect and even pernicious systems.” ἢ

From men who are “ distracted by the cares or dissipated by

* Vide Eden, p. 233.
+t Vide Dagge, vol, i. p. 271.

NOTES. 90]

the pleasures of the world,” little is to be expected in removing
those impediments. But the general good sense and benevo-
lence of the English people, the information already supplied by
sober and intelligent enquirers, the wishes so often and so
earnestly expressed by good subjects and good men, and the
gradual preparation of the public mind for a public experiment,
are more than sufficient to counterbalance any known or any
probable disadvantage to the cause of humanity.

For the constitution which we now enjoy we are indebted to
many various causes, in many successive ages—to the sagacity
of statesmen — to the fortitude of patriots — to consequences
which fell not within the good or the evil intentions of the pri-
mary agents—to the jealousies, as well as confederacies, of
powerful classes—to the defeats as well as successes of contend-
ing parties—to the weaknesses and vices, as well as talents and
virtues, of the ruling powers. But a constitution worthy of re-
maining, or even likely to remain, among a civilized people,
never has been contrived, nor ever will be, by any one man, or
any one body of men. The reasons are obvious, and deserve to
be stated by me, because they have little or no place in that re-
form of our penal code which I am solicitous to see accom-
plished. In governments, what is old may be suddenly over-
thrown; but what is new cannot be suddenly established. What
is really improved in the old will not blend with the new, and
what deserves to be adopted in the new is marred by the old.
Amidst the fluctuation of public opinions and public interests,
not only usage loses its authority, but even novelty is soon de-
prived of its charms. That which pleased yesterday will to-day
displease, and that which to-day is zealously approved may to-
morrow be rejected with equal zeal. Habit maintains an irre-
gular but stubborn conflict with passion. ‘Timidity. performs the
office of prudence, in throwing checks upon zeal. Some com-
ply with reluctance, and others oppose from perverseness. Some
condemn before they understand, and others are on the watch to
overset what they profess to approve. Almost every change is
to be effected by the violence or the cunning of faction, and every
wholesome, as well as every pernicious provision, is liable to be
baffled by events which can neither be controuled by the

302 NOTES.

strongest nor foreseen by the shrewdest agents of real or pre-
tended reformation.

But no objections of this kind seem to lie against the com-
plete revision and amendment of our penal code. On the con-
trary, it is to be effected in quiet times. It is to be consigned to
intelligent men, who have no personal views to be gratified by
the attainment of the end, nor any such party spirit of difference
in opinion, as would irritate and distract them in the choice of
means. It presents no allurements of power to the ambitious,
nor any opportunities for mischief to the turbulent—it leaves
the form of government unaltered—the energies of it unmo-
lested, and the general fabric of society unimpaired. It chiefly
relates to the common motives and common effects of human
action in common life—it carries with it every useful property
which practice, whether ancient or recent, can supply for cor-
recting the refinements of theory—it combines all the advantages
of legal science and professional experience—of policy regulated
by principles of justice, and patriotism guided by the love of
order.

Such a reform will not be one of those changes which Hale
describes as “ ungrateful and unacceptable to the people, intro-
ducing jealousies and divisions among them, giving a handle to
busy and turbulent spirits to insinuate into them the bad conse-
quences that may ensue upon such change, and preparing their
minds for disturbance.” It will not be influenced by a “ certain
restlessness and nauseousness of men in what they have, or by a
giddy humour after somewhat which is new, and possibly upon
no other account but because it is new.” It will not gratify
that ““ passion of self-love which makes men think that they in
their own particular have received some personal mischief by the
present constitution of laws, and that whatsoever crosses them
in their interest or concerns is unjust, and fit to be altered.” It
is professedly founded on those ““ variations in the actions and
concerns of men which time has already effected,” and will be
accommodated, so far as human wisdom, reflecting on the past
and providing for the future, can accommodate it to the “ con-
dition of multitudes in various successions of ages, and the oc-
currences or emergencies thereof.” It is to be regulated by
“an estimate made, not upon single occurrences that are to be

NOTES. 303

remedied, but upon the whole account of profit and loss—not
upon this or that particular commodity, but upon the whole
cargo.” It will be conducted, not according to the rash as-
sumptions of those ‘‘ qui ad pauca respicientes facile pronun-
ciant, but upon a full comprehension and circumspection of all
things that are requisite” for the very difficult and very im-
portant task. It will in its substance contain only “such new
appendications as do not so much constitute a new law as amend
the old; so that notwithstanding these appendications our pe-
nal code will still morally remain the same code, as the Argo-
naut’s ship was the same ship at the end of their voyage as it
was at the beginning, though there remained little of the old
materials but the chine and ribs of it.’”’ Committed, as I trust
it will be, to such persons as I have described, it will leave us
little to fear from the infirmities which befall men of parts who
over-rate what they do know, and are impatient of what they do
not know; who confound “ the principles of jurisprudence with
the fallacy or strength of a syllogism; who are unwilling to
spare much pains for the acquest of knowledge in the laws ;
who look upon their own reason as much undervalued if it be
told them that law is reason, and who, thinking it below them
to be ignorant of anything, blame the law when they understand
it not.” As persons trained, some to the study, and others to
the practice as well as study of the law, will unite their endea-
vours with those of accomplished senators and experienced
statesmen, there can be no ground for imputing to them either.
that “ vain-glory which induces men to tamper to get a name”
—or that ambition ‘by which men like Absalom take the first
step for lifting themselves up into place and power, by reform-
ing the constitution or administration of the laws'’—or that
fear “‘ which urges usurpers to remove such laws as sit too hard
and uneasy upon their usurped power, to engage the gene-
rality of men in the acting under new laws, and to give them a
common interest in a common defence against the true and just
power, by the restoration of which new laws would be repealed,
and new interests founded upon them would be endangered—or
that envy and malice, which Hale supposes many persons might
entertain, not only at the profession of the law, but at the pro-

304 NOTES.

fessors of it, upon the account of their νήρυριδ.ν..5::.» number,
wisdom, and the necessary use of them.”

Hale, in his ‘Considerations touching the Acoekadiilaa of
Law,” speaks chiefly of our civil code, and in the detail has dwelt
upon two topics which have since been under parliamentary con-
sideration—the reforms of office, and the Crown lands. But his
general remarks are equally applicable to our civil cade and to the
fundamental rules of our constitution, and I will produce some
of them from a conviction that they cannot be reasonably em-
ployed in opposition to the reform of those penal laws, which
experience has shown to be inefficacious and inconvenient upon
principles of policy, as well as irreconcileable to principles of
justice and humanity. ‘‘Time and long experience is much
more ingenious, subtile, and judicious, than ali the wisest and
acutest wits in the world co-existing can be. It discovers such
varieties of emergencies and cases, that no man would otherwise
have imagined. And on the other side, in every thing that is new,
or at least in most things, especially relating to laws, there are
thousands of new occurrences and intanglements and coinci-
dences and complications, that would not possibly be at first
foreseen. And the reason is apparent; because laws concern
such multitudes, and those of various dispositions, passions,
wits, interests, concerns, that it is not possible for any human
foresight to discover at once, or to provide expedients against,
in the first constitution of a law. Now a law that hath abidden
the test of time, hath met with most of these varieties and com-
plications ; and experience hath in all that process of time dis-
covered these complications and emergencies, and so has applied
suitable remedies and cures for these various emergencies. So
that in truth antient laws, especially, that have a common con-
cern, are not the issues of the prudence of thisjor that council
or senate, but they are the production of the various experiences
and applications of the wisest thing in the inferior world; to
wit, time, which as it discovers day after day new inconveniences,
so it doth successively apply new remedies: and indeed it is a
kind of aggregation of the discoveries, results, and applications
of ages and events; so that it is a great adventure to go about
Le we See A LIN SS AL OTN alt OE OP

* See Hale on the Amendment of Laws, chap. 2.

NOTES. 305

to alter it, without very great necessity, and under the greatest
demonstration of safety and convenience imaginable.” *

Yet when such necessity is supposed to exist, the interest which
the higher classes of the community have, and are conscious of
having, in reforming the laws, produces at least gradual and
partial reformation. The inconvenience is felt by many, and
and therefore many are solicitous to remove it by their com-
plaints, or their influence, or their authority, But in the views
which wealthy and powerful men take of human life, the con-
cern they have in the penal code is in their apprehension remote,
so far as the rigours of that code are likely to effect themselves ;
and they look to the protection which it affords to them, with-
out pitying the hardships which it may unnecessarily inflict upon
Other men, and without calculating the probabilities of being
equally protected by well-timed and well-considered changes in
the kinds and degrees of punishment. As classes, indeed, they
may be in little danger from the present state of things. But,
as individuals, they will do well to meditate upon the uncer-
tainty of human affairs, upon the weakness of human nature,
and upon the possibility of being themselves pushed on by un-
foreseen incentives, and in unforeseen circumstances to the per-
petration of crimes at which they now shudder. The most
prosperous man may fall into adverse fortune, and be seduced
into fraud—the best tempered man may be hurried by sudden
passion into murder—the most upright and peaceable man may
in some future condition of public affairs be irritated or decoyed
into treason—every man in every situation, who “thinketh that
he standeth,” will upon reflection find abundant reason to
** take heed lest he fall.” Independently of these considerations;
which are more immediately and more visibly personal, every
man has an indirect interest in the exercise of justice and hu-
manity from every human being to every human being in every
rank of society. He has a direct interest in the efficacy of the
Jaws, as they tend to restrain or harden offenders—as they sa-
tisfy or disgust by the force of example—as they now upon the
whole produce more good or harm, and as in consequence of

a eS a ee

* Hale, chap. i. p. 254, vol. i. of Hargrave’s Tracts.
VOL, IV. x

906 NOTES.

reform they may hereafter produce greater good and less harm.
From the love of esteem, and other social sympathies, which for
the wisest purposes have been planted in the heart of man, he
has at least an ideal interest in the opinion which is formed of
the very same laws by those who are to obey, as well as those
who are to frame and administer them—by intelligent observers
at home and abroad—by the present generation and by posterity.
The States of America, and European nations more or less civilized,
direct their attention more particularly to England ; and painful
it is for an Englishman to recollect, that in our penal code they
discover what in their own judicial regulations they ought to
avoid, rather than what they ought to imitate.*

They who watch with unceasing jealousy against every real or
imaginary infringement upon their political liberty, are often in-
attentive or indifferent to those encroachments which are made
by penal laws upon their civil rights. They seem to forget that
opportunities, and even provocations, for offending against the
public authority of a state, seldom occur—that the temptations
to commit such offences are in the first instance usually confined
to the powerful, and therefore the few—that the dangers to
which the many are exposed lurk in a nearer quarter, and that
the possible events of every passing day give every subject of
every condition an interest in the grounds and tendencies—in
the enactment and administration—of those Jaws which operate
directly and constantly upon the concerns of private life.

In the reform of our Penal Code, the most wise, most virtu-

* They who wish to see the various rigours of punishment as
suggested by imperfect policy, barbarous manners, blind super-
stition, or feudal tyranny, would do well to consult Disney’s
**Collection of ancient Laws against immorality and profane-
ness.’ It is a treasure-house of facts, which must amply gra-
tify the curiosity of readers, severely exercise their compassion,
and awaken many useful but painful reflections upon the mise-
ries which man has been doomed to suffer from the ignorance,
caprice, rashness, and cruelty of legislators. When the political,
civil, and penal laws of different nations in different ages, fill so
many volumes, to what principle of human action in error, pre-
judice, indolence, pride, or revenge, is it owing that regulations
uniting justice with lenity, and authority with wisdom, in the
prevention of crimes, are so rare?

NOTES. 307

ous, and most powerful members of the community may be
called upon to lend their aid, not only by their pity for the suf-
ferings of unhappy offenders, their respect for the credit of the
laws, and their solicitude for the honour of their country in our
own and every succeeding age, but by the duty which as men and
as subjects they immediately owe to themselves, their families,
and their posterity. ‘‘ These enquiries,” says the amiable and
enlightened author of the Principles of Penal Law, ““ deserve the
attention of everymanamongst us. For norank, no elevation in
life, no conduct, how circumspect soever, Ought to induce any
reasonable man to conclude that the penal system doth not, nor
possibly can concern him. A very slight reflection on the num-
berless unforeseen events which a day may bring forth, will be
sufficient to shew that we are all liable to the imputation of
guilt ; and consequently all interested, not only in the protection
of innocence, but in the assignment to every particular offence
of the smallest punishment compatible with the safety of so-
ciety.” *

Far above all heroes, and far above all politicians, as we usu-
ally find them, would be that benefactor to his speciest whose

* See Mr. Eden’s work, p. 130, where he quotes a most so-
lemn and instructive passage from the Preface to Foster’s Crown
Law.

1 In justice to the memories of Mr. Bradford and Mr. Lownes,
I will produce the following just eulogium upon these worthies
from M. Rochefoucauld Liancourt. After mentioning with
praise the Quakers, he thus proceeds :

“Un dentr'eux (Caleb Lownes,) en a presqu’a lui seul tout
Yhonneur. La doctrine de Beccaria et d’ Howard a promptement
germé dans son cceur tout humain. C’est Jui qui a principale-
ment animé ses fréres de l’espérance de son exécution. C’est lui
qui a provoqué Je changement de régime dans les prisons; quia
proposé d’y substituer la douceur, la fermeté et la raison aux fers
et aux coups; qui s’est laiss¢é patiemment traiter de visionnaire,
sans ralentir ses démarches dans J’entitre confiance du bien que
$a perseverance opérerait. C'est lui dont le zéle infatigable, in-
téressant ἃ sa cause tous ceux qu'il croyait pouvoir l'aider dans
sa réussite, a obtenu de la confiance de la législature, ces loix, je
ne dis pas seulement de bienfaisance, mais de justice stricte,
de politique bien entendue. C'est lui enfin, qui consentant ἃ
etre élu inspecteur ἃ chaque nomination, est l'agent principal de

x 3

308 NOTES.

wisdom should have taught him to set a right value upon the life
of man—whose eloquence in legislative assemblies should cause
““ mercy and truth to meet each other,’”’ and under whose au-
spices should arise an order of things more worthy of man as a
moral, and more adapted to him as a social being, than the
golden age pourtrayed by poets, or the Millennium panted for by
enthusiasts,

ἐς Adsit
Regula, que peenas peccatis irroget zequas,
Incolumi Jove et Urbe.” *

“41 these truths,” says Beccaria, ‘‘ should haply force their
way to the thrones of princes, be it known to them that they
come attended with the secret wishes of mankind, and tell the
sovereign who deigns them a gracious reception, that his fame
shall outshine the glory of conquerors, and that equitable poste-
rity will exalt his peaceful trophies above those of a Titus, an An-
toninus, or a Trajan.” +

cette ceuvre respectable de raison et d’humanité. Que Dieu be-
nisse cet homme de bien!

*«« J’ai dit que les juges avaient été d’une opinion contraire a
cet établissement. Un d’entr’eux, plus jeune que les autres,
désesperant moins par conséquent, de l’espéce humaine, a em-
brassé avec ardeur ces nouvelles idées. 1] s’est associé ἃ Caleb
Lownes pour toutes Jes démarches, il l’a aidé des conseils qu’un
homme versé dans la jurisprudence pouvait seul donner, et a par-
tagé ainsi le désir, les peines, et le mérite de succés. Ce juge est
William Bradford, alors Attorney-général de Pensylvanie, depuis
Attorney-général des Etats-Unis, et mort récemment, honoré des
regret et de l’estime générale des ses concitoyens, 1] mérite sans
doute un hommage particulier que je lui rends avec d’autant plus
de plaisir, que ce n’est pas une censure pour les autres juges.
Car ceux-ci, en se refusant ἃ sanctionner de leur approbation le
nouveau systéme, n’ont été guidés que par le doute sincere que
leur expérience leur donnait sur son succés; et ils se sont hatés
de l’aider de tous Jeur moyens, dés quils en ont vu Y’apparence,
sans étre arrétés par l’opinion différente qu’ils avaient exprimée;
ce qui certes sera un mérite peu commun aux yeux de ceux qui
connaissent Jes erreurs ordinaires dé l’amour- propre.’—See Voy-
age dans les Etats-Unis d’Amérique, fait en 1795, 1796, et 1797,
par la Rochefoucauld Liancourt, vol, vi. page 262. ᾿

* Vid. Hor. lib. i. Sat. 8, and lib. iii. Od. 5.

‘+ See Beccaria, chap. 28.

NOTES. 309

The wishes of a beneficent sovereign are made known to the
people of England by the measures which, with his approbation,
are proposed through his ministers in Parliament. The clemency
manifested again and again by the person who now sits on the
throne justifies me in the hope, that if the times were more
quiet, and if a proposal were made for men duly qualified to
be employed in reforming our Penal Code, no obstacle would be
thrown into the way of such reform by the will of the monarch.
Be this as it may, you and I, dear Sir, shall ever deplore the
causes which prevented Mr. Fox from having any oportunity to
direct the whole force of his mind to the redress of what appear
to me our most indisputable and most intolerable grievances.*

* Upon reading the third chapter in the eighth book of Lord
Bacon de Augmentis Scientiarum, I had the satisfaction to find,
that in. many respects he held the same opinions which I do, upon
the qualifications of legislators, the danger of inflicting capital
punishments by the aid of harsh interpretations and strained
analogies, and the methods which ought to be pursued in the cor-
rection of laws.

** Qui de legibus scripserunt, omnes vel tanquam philosophi,
vel tanquam jurisconsulti, argumentum illud tractaverunt. At-
que philosophi proponunt multa, dictu pulchra, sed ab usu re-
mota. Jurisconsulti autem, sue quisque patriz legum, vel
etiam Romanarum, aut Pontificiarum, placitis obnoxii et addicti,
judicio sincero non utuntur, sed tanquam e vinculis sermocinan-
tur. Certe cognitio ista ad viros civiles proprie spectat ; qui op-
time norunt, quid ferat societas humana, quid salus populi, quid
equitas naturalis, quid gentium mores, quid rerum publicaram
forme divers ; ideoque possint de legibus, ex principiis et pra-
ceptis, tam equitatis naturalis, quam politices, decernere,”

I will produce a few of the aphorisms which follow.

** Durum est torquere leges, ad hoc, ut torqueant homines.
Non placet igitur extendi leges poenales, multo minus capitales,
ad delicta nova.’—Aph. 13.

** Statuta, quae manifesto temporis leges fuere, atque ex occasi-
onibus reipublice tunc invalescentibus nate; mutata ratione
temporum, satis habent, si se in propriis casibus sustinere possint :
preposterum autem esset, si ad casus omissos ullo modo trahe-
rentur.’’—Aph. 15,

** Consequentia non est consequentia; sed sisti debet extensio
intra casus proximos ; alioqui labitur paulatim ad dissimilia, et
magis valebunt acumina ingeniorum, quam auctoritates Jegum.”
—Aph. 16,

410 NOTES.

Keener too must be our mortification, because in this’ arduous
but glorious atchievement, he might have called in the aid of

«* At vetustiora exempla caute et cum delectu recipienda; De-
cursus siquidem etatis multa mutat, ut quod tempore videatur
antiquum, id perturbatione et inconformitate ad presentia, sit
plane novum.”—Aph. 24.

In curiis pretoriis et censoriis.

“ Habento curiz censoriz jurisdictionem et potestatem, non
tantum nova delicta puniendi, sed etiam peoenas a legibus consti-
tutas pro delictis veteribus augendi, si casus fuerint odiosi et
enormes modo non sint capitales.”—Aph. 34.

“ὁ Rubric sanguinis ne sunto; nec de capitalibus, in quibus-
cunque curiis, nisi ex lege nota et certa, pronunciato. Indixit
mortem Deus ipse prius; postea inflixit. Nec vita eripienda nisi
ei, qui se in suam vitam peccare prius nosset,”—Aph. 39.

‘* Dicit Propheta; pluet super eos laqueos. Non sent autem
pejores laquei, quam laquei legum, presertim poenalium ; si nu-
mero immense et temporis decursu inutiles, non lucernam pedi-
bus prebeant sed retia potius objiciant.’’-—Aph. 53.

“ Duplex in usum venit statuti novi condendi ratio. Altera,
statuta priora circa idem subjectum confirmat et roborat; dein
nonnullo addit aut mutat. Altera abrogat et delet cuncta, que
ante ordinata sunt, et de integro legem novam et uniformem
substituit. Placet posterior ratio. Nam ex priore ratione, or-
dinationes deveniunt complicate et perplex; et quod instat
agitur sane, sed corpus legum interim redditur vitiosum. In
posteriore autem major certe est adhibenda diligentia, dum de
lege ipsa deliberatur; et anteacta scilicet evolvenda et pensi-
tanda; antequam lex feratur; sed optime procedit per hoc le-
gum concordia in futurum.”—Aph. 54.

““ Erat in more apud Athenienses, ut contraria legum capita
(que antinomias vocant) quotannis a sex viris examinarentur, et
que reconciliari non poterant, proponerentur populo, ut de illis
certum aliquid statueretur. Ad quorum exemplum ii, qui potes-
tatem in singulis politiis legum condendarum habent, per trien-
nium aut quinquennium, aut prout videbitur, antinomias retrac-
tanto. Eae autem a viris ad hoc delegatis, prius inspiciantur et
preparentur, et demum comitiis exhibeantur; ut quod placuerit
per suffragia stabiliatur et figatur.”—Aph. 55,

*« Neque vero contraria legum capita reconciliandi et omnia
(ut loquuntur) salvandi, per distinctiones subtiles et quesitas,
nimis sedula aut anxia cura esto. Ingenii enim hec tela est:
Atque utcunque modestiam quandam et reverentiam pre se ferat,
inter noxia tamen censenda est; utpote que reddat corpus uni-
versum legum varium et male consutum. Melius est prorsus ut
succumbant deteriora, et meliora stent sola,”"—Aph. 56,

NOTES. . 9}

Lord Erskine, Earl Grey, Lord Grenville, Lord Auckland, Lord
Holland, Mr. Whitbread, Mr. Windham, the Honourable Mr.

“« Obsolete leges et que abierunt in desuetudinem, non minus
quam antinomie proponantur a delegatis ex officio tollende.”
—Aph. 57.

““ Consultum fuerit in novo digesto legum, vetera volumina non
prorsus deleri et in oblivionem cedere, sed in bibliothecis saltem
manere; licet usus eorum vulgaris et promiscuus prohibeatur.
Etenim in causis gravioribus, non abs re fuerit, legum_ preteri-
tarum mutationes, et series consulere et inspicere ; ac certe so-
lenne est, antiquitatem presentibus aspergere. Novum eect
hujusmodi corpus legum ab iis, qui in politiis singulis habent
potestatem legislatoriam, prorsus confirmandum est: ne forte
pretextu veteres leges digerendi, leges nove imponantur oc~
culto.”—Aph. 63.

** Optandum esset, ut hujusmodi legum instauratio illis tem-
poribus suscipiatur, que antiquioribus, quorum acta et opera re-
tractant, literis et rerum cognitione prestiterint. Quod secus
in opero Justiniani evenit.”—Aph. 64.

Few enlightened men in this country would assent to Bacon’s
opinions, as they are stated in Aphorisms twenty and forty-one.
The “ Curiz pretoriz et censoriz,” happily for Englishmen, no
longer exist. But the principles and the spirit to which I object,
may have silently found their way to other places; and in the
act of legislation even their latent, indirect, and partial operation
would be dangerous.

- What Bishop Warburton says upon some academical regula-
tions injudiciously proposed, and ineffectually attempted by the
Duke of Newcastle, may be applied to other and weighter sub-
jects. “ Though a multiplication of good laws do nothing
against a general corruption of manners, yet the abrogation of
bad ones greatly promotes reformation.”—See Letter 32 of the
Correspondence between Hurd and Warburton.

**Nolumus leges Anglie mutari,” though converted into a
vague generality in the writings of zealots, and the speeches of
declaimers, was in reality the declaration of the lay Barons upon
a particular occasion—* when the Prelates in the Parliament of
Merton endeavoured to procure an act to alter the common law,
and to substitute the canon and civil law in its stead.”—See
Dagge, vol. i. p. 251.

‘“« The Bishops,” says Warburton, “as partizans of the Pope,
were for subjecting England to the Imperial and Papal laws, and
therefore began with a circumstance most to the taste of the
Barons, to legitimate bastards as to succession. The Barons
smelt the contrivance, and rejected a proposition most agreeable

9312 NOTES.

Ward, of three Judges whom I forbear to name, of Sir Authur
Pigot, Sir Samuel Romily, Sir James Mackintosh, Mr. Serjeant
Lens, Mr. Robert Smith, Dr. Colquhoun, Mr. Francis Hargrave,
and, above all, Jeremiah Bentham.*

to them, for fear of the consequences, the introduction of the
Imperial law, whose very genius and essence was arbitrary and
despotic power. Their answer shows it: ‘ Nolumus leges
Anglie mutari.” They had nothing to object to the reform,
but they were afraid for the constitution.” (Letter 84.) The
memorable answer of the Barons may supply specious and high-
sounding terms, not appropriate and solid principles, for the
vindication of those persons who object to the reform of our
penal code. The maxim itself may be introduced upon every
proposal for the repeal of laws, and if admitted indiscriminately,
it would prevent every change however salutary. But in point
of fact laws are frequently changed, and the maxim in its popu-
lar but just application is confined to encroachments upon the
fundamental principles of those rights which are secured to the
people by the constitution. The spirit of the words is just the
same now, as it was in the Parliament of Merton. They cannot
even rhetorically be urged against large and important alterations
in our penal system, unless it be shown that the general evil
likely to result from such alterations exceeds the general good.

* 1 have been asked, why, after pointing out by name the per-
sons who seemed to me most qualified for reforming our Penal
Code, I declined mentioning such ecclesiastics as might with pra-
priety be employed in preparing for the use of churches a grave
and impressive discourse on the authority of human laws; and
as other men may ask the same question which my friend did,
I have determined, after some deliberation, to insert the sub-
stance of my answer in this place.

If the public service of our church should ever be directly em-
ployed in giving effect to the sanctions of our Penal Code, the
office of drawing up such a discourse as | have ventured to re-
commend, would, I suppose, be assigned to more than one per-
son. My ecclesiastical superiors will, I am sure, make a wise
choice. But they will hardly condemn me for saying, that the
best sense expressed in the best language, may be expected from
the Bishops of Landaff, Lincoln, St. David’s, Cloyne, and Nor-
wich, the Dean of Christ Church, and the President of Magdalen
College, Oxford. I mean not to throw the slightest reproach
upon other dignitaries whom I have not mentioned. But I
should imagine that few of my enlightened contemporaries hold
an opinion different from my own upon the masculine under-

NOTES. 313

“In the multitude of such counsellors” there would have been
“ substantial wispom.’’*

“Oh! Love the light of wisdom, all ye that be rulers of the
people, for she is the brightness of the everlasting light, the un-

standing of a Watson, the scund judgment of a Tomlin, the ex-
tensive erudition of a Burgess, the exquisite taste and good na-
ture of a Bennet, the calm and enlightened benevolence of a
Bathurst, the various and valuable attainments of a Cyril Jack-
son, or the learning, wisdom, integrity, and piety of a Martin
Routh.

I have stated, unreservedly and dispassionately, my objections
to the exclusive employment of lawyers in the reform of our
Penal Code. But let it be observed, that with all my respect for
the learning, and all my confidence in the virtues of ecclesiastics,
I should be sorry to see them take any share in the important
task. Some of them might misapply their well-founded notions
of morality to a science, which, though it ought never to lose
sight of moral obligation, directly and professedly aims at its own
peculiar ends by its own peculiar views of public utility. Others,
from the habits of studious and retired life, may have met with
scanty opportunities for observing the gradations of crimes, and
the effects of human penalties affixed to them. A few (I hope a
very few) might be too much inclined to severity, from the fre-
quency of insisting upon future rewards and punishments in
situations where such topics are salutary and proper, in conse-
quence of their reference to the will of an unerring Judge, or, I
should rather say, to his laws, as the expression of that will, and
to the sanctions of those laws, in happiness as a motive te obedi-
ence, and in misery as a restraint from disobedience—-but a mo-
tive, be it remembered, which human legislators seldom can em-
ploy at all, and a restraint which they sometimes do employ
inconsiderately or vindictively, with too little of good effect, or
too much ofevil. All of them might lose a part of the reverence
which is now paid to their office, if they were merely suspected
of acting in contradiction to the principle of that decorous and
humane usage which now restrains Bishops as Peers of Parlia-
ment from the exercise of a dubious right to pass sentence in
cases of blood, where the contingent praise which they might ac-
quire by lenity in acauitta], is not considered as an equivalent
for the contingent blame which they might incur, by seeming
rigour in condemnation. To all imperfect and responsible
beings, mercy is, perhaps, the most interesting attribute of the
Deity. Mercy is the distinguishing characteristic of Christianity.
Mercy is the fairest badge of a Christian priesthood,

* See Wisdom, chap. vi. and vii.

314 NOTES.

defiled mirror of the majesty of God, and the image of his coop-

ΝΕΒ5. ἢ
Note 17, p. 36.

You will read with satisfaction the character drawn by Silius
Italicus, of a good King, who is said by Polybius “ πλεῖστον
χρόνον ἀπολελαυκέναι τῆς ἰδίας εὐβουλίας,"

“ His longo mitis placide dominator in «vo
Prefuerat terris Hieron, tractare sereno
Imperio vulgum pollens, et pectora nullo
Parentum exagitare metu; pactamque per aras
᾿ Haud facilis temerare fidem, socialia jura
Ausoniis multus servarat casta per annos.” >

In the verses which follow you may see the crimes and the
punishments of Hiero’s grandson and successor. Let me add,
that the odious cruelties inflicted upon unoffending and ami-
able females in a neighbouring country will make you read with
stronger sensibility the following passage :

«« Nec jam modus ensibus: addunt
Foemineam coedem, atque insontum rapta sororum
Corpora prosternunt ferro. Nova sevit in armis
Libertas, jactatque jugum.” ¢

Nore 1S, p. 37.

The προφήτης who addressed Alexander, instead of saying ὦ
παιδίον, pronounced ὦ παιδίος, and this intentional blunder
produced an equivoque not unpleasing to the ear of him who
wished to be considered as the son of Jove.§

Note 19, p. 38.

* Oculos habuit claros ac nitidos: quibus etiam existimari
volebat inesse quiddam divini vigoris : gaudebatque si sibi quis
acrius contuenti, quasi ad fulgorem solis, vultum submitteret.”’||

* See Wisdom, chap. 6 and 7. + Lib. xiv, Jin. 79.
{ Lib. xiv. lin. 105. Vide Liv. lib. xxiv. par. 26.

§ Vid. Plutarch, vol. i. p. 680, edit. Xyland.,

|| Vid. Suet. in Vit. August. sect. 79.

NOTES. 315

Nore 20, p. 38.

**Murmur-mur-mur Gnaden mur-mur.”’* Does not this
anecdote bring to your memory the “ verba obscura, suspensa,
perplexa, eluctantia, in speciem composita” οὗ Tiberius ? +

Note 21, p. 38.

See what is told of Diogenes in his interview with Alexander,
by Plutarch.}

NoTE 22, p. 39.

You are well acquainted with these triflers, and perhaps you
will not think them ill described by Ovid:

** Nulla quies intus, nullaque silentia parte.

Nec tamen est clamor, sed parvee murmura vocis,
Qualia de pelagi, si quis procul audiat, undis
Esse solent.

Atria turba tenent ; veniunt leve vulgus euntque.
Mistaque cum veris passim coummenta vagantur
Millia ramorum: confusaque verba volutant.

E quibus, hi vacuas implent sermonibus aures :
Hi narrata ferunt alio ; mensuraque facti

Crescit ; et auditis aliquid novus adjicit auctor.Ӥ

ΝΟΤΕ 23, p. 42.

Of this virtue we have a striking instance in the negociations
between de Wit and Sir William Temple, when they formed the
triple alliance. But history abounds with contrary examples.
The plain in which Pope Gregory carried on his perfidious nego-
ciation with Louis the Debonnair “ is called to this day,” says
Voltaire, “‘ the field of lies; a name which might very properly
be applied to many other places where negociations have been
carried on.” ||

* See Gesner’s Isagoge, vol. ii. p. 563.

+ Vid. Tacit. Hist. iv. par. 31. { Vol. i. p. 671.

§ Vid. Ovid. Metamoph, lib. 12.

|| See Essay on the Manners and Spirit of Nations, vol. ii.
chap. 23.

316 NOTES.

Note 24, p. 44.

Tenter not into the general question upon utility, but shall
content myself for the present with expressing my assent to
Cicero: ‘ Dubitandum non est quin nunquam possit utilitas
cum honestate contendere. Itaque accepimus Socratem exse-
crari solitum eos qui primum hec natura coherentia, opinione
distraxissent. Cui quidem ita sunt Stoici assensi, ut quicquid
honestum esset, id utile esse conserent; nec utile quidquam,
quod non honestum.”’*

Note 25, p. 47.

We may describe Mr. Fox as Plutarch has described Marceflus :

“ Βέβαιον ἄνδρα καὶ τὴν ἀλήθειαν ἀρχὴν μεγάλης ἀρετῆς κατὰ
Πίνδαρον ἡγούμενον.

The words of Pindar might have been applied by Mr, Fox to
his own political engagements :

““᾿Αρχὰ μεγάλας ἀρετᾶς dvass ᾽Αλάθεια,
Μὴ Πταίσῃς ἐμὰν σύνθεσιν τραχεῖ

\ / ae
Ποτὶ ψεύδει.

In his public conduct he was superior to Aristides, if credit be
due to Theophrastus, who, after commending the conduct of the
Just Athenian in private life, and towards his fellow citizens, ac-
cuses him,

“Ἔν τοῖς κόινοῖς πολλὰ πρᾶξαι πρὸς τὴν ὑπόθεσιν τῆς πατρίδος
ὡς συχνῆς ἀδικίας δεομένην.ὃ

Bayle, who quotes this passage, is fair enough to refer his
reders to the more favourable account which Cicero gives of
Aristides, in lib. iii. de Officiis. There is, however, too much
truth in what Bayle has said concerning the religion of a sove-
reign, in note Η, on the article Agislaus the second,

Nore 26, p. 48.

In Lactantius de vero Cultu,|| we have some verses of Lucilius,

* De Officiis, lib. iii. par. 3. + In vit, Marii.
1 See Pindar. Fragm. by Schneider, p, 99.
§ Vid. Plutarch. in vit. Aristid. || Lib. vi. par. 5.

NOTES. 317

which present to us the properties of virtue in a summary view.
Patriotism, of course, is not omitted.

“Commoda preterea Patrie sibi prima putare.” This virtue
Mr. Fox practised, and in such a manner, too, as not to have in-
curred the serious and just complaint of Lactantius against the
excesses and abuses of patriotism. His words ought to be deeply
engraven upon the memories and hearts of all statesmen. ‘ Sub-
lata hominum concordia, virtus nihil est omnino. Que sunt
enim patrie commoda, nisi alterius civitatis aut gentis incom-
moda? {Jd est, fines propagare, aliis violenter ejectis; augere
imperium ; vectigalia facere majora.e Que omnia non utique
virtutes, sed virtutum sunt eversiones. In primis enim tolli-
tur humanz societatis conjunctio, tollitur innocentia, tollitur
alieni abstinentia; tollitur denique ipsa justitia, que dissidium
generis humani ferre non potest ; et ubicunque arma fulserint,
hine eam fugari et exterminari necesse est. Verum est enim
Ciceronis illud: Qui autem civium rationem dicunt habendam,
externorum negant ; dirimunt hi communem generis humani so-
cietatem: qua sublata, beneficentia, liberalitas, bonitas, justi-
tia funditus tollitur.”*

Nore 27, p. 48.

Political writers very properly apply to the English govern-
ment a well-known passage in Tacitus: ‘* Cunctas nationes et
urbes populus, aut primores, aut singuli regunt: delecta ex his
et constituta reipublice forma, laudari facilius quam evrenire, vel,
si evenit, haud diuturna esse potest ;"+ they refer, also, to a
fragment which Nonius on the word modiwm has preserved from
the writings of Cicero: “ Statuo esse optimé constitutam rem-
publicam que ex tribus generibus illis, regali, optimo, et popu-
Jari confusa modice,” ἃς, Blackstone, who justly considers the
British constitution as a standing exception to the truth of the
observation made by Tacitus, does not seem to have been aware
that the notion of a mixed form of government was to be found
in any other writers of antiquity than the two whose words are
above quoted. But it may be of some importance for us to re-

* Edit. Sparke, p. 520. + Annal. lib. iv,

318 NOTES.

member that Polybius has enlarged upon the subject at the open-
ing of the sixth book Megal. Histor. He expressly states that
constitution of a commonwealth to be the best which is com-
posed of the regal, the aristocratic, and the popular form, and
he at large illustrates his position by an examination of the
Spartan and the Roman governments, which in his opinion
partook of each form. Stobzus, in Sermone 41, gives a long
extract from Hippodamus the Pythagorean, in a work, De Re-
publica, where he speaks of monarchy: “ Οὐ δεῖ κατὰ πᾶν αὐτᾷ
χρέεσθαι, μέχρι δὲ τῶ δυνάτω καὶ ποτὲ τὰν πολιτείαν χρησίμω.᾽"
Of the remaining forms he speaks thus: ““ τὰν δ᾽ ἀριστοκρατίαν
ἐπιπλέον ἐμπλέκεν,; τῷ πλείονας εἶμεν τὼς ἄρχοντας, καὶ φιλοξή-
λως διατίθεσθαί ποτ᾽ αὐτοὺς, καὶ πολλάκις ἀντιμεταλαμβάνεσθαι
τὰς ἀρχάς" δαμοκρατίαν δὲ ἀναγκαῖον μὲν ἦμεν πάντως" δεῖ γὰρ
τὸν πολίταν μέρος ὑπάρχοντα Tas συμπάσας πολιτείας φέρεσθαί
τι ἀπ᾽ αὐτᾶς γέρας ἐπέχεσθαι δ᾽ ἱκανὼς αὐτὰν δεῖ: θρασὺ γὰρ
καὶ προπετὲς τὸ πολὺ πλᾶθος.᾽᾽ There can be no difficulty in
accounting for the strong preference which a Greek writer
would give to the republican as opposed to the monarchical
form. But I would wish to contrast Mr. Burke’s opinion with
that of Hippodamus, Speaking cf himself as the writer of an
Appeal from the New to the Old Whigs, Mr. Burke says, “ He
knew nothing in his nature, temper, or faculties which should
make him an enemy to any republic modern or ancient. He
had studied the form and spirit of republics very early in life, and
with great attention. He was convinced that the science of
government would be poorly cultivated without that study. But
the result in his mind from that investigation has been, and is,
that neither England nor France, without infinite detriment to
them, as well in the event as in the experiment, could be
brought into a republican form ; but that every thing republican
which can be introduced with safety into either of them, must
be built upon a monarchy; built upon a real, not a nominal
monarchy, as its essential basis; that all such institutions, whe-
ther aristocratic or democratic, must originate from their
Crown, and in all their proceedings must refer to it: that by the
energy of that main-spring alone those republican parts must be
set in action, and from thence must derive their whole legal

NOTES. 319

effect (as amongst us they actually do) or the whole will fall into
confusion.”’*

But let me return from Mr. Burke to a fifth ancient writer,
who spoke of mixed governments, and whose words I have not
seen in any modern works upon politics, In the thirty-seventh
section of the Bibliotheca, Photius mentions a dialogue which
passed between Meenas Patricius and Thomas Referendarius, in
which the polity of Plato is censured, and opinions upen govern-
ment very different from those of the old Greek writers are in-
troduced. The article concludes in these words: ‘ ‘Hv δ᾽ αὐτοὶ
πολιτείαν εἰσάγουσιν ἐκ τῶν τριῶν εἰδῶν τὴς πολιτείας, δέον ad-
τὴν συγκεῖσθαί φασι, βασιλικοῦ καὶ ἀριστοκρατικοῦ καὶ δημοκρα-
τικοῦ" τὸ εἰλικρινὲς αὐτῇ ἑκάστης πολιτείας συνεισαγούσης, κακεί-
γὴν τὴν ὡς ἀληθῶς ἀρίστην πολιτείαν ἀποτελούσης.

Note 28, p. 48.

The treatment Mr. Fox met for some of his speeches in favour
of peace would justify me in applying to him a part of what Mil-
ton wrote about Enoch :

** Gray-headed men and grave, with warriors mix’d,
Assemble, and harangues are heard, but soon
In factious opposition, ’till at last
Of middle age one rising, eminent
In wise deport, spake much of right and wrong,
Of justice, of religion, truth, and peace,
And judgment from above: him old and young
Exploded.” +

Nore 29, p. 49.
I will quote the passage, because I have again and again read
it with the most exquisite delight :

“Οἱ Φιλόσοφοι ξητοῦσιν, ws ἀκήκοα,
Περὶ rovre δ᾽ αὐτῷ πολὺς ἀναλῶται χρόνος,

* Burke’s Works, Appeal from the New to the Old Whigs,
vol, vi. p. 139 ---4,
+ Par. Lost, book xi.

320 NOTES.

Ti ἐστιν ἀγαθὸν" οὐδὲ εἷς εἴρηκέ πω
Τί

Πλέκουσι ταῦτα, μᾶλλον; ἡἣ τί τ᾽ ἀγαθόν.

>

ἐστιν᾽ ἀρετὴν και φρόνησίν φασι; καὶ

Ἔν ἀγρῶ διατρίβων, τὴν τε γῆν σκάπτων ἐγὼ,
Νῦν εὖρον----εἰρήνη ᾽στιν---ἰῷ Ζεῦ φίλτατε
Τῆς ἐπαφροδίτου, καὶ φιλανθρώπου Θεοῦ.
Γάμους, ἑόρτας, συγγενεῖς; παῖδας, φίλους,
TIX ~ ε , - Fz δ δ ,

ovTOY, ὑγιείαν, σῖτον, οἶνον; ἡδόνην,
Αὕτη δίδωσι---ταῦτα πάντ᾽ ἀν ἐκλίπ

7) ἢ»

Τέθνηκε κοινῇ πᾶς 6 τῶν ξώντων Pios.”*

Nore 30, p. 51.

I once had the pleasure to meet Dr. Dickson, the late Bishop
of Down, to the candour of whose spirit, the sanctity of whose
Opinions, and the innocency of whose life, Mr. Fux has done
justice to in a very masterly epitaph ; and if that excellent pre-
late were now living to read the foregoing statement, I trust that
he would not condemn me for thus addressing the shade of our
common friend :

“‘ vere virtutis amator,
Unum hoc maceror, et doleo tibi deesse.”’

He must be a bigot, or a maniac, that would suspect impiety
to lurk in the writer of the following epitaph :

«‘ Under this stone lies interred the mortal remains of the
Right Rev. William Dickson, late Bishop of Down and Connor,
whose memory will ever be dear to all who were connected with
him in any of the various relations of life-—Of his public cha-
racter, the love of liberty, and especially of religious liberty, was
the prominent feature: sincere in his own faith, he abhorred
the thought of holding out temptations to prevarication or in-
sincerity in others, and was a decided enemy, both as a bishop
and a legislator, to laws whose tendency is to seduce or to deter
men from the open and undisguised profession of their religious
opinions by reward and punishment, by political advantages, or

* Fragment from the Pyrrhus of Philemon, page 244, edit.
Le Clerc.

NOTES. 321

political disabilities. In private life, singular modesty, correct
taste, a most engaging simplicity of manners, unshaken con-
stancy in friendship, a warm heart alive to all the charities of our
nature, did not fail to conciliate to this excellent man the affec-
tions of all who knew him. But, though the exercise of the
gentler virtues which endear and attract was more habitual to
him as most congenial to his nature, he was by no means defi-
cient in those more energetic qualities of the mind which com-
mand respect and admiration. When roused by unjust aggres-
sion, or whatever the occasion might be that called for exertion,
his mildness did not prevent him from displaying the most manly
and determined spirit ; and notwithstanding his exquisite sensi-
bility, he bore the severest of all human calamities, the loss of
several deserving and beloved children, with exemplary fortitude
and resignation. He was born in February 1745—was married
in June 1773, to Henrietta Symes, daughter of the Rev. Jere-
miazh Symes ; was preferred to the bishopric of Down and Con-
nor in December 1783, and died on the 19th of September 1804,
deeply regretted by all the different religious sects that composed
the population of his extensive diocese; by acquaintances, neigh-
bours, and dependants of every condition and description ; by his
children, his friends, and his country; and most of all by his
disconsolate widow, who has erected this stone to the memory of
the kindest husband, and the best of men.’ C. J. Fox.*

What man of sense would impute levity or profaneness to the
mind which conceived such an inscription? Where is the en-
lightened and orthodox believer who, upon reading it, would
not exclaim, “ εὐξαίμην ἂν τῷ θεῷ, καὶ ἐν ὀλίγῳ, καὶ ἐν πολλῶ

τοιοῦτόν σε γενέσθαι, ὁποῖος κἀγώ εἰμι;

Note 81, p. 51.

Dr. Johnson was certainly not a latitudinarian. His mascu-
line sense sometimes happily suspended the force of his religious
prejudices. The following passage, which I have selected from
his character of Dr. Mudge, unites the true spirit of Christian
charity with the soundest wisdom. “His principles both of

* See Monthly Magazine, vo]. xx. p. 574.
VOL, IV. Y

922 NOTES.

thought and action were great and comprehensive. By a solici-
tous examination of objections, and a judicious comparison of
opposite arguments, he attained what enquiry never gives but to
industry and perspicuity—a firm and unshaken settlement of
conviction. But his firmness was without asperity, for, know-
ing with how much difficulty truth was sometimes found, he did
not wonder that many missed it.’’*

You will be glad to see in what terms men not unequal to
Johnson in genius, and superior to him in learning, discourage
our attempts to solve all difficulties which meet us in the natural
and in the moral world, and by discouraging them, to preserve
us from the extremes of dogmatism and scepticism.

““ Ne curiosus quere causas omnium,

Quecunque libris vis prophetarum edidit,

Afflata ceelo, plena presenti Deo :

Nec operta sacri supparo silentii

Irrumpere aude : sed pudenter preteri

Nescire velle que magister optimus

Docere non vult, erudita inscitia est,” —ScALIGER.

“« Qui curiosus postulat totum suze
Patere menti, ferre qui non sufficit
Mediocritatis conscientiam sue,

Judex iniquus, zestimator est malus
Suique, naturaeque: nam rerum parens
Libanda tantum que venit mortalibus,
Nos scire pauca, multa mirari jubet.

Hic primus error auctor est pejoribus.
Nam qui fateri nil potest incognitum,
Falso necesse est placet ignorantiam,
Umbrasque inanes captet inter nubila.
Magis quiescet animus, errabit minus,
Contentus eruditione parabili,

Nec queret illam, siqua querentem fugit.
Nescire quedam magna pars sapientiz est.’’>

* Boswell’s Memoirs of Johnson, vol, iii. p. 333.
+ Grotii Epigram, lib. i.

NOTES. 323

ΝΟΤΕ 32, p. 54.

If Mr. Fox had been asked to what school of eloquence he be-
longed, he perhaps would have replied in the spirit of an antient
speaker who, “ percontanti, Theodoreus, an Appsllodoreus esset,
respondit, ego Parmularius sum.’’*

Nore 33, p. 56.

I could wish the merit of Mr. Fox’s method to be tried by the
opinions of Mr. Hume. “ ‘There isa great prejudice against set
speeches, and a man can scarce escape ridicule who repeats a dis~
course as a school-boy his lesson, and takes no notice of any
thing which has been advanced in the course of the debate. But
where is the necessity of falling into this absurdity? A public
speaker must know beforehand the question under debate. He
may compose all the arguments, objections, and answers, such
as he thinks will be most proper for his discourse. If any thing
new occur, he may supply it from his invention ; nor will the dif-
ference be very apparent between his elaborate and extemporary
compositions. The mind naturally continues with the same
impetus or force which it has acquired by its motion; asa vessel,
once impelled by the oars, carries on its course for some time,
when the original impulse is suspended.”

“The great affectation in our modern orators, of extemporary
discourses, has made them reject all order and method, which
seems 50 requisite as to argument, and without which ‘tis scarce
possible to produce an entire conviction on the mind. ‘Tis not
that one would recommend many formal divisions in a public
discourse, unless the subject very evidently offer them. But ‘tis
easy without this formality, to observe a method, and make that
method conspicuous to the hearers, who will be infinitely pleased
to see the arguments rise naturally from one another, and will
retain a more thorough persuasion than can arise from the
strongest reasons which are thrown together in confusion.”

* Vid. Quintilian, lib. ii. cap. 12.
t Hume's Essay on Eloquence, vol. i.

y 2

924 NOTES.

These just observations deserve attention from every public
speaker, and from every critic on public speaking. It may be
worth while to remark that in describing the little apparent dif-
ference between the elaborate compositions and the extempora-
neous speeches of an orator, Mr. Hume has unconsciously em-
ployed the same beautiful imagery which we meet in Cicero, when
he contrasts the sudden effusions of a public speaker with matter
prepared in writing. ‘“‘ Si quando in dicendo scriptum attulerit
aliquid, cum ab eo discesserit, reliqua similis oratio consequetur :
ut concitato navigio, cum remiges inhibuerunt (lege, sustinue-
runt *) retinet tamen ipsa navis motum et cursum suum, inter-
misso impetu pulsuque remorum: sic in oratione perpetua, cum
scripta deficiunt, parem tamen obtinet oratio reliqua cursum
scriptorum similitudine et vi concitata.”’+

Another instance of unconscious similitude between an an-
cient and a modern writer occurs at the moment to my memory,
and as | have not seen it noticed in any book you will excuse me
for producing it. ‘ Gray,” says Johnson, “in his odes has a
kind of strutting dignity, and is tall by walking on tiptoe.” We
meet with a similar thought in Quintilian: “ Prima est eloquen-
tiz virtus, perspicuitas: et quo quisque ingenio minus valet, hoc
se magis attollere et dilatare conatur: ut statura breves in digi-
tos eriguntur, et plura infirmi minantur.” t

I will add a third instance. Johnson said of Lord Chesterfield,
** He is a wit among lords, and a lord among wits.” But he re-
membered not that Pope had written,

“ἃ wit with dunces, and a dunce with wits.’’§
Neither of them, perhaps, was conscious that Quintilian had long

ago said, ‘‘ Qui stultis eruditi videri volunt, eruditis stulti vi-
dentur.” ||

Note 34, p. 56.

It may amuse you if I were to divide between Mr. Fox and
his great rival most of the properties which Cicero, in what he

* Epist. ad Attic. lib. xiii. vol. 2.
+ De Oratore, lib. i. par. 33. { Quintil. lib. ii, cap. 3.
§ Dunciad, book iv, line 90. || Quintil. lib. x. cap, 7.

NOTES. 325

calls quasi sylvam, requires from an orator. The first of them,
sic dicet, ut verset sepe multis modis eandem et unam rem, et
hereat in eadem commoreturque sententia; ut sepe cum iis
qui audiunt, nonnunquam etiam cum adversario, quasi deliberet ;
ut hominum serimones, moresque describat; ut ante occupet,
quod videat opponi; ut comparet similitudines ; ut utatur exem-
plis; ut liberius quid audeat ; ut irascatur etiam; ut objurget
aliquando ; ut deprecetur ; ut supplicet ; ut medeatur; ut a pro-
posito declinet aliquantulum; ut optet; ut exsecretur; ut fiat
iis apud quos dicit, familiaris; atque alias etiam dicendi vir-
tutes sequatur; brevitatem, ei res petat, Spe etiam rem di-
cendo subjiciet oculis,’ The other “ sic dicet, seepe ut irrideat ;
ut declinet a proposito, deflectatque sententiam ; ut proponat
quid dicturus sit ; ut contra, ac dicat accipi et sentiri velit; ut
dividat in partes; ut aliquid relinquat; ut ab eo quod agitur
avertat animos ; ut ante premuniat; ut in eo ipso in quo repre-
henditur, culpam in adversarium conferat ; ut interpellatorem
coerceat ; ut aliquid reticere se dicat ; ut denuntiet, quid cave-
ant. Szepe supra feret, quam fieri possit. Significatio sape erit
major, quam oratio. Hoc in genere omnis ejus elucet eloquentia
magnitudo. Hee collocata, et quasi structa et nexa verbis, ad
eam laudem, que orationis propria est, aspirant.”*

Note 35, p. 58.

*‘ Hec Simulatio interim huc usque processit, ut que refutare
non posset, quasi fastidiendo calcaret.”>

Nore 36, p. 60.
“Zeno quoque Stoicorum Princeps, non tam rerum inventor
fuit, quam novorum verborum.” t
Nore 37, p. 61.

Within these late years we have heard much in our Parliamen-

* Cicero. Orator. vol. i. pag. 162. ed. Gruter.
Tt Quintil, lib. v. cap. 3. t Cic. de Finibus, lib. iii, par. 2.

326 NOTES.

tary debates of existing circumstances, when employed to justify
seeming or real deviations from general principles. I shall not
here repeat the critical objections which you have heard me
make to the use of the phrase. But you have yourself lamented
the effects of it upon the judgments, or at least in the votes
of persons who are in Parliament, and you will not be sorry to
read the exposition which a very learned and intelligent Critic
has given of the principle that is wrapped up in our modern
phrase.

““ Prudentiam philosophi politici duplicem faciunt: eam que
simpliciter prudentia vocatur, et quam ipsi dicunt περιστατικὴν;
velut temporum necessitate expressam. Simili ratione dicuntur
Senece epistola Lxvi. quedam prima bona; tanquam gaudium,
pax, salus patriz : queedam secundain materia infelici expressa ;
tanquam tormentorum patientia, et in morbo gravi temperantia. .
Ex hac diversitate, genus duplex officiorum viri prudentis nasci-
tur: officia prima, sive primario suscepta, in quibus emicat ipsa
honestas, nulla inhonesti suspicione aut mixtione obscurata: ut
quum dives aliquis patriz aut egenis opes suas impendit : quum
vir fortis contra patrie perduelles stat fortiter in acie: item of-
ficia περιστατικὰ, que M. Tullius officia ex tempore vertendo
nominat, et secunda honesta; quum honestati quam sequeris
inest aliquid quod plerunque turpe videatur. Szpe enim tem-
pore fit, ut quod plerunque turpe haberi soleat, inveniatur non
esse turpe. Hujus autem generis officiorum ex tempore, cum in
privata vita interdum est usus, ut disputant iidem philosophi: —
tum multo magis in publicz rei administratione. Tanti enim est
publica salus, ut sapientissimi olim viri dicere ac docere veriti
non sint ; non esse quidem honesto unquam utile anteponendum :
sed statui ita debere; quicquid valde necessarium sit Reip. id
fieri honestum, etiam si ante non videretur. Verum heic
cautione et attentione magna Politicis est opus: ne prudentiam
περιστατικὴν, cui humanum genus sua miseria et vanitas fecit ob-
noxium, ut recte sentit B. Augustinus, in dolum malum convert-
ant, et illam veteratorum malitiam, quam vir optimus Polybius
κακοπραγμοσύνην vocat, et tantopere abominatur. Hodierni po-
jitici secunda officia qua περιστατικὰ vocari diximus a Grecis,
nominant Rationem status: qui autem dolos et fraudes nefarias

NOTES. 327

hoc specioso mantelio hodie obnubunt, ii non pro viris prudenti-
bus, sed pro malitiosis veteratoribus sunt habendi.”*

Note 38, p. 65.

From the love I bear to my country, and from my remem-
brance of the important and honourable part it once sustained
in the politics of Europe, I have often wished such measures to
have been pursued during the late and the present war, as would
have justified me in continuing to apply to England a beautiful
passage which I have been accustomed to repeat with enthusias-
tic fondness :

“Ὃ τὴν Ῥώμην ὑποβαλόμενος χρόνος μετὰ θεοῦ τύχην καὶ
ἀρετὴν ἐκέρασε καὶ συνέξευξεν, ἵνα ἑκατέρας λαβὼν τὸ οἰκεῖον,
ἀπεργάσηται πᾶσιν ἀνθρώποις ἑστίαν ἱερὰν, ὡς ἀληθῶς, καὶ
ὀνησιδώραν, καὶ πεῖσμα μόνιμον; καὶ στοιχεῖον ἀΐδιον, ὑποφερομέ-
γοις τοῖς πράγμασιν ἀγκυρηβόλιον σάλου καὶ πλάνης, ὥς φησι
Δημόκριτος. Τ

ΝΟΤΕ 39, p. 66.

From present appearances in the political horizon the day I
trust is approaching when the downfal of one who has hitherto
supposed “summa scelera incipi cum periculo, peragi cum
premio,” } will remove the doubts which Tacitus expressed upon
the interview between Trasullus and Tiberius. ‘‘ Mihi hee ac
talia audienti in incerto judicium est, fatone res mortalium et
necessitate, an forte volvantur : quippe sapientissimos veterum,
quique sectam eorum emulantur, diversos reperies. Ideo creberri-
ma et tristiain bonos, leta apud deteriores esse. Contra alii fatum
quidem congruere rebus putant, sed non e vagis stellis, verum
apud principia et nexus naturalium causarum ; ac tamen electio-
nem vite nobis relinquunt, quam ubi elegeris, certum imminen-
tium ordinem. Neque mala vel bona que vulgus putant ; mul-
tos qui conflictari adversis videantur beatos, ac plerosque quan-

* Vid. Casaubon’s Commentary in Polybium, lib. iii. p. 141.
+ Vid. Plutarch de fortuna Romanorum, lib. ii. p. 316—17.
7 Annal, lib. xii. par. 12,

328 NOTES.

quam magnas per opes miserrimos : si illi gravem fortunam con-
stanter tolerent, hi prospera inconsulte utantur.”’*

The fall of such a conqueror may reconcile many persons to the
belief of a providence administered by secondary causes, and in-
duce them to take a lively interest in the language of Ciaudian,
whose statement of principles and whose conclusion from facts
may be properly contrasted with the passage I have just now
quoted from Tacitus.

‘© Sepe mihi dubiam traxit sententia mentem
Curarent Superi terras, an nullus inesset
Rector, et incerto fluerent mortalia casu.
Nam cum dispositi quesissem foedera mundi
Prescriptosque mari fines, tune omnia rebar

Consilio firmata Dei. * * *
* * % x * * %
% * ΕἸ * % x *

Sed cum res homiaum tanta caligine volvi
Aspicerem, letosque diu florere nocentes,
Vexarique pios ; rursus labefacta cadebat
Religio, causeeque viam non sponte sequebar
Alterius, vacuo que currere semina motu
Affirmat, magnumque novas per inane figuras
Fortuna, non arte regi: qua numina sensu
Ambiguo vel nulla putat, vel nescia nostri.
Abstulit hune tandem Rufini poena tumultum,
Absolvitque Deos: jam non ad culmina rerum
Injustos crevisse queror: tolluntur in altum
Ut lapsu graviore ruant.”t

Nore 40, p. 68,

This offensive pamphlet has been republished by Mr. Burke
himself, but with a milder and more judicious title than it bore,
when it was first sent into the world by the impatience and
anger of the printer. The insertion of it in the works of that
celebrated man must give perpetuity and increased notoriety to
the censures contained in it; and therefore calls aloud for pub-

* Tacit. Annal. lib. vi, par. 22. + Claudian, in Rufin, lib. i.

NOTES. 329

lic and pointed notice from the well wishers of Mr. Fox. “ Spreta
exolescunt convitia” was a maxim which our friend generally
followed under very trying provocations. But the mischievous
insinuations, the weighty charges, the bitter reproaches aimed
against Mr. Fox himself, against Mr. Adair, and Lord Howick,
who were his personal friends, and against other excellent men
who adhered to his party, made, as I know from my cor-
respondence with him, a very deep and very painful impres-
sion upon his mind. In the writings of Mr. Burke posterity will
find the name of Mr. Fox recorded, as of a man who had rushed
upon the very threshold of treason, who approved of nearly
all the atrocities which disgraced the French revolution, and
who not only held, but avowed principles, which, if he should
ever have been admitted to power, would have endangered
the property of every English gentleman, and might have
changed the whole form of the English government. In the
second edition no one accusation is omitted, no one reproach is
softened, no one prediction of the dreadful consequences which
were to ensue from an administration over which Mr. Fox pre-
sided, is directly or indirectly qualified. The alterations, as 1
find upon careful comparison, are few, and merely verbal.

Mr. Burke has prefixed a very elaborate and animated dedica-
tion of his work to the Duke of Portland; and in the course of
it he tells us ‘that his own latest judgment owns his first
sentiments and reasonings in their full force with regard to
persons and things.” He represents Lord Lauderdale as acting
in the spirit of Lord George Gordon. He says that ‘* Mr. Coke
of Norfolk had engaged his share of the aristocratic interest in
the new cause of a new species of democracy, which was openly
attacking or secretly undermining the system of property by
which mankind have hitherto been governed.” The intro-
duction of such new matter, and the republication of the former
charges against Mr. Fox and his party, are decisive proofs
of a most fixed and hostile purpose in the accuser,

Surely no reasonable admirer of Mr. Burke will condemn me
for calling the contents of such a pamphlet “ μίαρα καὶ ἀπίθανα
ρήματα. ἢ
Reo TE ie ee ὃμ ἢ -

* Vid. AEschin. de Corona.

“90 NOTES.
Nore 41, p. 68.

Mr. Burke in his Appeal to the Old Whigs declares that
he never ‘‘ did impute to Mr. Fox any republican principles, or
any other bad principles or bad conduct whatsoever—that Mr.
Fox cannot admire the change of one piece of barbarism in
France for another and a worse—that his mind was made to
better things’’"—so writes Mr. Burke in 1791. How great was
the change wrought in his sentiments when he spoke of the same
man in 1793.

Norte 42, p. 81.

The specific charge brought by Mr. Burke against Mr. Adair
was, that with guilt little short of treason, he had been an
accomplice with Mr. Fox in opposing the measures of an
accredited ambassador at the court of Petersburgh. The specific
duties in which Mr. Adair has been engaged for nearly three
years, are those of an Envoy at the Courts of Vienna and Con-
stantinople. He in all probability was commissioned to go to
Constantinople, because his sovereign approved his conduct
at Vienna; and I have not credulity enough to suppose that the
English government would have employed the betrayer of his
country in trusts so important, at a juncture so perilous. The
confidence of the Sovereign completely and visibly refutes the
accusations of Mr. Burke. The lot of Mr. Adair is indeed
singular, and at the same time highly creditable to his abilities
and his honour. He remained at one court, and has since been
sent to another, with the approbation of a ministry whose gene-
ral system he would have opposed in Parliament. He re-
tained the first employment, and accepted the second, without
forfeiting the good opinion of the party with which he has long
acted, and probably would act again at home. Surely these un-
usual circumstances justify the large confidence which I know
Mr. Fox to have reposed in the good sense and fidelity of
our common friend Mr. Adair.

Nore 43, p. 86,

This charge ought to be supported by direct and even ample.
quotations from the work itself.

NOTES. 991

In chapter the seventh of the Annual Register for 1788,
nearly eight pages are employed upon the admirable speech
which Mr. Burke delivered on the opening of the charge against
Mr. Hastings. ‘ The curiosity excited by Mr. Sheridan’s speech
upon the same occasion, and the attention paid to it by Sir
Joshua Reynolds, by Mr. Gibbon, by other literary characters,
and by the whole audience, must be within our own recollec-
tion” We must therefore be surprised a little that the writer
who had done justice, but no more, to Mr. Burke, should be
content with speaking of Mr. Sheridan in the following words :
“On the thirty-second day of the trial (Tuesday, June the third)
Mr. Sheridan began to sum up the evidence, and to apply it in
proof of the charge. His speech, which was delivered to an un-
commonly crowded audience, was continued the two following
days.” *

With this statement let us contrast the representation which
the same annalist has given of Mr. Sheridan’s speech upon the
Begums of Oude, in the Annual Register of 1787.

** The subject of this charge was peculiarly fitted for display-
ing all the pathetic powers of eloquence; and never were they
displayed with greater skill, force, and elegance, than upon this
occasion. For five hours and an half Mr. Sheridan kept the
attention of the House (which from the expectation of the day
was uncommonly crowded) fascinated by his eloquence; and
when he sat down, the whole house, the members, peers, and
strangers, involuntarily joined in a tumult of applause, new and
irregular in that house, by loudly and repeatedly clapping with
their hands. Mr, Burke declared it to be the most astonishing
effort of eloquence, argument, and wit united, of which there is
any record or tradition. Mr. Fox said, ‘ All that he had ever
heard, all that he had ever read, dwindled into nothing, and
vanished like vapour before the sun.’ Mr. Pitt acknowledged,
that it surpassed all the eloquence of antient or modern times,
and possessed every thing that genius or art could furnish, to
agitate or control the human mind.” +

It is of importance for us not to forget that the same writer
who had been thus liberal of praise to one speech of Mr. Sheri-

* Page 169, + Vide page 150.

332 NOTES.

dan, was afterwards, in the same work, and upon the same sub-
ject, so thrifty of it to another. The fact is very striking indeed;
and if that writer was the person whom the public for many
years supposed him to be, we can hardly forbear to suspect that
jealousy of Mr. Sheridan’s growing reputation preceded and
produced the difference. In the progress of that jealousy, such
a critic upon Mr. Sheridan would not have been very angry with
Mr. Burke for speaking of Mr. Fox as one who, “ by long prac-
tice and slow degrees had risen to be a most brilliant and accom-
plished debater.”

The fidelity of the annalist in one quarter did not desert him,
when he minutely detailed what Mr. Fox said in praise of Mr.
Burke, after their first and mildest altercation in Parliament
upon the French Revolution.

“5 As soon as Mr. Burke, whose speech was received with great
and general applause, sat down, Mr. Fox rose, and said, that his
right honourable friend had mixed his remarks upon what he
had said with so much personal kindness towards him, that he
felt himself under a difficulty in making any return, lest the
House should doubt his sincerity, and consider what he might
say as a discharge of a debt of compliments. He must however
declare, that such was his sense of the judgment of his right
honourable friend, and such the estimation in which he held his
friendship, that if he were to put all the political information
which he had learned from books, all which he had gained from
science, and all which any knowledge of the world and its affairs
had taught him, into one scale, and the improvement which he
derived from his right honourable friend’s instruction and con-
versation were placed in the other, he should be at a loss to de-
cide to which to give the preference.” *

The foregoing words do great credit to the candour of Mr.
Fox, but in the opinion of the annalist, I suspect, greater still to
the abilities of Mr. Burke. You may yourself collect from cir-
cumstances who was the person that recorded them—my inten-
tion is chiefly, not solely, to prove what he was—just, uniformly
to Mr. Burke, but in one instance flagrantly unjust to Mr. She-
ridan.

* See Annual Register, for 1790, page 69,

NOTES. 333

Nore 44, p. 87.

When Cato had refused to Cicero the honour of a supplica-
tion, which he had granted to his own father-in-law Bibulus,
who had just before lost a son, he wrote thus peevishly to Atti-
cus: ‘ Haveo scire Cato quid agat, qui quidem in me turpiter
fuit malevolus, dedit integritatis, justitie, clementie, fidei tes-
timonium, quod non querebam. Quod postulabam, negavit
id.”* So far as my memory goes, Mr. Fox, whatever his friends
might do, took no part in opposing the pension granted to Mr.
Burke. But, for the honour of human nature, I wish that Mr.
Fox could have applied to Mr. Burke’s criticism upon the dee
bater, what Cicero, upon ancther occasion, affectionately wrote
to Atticus about Cato’s political conduct: ‘‘ Nam quod purgas
608 quos ego mihi scripsi invidisse, et in eis Catonem: ego vero
tantum illum puto ab isto scelere abfuisse, ut maxime doleam,
plus apud me simulationem aliorum, quam istius fidem valuisse.” +

Nore 45, p. 91.

Mr. Fox, as it appeared sometimes through his speeches, and
more frequentiy in his conversation, was most extensively ac-
quainted with the memoirs of distinguished statesmen, and espe-
cially of those who have adorned our own country. The advan-
tages which a public speaker may derive from such knowledge
are well described by Quintilian: “‘ Neque ea solum que talibus
disciplinis continentur, sed magis etiam que sunt tradita anti-
quitus, dicta ac facta praclare, et nosse, et animo semper agitare
conveniet. Que profecto nusquam plura majoraque, quam in
nostre civitatis monimentis reperientur. Hine mihi ille justitie
haustus bibat, hinc sumptam libertatem in causis atque consiliis
preestet. Neque erit perfectus orator, nisi qui honeste dicere et
sciet, et audebit.” +

Note 46, p. 94.

I myself have often heard those speeches, and have been in-

* Epist. ad Attic, 2d, lib. vii.
1 Epist. ad Attic, 15. lib. iii. { Lib. xii. cap. ii.

334 NOTES.

clined to say of them what Plato says of the effect produced by
the conversation of Socrates: “Ἐν ἐμοὶ αὐτὴ ἡ ἠχὴ τῶν λόγων
βομβεῖ, καὶ ποιεῖ μὴ δύνασθαι τῶν ἄλλων ἀκούειν." *

ΝΟΤΕ 47, p. 94.

Mr. Hume tells us, that “‘ in his time there were about half a
dozen speakers who in the judgment of the public had reached
very near the same pitch of eloquence, and no man pretended to
give any one the preference before the rest.” He infers from
this, that ‘‘none of them had attained much beyond mediocrity
in their art ;” and he seems to consider “ modern eloquence
only as good sense delivered in proper expressions.” But if he
had fortunately heard the three great English speakers who are |
now no more, he in all probability would have changed his
opinion upon “ the power of modern speakers to inflame the pas-
sions, or to elevate the imagination of their audience.” Nothing
can be more sagacious or more jusc, than the following observa-
tions, and they particularly deserve to be noticed in our criticism
upon the comparative merits of some speakers whom we have
been lucky enough to hear. ‘‘ The principles of every passion,
and of every sentiment, are in every man: and when touched
properly they rise to life, and warm the heart, and convey that
satisfaction by which a work of genius is distinguished from the
adulterate beauties of a capricious wit and fancy. And if this
observation be true with regard to all the liberal arts, it must
be peculiarly so with regard to eloquence; which being merely
calculated for the public, and for men of the world, cannot with
any pretence of reason appeal from the people to more refined
judges, but must submit to the public verdict without reserve or
limitation. Whoever upon comparison is deemed by a common
audience the greatest orator, ought most certainly to be pro-
nounced such by men of science and erudition.” Ὁ

The most enthusiastic admirers of Mr. Hume would not be
offended if I were to tell them, that on a subject of oratory
Cicero agrees with him, and that in the most luminous language

* Crito in fine. + Hume’s Essay on Eloquence.

ΝΟΤΕΒ. 335

he has set before us the same criteria tO which Mr. Hume had
appealed.

“Td ipsum est summi oratoris, summum oratorem populo
videri. Quare, tibicen Antigenidas dixerit discipulo sane fri-
genti ad populum, ‘ mihi cane et Musis ;” ego huic Bruto di-
centi, ut solet, apud multitudinem, ‘mihi cane et populo’ dixe-
rim: ut qui audient, quid efficiatur, ego autem cur id efficiatur,
intelligam. Credit iis, que dicuntur, qui audit oratorem; vera
putat, assentitur, probat, fidem facit oratio. Tu artifex, quid
quzris amplius? delectatur audiens multitudo, et ducitur ora-
tione, et quasi voluptate quadam perfunditur. Quid habes quod
disputes ὃ gaudet, dolet, ridet, plorat, favet, odit, contemnit, in-
videt, ad misericordiam inducitur, ad pudendum, ad pigendum,
irascitur, miratur, sperat, timet: hec perinde accidunt, ut
eorum qui adsunt mentes verbis, et sententiis, et actione tractan-
tur. Quid est, quod expectetur docti alicujus sententia? Quod
enim probat multitudo, hoc idem doctis probandum est ; denique
hoc specimen est popularis judicii, in quo nunquam fuit cum
doctis intelligentibusque dissentio.”

Do not suppose that by applying any of the foregoing passage
to Mr. Fox, I mean to depreciate his celebrated rival.

But “ Divisum imperium cum Jove Cesar habet.” To those ᾿
who may be inclined to give the preference where I should not
give it, 1 will put the question in another form, and leave them
to decide for themselves. ‘‘ Quando dubium fuisset apud patres
nostros eligendi cui patroni daretur optio, quin aut Antonium
optaret, aut Crassum: Aderant multi alii; tamen, utrum de
his potius, dubitasset aliquis: quin alterum, nemo.” ἢ

Norte 48, p. 96.

The fact is noticed in the Problems ascribed to Aristotle:
“ Διὰ τὶ, ἥδιον ἀκουούσιν ἀδόντων ὅσα προεπιστάμενοι τυγχά-
~ ~ a τ \ 2 , Ἵ of ~ , ~
νωσι τῶν μελῶν, ἢ ὧν μὴ ἐπίστωνται; πότερον, ὅτι μᾶλλον δῆλος
ὁ τυγχάνων ὥσπερ σκοποῦ, ὅταν γνωρίϑωσι τὸ ἀδόμενον ; τοῦτο
δὲ ἡδὺ θεωρεῖν" ἢ ὅτι ἡδὺ τὸ μανθάνειν; τούτου δὲ τόδε αἴτιον,

* Vide Cicero, Brut. p, 146. ed. Grut.

336 NOTES.

o \ A , \ > , bes δὲ ~ % 523
Ort, TO μὲν, λαμβάνειν τὴν ἐπιστήμην; τὸ δὲ, χρῆσθαι καὶ ἀναγ-
νωρίξειν ἐστίν ἔτι καὶ τὸ σύνηθες ἡδὺ μᾶλλον τοῦ ἀσυνήθους." *

ΝΟΤΕ 49, p. 97.

No man of sense confounds the merit of speeches as they are
delivered in Parliament, with that of speeches as sent from the
press. If there be errors in the latter, they may be, and ought
to be, corrected ; if omissions, they may be supplied; if excel-
lencies, they may be improved; and while the general substance
and general manners are preserved, every purpose of propriety
and fidelity is sufficiently answered. Mr. Burke, though he was
often successful in his extemporaneous effusions, very judici-
ously determined to rest his fame with posterity upon those
orations which he had revised with the utmost care before they
were printed. But Mr. Fox, it is well known, could not be
prevailed upon to bestow the same attention even upon his best
speeches. No arguments, founded upon the importance of the
subjects, or upon the peculiar fitness of his own matter, to admit
amplification and increased force, or upon the examples of Mr.
Burke, Demosthenes, Cicero, and other celebrated orators, could
overcome this determination, except in two or three instances.
This particularity of our friend calls to my mind a difficulty
which has often perplexed me in the history of Demosthenes.
We know from Plutarch, that the admiration which the Athe-
nians felt and expressed towards Callistratus gave the first im-
pression to the mind of Demosthenes upon the astonishing
force of popular eloquence. But it is not quite easy to account
for the answer he gave, when he was asked whether Callistratus
or himself were the better speaker: “Ἐγὼ μὲν γραφόμενος,
Καλλίστρατος δὲ dxovdmevos.” ‘That he made this answer can
hardly be doubted; and in addition to the testimony just now
adduced from the Commentary usually but improperly ascribed
to Ulpian, we have the declaration of AAsion, who, when desired
to give his opinion of the old speakers and his contemporaries,
replied, ‘ ws ἀκούων μὲν ἄν ris ἐθάυμασεν ἐκείνους εὐκόσμως καὶ

μεγαλοπρεπῶς τῷ δήμῳ διαλεγομένους" ἀναγινωσκόμενοι δ᾽ οἱ

* Aristot, Problem. sect. xix, artic. 5.

NOTES. 337

Δημοσθένους λόγοι, πολὺ τῇ κατασκεύῃ Kal δυνάμει διαφέρουσι."
The words of sion seem to imply, that great as might be the
superiority of Demosthenes to a mere reader, over later orators,
they were equal, or at least not very inferior to him in the art of
speaking.

As Demosthenes was very unwilling to address his countrymen
without preparation, and as the labour he employed upon his
speeches before they were delivered, and before they were pub-
lished, subjected him to the scoff of Pythias, ““ἐλλυχνέων ὄξειν
αὐτοῦ τὰ ἐνθυμήματα," we are by no means surprised that, in the
estimation of Cicero, Quintilian, and all the critics of antiquity,
they procured him the praise of being nearly a perfect orator.
He is said by Lucian, (ad indoctum) to have transcribed the his-
tory of Thucydides seven times, and, in some of my papers I have
stated, as well as I could, the extent in which our orator is to be
considered as the imitator of Demosthenes. Hermippus, as we
learn from Plutarch, had met with some anonymous testimony
that Demosthenes, with very happy effect, attended the lectures
of Plato: and Dionysius of Halicarnassus, in that part of his
τέχνη Which treats ““περὶ τῶν ἐν μελεταῖς πλημμελουμένων,᾽"
points out some instances in which ‘* συναγωνίξεται κατὰ μίμη-
σιν τὴν Πλάτωνος. * So intent was he upon giving the utmost
perfection to his style, that he is reported by Ctesibius “ παρὰ
Καλλίου τοῦ Συρακουσίου, καὶ τίνων ἄλλων τὰς Ἰσοκράτους τέχνας
καὶ τὰς ᾿Αλκιδάμαντος κρύφα λαβών καταμαθεῖν. Τ

As to the judgment passed by Theophrastus that Demosthenes
was a speaker “‘ ἄξιος τῆς πόλεως, and Demades, “ὑπὲρ τὴν
πόλιν, it refers only to extemporaneous effusions in which De-
mades, from the natural vigour of his mind, and from habit, had
confessedly the superiority. The unrivalled excellence of the
speeches written by Demosthenes is indisputable. But the diffi-
culty to you and me is, that in the art of delivering them he
should have been excelled by Callistratus, and equalled by any
other speakers of Greece, For we know that the “ τάχος τῆς
ἐπαγγελίας ἀυτοῦ," was admired—that he took the utmost pains
to conquer the natural imperfections of his speech—that he de-

* Edit. Syllburg, p. 61. + Plutarch. in Vit. Dem,
VOL, IV. Z

338 NOTES.

claimed before a “‘ μέγα κάτοπτρον᾽᾽ which he kept at home—
that after seeing the skill of Satyrus in dumb shew, he thought
““ τὸ μηδὲν εἶναι τὴν ἄσκησιν, ἀμελοῦντι τῆς προφορᾶς καὶ διαθέ-
σεως τῶν λεγομένων *—that Cicero, in his Orator, declares him
** tribuisse primas et secundas, et tertias actioni”—that, accord-
ing to Quintilian, “ eam videri possit, non preecipuam, sed solam
judicasse”—that he studied the art with the aid of Andronicus
the player—that, in order to correct some unbecoming motions
in the shoulders, he stood, while he was speaking, ‘ in angusto
quodam pulpito,” where ‘* hasta humero dependens immineret ”
—and, finally, that when some Rhodians, who had been reading
his speech ‘ de Corona,” expressed their admiration of it to
féschines, he replied ‘‘ quid si ipsum audiissetis.”+ The testimo-
nies in favour of his industry and anxiety to pronounce his
speeches with effect are almost as numerous, and quite as decisive,
as those which inform us of the labour he employed in the choice
of matter, and in the decorations of style. I know not, then,
whether his concession in favour of Cailistratus is to be ascribed
to his modesty, or whether it was made at some early period
when he had not attained the excellence which he afterwards
reached, and for which he is celebrated by the unanimous voice
of antiquity.
ΝΟΤΕ 50, p. 97.

“Tantum abest,” says Cicero, “ ut nostra miremur, ut usque
eo difficiles ac morosi simus, ut nobis non satisfaciat ipse Demos-
thenes; qui quanquam unus eminet inter omnes in omni genere
dicendi, tamen non semper implet aures meas, ita sunt avide et
capaces, et semper aliquid immensum infinitumque desiderant,’”’ ἢ
This might be said by Mr. Burke’s readers, and yet the most in-
telligent of them would apply to Mr. Burke what Cicero in ano-
ther part of his writings states as his opinion of Demosthenes,
«Plane quidem perfectum, et cui nihil admodum desit, Demos-=
thenem facile dixeris.’’ I grant that, even in the best speeches of
Mr. Burke, men of taste and discernment may find some defects,
But I should myself speak of them as Photius does of the faults

---- —

* Vid. Plutarch. + Vid. Quintil. Ed. Rollin, lib, xi. cap. 3.
τ Vid. Ciceron. Orator.

NOTES. 339

+ ~ Fs \ A 2 / 9 ~

imputed to Isocrates : ““ταῦτα φάμεν πρὸς τὴν ἐν λόγοις αὐτοῦ
΄ ’ ~ Χ

ἀρετὴν, τὸ ἔκπιπτον ἐκείνης καὶ ἀνόμοιον ἐνδεικνύμενοι" ἐπεὶ πρὸς
~ > er / ‘A

γε ἐνίους τῶν γράφειν λόγους ἐπαιρομένων, ἀρεταὶ ἄν δόξωσι καὶ

. >’ < ᾽ὔ > , ” *
τὰ ἐκείνου ἐλαττώματα.

Nore 51; p. 101.

“ Lenis est, et quadrata, virilis tamen compositio.” t

Note 52, p. 104,

See what Mr. Burke says in the Letter to a Member of the
National Assembly, about “ the royal name used by the French
as a sort of navel-string to nourish their unnatural offspring
from the bowels of royalty itself.”

In his Letter to the Duke of Bedford he says, ‘‘ Revolutionists
unplumb the dead for bullets to assassinate the living.”—“«A
sort of National Convention nosed Parliament in the very seat of
its authority.”—‘* The Revolution harpies of France, sprung
from night or hell, or from that chaotic anarchy which gene-
rates equivocally ‘all monstrous, all prodigious things,’ cuckoo-
like, adulterously lay their eggs, and brood over and hatch them
in the nest of every neighbouring state.” They who read Virgil's
description of the harpies will acknowledge the taste of the
poet, and lament the want of it in Mr. Burke, when he talks of
*‘ obscene harpies fluttering over our heads, and sousing down
upon our tables, and leaving nothing unrent, unrifled, un-
ravaged, unpolluted with the slime of their filthy offal.” ‘They
will be disgusted when they read, “ the Duke of Bedford is the
Leviathan among all the creatures of the Crown; he tumbles
about his unwieldly bulk—he plays and frolicks in the ocean of
the royal bounty.—His ribs, his fins, his whalebone, his blub-
ber, the very spiracles through which he spouts a torrent of
brine against his origin, and covers me all over with the spray.”

Again, “ The only question of their deep philosophers and
brave sans-culottes will be that of their Legendre, or some other
of their legislative butchers, How he cuts up? How he tallows

_ * Vid. Phot. Biblioth. Cod. clix.
+ Vid. Quintilian, lib, ii. cap. 5.
z2

340 NOTES.

in the cawl or on the kidneys? [3 it not a singular phenome-
non, that whilst the sans-culotte carcass-butchers, and the philo-
sophers of the shambles, are pricking the dotted lines upon his
hide, and like the print of the poor ox that we see in the shop
windows at Charing-cross, alive as he is, and thinking no harm
in the world, he is divided into rumps, and sirloins, and briskets,
and into all sorts of pieces for roasting, boiling, and stewing, that
all the while they are measuring him, his Grace is measuring
me.”

If upon other occasions Mr. Burke had not given other and
happier proofs of his intellectual powers, I should be compelled
to say of him, asin a Letter to a Member of the National Assem-
bly, he justly said of Rousseau: “ Burke, a writer of great force
and vivacity, is totally destitute of taste in any sense of the word.”
But I do not say so, because his excellencies are far more splen-
did, and his defects far more venial, when he wrote at other
times upon other subjects.

Nore 53, p. 105.

Of Mr. Burke's best speeches I do not speak too highly when
I say, that ““ φῶς τῷ ὄντι ἴδιον τοῦ νοῦ τὰ καλὰ ὀνόματα. But I
am under the necessity of observing, that in his Letter to the
Duke of Bedford, and in a few, I am glad to say very few, pas-
sages in the pamphlets he wrote upon the affairs of France, he
fell into the fault which has been properly charged upon an
ancient writer, who in splendour of imagination was equal to
Mr. Burke. “ Tov Πλάτωνα οὐχ ἥκιστα διασύρουσι πολλάκις
ὥσπερ ὑπὸ βακχείας τινὸς τῶν λόγων, εἰς ἀκράτους καὶ ἀπηνεῖς
μεταφορὰς καὶ εἰς ἀλληγορικὸν στόμφον ἐκφερόμενων." Ἐ

Though I think these words of Longinus strictly applicable to
several passages in the writings of Mr. Burke, I would not be un-
derstood to assent implicitly to the strictures of that great critic,
or to those of Dionysius of Halicaraassus, upon the works of
Plato. When scholars read what Dionysius has written on the
style of Plato, in his Dissertation on the Δεινότης of Demosthe-
nes,t and in the Epistle to Pompey,t they will do well to bear in

* Longin. sect. 32, + P. 166, edit. Sylburg. : P. 128,

NOTES. 341

mind the learned and just observation of Wyttenbach : ‘‘ Dialo-
gum primus Zeno Eleates scripsisse fertur: Plato ad dramatis
formam redegit, secutus poetas tragicos, comicos, mimicos:
quod prosam philosophie rationem, nimium a vetere poeseos
usurpatione ac similitudine avulsam, proprius ad eam denuo re-
vocandam censeret. Hinc varietas dialogorum in genere, sub-
limi, vel tenui, ut item poematum. Quz observatio valet ad-
versus Dionysium Halicarnasseum, hereditario rhetorum odio,
Platonis scripta reprehendentem.”

Note 54, p. 105.

1 never shall admit that Mr. Burke, when he defended the
French monarchy, meant to plead the cause of despotism. I
agree with him in his general opinion, that the constitution of
France could have been preserved, and in his ardent wish that
it had been reformed only, though upon the extent of that
reform we might sometimes have differed, I remember that
Rousseau advised the Poles not to subvert, but to amend their
constitution; and if days more evil than the present should
overtake this country (which Heaven avert), I trust that every
leader and every follower of every class which deserves the name
of an English party, may hold, disseminate, enforce, and act upon
similar principles. My objection is, to the exaggerated and
peremptory language in which Mr. Burke described the state
into which France must necessarily be plunged after the Re-
volution; and upon this subject we may already say with
Pindar :

“ἤΆμεραι δ᾽ ἐπίλοιποι
Μάρτυρες σοφώτατοι." *

With Mr. Burke's positive and angry predictions, you will
be glad to compare the more concise and temperate language
of Cicero, about Cesar and Pompey: “ Neutri Σκοπός est iste,
ut nos beati simus. Uterque regnare vult. Hec, a te invita-
tus, breviter exposui; voluisti enim me quid de his malis sen-

* Olymp. 1.

342 NOTES.

tirem ostendere. T[poo8eori2w igitur, non ariolans uti illa cui
Nemo credidit, sed conjectura prospiciens.

““ Jamque mari magno.
Non multo, inquam, secus possum vaticinari.” *

Note 55, p. 105.

You and I, dear Sir, in common with many of our wisest and
best friends, shall never cease to lament the fierce and odious
animosities which, during the late war, disturbed the comforts of
private life, and which owed, I fear, much of their malignity to
the popularity of Mr. Burke’s writings. But the evil was not
confined to this country. Let us hear what a great scholar says
of it in his tribute to the memory of the very learned Santenius :
*‘quanquam hee fuit non tam ipsius culpa, quam temporum,
quorum tanta erat vis, ut non modo homines, alios ab aliis, etiam
conjunctissimos disjungerent, sed singulis quoque errorem obji-
cerent, et sibi ipsos dissimiles, ex mitibus duros, et lenibus
asperos redderent.” T

Nore 56, p. 106.

See Monthly Review, for May, 1796.

In addition to the merit of very fine writing, this grave and
judicious critique is worthy of serious attention, I do not say im-
plicit assent, particularly where the author adverts “to the
change, not perhaps in Mr. Burke’s opinions, but in the general
turn and complexion of his mind, to his enumeration of his ser-
vices,” in which he is said “ to have altogether overlooked the
greatest and most meritorious of them all, resistance to the claims
of unjust dominion, and to that unhappy war which severed
America from the British Empire—to another curious change in
his mind, when, in speaking of the reforms to which he was in-
strumental in 1781, he dwelt with great force on the indirect,
though most salutary effects, of those measures, in quieting the
minds of the people, while he studiously kept out of sight their

* Lib. viii. ad Attic. Epist. 11.
+ Vid. Relationes breviores in vol. 111, par. 3, of the Bibliotheca
Critica, p. 107.

NOTES. 343.

more immediate, and, if possible, more important consequences,
in securing public liberty.” ‘‘ He seems,” says the Reviewer,
“« as if ashamed of his exertions for freedom. In pursuing the
detail of his pretensions, we find him displaying his late supposed
services to the monarchy and the aristocracy, with a triumph
almost equal to the solicitude with which he labours to hide and
palliate his former glorious exertions for the people. On the
late services he professes to rest his title to national gratitude;
to them he is inclined to trust his fame and character with pos-
terity. They form the chief, and almost the sole subject, of that
extraordinary contrast which he draws between his own merits
and the supposed demerits of the founder of the house of Russell.”
The contrast is called extraordinary, because, as the Reviewer
thinks, “it is wholly impertinent to the subject in discussion,
most dangerous in its spirit and tendency, and without founda-
tion in historical truth. Ifit had been only digression, it might
have escaped without animadversion. But it is liable to more
serious objections. By exhibiting an odious and detestable pic-
ture of the means by which great hereditary fortunes have been
raised, it is calculated to change the respect of the multitude for
property, into disgust—to let loose their enraged passions on
that wealth which is the object of their perpetual envy, and to
lend even to rapine itself, some of the features and lineaments of
justice. Mr. Burke is not charged with intending to produce
any of those effects ;’’ but the Reviewer adds, that “ he who
suffers himself to be hurried by the rage of his passions, of which
the consequences may be so extensively mischievous, cannot be
acquitted of at least an imprudence, almost as pernicious as
malevolence itself.”

I am very glad to have my own opinion upon the spirit and
tendency of Mr. Burke’s book, confirmed by the concurrence of
the very able Reviewer, whose words I have quoted so largely.
And as the authority of Mr. Burke’s name may give very dan-
gerous weight to any sentiments which he published, and did not
retract, [ shall not make any apology to you, my friend, for the
length of the quotation. The Review contains a sufficient refu-
tation of the charge brought against the founder of the house of
Russell ; and before the appearance of that Review my judgment
was fixed upon the subject, not only by my recollection of Eng-

344 NOTES.

lish history, but by a conversation which I had the happiness to
hold with a learned counsellor, whose knowledge upon these
subjects is more extensive and more accurate than that of the
Reviewer himself. The accusation is not only unsupported, but
directly and entirely confuted by events, and successions of events,
as they are related in our history; and whatsoever may be my
respect for the general veracity of Mr. Burke, I have never been
able to conquer most uneasy suspicions, when upon a topic so in-
teresting to the honour of a great family, and to the feelings of
its illustrious representative, I find Mr. Burke contented with
making such a reference as occurs in his pamphlet :

«« My claim,” says he, ‘‘ to pension, had not its fund in the
murder of any innocent person of illustrious rank, or in the
pillage of any body of unoffending men. His grants were from
the aggregate and consolidated funds of judgments iniquitously
legal, and from possessions voluntarily surrendered by the lawful
proprietors with the gibbet at their door.” *

In support of an allegation so unexpected by the public, and so
important to the characters of the dead, and the feelings of the
living, should we not require an accurate detail of facts, or specific
references to some books in which that detail might be found ?
Pray mark the only reference which Mr. Burke has employed,
and remember that it points to the imputed murder of an inno-
cent person of illustrious rank. ‘‘ See,” says Mr. Burke, in his
note, ‘“ the history of the melancholy catastrophe of the Duke of
Buckingham, temp. Henry VIIIth.”

Rashness and imprudence may have led a common writer to
refer in this way: but I cannot conceive that malevolence or
cunning could have suggested any thing worse. In some re-
spects, I must, in justice to Mr. Burke, express my dissent from
the Reviewer. Mr. Burke does not keep out of sight other parts
of his conduct, some of which in my opinion, and all of which in
his own, were meritorious. In page 25 he speaks of those ser-
vices, in which ‘ for fourteen years without intermission, he had
shewn the most industry, and had the least success, on the affairs
of India—services for which he professes to value himself, most
for the importance, most for the labour, most for constancy and
perseverance in the pursuit: and services which others might

* Letter to a Noble Lord, p. 42.

NOTES. 345

value most for the intention.”* We may easily conceive why
Mr. Burke laid the greatest stress upon these services, even in
preference to others which he had performed for the people at
large. The judgments of men are, I know, very different upon
the merits of those services, and the motives which actuated Mr.
Burke. I meddle not with that controversy: but I am bound to
state, that the Reviewer was mistaken in saying, that ‘ Mr.
Burke had overlooked what appeared to him (the Reviewer) the
greatest and most meritorious of them all.” Let Mr. Burke
speak for himself:

«« My endeavour,” says he, “ was to obtain liberty for the mu-
nicipal country in which I was born, and for all descriptions and
denominations in it. Mine was to support with unrelaxing vigi-
lance every right, every privilege, every franchise in this my
adopted, my dearer, and more comprehensive country ; and not
only to preserve those rights in this chief seat of empire, but in
every nation, in every land, in every climate, language, and re-
ligion in the vast domain that is still under the protection, and
the larger that was once under the protection, of the British
Crown.”

This, surely, is not quite the language of a man who was
ashamed of his exertions for public freedom, whatsoever might
be the comparative merit which his own judgment would have
assigned to those exertions, and his more recent, and, as the
Reviewer calls them, his supposed services, to the monarchy and
the aristocracy. I hold even those services to be very great,
though accompanied at the time by a very deplorable and very
unjustifiable inattention, and I had almost said insensibility to
the rights of the people.

As you know that the late Duke of Bedford was the political,
as well as the personal friend of Mr. Fox, you will not blame me
for the length of this note. But if the person who wrote the
sketch of Mr. Fox’s character should chance to see the pains I
have employed upon the oversight of the Reviewer, he will meet
with one very strong reason for believing that, without pretend-
ing to the merit of proselytism, I have some regard for truth—
that my impartiality towards Mr. Burke is at least equal to his

* Page 27.

3546 NOTES:

own, and that my caution in one instance is greater than that of
the Reviewer happened to be.

Nore 57, p. 106.

‘« The British constitution is no simple, no superficial thing,
nor to be estimated by superficial understandings. It may have
its advantages pointed out to wise and reflecting minds, but it
is of too high an order of excellence to be adapted to those which
arecommon. It takes in too many views, and makes too many
combinations, to be so much as comprehended by shallow and
superficial understandings. Profound thinkers will know it in
its reason and spirit ; the less inquiring will recognize it in their
feelings and their experience.” *

Mr. Burke’s opinion upon the mysteriousness of government,
and the general incapacity of the governed to estimate the merit
of kings and ministers, resembles the language of Williams, Arch-
bishop of York and Lord Keeper, when he was vindicating’ James
against the remonstrances of the Commons in 1672:

«* As the sun in the firmament appears to us no bigger than a
platter, and the stars are but as so many nails in the pommel of
a saddle, by reason of the enlargement and disproportion between
our eye and the object, so is there such an unmeasurable distance
between the deep resolution of a prince, and the shallow appre-
hensions of common and ordinary people, that as they will ever
be judging and censuring, so they must needs be obnoxious to
error and mistake.”

The eloquence of Williams is less splendid than Mr. Burke’s.
But the tenets of both will appear equally offensive to English
subjects in the nineteenth century.

Norte 58, p. 111.

You will not be displeased with some verses of Grotius on the
pursuit of public honours :

** Rebus gerendis, publicisque commodis,
Natus petendis, hune honoribus modum

* Appeal from the New to the Old Whigs,

NOTES. 347

Prescribe, temet ut offeras, non ingeras.
Ambire semper, magna confidentia est ;
Ambire nunquam, deses arrogantia est.” *

Nore 59, p. 11].

Let us say of our friend as Tacitus said of Helvidius Priscus :
““ Civis, Senator, Maritus, amicus, cunctis vite officiis equabilis,
opum contemptor, recti pervicax, constans adversus metus.
Erant quibus fame appetentior videretur, quando etiam sapien-
tibus cupido gloriz novissima exuitur.” Ὁ

Nore 60, p. 113.

In speaking of Mr. Burke’s predictions about France, I have
quoted a passage from one of Cicero’s letters, in which he writes
very modestly about his own prophecies. As I have now im-
puted something like prediction to Mr. Fox, upon a subject
where events have proved his sagacity, I shall take the liberty of
observing to you that Cicero, upon other occasions, described the
results of his own experience and reflections as a sort of divina-
tion: “ Pulchre igitur Conscientia sustentor, cum cogito me de
Republica certe nunquam nisi divine cogitasse.” ¢

“ΟὟ quidem Divinationi hoc plus confidimus, quod ea nos
nihil in his tam obscuris rebus tamque perturbatis unquam om-
nino fefellit. Dicerem que ante futura dixissem, ni vererer, ne
ex eventis fingere viderer.” ὃ Cornelius Nepos bears his testimony
to the foresight of Cicero: ‘ Ei rei sunt indicia * * * * * ἃ
sexdecim volumina epistolarum, ab consulatu ejus usque ad ex-
tremum tempus ad Atticum missarum: que qui legat, non
multum desideret Historiam contextam eorum temporum, Sic
enim omnia de studiis principum, vitiis ducum, ac mutationi-
bus reipublicee perscripta sunt, ut nihil in his non appareat; et
facile existimari possit, prudentiam quodammodo esse divina-
tionem: non enim Cicero ea solum, que vivo se acciderunt,

Grot. Epig. lib. i. p. 351, + Tacit. Hist, lib. iv. parag, 4.
Epist. ad Attic, lib. x. Ep. 4.
Lib. vi, Epist, 6. ad Attic,

Ἕ
+
+
§

348 | NOTES.

futura predixit; sed etiam que nunc usu veniunt, cecinit ut
Vates."’ *

The Letter of Mr. Fox to his constituents, in which he predicts
the moral impossibility of conquering France, anda speech in which
he afterwards described the consequences of a precipitate alliance
with Austria, may be considered as proofs of foresight not very
inferior to that skill in divination which Cicero so often ascribed
to himself.

Nore 61, p. 113.

Why should not Mr. Fox have the benefit of the plea which a
judicious and virtuous biographer employs for the late Sir Wil-
liam Jones ? :

““ΟΥ the French Revolution, in its commencement, he enter-
tained a favourable opinion, and in common with many wise and
good men, who had not yet discovered the foul principle from
which it sprung, wished success to the struggles of that nation
for the establishment of a free constitution ; but he saw with un-
speakable disgust the enormities which sprung out of the at-
tempt, and betrayed the impurity of its origin.” +

Note 62, p. 114.

You remember the magnanimous answer of Phocion, when
some measures opposed by him, and recommended by Leosthenes,
had met with success, which could not reasonably have been
expected : “’Epwrnfels εἰ ταῦτα ἤθελεν οὕτω πεπρᾶχθαι, πεπρᾶχ..
θαι μὲν οὖν ταῦτα, ἔφη, βεβουλεῦσθαι δὲ ἐκεῖνα." ἢ

The failure of certain measures upon the continent, of which
Mr. Fox did not approve, during the late war, gave him no op-
portunity for replying, as Phocion did. But, if such an oppor-
tunity had occurred, he would not have wanted firmness to make
such a reply, partly from confidence in his own judgment, and
partly from joy at the success of our country, and its allies,
though it should have far exceeded all reasonable expectation.

* Corn. Nepos Vit. Attici, par. 16.
+ Lord Teignmouth’s Life of Sir William Jones, p. 390.
{ Plutarch. Apophtheg. vol. ii, p. 188, edit. Xyland.

NOTES. 349

Norte 63, p. 116.

“ For every war,” says Mr. Gibbon, “‘a motive of safety or
revenge, of honour or zeal, of right or convenience, may be found
in the jurisprudence of conquerors.” * But Mr. Fox held the
sounder opinion of Caius Pontius: “Justum est bellum, Sam-
nites, quibus necessarium, et pia arma quibus nulla nisi in armis
relinquitur spes.”+ He would have acted in conformity with
this principle; but he lamented as I do the application of the
terms just and necessary, to those wars which, in his opinion
and my own, might have been avoided.

Norte 64, p. 116.

The mind of Mr. Fox was strongly impressed with this impor-
tant caution: ‘‘ tov πολέμου τὸν παράλογον ὅσος ἐστὶ, πρὶν ἐν
αὐτῷ γενέσθαι, προδιάγνωτε" μηκυνόμεγος γὰρ φιλεῖ ἐς τύχας τὰ
πολλὰ περιΐστασθαι. ὦ

Note 68, p. 116.

Mr. Fox might have said with more truth and more propriety
than Appius Claudius Crassus, ‘‘ Nihil se, neque privatum, neque
in magistratibus, quod incommodum civibus suis esset, scientem
fecisse: nec ullum dictum factumve suum contra utilitatem
vestram, (etsi quadam contra voluntatem fuerint) vere referri
posse.” §

Norte 66, p. 117.

“Τὴ Pace, ut sapiens, aptarit idonea Bello.” ||

Nore 67, p. 117.

‘Finis vite ejus nobis luctuosus, amicis tristis, extraneis
etiam ignotisque non sine cura fuit. Vulgus quoque, et hic aliud

* Cap. 65. + Liv, lib, ix. par. 1.
t Thucydid. lib. i. par. 78. § Liv. lib. vi. par. 40.
|| Hor, Sat. ii. lib. 2.

350 NOTES.

agens populus, et ventitavere ad domum, et per fora et circulos
locuti sunt: nec quisquam audita morte Agricole, aut letatus
est, aut statim oblitus est.’’*
Dio Cassius makes a similar remark on the death of Agrippa:
ἐξ... 8 Ἰδ ~ \ θὸ ~ ~ 9 , αν 5 Χ eee \
οὐκ ἴδιον τοῦτο τὸ παθὸς τῇ τοῦ ᾿Αγρίππου οἰκίᾳ, ἀλλὰ Kal κοινὸν

- - 4 3. ὁ δὰ ”
πᾶσι τοῖς Ῥωμαίοις ἐγένετο. F

Note 68, p. 117.

When I look back to the long and eventful period during
which Mr. Fox was excluded from power, and to the unfortunate
result of the measures pursued by other statesmen, I cannot
help applying to him the distich, which Demosthenes a little
before his death wrote down in a kind of pocket-book, and which
the Athenians afterwards inscribed under the statue of their in-
jured countryman:

“ Eirep ἴσην γνώμῃ ῥώμην, Δημόσθενες, εἶχες"
Οὐ wor ἂν Ἑλλήνων ἧρξεν ἄρης μακεδών.᾽ἢ

ΝΟΤΕ 69, p. 117.

Mr. Hume, in part of a very philosophical dialogue, has with
great ingenuity drawn a contrast between the old Athenians and
the modern French. I would beg leave to notice a very marked
point of resemblance between them, in the unquiet spirit which
both indulged in politics, and which, as it was seen in the Athe-
nians, has been well described in the speech of the Corinthian
ambassadors : “ Eiris ξυνέλὼν φαίη πεφυκέναι ἐπὶ τῷ μήτε αὐὖ-
τοῦς ἔχειν ἡσυχίαν, μήτε τοῦς ἄλλους ἀνθρώπους ἐᾶν, ὀρθῶς ἂν
εἴποι." §

Note 70, p. 117.

Since I wrote the above passage Spain has made a noble effort
to recover her independence, and set an example which I hope
will be vigorously and successfully followed by the other states of
Europe.

* Tacitus in Vit. Agric, + Dio Cassius, lib. 54.
1 Vid. Phot, Biblioth, Cod, 265, ὃ Thucyd., lib. i, par, 70.

NOTES. 351

** [lle dies primus docuit, quod credere nemo
Auderet Superis, Martis certamine sisti
Posse ducem Lybiz.”*

Napoleon seems, as was said of Philip, “ μεθύειν τῷ μεγέθει
τῶν πεπραγμένων. But I trust that, instead of meeting with
Philip’s success, he will in the consequences of his own rash and
rampant ambition experience the justness of Hannibal's observa-
tion: “ Non temere incerta casuum reputat, quem Fortuna nun-
quam decepit.”{ Let us not despair, The people who have op-
posed themselves to this mighty conqueror ‘‘ virtute pares, ne-
cessitate, que ultimum ac maximum telum est, superiores sint.’§
May the Sovereign, the Parliament, and the people of England,
sympathizing in a common and just cause, hereafter have occa-
sion to exclaim, ““ En unquam ille dies futurus erat, quo vacuam
hostibus Hispaniam visuri essemus. Dedit tandem id Deus—
nec desunt qui Deo grates agendas censeant.’’||

To arm the hand of a son against the life of a sovereign and
a father is an atrocity reserved for Napoleon. Gregory the
Fourth encouraged the sons of Louis the Debonnair in dethron-
ing their parent. Urban the Second stirred up Conrad against
the unfortunate Emperor Henry the Fourth. But the rebellion
of these unnatural children was not aggravated by an attempt at
parricide.

If a virtuous heathen were told of the horrible machinations to
which the Prince of Asturias is said to have been instigated, he
might be tempted to exclaim, “ Proh Dii immortales! cur in-
terdum in sceleribus hominum maximis, aut connivetis, aut pra-
sentis fraudis poenas in diem reservatis?’“4] But if he were to check
for a while the tumults of honest indignation—if he were to re-
flect upon the dark and “ slippery places ” in which lawless am-
bition is often doomed to tread—if he were to feel the smallest
reliance upon what yet remains of courage or virtue in an
insulted and oppressed world, he might find some consolation in
the well-founded observation of Cesar: ‘* Consuesse Deos im-
mortales, quo gravius homines ex commutatione rerum doleant,

* Sid. Ital. xii. 271. + Demosth. Philip. 1.
t Liv, lib. xxx, parag. 30. § Liv. iv. parag. 98.
|| Lib, xxx. parag. 21. 4 Cicero pro M. Coelio,

352 NOTES.

quos pro scelere eorum ulcisci velint, his secundiores interdum
res, et diuturniorem impunitatem concedere.” *

Much has been said vauntingly, and much falsely, of that in-
difference to danger and to death which the French philosophy
infused into the French armies. I believe not the fact that the
tenets of that philosophy ever were communicated to soldiers. I
should not have looked for that effect, even if they had been
communicated; and I see causes quite sufficient to account for
their valour and their victories in the new and peculiar circum-
stances of their country, in the divisions, jealousies, and invete-
rate prejudices of their enemies, in the skill of their generals, in
the policy, heroism, and example of their Emperor, in their ex-
cellent discipline, in their revolutionary ardour, and in the num-
berless temptations which the condition of Europe presented to
their vanity, ambition, and rapacity. But the Spaniards with
whom they are contending are, I hope, actuated by the purest
and strongest motives which can influence the human mind.
Under the auspices of leaders truly patriotic they will shew what
a people can atchieve as opposed to mercenaries—a people fight-
ing for their laws, their independence, their families, their friends,
and the religion of their fathers.

““ First appearances,” says Mr. Hume, “‘ are no where more
delusive than in politics ;’ and the justness of the remark has
received fresh illustration from the strange events which have
occurred in Spain and Portugal since this note was sent to the
press. My opinions, alas! are beginning to languish into mere
wishes. Ina cause which appeared to me morally sound, and
politically important, I°am unwilling to despair. But, such
measures as we have lately seen opposed to the hosts and the
councils of such a foe as Napoleon, afford, I must confess, little
encouragement to hope. While, however, the patriot sighs over
the dangerous situation of his own country, the Christian will
remember with truth, that the detestable court of the inquisition
has been crushed under the arm of power, for once lifted up in
favour of justice and humanity. But why was the glorious pri-
vilege of abolishing that spiritual tyranny abandoned to the po-
licy or the mercy of an invader, who upon this one atchievement

* Cesar de Bell. Gal. lib. i. p. 18, Delph, edit.

NOTES. 303

may found a claim to the title of a deliverer? ‘ Fas est et ab”
hoste doceri.” Every year, and, I had almost said, every month,
brings before my countrymen some awful warning against the
systematic continuance, both of restraints which every incensed
sufferer calls intolerance, and of practices, which every disinte-
rested observer knows to be inveterate and pernicious abuses.

Norte 71, p. 120.

Plutarch in the life of Demosthenes expresses a doubt whether
Demosthenes alluded “ πρὸς τὸν λόγον τοῦ ἀνδρὸς ἢ πρὸς τὸν βίον
καὶ τὴν δόξαν. 1 apply the expression to Mr. Fox in reference,
not to his parliamentary eloquence, but to his political integrity.

Nore 72, p. 120.

I shall save you trouble by setting before you the passage to
which Cornelius Nepos refer's :

“Ἣν ὁ Θεμιστοκλῆς βεβαίοτατα δὴ φύσεως ἰσχὺν δηλώσας, καὶ
διαφερόντως τὶ ἐς αὐτὸ μᾶλλον ἑτέρου ἄξιος θαυμάσαι" οἰκείᾳ γὰρ
ξύνεσει, καὶ οὔτε προμαθὼν ἐς αὐτὴν οὐδὲν, οὔτ᾽ ἐπιμαθὼν, τῶν
τε παραχρῆμα δι᾽ ἐλαχίστης βουλῆς κράτιστος γνώμων, καὶ τῶν
μελλόντων ἐπιπλεῖστον τοῦ γενησομένου ἄριστος εἰκαστῆς, καὶ ἃ
μὲν μετὰ χεῖρας ἔχοι, καὶ ἐξηγησάσθαι οἷός τε ὧν δὲ ἄπειρος εἴη;
κρῖναι ἱκανῶς οὐκ ἀπήλλακτο" τό, τε ἄμεινον ἢ χεῖρον ἐν τῷ ἀφα-
νεῖ ἔτι προεώρα μάλιστα, καὶ τὸ ξύμπαν εἰπεῖν, φύσεως μὲν δυνά-
μει, μελέτης δὲ βραχύτητι, κράτιστος δὴ οὗτος αὐτοσχεδιάξειν τὰ
δέοντα ἐγένετο." ---Λι pry. 75. &c.

** Themistocles manifestam sui ingenii vim certissime demon-
straverat, et hac in re multo majore admiratione, quam ullus
alius dignus erat. Nam naturali prudentia preditus erat, nec
quicquam aut ante aut postea didicerat, quod eam augeret; et
rerum improvisarum, cum brevissima deliberatione judex erat
prestantissimus, et futurarum, ac eventus ipsarum plerunque
optimus conjector ; que autem in manibus habebat, ea etiam
explicare atque exsequi poterat: quorum vero esset imperitus,
ab his commode judicandis non erat alienus ; quid etiam melius,
quidve deterius esset in rebus adhuc obscuris et incertis optime
prospiciebat. Utque rem totam paucis expediam; et nature

VOL. IV. 2A

304. NOTES.

bonitate, et consilii celeritate, vir iste maxime idoneus fuit ad ex-
plicandum ex tempore, que ad rem facerent, et e re essent.”

Note 73, p. 121.

“δα tibi vera fides quesiti, Magne, favoris
Contigit, ac fructus: felix se nescit amari.”*

Nore 74, p. 121.

“15. enim denique honos mihi videri solet, qui non propter
spem futuri beneficii, sed propter magna merita claris viris de-
fertur et datur.”’T

Note 75, p. 121.

We remember the observation of an illustrious French hero,
“that no man appears great before his valet ;’’ and perhaps it may
be said with justice of nearly all men distinguished by talents or by
station: ‘‘ Major e longinquo reverentia.”t But Mr. Fox, ‘‘ magne
subnixus robore mentis,Ӥ was, I think, a splendid exception to
the general rule. Such was the superiority of his whole mind
to simulation and dissimulation—such the exemption of his
temper and manners from petty conceit, and wayward singula-
rity—such the happy medium both of his public and private life
“inter abruptam contumaciam et deforme obsequium,” || that
they who approached him oftenest, esteemed him most; and
while their regard for him was confirmed, their respect for him
was not diminished. Upon reflection, indeed, even their admi-
ration was heightened, when they observed that he who was emi-
nent in great things had the power, without effort, and without
art, to please friends, strangers, and domestics, upon all those
little occasions on which other men are rarely found to unite
simplicity with propriety, and to preserve dignity without in-
dulging self-importance.

* Lucan. lib, vii.

+ Vid. Cicero, Epist. ad familiar, lib.x. Epist. 10 to Plancus.
{ Tacit. Annal. lib. i. parag.10. ᾧ Martial, lib, i. Epig. 40.
SNe PIs

|| Vid. Tacit. Annal, lib. iv, par. 5.

or

NOTES. 355

ΝΟΤΕ 76, p. 122.

Mr. Burke probably would have exulted, if he had known
that in the Greek language the καλοκἀγαθοὶ were sometimes op-
posed τῷ δήμῳ. Poets and Rhetoricians may teach us “ malig-
num spernere vulgus.” But the avowal of such a principle
would not be very decorous in the legislators of a free country,
especially in an age when the progress of knowledge and civiliza-
tion had lessened the moral differences which, in some degree or
other, will always subsist between the higher and lower classes
of society.

Note 77, p. 122.

We all know the rapacity of men raised to a high station, not
- only in Turkey, but in some Christian governments, and we have
heard with pleasure that Turgot and Necker in a neighbouring
country were exempt from that vice. In our own nation the in-
stances of it are very rare; andI have often thought that our
own times presented a glorious spectacle to the Christian world,
when the two great rivals of power, Mr. Pitt and Mr. Fox, were
known to be neither wealthy, nor desirous of wealth, in a coun-
try where property, landed and commercial, has great weight
even in public affairs. Mr. Pitt’s father was distinguished by his
indifference to the acquisition of a fortune ; and the impression
which this virtue made in other countries may be seen in the fol-
lowing words of a learned foreigner: “ Qui Reipublice singu-
lisque hominibus officia prestant, non premiorum spe adducti,
sed solo studio recte eque republica agendi, illorum factum
est majus quam facta aliorum. Sic Anglus ille Pitt, Comes
Chattam laudatur et pro magno viro habetur, qui in omnibus
rebus non suam, sed reipublice utilitatem spectavit."*

* Vid. Scheller’s Precepta Styli bene Latini, lib. ii. cap. ii.
parag. 2. de Gravitate dicendi.

2a 2

356 NOTES.

Note 78, p. 123.

““᾿Αρχὰ;,᾽ said Bias, “‘ δείξει ἄνδρα, ἢ and the same thought
has been expanded by another writer.

“᾿Αμήχανον δέ παντὸς ἀνδρὸς ἐκμαθεῖν

΄ \ , \ , x
Ψυχήν τε; καὶ φρόνημα, καὶ γνώμην, πριν ἂν
9 ~ \ f > \ me 99
Αρχαῖσι, καὶ νόμοισιν ἐντριβὴς φανῇ.

I have often heard it remarked while Mr. Fox was out of
power, that he was better qualified to lead a party in opposition,
than to hold any high office in the British nation; that it was
much easier to object to measures than to plan them; and that
Mr. Fox’s Parliamentary eloquence was a very equivocal proof of
his political wisdom. Luckily for the well-wishers of Mr. Fox,
they were at Jast supplied with an opportunity for bringing his
character to the test implied in the maxim of old Bias, and they
may with confidence appeal to the judgment of impartial men
upon the measures pursued or proposed by Mr. Fox, during the
few months he was capable of acting for his country in 1806.

ΝΟΤΕ 79, p. 123.

I enter not into the momentous question which is now agi-
tated about the dominion of the seas. But if you wish to see a
clear and concise statement of the Thalassocracy exercised in
different times by the states of antiquity, you will find it in Ca-
saubon’s Note upon the Aiginetz. ἢ

Nore 80, p. 128.

The Burial Service was read by Dr. Ireland. But I did not
see any other Prebendary of Westminster in the procession, or
near the grave, and I have heard that Dr. Vincent, the very
learned Dean, was confined by illness. Be this as it may, the
admirers of Mr. Fox will remember with satisfaction, that his

* Vid. Andronicus Rhodius, lib, 5.
+ Soph. Antigone 181.
t Vid. pp. 195, 6, 7, of the Commentary on Polybius.

NOTES. 357

funeral was attended by the Rey. Dr. Knox, the Rev. Dr. Sym-
mons, the Rev. Dr. Raine, the Rev. Dr. Hughes, Principal of
Jesus College, Oxford, and Dr. Davy, the Master of Caius
College, Cambridge.

“ἐ Precipua,” says Tacitus, “sub Domitiano miseriarum pars
erat, videre et aspici, cum suspiria nostra subscriberentur.”* In
England, it is true, we live under the protection of wiser laws,
and the government of better sovereigns, than the subjects of
Domitian; and yet, some Englishmen may be found, who are
scared from the expression of their real feelings by the officious-
ness of whisperers, or the malignity of spies. But the excellent
men whose names I have just now mentioned did not think it
inconsistent with their professional or academical characters, to
act openly and directly in conformity to their political principles.
They knew that Mr. Fox had met with less encouragement than
great statesmen usually experience from the smiles of courtiers
and the favour of princes. But they suffered no consideration
of this kind to deter them from paying the last tribute of respect
to his memory.

** The baleful dregs
Of these late ages, this inglorious draught
Of servitude and folly have not yet,
Blest be th’ Eternal Ruler of the world,
Defiled to such a depth of sordid shame
The native honours of the human soul,
Nor so effaced the image of its Sire.”

Note 81, p. 129.

When I wrote this word my memory deceived me. Atterbury
died at Paris, February 17, 1731: but his body was brought to
England, and interred the 12th of May following, privately, in
Westminster Abbey.

* Vit. Agricol.
+ Akenside, Pleasures of Imagination, book ii.

358 NOTES.

Note 82, p. 129.

You have often sympathized with the generous indignation of
Dr. Johnson where he describes the situation of Warburton,
when chased and teased by an ignoble foe. ‘ I remember,”
says he, “ the prodigy in Macbeth:

“* An eagle tow’ring in his pride of place,
Was by a mousing owl hawk’d at and kill’d.”

It was the lot of Mr. Fox to meet with an assailant who united
all the mischievous qualities which Johnson in his preface to
Shakspeare imputes to the two antagonists of Warburton. In
a moment of petulance “ he would sting like a fly, suck a little
blood, take a gay flutter, and return no more.” But in seasons
of rage ‘‘ he would bite like a viper, and would have been glad
to leave inflammation and gangrene behind him.” Never can
the well-wishers of Mr. Fox forget the treatment which he ex-
perienced from the opponent to whom I advert, when enfeebled
by disease and harassed by care he attended the business of the
House of Commons in the Session before his death. The
strength of that opponent bore, indeed, little proportion to his
malignity. But his noisy, restless, querulous, insolent freaks of
hostility must often have brought to your mind the odious office
which a poet of antiquity has assigned to one of the Dire; and
often has he provoked me, with a slight alteration of Virgil’s
language, to exclaim,

““ Alitis harum una in parve collecta figuram,

Que deserta fori circum subsellia quondam
Importuna canit, Turni se pestis ob ora

Fertque refertque sonans, clypeumque everberat alis.”*

* /Eneid, xii.

APPENDIX TO THE PRECEDING NOTES.

Note A. p. 233.

Iw the history of our own country, we read of a strange cus-
tom which formerly prevailed at Halifax. ‘If the felon were
found within the liberty, with goods stolen out or within the
liberty or precincts of the same forest, either hand-habend,
backberand, or confessard, any commodity of the value of thir-
teen pence halfpenny, he, if convicted on Saturday, the great
market day, was to be immediately taken to the gibbet, and
there to have his head severed from his body; and, if convicted
on any other day, he was to suffer on the third market day after
his conviction.”

“* Nec vero his sine sorte datz sine Judice sedes.”

* The felon was to be brought before the Lord’s bailiff, who
issued out his summons to the constables of four towns within
the above precincts, to require four Frith Burghers from each,
to appear on a certain day, and examine the charge.” But be
it observed, that when they tried and convicted they were not
put upon their oath. They performed all the arduous and peril-
ous duties of jurymen, without subjecting themselves at the time
to that sanction which supplies the peculiar and most proper
name for the office. In England, as in Carinthia, this summary
sort of justice seems to have suggested some doubts; and in
England, as in Carinthia, a remedy, if it deserves the name, was
provided, In Carinthia,* the guilt of the accused person was
again examined ; and, if it was disproved, he was honoured with
the rites of burial, At Halifax, after every execution, ‘‘ the Coro-
ners of the county, or some part of them, were obliged to repair
to that town, and there to summon a jury of twelve persons be-
fore them, and sometimes the same persons who had condemned

* Vide supra, p. 233.

360 APPENDIX TO NOTES.

the felon, and administer an oath to them, to give 1n a true and
perfect verdict, relating to the matter of fact for which the said
felon was executed; to the intent that a record thereof might
be made in the Crown office.” ἢ

Our historian has produced a pretty long catalogue of male-
factors who suffered under the gibbet law of Halifax. He pro-
duces no one instance in which the coroner, holding a jury,
found reason to disapprove of the sentence; and he makes the
following remark upon the beneficial effects of the usage: ‘‘The
bad opinion which our ancestors had of furtum manifestum
might give rise to the baron’s power of punishing it ; for no-
thing surely could more effectually deter from the practice than
to take off the offenders without much trouble or expence to
the prosecutors, in this public summary way, without the pos-
sibility of either pardon or reprieve, if they were found guilty.” F

Here an enemy to the reform of our penal code might insist
upon the authority of precedent, upon local convenience as a
ground of peculiar severity, upon the absence of any historical
testimony to prove the abuse of a law, rigorous, indeed, but
effectual, and upon all the advantages which speediness and cer-
tainty in the execution of a sentence are supposed to bestow
upon punishment as intended for example. Yet, for reasons
which it is unnecessary to enumerate, I am inclined to believe
that few modern legislators would be willing to restore and ex-
tend to other places the gibbet law of Halifax, as an additional
and more efficacious security for property in our great manufac-
turing towns.

The adage which prayed for deliverance from “ Hull, Hell,
and Halifax,” is founded upon principles which lie deep in hu-
man nature, as influenced by fortuitous and external circum-
stances. A farmer is hostile to the stealing of sheep, cows, and
horses; a trader is implacable against forgery, and even sex, as
well as condition, points the fears and the anger of mankind
against particular crimes. But the laws, while they provide for
the security of all subjects, should not perhaps enter into the
prejudices and passions of any classes; and in the course of

* Watson’s History of Halifax, page 215.
+ Page 221.

APPENDIX TO NOTES. 361

trials well does it become judges to look with a most watchful
eye upon the local and other accidental considerations by which
the minds of jurymen are likely to be affected in their views
upon the malignity of actions, and the credibility of evidence.
The various crimes which have been committed in a county
where I have resided for twenty-three years—the capital punisb-
ments which have been inflicted—the harsh spirit by which
juries have been more than once actuated, and the fatal mis-
takes which, after most careful enquiry, I seriously believe to
have been made in three cases, without any apparent want of
vigilance, or impartiality, or humanity in the court, fill my soul
with the deepest sorrow. ‘The sting of death is sin, and the
strength of sin in the law” of England is far too great. Let
*‘erace,”’ in conformity tu the real import of the Scriptural
word, abound in the exercise of human power, and as members
of society, we shall have less to deplore, in sin against the law,
and in death under it.

After my observations upon our penal code had been printed
off, I heard that a Scottish lawyer, high in station, had moved in
the House of Commons for leave to bring in a Bill which should
extend the English punishment of child-murder to Scotland.

The precariousness of circumstantial evidence, the difficulties
which medical men have repeatedly shewn to exist in ascertain-
ing the causes by which the life of children newly-born is
destroyed, the earnest and repeated cautions which they have sug-
gested to our legislature, the salutary and mighty force of
natural instinct, the influence of shame and remorse upon
the mind of females in consequence of violated duty—these are
considerations which at all times should restrain an English
Parliament from precipitation in having recourse to the sum-
mum supplicium. But in Scotland there are other circumstances
which deserve great and peculiar attention ; for education in
that country has long and happily diffused habits of diligence,
sobriety, decorum, and religious seriousness among the lower
class of the community. Why, then, do our neighbours in
North Britain stand in need of a regulation which even English
juries, with all their abhorrence of cruelty to the innocence and
helplessness of infancy, and all their attachment to the amiable
virtues of domestic life, are rarely eager to enforce ?

362 APPENDIX TO NOTES.

Have complaints been made in Scotland, not, I mean, by self-
appointed and self-applauding societies for the suppression of
vice—not by little circles of projectors and sciolists, who meet to-
gether in a capital, and chat together upon things done, or by
them thought fit to be done, “ἴῃ Heaven above, or the earth be-
neath, and in the waters within the earth’”—not by officious
and narrow-minded magistrates of provincial towns, but by the
general voice of a people advancing in civilization, and hitherto
undebased by luxury? Is the Bill approved by such men as
Mr. Malcolm Laing, or Mr. Jeffery, or Mr. Dugald Stewart, and
other distinguished professors who now adorn the Universities of
Scotland by their researches in practical ethics, in political eco-
nomy, and the relations and interests of classes and individuals,
in private as well as public life? Before Englishmen, who have
few or no opportunities for direct observation, decide upon so
important a subject, is it not proper that the representatives of
counties and boroughs in Scotland should be called upon to
communicate information to Parliament? Does their opinion
agree with that of the learned member who moved for the Bill?
Is that opinion founded upon their own immediate and personal
enquiries, or upon the tragical tales and oracular harangues of
this or that person belonging to courts of justice? What evi-
dence have they severally or collectively to lay before the Parlia-
ment of the United Kingdom for the reality of the fact itself,
that child-murder has lately increased? What is the amount of
that increase? What proportion does it bear to the commission
of the crime, when the population of the country was less?
What are the probable causes of the evil in the present state of
things, if it does exist? What are the moral restraints upon it
from improved civilization, and increased means of subsistence ?
What circumstances of base seduction, or barbarous desertion
upon the part of fathers, and of extreme depravity, or extreme
ignorance, or extreme penury, upon the part of mothers, have
been observed in particular cases? Is it possible, after the ex-
ample of America, in other questions of homicide, to fix grada-
tions of child-murder, and to adapt punishments to the greater
or less aggravations of the offence? [5 it equitable to inflict the
heavier punishment of death upon the same kind and the same
degree of testimony, upon which the lighter punishment of ex-

APPENDIX TO NOTES. 363

patriation has been hitherto inflicted? Is it, and why is it, very
unlikely that any punishment short of death can be effectual ?
Is it, and why is it, likely that death itself will be effectual ?
Shall a rare and almost solitary example of clemency, supplied
to us by the laws of Scotland be snatched away, so as to be no
longer a model for imitation or a subject for praise to their Eng-
lish neighbours? In the intercourse of legal exchange shall
the inhabitants of Scotland, instead of imparting their lenity
for our rigour be compelled to accept our rigour for their
lenity? Shall it be said of the party which solicits, and the
party which grants this unprecedented partnership in severity,
that in the same island, and in the same age, though subjects
are progressive in the knowledge, governors are retrograde in
the practice of legislation ?

μὴ γένοιτο.

A wise man, if compelled to chuse between extremes, will
make his choice with reluctance; nor would he venture upon
making it before he had carefully and impartially surveyed all
circumstances, under all aspects of positive and comparative uti-
lity. But there are intelligent, humane, and serious persons to
whom the severities long exercised against unhappy mothers in
one part of the kingdom, and now meditated in another, may, as
an alternative, appear on some occasions not much less objec-
tionable than the leyalised χυτρισμὸς Ἐ of the Athenians, which,
after all, does not seem to have been very often practiced.+

* Contemplating, as I do, with satisfaction, the improved sen-
timents and habits of Christian countries, I cannot slightly pass
over the impunity granted to infanticide, even among the polish-
ed and enlightened Athenians. What Pliny says of the natural
world is true in the moral. ‘ Quedam pudenda dictu tanta
auctorum asseveratione commendantur, ut preterire fas non
sit.”"—Nat. Hist. lib. xxix. cap. 5. It were absurd to deny the
reality of the practice. But humanity would dispose us to believe
that it was not very frequent. It has not fallen in my way to
meet with any instances of it in the writings of the Greek orators
or Greek historians, and little stress is to be laid on the case of

+ Vid. Petit. Leg. Attic. p, 220, edit. Wesseling.

364 APPENDIX TO NOTES.

The nobility, and it pains me to add, the clergy of Sweden,
as 1 have stated in page 467, resisted the humane wishes of a

Ion in the tragedy of Euripides, and a few other similar stories
which have been take up by poets. I have to confess farther,
that of the Jaw which is said to have permitted the exposure of
children at Athens, I have never been able to find the contents,
or the origin, or the name of the author. Let us, however, ex-
amine the evidence which has come down to us, and the use
which has been made of it by scholars.

Turnebus, in lib. xxxviii. cap. 38 of his Adversaria, gives no
example, but contents himself with noticing the word χυτρισμὸς,
and referring to Hesychius. But in lib. ii. tit. 4, of the Commen-
tary on the Leges Attic, Petit says, *‘ Quemadmodum liberos tol-
lere in patris erat positum potestate, ita etiam necare et exponere,
idque, meo judicio, non tam moribus, quam lege receptum fuit
Athenis, non cum hac summi Philosophi exceptione Polit. Libro
Vil. cap. 16. περὶ δὲ ἀποθέσεως καὶ τροφῆς τῶν γιγνομένων, ἔστω
γόμος, μηδὲν πεπηρωμένον τρέφειν. Nam non tantum liberorum
τοὺς πεπηρωμένους, sed etiam 405 libebat sanguinolentos licebat
vel necare, vel exponere, quod certe idem est: etenim Necare,
inquit Paulus Libro 11. Sententiarum [Tit. xxiv. 10.] videtur
non tantum is, qui partum perfocat: sed et is, qui abjicit: et
qui alimonia denegat : et is, qui publicis locis misericordiz causa
exponit, quam ipse non habet. 1. 4. D. de agnoscendis liberis.”
Petit here gives his own judgment, unsupported by the express
testimony of any ancient writer, that the laws, as well as usage,
sanctioned the practice at Athens. It must, indeed, be presumed
that if the practice prevailed for a long time, there was at least
a tacit consent from the laws. But the passage which Petit has
quoted from Aristotle proves nothing to Petit’s purpose. Aris-
totle is delivering his own opinions upon an ideal republic, and
says, “εἴ there be a law,” without any distinction of place, and
without the slightest intimation that such a law was in force at
Athens. He adds: ‘* Arca δὲ πλῆθος τέκνων, ἐὰν ἥ τάξις τῶν
ἐθνῶν (legitur, ἐθῶν) κωλύῃ, μηδὲν ἀποτίθεσθαι τῶν γιγνομένων,
ὡρίσθαι γὰρ δεῖ τῆς τεκνοποιίας τὸ πλῆθος,᾽ and if more than the
prescribed number be begotten, he states certain circumstances
under which “ ἐμποιεῖσθαι δεῖ τὴν ἄμβλωσιν.᾽ Nota word is
said about any law which permitted infanticide at Athens. But
to states where by law it might not be permitted, he gives direc-
tions for limitting the number of children, and points out an ex-
pedient most shocking to our sensibility for preventing incon-
venience to parents when the number was likely to be exceeded.
Singular it is, that even the humane Pliny does not seem to differ
very widely from Aristotle, for having described a process which

APPENDIX TO NOTES. 365

Swedish king. But in Englishmen, considered as individuals,
there is a sort of hereditary and instinctive aversion to the de-

‘* prestabat, ne mulieres conciperent,” he adds, ‘‘ quam solam
ex omni atocio dixisse fas sit, quoniam aliquarum foecunditas
plena liberis tali venia indiget.”—Lib. xxix. cap. 4. The under-
standing of man pauses on the general principle on which Aris-
totle justifies the above-mentioned regulation: “ τὸ yap ὅσιον *
καὶ τὸ μὴ, διωρισμένον τῇ αἰσθήσει καὶ τῷ EHv ἔσται. The
uncivilized Germans were in this respect more entitled to our
approbaticn than the sagacious Athenians. ‘* Numerum libe-
rorum finire, aut quemquam ex agnatis necare, flagitium ha-
betur.”—Tacitus de moribus German. page 296, edit. Lips.

Petit, then, by his reference to Aristotle, gives us no light
upon the Athenian law, and there seems to be little propriety
in his explanation of the word exponere, as applied to the laws
and usages of Athens, by the authority of a Roman lawyer who
was not writing about them.

Petit thus proceeds: “ Hine passim apud Comicos, sive Gre-
cos, sive Latinos in palliatis fabulis suis, in quibus mores Atticos
representant, infantum expositiones, utin Heautontimorumeno
Terentii sive Menandri, Actu 1v. Scena 1.” from which he quotes
v. 14, and the four tollowing. Here we gain some light upon
mere usage, for comic writers are faithful witnesses to manners,
and the Latin play of Terence was founded upon a Greek play of
Menander :

“« Ex integra Greca integram Comeediam
Hodie sum acturus Heautontimorumenon.”
Protos.

For the fuller illustration of the practice we may have recourse
to Act iv. Scene 1 of the Hecyra, which, as we are told by Dona-
tus in his preface to the play, was taken from a comedy of
Apollodorus. We have an additional testimony in the Prologue
to the Casina of Plautus, where the puella exposititia is men-
tioned, and the comedy, we should observe, is founded on the
Clerumonoe of Diphilus.—Vid. Prolog. These, I believe, are the
proofs which the Latin comic writers will furnish in support of
the very strong language used by Petit—passim. The aid it de-

* Upon ὅσιον, as legally distinguished from ἱερὸν, V. Ammonius,
page 104; and Valckenaer’s Note, page 184; Taylor’s Note on Aschines
contra Timarch. vol. ii. page 90. ed. quarto; and on Demosthenes contra
Timocrat. vol. iii. page 445 and 457.

366 APPENDIX TO NOTES.

struction of human life in cases where custom has not familiarised
our minds to the practice, and where personal hopes or fears,

rives from the Greek comic writers is yet more scanty—Petit
quotes from the Rane of Aristophanes,

ce ef δὴ - A 9 \ ,
ὅτε δὴ πρῶτον μὲν αὐτὸν γενόμενον
ειμῶνος ὄντος ἐξέθεσαν ἐν ὀστράκῳ." 1222.
μ ¢

Scholiastes: ‘¢ ἐπεὶ ἐν χύτραις ἐξετίθεσαν τὰ παιδία, διὸ καὶ
χυτρίξειν ἔλεγον».

To a person who is inquiring for Athenian instances, the
verses of Aristophanes, even by Petit’s own confession, afford
no information. He says, ‘‘ apud Aristophanem, de Cidipo,
non e Thebanorum instituto, quod plane huic adversabatur ;”
and for this he quotes a decisive passage in Ailian’s Various
History, lib. ii. cap. 7. The commendation bestowed upon the
Theban law, which denounced death against him who was known
““ ἐκθεῖναι τὸ παιδίον, ἢ éts ἐρεμίαν αὐτὸ ῥίψαι," implies that
some other states had not a similar law—but it does not specify
any law at Athens which permitted the practice, and Aristo-
phanes might have written, as he has, about Qidipus, though
no such law, and even no such practice were known among
his own countrymen. The Scholiast, deed, here and else-
where, is a competent witness to the practice. But it does not
furnish any testimony from particular instances, nor upon the
age, or directions, or framer of the law. My opinion is, that
in the comedies of Aristophanes there is no direct and unequivo-
cal evidence on the subject, though, as explained by the Scho-
liasts, the foregoing one or two other passages supply a strong
presumption in favour of the fact. 1 have already stated the tes-
timony which Terence and Plautus may furnish. But in the
fragments, either of Philemon or Menander, which have come
down to us in the original, there is no vestige of the prac-
tice—let us return to Aristophanes. In the Thesmophor. line
512, we thus read :

ς ΑΙ 9 , ~ > [4 \ δί ”
TOT ecoegepe ypaus εν χυτρᾷ TO TWALOLOV.

Here was no intention to expose the child. The old woman
is sent out by the mother to buy an infant and impose upon her
husband—the nurse brings it in, “ ἐν χύτρᾳ, and this was often
done, as it was here, when they gave children a sponge with
honey to stop their crying—sce line 462 of the Acharnensians, to
which the Scholiast on the Thesmoph, refers, and upon which
the Scholiast ad locum mentions the custom.

In the Vespa, 1. 288, we have the word ἐγχυτριεῖς, which
the Scholiast explains thus; ““ ἀντὶ τοῦ, φονεύσεις, ἐκ τοῦ mape-

APPENDIX TO NOTES. 367

political animosities, the supposed interests of commerce, or the
contagious pride and jealousy of professions do not operate I

moupévov, and after giving other interpretations, he adds,
“ere γε μὴν καὶ τᾶς μαίας τὰς ἐκτιθείσας ἐν χύτραις τὰ βρέφη."
But the various explanations given in the Scholiast will suit
the word for all the various purposes for which children were
put by nurses ἐν χύτρᾳ, and to expose them was one.

I do not recojlect any other part of Aristophanes which can
throw the smallest light on the subject: and the silence of a
writer who was severe enough in censuring the vices of his
countrymen may lead us to suppose that infanticide was not very
common. It may not be amiss to remark, that Flor. Christian.
in his Note on the foregoing line of the Vespe, refers to the
Minos of Plato for evidence which is not to be found in it.
The ἐγχυτρίαι of whom Plato there speaks, were preficee who
attended burials, “ΚΖ not obstetrices que in ollis infautes expo-
nebant.”’

Potter, in his Greek Antiquities, vol. ii. p. 333, speaks of in-
fanticide, and quotes, as from Posidippus, these two lines :

“« Υἱὸν τρέφει τις, κἂν πένης τις ὧν τύχῃ;

Θυγατέρα δ᾽ ἐκτίθησι κἂν ἢ πλούσιος."

Here we have direct proof οὗ the practice, though not of the law.
What reason Potter had for assigning these verses to Posidippus,
I know not. I do not find them in Grotius’s excerpta (see pages
812 and 900), nor in the passages which Athenzus cites from
ten comedies of Posidippus.
The Greek lexicographers furnish pretty full evidence.
““᾿Ἐγχυτριεῖς, φονεύσεις, μετενήνεκται δὲ ἀπὸ τῶν ἐν ταῖς
χύτραις ἐκτιθεμένων maldwy.’—Hesychius.

““ Χυτρισμὸς ἡ τῶν βρεφῶν ἐν ταῖς χύτραις ἔκθεσις." --
Hesychius.

““᾿Ἐγχυτρισμὸς, ἡ τοῦ βρέφους ἔκθεσις, ἐπεὶ ἐν χύτραις
ἐξετίθεντο.".--- ΜοοΙ5, p. 138.

The Note of Pierson contains much valuable matter. But
I shall quote the conclusion. “ Illud meretur observari, et apud
Scholiastum Aristoph. Vesp. 288. et apud Etymologum, p. 313.
et apud Suidam |. 6, καταχυτρίσαι exponi βλάψαι, in Lexico
autem Regio, quod Parisiis evolvit Cl. Ruhnkenius, legi βάψαι.
Quod mihi quidem non temere videtur damnandum.”

If βάψαι be admitted as the true reading, we may among the
Lacedemonians find a custom, which may induce us to apply the
word not to children exposed, but to children preserved :
οὐδὲ ὕδατι τὰ βρέφη, ἀλλ᾽ οἴνω περιέλουον αἱ γυναῖκες, βάσανόν,
τινα ποιούμεναι τῆς κράσεως αὐτῶν." Here it may be proper to
remark, that we have decisive testimony for the law which tole-

368 APPENDIX TO NOTES.

distinguish between actions which may have the effects of
cruelty, and a cruel disposition. I charge not any evil motive,

rated and even enjoined infanticide among the Lacedemonians ;
and of the reasons which were given for it; and of a power
lodged not in parents, but in the elders of tribes :

“TO δὲ yevynbéy οὐκ ἦν κύριος ὁ γεννήσας τρέφειν, ἀλλ᾽ ἔφερε
λαβὼν εἰς τόπον τινὰ λέσχην καλούμενον, ἐν ᾧ καθήμενοι τῶν
φυλετῶν οἱ πρεσβύτατοι, καταμαθόντες τὸ παιδάριον, εἰ μὲν εὐπα-
γὲς εἴη καὶ ῥωμαλέον, τρέφειν ἐκέλευον, κλῆρον αὐτῷ τῶν ἐννα-
κισχιλίων προσνείμαντες᾽ εἰ ἀγεννὲς καὶ ἄμορφον; ἀπέπεμπον
εἰς τὰς λεγομένας ἀποθέτας, παρὰ Ταύγετον, τὸν βαραθρώδη
τόπον, ὡς οὔτε ἀυτῶ ξῆν ἀμεῖνον, οὔτε τῆ πόλει, τὸ μὴ καλῶς
εὐθὺς ἐξ ἀρχῆς πρὸς εὐεξίαν καὶ ῥώμην πεφυκὸς. (Plutarch, in
Vit. Lycurg. tom. i. p. 49. Ed. Xyl.)

In the course of my reading I have met with no testimony so
clear, or so full, upon the Athenian law, as we have here for the
Lacedemonian. I have no doubt, however, that a law tolerating
the practice existed at Athens, and yet I am disposed to think,
that the natural affection of parents did not often suffer them to
expose their children. Our ignorance of the law is thus far in-
convenient, as we know not whether it was left to the arbitrary
will of every parent in every situation to expose his children, or
whether particular conditions, such as the bodily imperfection of
the offspring, or the extreme poverty of the parent, which Aris-
totle mentions in his ideal Republic, were Jaid down by the law-
giver, and punishment in all other cases inflicted upon the father
or mother.

In Philo Judzus de Leg. Special. there is a passage which does
not indeed, directly point to the Athenians, but which give us
reason like the commendation bestowed by Tacitus upon the
Germans, and by Ailian upon the Thebans, to suppose that
other states of antiquity, as well as the Athenian, tolerated in-
fanticide.

“ς Διὰ raurns τῆς προστάξεως, καὶ ἕτερόν τι μεῖξον ἀπηγόρευται,
βρεφῶν ἔκθεσις, ὃ παρὰ πολλοῖς τῶν ἄλλων ἐθνῶν ἕνεκα τῆς
φυσικῆς ἀπανθρωπίας, χειροηθὲς ἀσέβημα γέγονε. Vol. ii. page
318, edit. Mangey, whose Note runs thus: ‘ De infantum ex-
positione Moses nihil precepit, ideo forsan, quoniam sequiorum
temporum luxuries barbariam istam Gentibus etiam humaniori-
bus invexit, atqui consuetudo immanis Judgis omni tempore
invisa.’ He then quotes a pertinent passage from Josephus
contra Apion, lib. 11. cap. 24.

Philo was, I doubt not, right in saying, that many nations
adopted the custom. He justly rejects the plea of mercy, and

APPENDIX TO NOTES. 369

or any evil intention, the result of such motive, upon the learned
mover of the Bill. But I trust that such men as Sir Vickery

yet it deserves to be noticed, that he did not particularise either
the Athenians or the Lacedemonians,

As it is my wish to state the evidence we have upon this sub-
ject more fully and more precisely than I have seen it done by
other writers, I must not wholly omit some lines in the verses
commonly, but erroneously ascribed to Phocylides,

““ γῃηπιάχοις ἁπαλοῖς μὴ μάρψῃ χεῖρα βιαίως.
" # % ὃ: Ε ΓΝ -

Μηδὲ γυνὴ φθείρῃ βρέφος ἔμβρυον, ἔνδοθι γαστρὸς,
μηδὲ τεκοῦσα καὶ ῥίψη, καὶ γυψὶν ἕλωρα.᾽"

These lines point to no particular state or law. But they prove
too clearly the existence of a practice at which nature shudders,
and which compels us to reflect upon the serious and humane
observation of Plutarch :

“”Axparoy ἐν τοῖς θηρίοις ἣ φύσις καὶ ἀμιγὲς Kal ἁπλοῦν φυ-
λάττει τὸ ἴδιον ἐν δὲ ἀνθρώποις ὑπὸ τοῦ λόγον καὶ τῆς συνηθείας
(ὃ τοὔλαιον ὑπὸ τῶν μυρεψῶν πέπονθε) πρὸς πολλὰ μιγνυμένη
δόγματα καὶ κρίσεις ἐπιθέτους, ποικίλη γέγονε καὶ ἰδία, τὸ δὲ
οἰκεῖον ov τετήρηκε." —Plutarch. de Amore Prolis. Wyttenbach’s
edition, tom. ii. par. 2. p. 1006.

The civilised inhabitants of Europe will look back with just
disapprobation upon the opinions and customs of antiquity, and
the imbecility or folly of their laws in the toleration of infanticide.
But as I have been chiefly speaking of the Athenians, it may be
right to suggest, that the practice of exposing children is a far
more unquestionable fact than the entire and arbitrary right
which fathers and mothers have by some moderns been supposed
to exercise over the lives of their children. The fullest account
I have seen is in lib. i. cap. 2. of Meursii Themis Attic.

** Ac prima quidem lex Triptolemi, uti dixi, honorandos esse
parentes statuebat: quod ut cogerentur facere, metu poene, qui
nature pravitate detrectabant, jus parentibus in liberos vite
et necis Solon dedit. Sextus Empiricus, Pyrrh. Hypotyp. lib. iii.
cap. 24. Kai ὁ Σόλων ᾿Αθηναῖος τῶν περὶ τῶν ἀκρίτων νόμον
ἔθετο, καθ᾽ ὃν φονεύειν ἑκάστῳ τὸν ἑαυτοῦ παῖδα ἐπέτρεψε. Quin
etiam Solon Atheniensis legem de indemnatis posuit, per quam
unicuique filium suum interficere permisit. Hermogenes, De
Invent. lib. i. cap. 1. ᾿Ενώπιόν ris τῆς μητρὸς ἀπέκτεινε τὸν υἱὸν,
κατὰ τὸν τῶν ἀκρίτων νόμον. Occidit quis filium coram matre,
juxta legem de indemnatis, Curius Fortunatianus, Rhet. lib. i
Lege quemadmodum sit absoluta qualitas? Indemnatos liberoz

VOL. IV. 2B

370 APPENDIX TO NOTES.

Gibbs, Sir Thomas Plomer, Sir Arthur Pigott, and Sir Samuel
Romilly will pause—will enquire—will reflect, before they lend
the aid of their talents, and the sanction of their votes to a Bill

liceat occidere. Tres filios lege indemnatorum occidit : reus est
uxori maletractationis. Hic enim se dicit lege fecisse. Ac de
matre quoque, est locus Sopatri, in Divis. Quest. ᾿᾽Ἐξεῖναι καὶ
μητράσιν ἀκρίτους ἀναιρεῖν τοὺς παῖδας. Licere etiam matribus
liberos indemnatos occidere.”

In chapter twenty-two of his book de Solonis Vita, legibus,
atque scriptis, Meursius himself opposes the authority of Dio-
nysius Halicarnasseus to that of Sextus Empiricus. Dionysius in
the second book of his Roman Antiquities tells us, that, according
to the laws of Solon, Pittacus, and Charondas, the Greek fathers
were ‘‘ allowed to drive their children from their houses, and to
disinherit them, ‘‘ περαιτέρω δὲ dvdév.” His testimony is im-
portant, and we must observe that according to it, even these se-
verities were granted by the laws to parents towards disobedient
children only, “ τιμωρίας κατὰ τῶν παίδων, ἐὰν ἀπείθωσι τοις
πατράσιν, ov Papecas.’—Dionys. Hal. Rom. Antiq. lib. ii. edit.
Sylburg.

These cases are perfectly distinct from the custom of exposing
children, and it must be observed, that Dionysius does not men-
tion either the infanticide practised by the Athenians, or the law
which permitted it. The passage in Sextus Empiricus is so ob-
scure, that we cannot determine whether he meant to speak of
Solon’s law as authorising parents to expose new-born children,
or to kill disobedient children of any age. He does not employ
the usual word, ἐκτιθέναι, but φονεύειν, and therefore I suspect
that he spoke of children punished, not children exposed by their
parents, and even in this 1 believe him to have been mistaken.

My chief view is to state what has been recorded of the
Athenians. I am unwilling to suppose that the frequency of In-
fanticide among them so familiarised the human mind to it as to
occasion the dearth of particular instances which I have noticed
in Greek writers, and which is not found upon other customs,
less important in our estimation. But the practice, I am sorry
to say, prevailed in other Greek states ; and, as it should seem,
was not prohibited in them by the laws. The scene of action, as
appears from the Prologus, and various passages in the Cistella-
ria of Plautus, was Sicyon. A merchant from Lemnos was the
father of Silenium ; he was not personally known to Phanostrata
the mother, and in consequence of his sudden, secret, and illicit
amour, he fled back from Sicyon to his own country. After the
death of his first wife he returns to Sicyon, and, when he pays

APPENDIX TO NOTES. 371

which may rest, I do not say, upon the prepossessions or the hu-
mour of any single man, but in part I do fear upon the vulgar,
unequal, vindictive principle of demanding with too little discri-
mination, blood for blood.

The political motives either of a superabundant population, or
of incapacity in parents to provide for a large family of children,
can have little or no place in the mind of an English legislator,
because our population is not superabundant, because we have
other resources, as in colonization, &c. if it were so, and because
the personal incapacity of parents to support at least the exist-
ence of their children, is not without remedy from regulations
which the laws have wisely and humanely established. But in the

his addresses to Phanostrata, for the purpose of marrying her,

“ς“ Et eam cognoscit esse, quam compresserat ;”

she unreservedly tells him

** ejus ex injuria
Peperisse se gnatam, atque eam se servo illico
Dedisse exponendam.”

Though the Roman laws encouraged by rewards the fathers of
many children, the custom of exposing their new-born offspring
seems to have been of great antiquity, and long continuance,
It is alluded to by Juvenal, Sat. vi. v. 601, 2; and I have met
with no express interdict against it, before the time of Valens.

When Nero had killed his mother, his subjects, among other
indignities, “ παιδίον és τὴν ἀγορὰν ρίψαντες προσέδησαν αὐτῷ
πινάκιον, λέγον, Οὐκ ἀναιροῦμαί σε, ἵνα μὴ τὴν μητέρα ἀποσ-
φαξἕῃς. (Dio Cassius, lib. [χὶ. par. 16.)

Reimar’s Note on the foregoing passage runs thus: ‘ Morem
infantes exponendi, antiquitus usitatum, diserta lege primum
sustulerunt Valens et Gratianus ]. 2. Cod. de infantibus exponen-
dis lib. viii. tit. 52. vide Cl. Noodt in Jul. Paul. c, 6.”

The Latin writers have recorded several instances, ‘‘ Quo die
Caligula detunctus est, partus conjugum expositi.” (Sueton,
in Vit. Cal. parag.7.) ‘Caius Melissus ob discordiam parentum
expositus.” (Sueton. de illust. Grammatic. parag. 21.) Marcus
Antonius Gnipho, who, probably, wrote the four books (Rhetoric,
ad, C. Herennium) prefixed to Cicero's Works, and commonly as-
cribed to C. Cornificius, was, “ in Gallia Natus, sed expositus,”

(Ibid. parag. 7.)
232

372 APPENDIX TO NOTES.

moral sentiments of mankind that legislator might find some di-
rections which it were unsafe for him entirely to disregard, if he
would avoid that ‘‘ weakness which a portion of superfluous pain
is apt to introduce into the law, or if he setsa due value upon
the efficacy which the law acquires, when the people are satisfied
with it, and voluntarily lend their assistance in the execution of
it.’* Now there are offences against which our indignation.
bursts out instantaneously, and of which our sober reason seldom
admits any palliation. But the pity which is often excited in
cases of infanticide carries with it a strong presumption that, in
our judgment and our feelings, we secretly recognize the force of
that temptation which can overcome the instinct implanted by
nature in the mind ofa mother—a force so powerful, that when
neither any of the social motives, nor the dread of detection and
punishment, have been able to prevail over it, we often infer the
absence of that “ depraved disposition” which we justly impute
to offenders, ““ when the mischief of an act is very great, and the
temptation to it is very little.”

In regard to the crime of which I am speaking, we have in
this country many ‘‘ tutelary motives” as they are called by Mr.
Bentham, all consistent, and all co-operating with those which
arise from the sanction of the laws. In a state where the inter-
course of individuals with each other is so near and so frequent,
sympathy upon such an occasion is a very powerful, and united
with other causes which I am going to mention, is not a very
irregular motive. Usage and religion are among those tutelary
motives to which Mr. Bentham would assign a place in “ the ca-
talogue of standing tutelary motives ;’’ and religion more espe-
cially, when acting together with benevolence, will act in an
uniform manner, and ‘‘ oppose the commission of a crime on
account of its mischievousness.”{ When therefore sympathy,
usage,and religion come in aid of natural affection,surely the legis-
lator, when he fixes the quantity of punishment, may take into his
calculation the force of the other tutelary motives just now enu-
merated, and consider well whether it be such as may warrant

* Bentham, page 196, + Ibid. p, 146.
+ Ibid. p, 142.

APPENDIX TO NOTES. 373

him in subducting from his penalties any, even the smallest, por-
tion of that rigour which in the absence of those motives it
would be necessary, and therefore just for him to employ.
«But the force of those other powers,” we may be told, “ is
never determinate enough to be depended upon in cases where
the force of the moral sanction has not been expressly introduced
into and modified by the political, That force never can be
introduced like political punishment into exact lots, nor meted
out in number, quantity, and value. The legislator therefore is
obliged to provide the full complement of punishment, as if he
were sure of not receiving any assistance whatever from any of
those quarters. If he does, so much the better. But lest he
should not, it is necessary he should at all events make that pro-
vision which depends upon himself.”*

I admit the premises, that the force of those ‘‘ powers cannot
be meted out in number, quantity, and value,” with such exact-
ness as shall perfectly suit all conceivable cases. But I think the
conclusion drawn from the premises rather too wide, when it is
said that the legislator is obliged to provide the full complement
of punishment as if he were sure of not receiving any assistance
whatever from any of those quarters. ‘* Truth,” we are told,
“418 productive of utility, and observing truth is acting as things
really are, and he who acts as things really are must gain his
end, all disappointment proceeding from acting as things are
not.” +

Is it then true, that the tutelary motives which I have men-
tioned have severally or jointly a great or even a slight force in
preventing infanticide ? Is it not the duty of the legislature to
examine what is the probable quantity of that force, and what
upon the whole may be the probability of its operation? If the
force be little, or the probability be little, then I should grant
that the legislator is obliged to act as if he were sure of receiving
no assistance from those quarters. But if the probability be
great, as in this case I contend it is, and if the force also be
great, the circumstance of irregularity is not of itself so strong
as to render it necessary for him to depend wholly on that pro-

tt τσ τοι δτδἕἔεοΕΠὸοιτοεἔοἔοἔοἔοὁονοὌοἘὁὅ2ἑτ τι διοἍϑδδοι ιν τ ν.0ϑὕ.0.ὲ0.Χ0Κ..κ.0......0.0...,ττπρρασαα ες

* Bentham, p. 183.
Tt Warburton's Alliance, book ii, chap. 2.

374 APPENDIX TO NOTES.

vision which is made by himself. True, however, it is, that in
assigning the portion of punishment he is to look to the force
of a temptation which overrules both the tutelary motives men-
tioned by me, and those which are furnished by the laws; and
true it also is, that where all these motives are overcome, an
offence will sometimes appear to have increased malignity. Still,
there often is not in the crime of infanticide such a malignity as
indicates depravity of disposition; and therefore the legislator
will be upon his guard against the introduction of such punish-
ment as ought to be employed in restraining such depravity.
The mischievousness of single acts is the same, whether the agent
be, or be not, generally depraved in disposition. But the
chance of frequency is lessened where that disposition does not
exist, and I think that of such a circumstance a legislator ought
never to lose sight. Keeping it in view, he will be induced by
it, not indeed to abstain from punishment, but to assign sucha
measure of it as under all circumstances shall be necessary for
the prevention of the crime—while he avoids such punishment as
““ is conclusively indicative of a habit, he will increase it in point
of magnitude so far as it may fall short in a point of certainty
and proximity; and even where in point of quality it is particu-
larly well calculated to answer its intention, and cannot exist in
Jess than a certain quantity, he will farther stretch it a little be-
yond that quantity which on other accounts would be strictly
necessary.’’*

My opinion, however, is, that for the crime of infanticide
punishment for the first offence, especially if accompanied by
circumstantial extenuations, may exist in a quantity less than
death; and in the practice and regulations of foreign states,
there is some encouragement for us, if not to make the experi-
ment in our own, yet to be cautious, at least, in suffering the
contrary experiment to be introduced in another country, where
it has hitherto been unknown.

The legislator, who undertakes to propose statutes, and espe-
cially such as are to affect the life of man, would do well to form
those habits of observation, which may give him not, perhaps,
the splendid name, but the solid knowledge of a philosopher, to

* Bentham, p. 181.

APPENDIX TO NOTES. 373

explore all those properties of the human mind, “ which,” as
Butler says, ‘‘ are mere questions of fact, or natural history, not
proveable immediately by reason, but by appeals to the external
senses, or inward perfections,” to survey the ‘* whole complex
constitution of human nature,” to examine both the absolute
and relative qualities, and the separate and conjoint operations of
our appetites, affections, and passions, to discover in them the
causes, while in other quarters he looks to the consequences, of
human action, to balance with the utmost wariness and utmost
impartiality the force of every impelling and every restraining
motive, and by the general result of such investigations to mea-
sure the chances of success in any particular application of capi-
tal, and, in truth, every severe punishment.—If, indeed, the
tutelary motives, which Mr. B. himself has enumerated, had no
existence at all, or what, in the view of the legislator, is equiva-
lent, if their power, though irregular, were not very frequent,
nor very salutary, every penal code ought to be sanguinary, like
the system of Draco, or, it should rather be said, that with such a
frame of the human mind, and in such a state of things as would
be the effect of it, no appeal could be made by a lawgiver to
moral approbation: no precise notions of the right to command,
or the duty to obey, would prevail: no principles of justice
would be embodied in the forms of law: no distinct traces of
civil government would be discerned: no physical force could
be regularly employed for the protection of the weak and con-
troul upon the strong, nor, indeed, employed at all, but accord-
ing to the resources and for the purposes of savage revenge,
when resisting savage aggression. It is, | grant, a matter of
fact, that such motives operate irregularly, and, according
to my own observation upon mankind, it is also a matter of
fact, that under certain circumstances they will afford some de-
gree of aid to the legislator. Instead, therefore, of assuming
broadly and without any qualification, that he must do without
them, and depend wholly upon himself, it is proper for him to
consider what those circumstances are under which he ean do
better with them. A penal statute, recommended even by such
an enlightened person, must, like all other political regulations,
be in the first instance experimental, guided, indeed, by analo-
gies more or less applicable from past experience, but supported

370 APPENDIX TO NOTES.

only by probabilities, which more or less approach certainty,
without the possibility of reaching it.

Infanticide is a most mischievous act. It calls for very power-
ful restraints from laws. It is practically to a great and happy
extent restrained by the tutelary motives of which I have been
speaking, and when those motives have been inefficacious, the
lawgiver may, I think, consistently with the principle of utility,
distribute the action, which now bears a general name, into dif-
ferent classes, as other criminal actions called by a common
name have been distributed, and in fixing the penalties he may
assign what to him shall appear a just value, to repetition, or
any other circumstance of aggravation upon one side, and upon
the other side, to anguish of sou] from perfidious desertion, to
exquisite sensibility to shame, or any other circumstance of ex-
tenuation. In child-murder, though extenuating circumstances,
alas! are rarely made a ground for mercy from the prerogative
of the Sovereign, they often find their way to the compassion of
jurymen, and produce impunity as the only alternative they can
employ for death. I love that compassion; but I lament that
impunity. I wish to make every possible provision against un-
certainty in the administration of the laws, by the increased ap-
pearance of equity in punishments. [ believe, that by a very
enlightened and very attentive legislature, circumstances which
extenuate and circumstances which aggravate guilt, might in many
cases be calculated with precision, greater than they hitherto have
been, and quite sufficient for all the best purposes of legislation.

If the frequency of a crime be often admitted as a justification
of increased severity, may not the rarity of it, when compared
with the tendency of opportunities, or the force of temptations to
produce it, with the struggle of moral motives to prevent it,
and with the number or causes of other offences, be sometimes
considered as a reason for mitigation of punishment—especially
where, as I have cbserved of infanticide, a solitary action in a
very few instances leads us to infer any radical wickedness of
heart in the agent ?

‘«Tjlam ego non tulerim, que computat, et scelus ingens
Sana facit.”’*

* Juvenal, Sat. vi.

APPENDIX TO NOTES. 377

But this deliberate and execrable cruelty in a mother to her
offspring, widely differs from the motives which actuate the gene-
rality of those unfortunate females whom the English law puts to
death for infanticide.

Reflecting upon the argumentative and unanswered, but un-
availing speech of Mr. Adam upon the power vested in the
courts of Scottish judicature : on the sentence of transportation
which was passed and executed upon some state criminals at the
close of the last century, and on the resistance which in certain
quarters has been since made to the further introduction of
juries into Scotland, I did not feel much surprise at one part of
the information which lately reached me. But has not society
witnessed already too many proofs of an observation which no-
thing but my conviction of its truth and importance could have
induced me to communicate—too many instances, where profes-
sional men have been more impelled to act from personal tempe-
rament, not very favourably affected by personal experience, than
from large and exact views of human nature—where they appear
to have been more skilful in the capricious distinctions and arbi-
trary assumption of jurisprudence than in the profound inves-
tigations and simple results of moral science—where they have
been more accustomed to provide against local and temporary,
than permanent and nationals evils—more inclined to propose
measures of rigour than lenity—more qualified to direct a jury
by the authority of fixed rules, than to guide a legislative body
by the light of general principles? Yet my anxious hope is,
that the Bill of which I am speaking will not be passed by an
English Parliament in the nineteenth century, without clear and
numerous proofs of the most unequivocal and most urgent
NECESSITY,

Before I quit the painful but interesting subject of our Penal
Code, I think it my duty to remark, that in the appointment of
Judges something more than ordinary attention seems within
these last five or six years to have been shewn to professional
knowledge in the persons promoted, to solid judgment, to inte-
grity, and to humanity, without any recommendation from party
compliances, or any aid from family connections. Great, too,
is the satisfaction I feel in the opportunity I now have for stating,
that on several of our late circuits some of our venerable minis-

378 APPENDIX TO NOTES.

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 indi-
cates 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 te acquire their proper authority
over the minds of men, the laws may be revised, and the penal-
ties 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 declara-
tion, 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 re-
peal, 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 accord-
ing to the issue of the deliberation.* In the last mentioned
place it may be worth while to remark, Stobzeus ascribes to Za-
leucus the same relations which Diodorus Siculus f assigns to
Charondas : and Wesseling in a note{ supposes, with some pro-
bability, that on this, as well as other occasions, Diodorus had
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 Bec-
caria held, on the inflexibility of laws yet unrepealed, and on the
mischiefs which arise from the subtle and licentious interpreta-
tions 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. Stobeum, Serm. 42 and 37.
+ Lib, xii, parag. 17. edit, Reimar. t Vol. i. p. 489.

APPENDIX TO NOTES. 379

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

“ς Προσέταξεν ἐκ πάντος τρόπου πείθεσθαι τῷ νόμῳ κἂν 7 πανγ-
τελῶς, κακῶς γεγραμμένος. Διορθοῦν δὲ συνεχώρησε τὸν χρείαν
ἔχοντα διορθώσεως. Τὸ μὲν γὰρ ἡττᾶσθαι ὑπὸ νομοθέτου καλὸν
εἶναι ὑπελάμβανε" τὸ δὲ ὑπὸ ἰδιώτου παντελῶς ἄτοπον, καὶ εἰ ἐπὶ
τῷ συμφέροντι γίνεται. Καὶ μάλιστα τοῦ τοιούτου τρόπου τοὺς ἐν
τοῖς δικαστηρίοις τῶν παρανενομηκότων προφάσεις καὶ διανοίας
ἀντὶ τῶν ῥητῶν εἰσάγοντας ἐκώλυσε ταῖς ἰδιάις εὑρεσιλογίαις κατα-
λύειν τὴν τῶν νόμων ὑπεροχήν. ἢ

I have great pleasure in concluding what I have written on a
very important subject, with the statement of a fact which can-
not fail to be interesting to those who are adverse to the fre-
quency of capital punishments. My very ingenious and .bene-
volent 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 de-
livered 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 re-
marks 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 pro-
fessional men for his pubjications 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 acknow-
ledge such a man a συνεργὸν τοῦ κόπου τῆς ayarijs.

* It 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.

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NOTE

UPON

MR. FOX’S HISTORY

OF THE

EARLY PART OF THE REIGN OF JAMES II.

Havine stated my expectation that Mr. Fox’s projected His-
tory 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 dis-
tinctly 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 1 supposed that he would not stoop to the use of

* Life of Gray.

382 NOTE UPON FOX’S HISTORY OF

Jow expressions. What indeed they are, in a dead or even ina
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 well-
known diligence and solicitude in the correction of his own
writings, I am persuaded that he would have altered several pas-
sages in which men 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, “ ἐλλυχνίων
ὄξειν αὐτοῦ τὰ ἐνθυμήματα " *—if Plato “ τοὺς éavrov Διαλόγους
krevigwy, καὶ βοστρυχίξων, καὶ πάντα τρόπον ἀναπλέκων, οὗ
διέλιπεν ὀγδοήκοντα γεγονὼς érn,” and if in his tablets were
found several variations of the short sentence ‘* κατέβην χθὲς eis
Nepaia,” t—if Cicero doubted whether, asa Homo Romanus, he
should write Pirzum or Pirza, and whether he should or should
not use a preposition when he spoke of it, not as Oppidum, but
Locum {—-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§ illud tuum quod valde
mihi arriserat, vehementer displicet; est enim verbum totum
nauticum: quanquam id quidem sciebam. Sed arbitrabar susti-
neri 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 hoe 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 znhibent remis puppes, ac rostra recedunt.”

Luca, 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 in-
quired of some learned men at Rome, whether, in an inscription
for the Aid. Victoriz, which he was about to dedicate, it should
be written tertium or tertio, Cicero felt the same uncertainty,

THE REIGN OF JAMES II. 383

amples of such great diligence, he must have known that the
lime labor et mora were not unworthy of his own taste, or
age, his dignified situation as a statesman, or his established fame
as a speaker in Parliament. We may trust his good sense for
having endeavoured to avoid that Κακόξηλον into which writers
are seduced, “ quoties ingenium judicio caret et specie boni
fallitur ;’” and we may be assured that he never would have been
tempted, ‘‘ quod recte dici potest, circumire amore verborum, et
quod uno verbo patet, pluribus onerare.” *

Mr. Fox read extensively ; he reflected deeply; but he seldom
composed. The remark which Cicero makes upon the qualifica-
tions which are necessary for a good speaker, may be applied
more directly and more frequently to that exercise of the mind
which is necessary to form a very good writer. ‘‘Caput est, quod,
ut vere dicam, minime facimus, est enim magni laboris quem
plerique fugimus, quam plurimum scribere. Stylus est optimus
et prestantissimus dicendi effector et magister.,’+ This position
of Tully is noticed by Quintilian, who, with his usual good sense,
has assigned a chapter to the subject in his tenth book, and, with
his usual sagacity, demonstrated the necessity “ scribendi diligen-
tissime et quam plurimum.” Mr. Fox, who carried about him
as an author the same artlessness and docility which pervaded
every other part of his character, would have profited by the in-
structions of such masters as Tully and Quintilian.

There is always danger lest the habit of public speaking should
have some influence on the mind of a writer, and infuse into the
productions of his pen such peculiarities of manner as distinguish

which, in truth all scholars must sometimes feel, and ingenuously
said, ‘‘ se judicare de viris doctis veritum esse.” He therefore ad-
vised Pompey, ‘‘ ut neque tertium neque tertio scriberetur: sed
ad secundum usque T fierent Littere, ut verbo non prescripto res
demonstraretur: sed dictio (i.e. the pronunciation) tamen am-
bigui verbi lateret.”” Men of letters, I believe, now write accord-
ing to the opinion of Varro, which A. Gellius has recorded :
“ Quarto locum adsignificat, et tres ante factos. Quartum tem-
pus adsignificat, et ter ante factum.’’~—Vid. A. Gell. lib. x. cap. 1.
Non. Marcell. cap. 5. par. 50, and Cornel. Fronto, p. 1340 of the
Auctores Latini, published Colon, Allobrog, 1622. |

* Quintil. lib. viii. Procem. et cap. 3.

+ De Oratore, lib. i.

384 NOTE UPON FOX’S HISTORY OF

his speeches. This effect is often visible in the political writings
of Mr. Burke, though, in justice to that wonderful man, I would
except his ‘‘ Thoughts upon the Causes of popular Discontents ;”’
and we all remember that his admirable work on the Sublime
and Beautiful had been prepared for the press before he became
known to the public as an orator. It is, however, worthy of re-
mark, that in the rhetorical, philosophical, and epistolary writ-
ings of Cicero, scarcely any vestiges can be found of the exube-
rance and splendour which appear in his orations. We always
indeed meet with perspicuity and elegance, and sometimes even
with copiousness. But the general character of his style is uni-
formly adapted to the matter or the occasion; and though we
recognise Cicero, we lose sight of the orator.

‘¢ Mille habet ornatus, mille decenter habet.”

Mr. Fox, for a time, might have found it difficult to disengage
his thoughts or his words from the form which they had been
accustomed to assume, and perhaps the order in which they had
been accustomed to occur to him, when he was speaking in Par-
liament. But with all the imperfections which the acutest critic
can discover in his History, and which leisure would have enabled
him to correct, the excellencies which characterise his best
speeches in the House of Commons, often present themselves to
our view in the work lately published. In conformity to the
precept of Cesar, ‘‘ habuit semper in memoria atque in pectore,
ut tanquam scopulum, sic fugeret inauditum et insolens ver-
bum.” * He shunned the faults into which Hortensius is said to
have fallen. When we reflect upon Mr. Fox as a speaker, “ lon-
gius procedens et in ceteris eloquentie partibus tum maxime in
celeritate et continuatione verborum adherescens, sui dissimilior
non videbatur fieri quotidie.” If we turn to him as a writer,
“cum jam honores et illa senior auctoritas gravius quiddam re-
quireret, remanebat idem, et decebat idem.” +

In avery elaborate, and, I believe, a rare book of Falster,
called Memorize Obscure, the second chapter treats “ de Ingeniis
Romanis, que Eruditionis et Litterarum gloria absque scriptis

* See Fragment in the Editions of Cesar.
+ See Cicero’s Brutus, near the conclusion.

THE REIGN OF JAMES II. 385

fioruerunt.” Now it deserves to be noticed, that most of the
persons whom Falster has rescued from oblivion, were orators ;
and this fact would be surprising to us, if we were not prepared
to hear it by the mention of other orators, whose names have
been preserved to us, and the character of whose style has some-
times been shortly described by Cicero, Quintilian, and the un-
knowr writer of the Dialogus de Oratoribus, subjoined to the
common editions of Tacitus. Happy, then, must be the friends
of Mr. Fox, that, if any future scholars should write, upon our
own countrymen, a book similar to that of Falster upon the Ro-
mans, the name of Mr. Fox will not be included among them.
Had he lived, indeed, to finish his work, he would have expe-
rienced more and more the truth of Quintilian’s observation :
« Paulatim res facilius se ostendent, verba respondebunt, compo-
sitio sequetur, cuncta denique, ut in familia bene instituta, in
officio erunt. Summa hec est rei: cito scribendo, non fit bene
ut scribatur ; bene scribendo, fit ut cito.”* As to the examina-
tion of facts, whether admitted into history, or preserved only by
tradition, his labour would have been undiminished. But the
necessity of all the diligence and all the solicitude which are as-
cribed to him, must be apparent, when we reflect upon the negli-
gence, or the credulity, or the unfairness of his predecessors ;
and that history, beyond every other kind of composition, re-
quires the most unwearied perseverance and the most rigorous
impartiality, is obvious to our common sense, and has been illus-
trated by a most judicious writer de Incertitudine Historie,
in a learned and philosophical dissertation, which you may see
in the ‘* Additamentum ad decem Libros Observationum Select-
arum ad Rem litterariam pertinentium,’’—Hala Magdeburg.
Many may be the faults, which, as Cicero says in the Brutus,
*‘ non quivis unus ex populo, sed existimator coctus et intelli-
gens possit cognoscere.” But the general character of Mr. Fox's
style was purely English; + and, as to the rejection of a word,
for which he had not the authority of Dryden, it is a fancy which

* Lib. x. cap. 3.

δι δ Πρώτη τῶν ἀρετῶν γένοιτ᾽ ἂν, ἧς χωρὶς οὐδὲν τῶν ἄλλων
τῶν περὶ τοὺς λόγους bpedos* ris; ἡ καθαρὰ τοῖς ὀνόμασι καὶ τὸν
Ἑλληνικὸν χαρακτῆρα σώθουσα διάλεκτος." Dion. Halicarn. Ep,
ad Pomp. de Platone, parag. 15.

VOL. IV. Qc

386 NOTE UPON FOX’S HISTORY OF

seems to me not less unwise than the fastidiousness of the Cice=
ronian sect, * and which Mr. Fox’s own example proves to be
more ‘ honoured in the breach than the observance.” Dryden,
with all his numerous and all his exquisite beauties, could not
have supplied all the peculiar forms of writing for which an his-
torian has occasion, and if Mr. Fox was determined to employ no
expression which English writers of celebrity had not employed
before him, he might have found in those writers every word and.
every combination of words which might be necessary for every
purpose of perspicuity and correctness, elegance and strength.
Far be it from me to withhold the smallest portion of that

* © Quemadmodum,” says Falster, “ Philosophia, (quod Cle-
mens Alexandrinus dixit) non est dicenda Stoica, nec Platonica,
aut Epicurea, aut Aristotelica, sed quicquid ab his recte dictum
est, quod docet Justitiam cum veri Scientia. Hoc totum selec-
tum dicendum est Philosophia; sic latinitas non Ciceronia di-
cenda est, non Terentiana, non Plautina, sed quicquid a diligen-
tissimo quoque scriptore Latino proprie et emendate dictum, id
demum civitate Latina dignum judicator,” (Vid. Falsteri,
Amenitat. Philolog. vol. ii. cap. 11, and Cl. Al. Stromat. lib. i.
par 7.) You will not join in any cry of pedantry against me for
saying that in the word Ciceronianum, as sometimes used by the
modern writers of Latin, there is more propriety than some scho-
lars may perceive at first sight. ‘‘ Ciceronianum nomen ferri
potest, ut recentioribus maxime usitatum. Sed velim antiqui et
probati scriptoris Jocum mihi demonstrari, ubi Ciceronianum
nomen, Ciceroniani libri, Ciceroniana merita in Rempublicam
dicantur, pro Ciceronis ipsius nomine, libris, meritis. Ilius
ztate sine dubio Tullianum dicebant quicquid profectum erat a
Cicerone aut ad ipsum proprie pertinebat, et si quis adjectivum
volebat ad hoc Agnomine ductum, Ciceronium potius dicebat,
Sicut a Cesone dicitur Cesonium, a Stilicone Stiliconium, a Ma-
rone Maronium sive Maroneum, sed ex analogia Ciceronianum
debebat esse id quod minus arcte nexum et cum Cicerone con-
junctum est, ita ut Ciceronianus esset imitator Ciceronis, oratio
Ciceroniana, oratio similis crationibus Ciceronis ;’ see page 7 of
Weiske’s preface to his Commentary on the speech for Marcellus,
the authenticity of which he has endeavoured to defend, ingeni-
ously, but, 1 think unsuccessfully, against the criticisms of the
learned and acute Wolfius. Noman, you will tell me, in the
words of Johnson, forgets his original trade. Iam not ashamed
of mine; and if J had been writing to Mr. Fox, as I now am to
you, upon style, he would not have blamed me for remembering
such a passage as I now recommend to your perusal.

THE REIGN OF JAMES II. 387

praise which is due to a Robertson,a Hume, ora Gibbon.* But
I must confess, that the style of Mr. Fox approaches more nearly
than that of the writers just now mentioned, to the excellence
which, in my opinion, is peculiarly becoming in historical com-
positions. Upon this subject I have long thought in the same
way with my illustrious schoolfellow and friend Sir William Jones,
and under the protection of his authority and his words I will
communicate my own fixed judgment.

*« It may perhaps he expected that some account should here
be given of the Persian history, which I was thus appointed to
send abroad in an European dress, with some remarks on the ve-
racity and merit of its eastern author; but, before we descend to
these minute particulars, it will not be foreign from the subject
of the present publication, to inquire into the general nature of
historical composition, and to offer the idea, rather of what is
required from a perfect historian, than of what hitherto seems to
have been executed in any age or nation.

““ Cicero, who was meditating an history of Rome, had esta-
blished a set of rules for the conduct of his work, which he puts
into the mouth of Antonius in his treatise on the accomplished
orator; where he declares ‘ the basis and ground-work of all
history to depend upon these primary laws, that the writer should
not dare to set down a falsehood, nor be deterred by fear from
divulging an interesting truth; and that he should avoid any
just suspicion of partiality or resentment; the edifice, he adds,
which must be raised on this foundation, consists of two parts,
the relation of things, and the words in which they are related ;
in the first, the historian should adhere to the order of time, and
diversify his narrative with the description of countries ; and since,
in all memorable transactions, first the counsels are explained,
then the acts, and lastly, the events, he should pronounce his
own judgment on the merit of counsels ; should show what acts
ensued, and in what manner they we performed; and unfold the
causes of all great events, whether he imputes them to chance, or
wisdom, or rashness ; he should also describe, not only the ac-

* “Lumina orationis velut oculos quosdam eloquentis esse
credo; sed neque oculos esse toto corpore velim, ne cetera mem-
bra suum officium perdant.”—Quintil. lib, viii. cap. 5.

2c?

388 NOTE UPON FOX’S HISTORY OF

tions, but the lives and characters of all the persons, who are
eminently distinguished in his piece; and, as to the words,
should be master of a copious and expanded style, flowing along
with ease and delicacy, without the roughness of pleadings at the
bar, or the affectation of pointed sentences.’*

«If we form our idea of a complete historian from these rules,
we shall presently perceive the reason, why no writer, ancient or
modern, has been able to sustain the weight of so important a
character; which includes in it the perfection of almost every
virtue and every noble accomplishment, an unbiassed integrity,

% De Orat. Jib. 11. 15.”

Some of the best observations I have ever seen upon the dic-
tion, the topics, and the arrangement of history, may be found in
Mr. Hampton’s preface to his excellent translation of Polybius.
Has it ever occurred to you, my friend, that marks may be traced
of two styles, and even two minds in that preface? When I had
pointed some instances to the learned and sagacious Sir James
Mackintosh, he agreed with me in my conjecture that the Whig
translator was indebted for some expansion of his matter, and
some embellishments of his language to a Tory auxiliary,t who
is known to have been acquainted with him, and who at a later
time directed his satire against false alarms, and his eloquence
against unnecessary wars.

t+ Much of the praise which Hampton’s friend in one of his writings
bestows upon Knolles’s History of the Turks, may be extended to
Mr. Laing’s History of Scotland. ‘* His style is nervous, elevated, and
clear. A wonderful multiplicity of events is so artfully arranged, and so
distinctly explained, that each facilitates the knowledge of the next.
Collateral events are so artfully interwoven into the contexture of the
principal story, that they cannot de disjoined without leaving it lacerated
and broken. There is nothing turgid in his dignity, nor superfluous in
his copiousness.’’—Rambler, No. 122.

The ardour of Mr. Laing in the cause of liberty is not disgraced by de~
mocratic coarseness or theoretic refinement. His inquiry into the con-
troverted question of Mary’s participation in the death of Darnley is mi-
nute without tediousness, and acute without sophistry. Whether I con-
sider his sagacity in exploring causes, his clearness in relating facts, his
vigour in pourtraying characters, or his ingenuity in unfolding and en-
forcing principles, I shall ever find reason to lament that the continua-
tion of Hume’s history was not undertaken by a writer so eminently qua-
lified as Mr. Laing is, for a task so arduous and so important.

THE REIGN OF JAMES II. 389

a comprehensive view of nature, an exact knowledge of men and
manners, a mind stored with free and generous principles, a pe-
netrating sagacity, a fine taste and copious eloquence ; a perfect
historian must know many languages, many arts, many sciences ;
and, that he may not be reduced to borrow his materials wholly
from other men, he must have acquired the height of political
wisdom, by long experience in the great affairs of his country,
both in peace and war. There never was, perhaps, any such cha-
racter; and perhaps there never will be; but in every art and
science there are certain ideas of perfection, to which the works
of genius are continually tending, though, like the logarithmic
spiral, they will never meet the point to which they are infinitely
approaching. Cicero himself, had he found leisure to accom-
plish his design, though he would have answered his own idea in
most respects, would have been justly liable to the suspicion of
an illiberal bias in relating the history of his own times, and
drawing the several characters of his age.

“« The very soul and essence of history is truth, without which it
can preserve neither its name nor its nature, and with which the
most indifferent circumstances in a barren chronicle are more
interesting to a sensible reader, than the greatest events, how co-
piously or elegantly soever they may be described, in a romanee
or legend ; yet it is strange, that, of so many histories, ancient or
modern, European or Asiatic, there should be so few, which we
can read without asking in almost every page, Is this true?” *

After some remarks, worthy of his unparalleled erudition and
correct taste, upon some ancient and modern historians, Sir Wil-
liam Jones goes on thus;

“‘ The English historians are not to be read without caution,
Clarendon himself is often liable to exception, both in sentiment
and style; and our language, indeed, was never entirely polished
till the present century. I avoid touching upon the works of
living authors ; lest, in my very preface, I should violate a fun-
damental law of history, by incurring the suspicion of prejudice
for a particular nation, or affection for particular men; but ano-
ther law obliges me to declare, that there are historians now in

. * Preface to Sir William Jones’s History of the Life of Nader
Shah, &c.

390 NOTE UPON FOX’S HISTORY OF

Britain, whose writings have sufficiently proved, that if their sub-
jects were equal to their talents, they would be able to contest
the merit of veracity, judgment, and elegance with the ancients
themselves. That perfect liberty, which forms the very essence
of our constitution, makes it unnecessary for an English historian
to flatter any potentate or statesman upon earth; and our lan-
guage, though inferior to the Greek and Roman, will not yield
the prize of energy, variety, and copiousness, to any modern
idiom whatever.”’*

Give me leave, dear Sir, as Mr. Fox would have done, to di-
gress a little to another topic, which the preface of Sir William
Jones to his Persian History recals to my memory.

The learned Mr. Thomas Warton, in an inaugural speech,
which, as Camden Professor of History, he delivered at Oxford,
and which in correctness and elegance far surpasses all his other
Latin compositions, has confessed himself unable to understand
what is meant by the lactea ubertas ascribed to Livy.t Mr. War-
ton said this in 1786. Now Sir William Jones, in his preface to
the History of Nader Shah, which appeared in 1773, had made a
similar confession, “It is not easy,” says he, ‘“ to coiceive
what the ancients mean by the lactea ubertas of Livy. In
many parts of his work he shows great candour and judgment,
but his style is not remarkable for ease or copiousness.”

The expression to which Sir William adverts must strike every
reader forcibly ; and in a very long catalogue of editors and phi-

* Preface to Sir William Jones’s History of the Life of Nader
Shah, &c.

+ ‘ Livius artificio dicendi et facundia vel summis Grecorum
par: dignusque qui victoris omnium gentium populi gesta im-
mortalitati traderet. In narrando quidem et describendo perju-
cundus est; ita tamen regnat et dominatur in concionibus, ita
personas induit diversas, et accominodate loquentes inducit, et
cum proprietate sustinet, etiam ad affectus permovendos, ut non
modo consurgat ad laudem perfecti oratoris, sed et perseepe peri-
tissimi dramatici poetz specimen pre se ferat. Plenus est digni-
tatis et gratiz ; non tamen video quid sibi velit Quintilianus, ubi
Livii lacteam ubertatem predicat ; nam certe abruptior est paulo,
et duriusculus, nec ubique in contextu sermonis facilis, nec sim- |
plicitatis illius Herodotez satis amulus.”-——See page 371 of the
second volume of Warton’s Poetical Works, edited by the learned
Mr. Mant.

THE REIGN OF JAMES II. 391

lologists, which Drakenborch has inserted in the seventh volume
of Livy, there are several* who have adopted the opinion, and
even repeated the language of Quintilian. Now it can hardly
be supposed that, with all their partiality for Livy, and all their
veneration for Quintilian, so many critics would have selected a
phrase which not one of them understood. It is not very pro-
bable that Quintilian should form a less accurate judgment than
Sir William Jones and Mr. Thomas Warton upon the diction of
a Roman historian. For my own part, I see no want either of
copiousness in the narrative of Livy, or of ease in his speeches,
and, like the majority of scholars, 1 have always been charmed
with the felicity of Quintilian’s description. Jam not conscious
of arrogance when I give myself credit for understanding it;
and I believe that Quintilian intended to speak comparatively.
Let us contrast what he says of Sallust with what he says of
Livy in the same sentence: “ Neque illa Sallustiana brevitas,
qua nihil apud vacuas aures atque eruditas potest esse perfectius,
apud occupatum variis cogitationibus judicem, et sepius ineru-
ditum, captanda nobis est : neque illa Livii lactea + ubertas satis
docebit eum, qui non speciem expositionis, sed fidem querit.” t

* Vide Dedicatio Hutteni to the Mogunt edition, Prefat. Go-
horii to the Paris edition, 1573, &c. Hieronymus, in Epistola
ad Paulinum, alluding to Quintilian, describes “‘ Titum Livium
lacteze eloquentiz fonte manantem,” and several editors of Livy
quote the words of Hieronymus with approbation,

+ Homer, where his simile is drawn from honey, certainly
means to suggest the idea of sweetness only, when he says,

““Τοῦ καὶ ἀπὸ γλώσσης μέλιτος γλυκίων ῥέεν aid.”
ILIAD, i.
And thus the Latin Poets:

** Et quasi Museo dulci contingere melle.”
Lucrerivs, lib. i.

““ Fidis enim manare poetica mella
Te solum.” ᾿ Horat. Epist. lib. i. epist. 19.

But I believe that Quintilian, in his imagery from milk, had
in view copiousness. Pliny often mentions lactis ubertatem.—
_ Lib. xx. xxvii. xxviii,
t Lib. x. cap. 1.

392 NOTE UPON FOX’S HISTORY OF

The lactea ubertas of Livy is indirectly compared with the Sal-
lustiana brevitas, and each of them is represented as a model in.
many respects unfit for imitation to orators. This would readily.
be allowed of their narrative, and as to their speeches,* they,
like others which we meet in Herodotus, Thucydides, and Xeno-
phon, were the work of the historians themselves, and however
they may have delighted antient or modern readers in the closet,
they might have produced a very feeble effect upon a Greek or a
Roman audience. Some light may, 1 think, be thrown upon the
passage just now quoted from Quintilian, if we turn to another
part of his Institutes, where he teaches us “‘ qui legendi sint in-
cipientibus,” and where, not generally, but for the particular
purpose of forming a public speaker, he prefers Livy to Sallust,
and Cicero to both. “Ego optimos quidem, et statim, et sem-
per, sed tamen eorum candidissimum quemque, et maxime ex-
positum velim; ut Livium a pueris, magis quam Sallustium :

* The most judicious and satisfactory criticisms I have ever
read on the speeches writtent by the antient historians, are to
be found in the New Annual Register for 1783 and 1788. In
the former are inserted ‘‘ Observations upon the Speeches of the
Antient Historians from the Abbe de Mably’s Dialogues concern-
ing the manner of writing History.” The latter contains a very
masterly “Essay on the dramatic antient form of Historical
Composition, from the Transactions of the Royal Edinburgh
Society.”

Justin, in lib, xxxviii. cap. 6. gives a full, and what the critics

tT In reading the written compositions assigned to speakers by Livy,
Sallust, &c. we should always bear in mind the judicious observation of
Cicero, who distinguishes them in their styles from speeches really de-
livered :

‘“<In’ historia interponentur, etiam conciones et hortationes; sed in
his tracta quedam et fluens expetitur, non hac contorta et acris oratio.”
—Orator, vol. i. page 159. Gruter’s edit.

The thoughts, and to some extent the words, are adapted to the parti-
cular occasion on which they are employed, and to the general character
of the person. But we do not find the varied and vehement language of
areal speaker. ‘I'he reader does not expect it. The writer could not
furnish it. We are conscious of the illusion, but are at the same time
satisfied with the historian, as we are with an artist, when his picture
resembles the original,

THE REIGN OF JAMES II. 393

et hic historiz major est auctor: ad quem tamen intelligendum
jam profectu opus sit. Cicero, ut mihi videtur, et Jucundus in-
cipientibus quoque, et apertus est satis; nec prodesse tantum,
sed etiam amari potest: tum (quemadmodum Livius precipit),
ut quisque erit Ciceroni simillimus.”* Whatsoever may be the
difference of opinion among modern scholars upon the justness
of Quintilian’s observation, little doubt upon the real import of
his words can remain with any intelligent reader of the passages
which I have just now produced. Whatsoever may be the com-
parative ease a learner would have found in understanding
Cicero, and whatsoever comparative advantage he might derive
from attempting to imitate him, still, as we shall see presently,
Livy is represented as mire vir facundia, still, as we have already
seen, he is classed among the candidissimos scriptores, and still,
in the judgment of Quintilian, he would have presented fewer
difficulties than SaJlust to the mind of a beginner. Whatsoever
may be the properties in Livy’s phraseology which produced any

difficulty at all, we have no clear evidence for maintaining that
ee . ᾿΄΄ὃὦὖᾧ΄ὦΚΡ.ἕ ὦ"... ὦ“ἝἷἝἾἾ“ἾἝἕ ὁ .. ..

call recta oratio; a speech of Mithridates which Pompeius Tro-
gus had thrown into the oblique form. ‘ Quoniam,” says Jus-
tin, ‘‘ in Livio et Sallustio Trogus reprehendit quod conciones
directas pro sua oratione operi suo inserendo historia modum
inceperint.” Justin, it is to be observed, (lib. xiv.) gives the
speech of Eumenes in the form of recta oratio, and in lib. xviii.
the speech of Maleus. Livy himself often gives smaller speeches
in the oblique form, and especially the speeches of ambassadors,
in lib, xxxi. par. 11. lib. xxxii. par. 8, lib. xxxv. par. 35 and 42.
He sometimes mixes both forms, as in the speech of Flaminius,
(lib. xxxviii. par. 43.) and in the reply of Aimilius Paullus to
Manlius, par. 45.

Tacitus and Cesar often employ the oblique form. The poets
mix them; of which you may see instances in the /Zneid, viii,
287, 293, &c. Milton's Paradise Lost, iv. 719, 724, &c. Ho-
mer’s Iliad, xv. 346, 348 to 353. Apollonius Rhodius, lib. iv.
1702, 1706 to 1709.

In regard to the Roman historians, the oblique form, when
continued to any length, as it sometimes is, appears to me lan-
guid. ‘The writer in this kind of narrative, as well as in set
speeches, expresses his own thoughts, but with less perspicuity,
variety, and animation, than he would be enabled to do in the
usual and regular form of a speech.

* Lib. ii, cap, 6.

394 NOTE UPON FOX’S HISTORY OF

they consisted in patavinity : for the diction of Sallust, to which
greater obscurity is ascribed by Quintilian, was certainly free
from the adhesion of foreign idiom. Whatsoever may be the
merit of Sallust, and I may add Tacitus, in their style, it will
hardly be denied that in copiousness, ease, and perspicuity, Livy
is superior to both of them. Thus much I may venture to say,
without the imputation of assenting to the harsh and acrimoni-
ous strictures which Scioppius, in a work called Judicium de
Stylo Historico, has heaped together against Sallust and Tacitus.

Before J return to the consideration of Mr. Fox’s History, I
shall not hesitate to drop a few words upon another passage in
Quintilian, which has perplexed rather than convinced some of
my learned contemporaries. “ [ἡ Tito Livio mire facundie viro
putat inesse Pollio Asinius quandam Patavinitatem.’* Pollio,
who was an historian as well as an orator, and whose opinions
were Jess favourable than those of Livy to Roman liberty, might
have been induced to throw out this obscure and invidious in-
sinuation by critical refinement, or by literary jealousy, or with
views of political adulation to the reigning emperor. Quinti-
lian, we must observe, has recorded, but not expressly adopted
it. No antient grammarian, or scholiast, or critic, in such of
their writings as have come down to us, has produced one soli-
tary instance of Livy's Patavinity. No philologist among the
moderns, however capricious, or however fastidious, professes to
have discovered one. The expression itself is not associated
with our critical notions of Livy, and has answered no other
purpose than that of giving rise to a contemptuous phrase for
provincial barbarism, or incongruous and mongrel jargon,
Morhoff t has professedly examined the opinion of Pollio, ina
dissertation which deserves the attention of every scholar. I
lent it to Dr. Johnson, who agreed with me in thinking the
arguments of Morhoff satisfactory, and even invincible. I know

* Lib. viii. cap. 1.

t+ See from page 475 to page 592 of Morhoff’s Dissertationes
Academice et Epistolice, published at Hamburgh, 1699. The
Dissertation has been judiciously inserted by Drakenborch in the
seventh volume of his edition of Livy, where any purchaser may
find, and every scholar ought to read it.

THE REIGN OF JAMES II. 395

not whether some courtly historian may not hereafter arise
among ourselves, and endeavour to fix upon Mr. Fox the charge
of violating the English idiom. Doubtless of grammatical errors
he is often guilty, and surely faults of the same kind may be
found in the writings of Pope, Dryden, Addison, Swift, and
sometimes even Johnson. But I very much doubt whether in
Mr. Fox’s History the oculi emissitii* of the keenest critic could
discover Gallicisms, Latinisms, Archaisms, or any other Τ᾿ λώττας;
whether by the word we understand with Aristotle, ‘‘ verba pere-
grina,’’ or, with Dionysius and Galen, ‘‘ verba obsoleta, ideoque
inusitata et obscuriora,’ as distinguished from ‘‘ verba pere-
grina.” Τ

“Omnis eloquentia,” says an antient critic, “ circa opera vite
est, et ad se refert quisque quz audit, et id facillime accipiunt
quod cognoscunt.”$ And again he says, “" habet omnis eloquen-
tia aliquid commune. Id imitemur quod commune est.” §
Hence by common consent are allowed those liberties of which
the greatest speakers, in their common practice, readily avail
themselves. Inversions, repetitions, phrases, some ephemeral
and others obsolete, sudden transitions, short and abrupt allu-
sions, daring metaphors, mutilated sentences, long parentheses
—all of them may have their proper place at a proper season,
and may all of them be approved, if they do not occur fre-
quently, or stand out ostentatiously. By the established laws of
sympathy in the human mind, the gestures of a speaker, his
tones, and his very looks, may throw a lustre upon what would
be obscure, and a grace upon what would be offensive, at any
other time, and in any other place. But the eye will not permit
us to endure what even the “ judicium aurium superbissimum” |}
has not condemned. Hence in written compositions we look,
and are justified in looking, not perhaps for greater excellencies,
but for fewer faults. The noble writer of an Address prefixed to

* Vid. Plaut. Aulul. Act i. Scene 1.

+ Vid. Aristot. Rhet. lib. ii. cap. 2. and Poet. cap. 21. and
Dionys. de Compos. par. 3. and Galen, in Interpret. Gloss, Hip-
pocrat,

¢ Quintil. lib. viii. cap, 3. § Lib. x, cap. 2.

|| Cicero, in Orator.

396 NOTE UPON. FOX’S HISTORY OF

the History informs us, that “if Mr. Fox had ever been reduced
to the alternative of an inflated or homely phrase, he in all pro-
bability would have preferred the latter.” With sincere and just
deference to the learning and taste of the excellent person whose
words I have just now quoted, I must state that no man whose
understanding was so cultivated as that of Mr. Fox, could often
have been reduced to the necessity of making his choice between
that which is inflated and that which is homely. In reading his
History, I met with several expressions which I believe not “to
have been introduced wpon system, but to have crept in through
inadvertency,” and I could point out many other passages to
which my learned and noble friend would perhaps concur with
me in applying the observation of a writer whom we equally ad-
mire: ‘‘ Patet MEDIA queedam via: sicut in cultu victuque ac-
cessit aliquis citra reprehensionem nitor, quem sicut possumus
adjiciamus virtutibus.”* I do not profess to ‘‘ take my notion
of historic style from Mr. Gibbon.” But if Mr. Fox, from “ his
abhorrence of any thing that savoured of pedantry or affectation,”
deliberately admitted into his History some very homely expres-
sions which are now to be found in it, 1 should not dispute his
scrupulous attention to language, but should be compelled so
far ‘to call in question his judgment as an author,” and I should
say without reserve, “‘ in vitium ducit culpe fuga, si caret arte.”

In consequence of the censures which I heard from many
quarters upon the style of Mr. Fox, I transcribed the passages
which appeared to me in any degree, or upon any account, objec-
tionable ; I distributed them carefully into three classes; and I
added a fourth catalogue of sentences, in which the position of
the words is artificially inverted. For this property I was not
prepared ; and yet in no instance is there the smallest appearance
of affectation. Every writer feels occasionally the convenience
of such inversion in giving clearness and ease to the order of his
words, and every good writer will have recourse to it, when it is
likely to answer such useful purposes.

To chase with criticism ‘‘ quod quisque unquam vel contemp-
tissimorum hominum dixerit, aut nimiz miseriz, aut inanis jac-

* Quintil. lib. viii. cap. 5.

THE REIGN OF JAMES II. ᾿ 397

tantiz est.”* But the deserved celebrity of Mr. Fox’s name,
the importance of his subject, and my view of the various motives
by which his readers would be disposed to condemn or to praise,
increased the interest which I felt in ascertaining the real merits
of his work. Iwas content therefore ‘‘ difficiles habere nugas.”
I was anxious to distinguish between the Just and the unjust re-
flections to which his history has given rise, and perhaps other
readers to whom the same “ labor ineptiarum ”’ was for the same
reason less intolerable, have like myself found it agreeable to
discover what it were of little use for us to communicate in de-
tail. The real improprieties of negligence meet with fewer
advocates and fewer imitators than the false beauties of affecta-
tion ; and for the purposes of caution to common readers, the in-
stances which the writer in the Edinburgh Review has enume-
rated in his masterly critiquet upon Mr. Fox’s History are quite
sufficient.

Confiding in his own strength, that acute and eloquent critic

* Quintil. lib. 1, cap. 5.

+ 1 will embrace the opportunity now afforded me for express-
ing, not only my praise, but my thanks, to those unknown.
writers in the Edinburgh Review who have favoured the public
with their remarks upon the Bill for the Residence of the Clergy,
which has passed—the Bill for the Relief of the Roman Catho-
lics, which was unfortunately reyected—and the Bill for im-
proving the situation of Stipendiary Curates, which I hope will
not be permitted again to insult the good sense of an English
Parliament. Those remarks are accompanied by a train of rea-
soning which cannot be refuted. They are supported by facts,
which every impartial ecclesiastic and every observant layman in
England must acknowledge to exist. They are founded upon
the most correct and enlarged principles of political economy.
They are calculated to promote not only the general interests of
society, but the tranquillity, honour, prosperity, and safety of
the Established Church. Adapted to the common sense of all
readers, and justified by the experience of almost all clergymen,
they may be considered as most seasonable antidotes to the con-
tagion of that diseased spirit, which mingles the rashness of em-
piricism with the stubbornness of bigotry, which stoops without
conscious degradation from fanatical visions to secular cares, and
which, under the shelter of self-conceit and self-delusion, mis-
takes intolerance for zeal, officiousness for vigour, censoriousness
for innocence, and singularity for evangelical holiness.

308 NOTE UPON FOX’S HISTORY OF

will, I am sure, pardon me for observing that the objection
which he very properly makes to Mr. Fox for writing “ the then
state of Scotland,’ may in some respects be extended to that part
of the review in which we are told that ““ the natural tenderness
of his disposition enables him to interest us in the description of
his after sufferings.” ‘True it is that the words before and after
are used as prefixes to English words, as in before-mentioned,
before-time, before-hand, after-times, after-thought, after-ccst,
ἃς, &c. Far also, which relates to place, as then does to time, is
prefixed, as in far-fetched ; and in colloquial diction we preserve
the old form which occurs in the New Testament, “ a far coun-
try.” But I suspect that the reviewer himself in an elaborate
work would not have considered the use of before, &c. in compo-
sition as supplying the smallest justification of such a phrase as
“his after sufferings.” We read indeed in the New Testament,
“ Use a little wine for thine often* infirmities.’+ Johnson, too,
remarks that, in Sidney, soon ¢ has the signification of an adjec-
tive, (“a soon and prosperous issue”) but he adds, * licentiously,
or according to the custom of his time ;” and I should say the
same of a passage which Dr. Johnson quotes from Clarendon,
«the then Bishop of London, Dr. Laud.” |

Let not the excellent critic to whom I have adverted be
offended with me for observing, that he has himself fallen into a
colloquial inaccuracy, equal to that which he justly blames in
Mr. Fox. Dr. Johnson is said to have reprimanded very roughly
one of his friends who in conversation had expressed a wish to
“ canvass that subject,” but Johnson had forgotten that in The

* Tam the more inclined to believe this phrase to have been
suggested to our translators by the use of their own age, because
they were not led to it by the original ““ ras πυκνάς cov ἀσθε-
veias. According to the genius of the Greek language, adverbs
which relate to time are preceded by an article, precisely similar
to the phrase in Mr. Fox's History. “°Q τέκνα, Κάδμου τοῦ πά-
Aat νέα τροφὴ." (Sophocl. in Cid. Tyr.) ““Οὐδεν δέκαιόν ἐστιν
ἐν τῷ νῦν γένει. (Euripid.in Temeno, non Tenne. See Valke-
naer, Diatribe 15.) “ Ov yap ἴση οὐδὲ ἐγγὺς ᾿Αθηναίων ἡ τότε
πολιτεία." (Luciani Imagines, sect. 17.)

T 1 Tim. v. 23.

t Taylor in his Advent Sermon writes “ ἃ seldomer preach-
ing,” and “ seldome returns.”

THE REIGN OF JAMES II. 399

Vanity of Human Wishes he had himself written, ‘ Search every
State, and ““ canvass every prayer.”* Harry Stephens collected
with great anxiety, and produced with great triumph, many in-
stances in which Dionysius Halicarnasseus used the very expres-
sions which he had condemned in Fhucydides, and with some
probability Stephens conjectures that when the judgment of Dio-
nysius was matured, and when he was preparing to write an
historical work, he often approved of that phraseology which in
the ardour of youth and the petulance of criticism he had before
censured.t It is well known to scholars that Moeris,t Thomas

* J know not a more striking instance of forgetfulness || than
that which Quintilian records: “ Didymo, quo nemo plura scrip-
sit, accidisse compertum est, ut cum historiz cuidam tanquam
vane repugnaret, ipsius proferretur liber, qui eam continebat.”
— Lib. i. cap. 5.

+ The remarks of Harry Stephens upon Dion. Hal. are in-
serted, together with his preface to Thucydides, and his letter to
Camerarius, in Duker’s edition of Thucyd.

t As I wish you to know precisely what were the opinions of
these grammarians on soleecisms, I hope that you will acquit me
of pedantry in recommending to your notice the following pas-
sage from page 35 of Reizius de Prosod, Grec. Accentus Incli-
natione :

ἐς Soleecismum vocarunt Sophiste illius temporis, quidquid
non esset veteris elegantiz Attica. Phrynichi exemplo, quos
probarint auctores, videre licet. Kum Photius narrat probasse
hos tantum, primo quidem loco—A¢schylum, Sophoclem, Euri-
pidem ; secundo loco, Platonem, Demosthenem, et A2schinem
Lysaniz filium ; tertio denique loco, Aristophanem, Thucydidem,
Xenophontem, reliquos novem oratores, Critiam Caleschri filium,
et Antisthenem, Hos igitur Sophiste ita probabant, ut que illi
non usurpassent vocabula et loquendi genera, hc tanquam bar-
bara et soleeca repudiarent. Eorum pars deterior, ut fit, scrip-
tores zequales etiam optimos ac disertissimos, qui non omnia que
nova essent aspernarentur, deridebant et contemnebant: quum
interim ipsi non modo essent maxime jejuni atque inficeti, sed
ne dedicissent quidem satis, neque quid antiquum, neque quid

|| Let me be pardoned for adding one more instance of faults commit-
ted by censors. Hieronymus, Cicero tells us, bad collected from Isocra-
tes, ‘* triginta fortasse versus, plerosque senarios, sed etiam anapmsta,
* * 7 * Sed tamen bic corrector, in eo ipso loco quo
reprehendit, emittit imprudens ipse senarium,”’—Orat. p. 168, ed. Gruter.

400 NOTE UPON FOX’S HISTORY OF

Magister, Phrynichus, and other grammarians, have often repro-
bated such words as the most approved writers have employed.*
The author of a very entertaining and very instructive work,
called Soleecista, and ascribed, but with little probability, to Lu-
cian, has pointed his ridicule against many expressions which
occur in the best authors. It has sometimes been my own lot,
as a writer, to violate the rules which, as a teacher, I had pre-
scribed to learners, and perhaps there is no man of letters who
may not find reason now and then to apply gravely to himself
the following question: “’Apdye ὁ γνῶναι τὸν σολοικέξοντα
δεινὸς, οὗτος kal φυλάξασθαι μὴ σολοκίϑειν δυνατός ;"F

Mr. Fox’s History, after all, is an ““ ὀλίγη λιβὰς,᾽ and though
it cannot be said always “ καθαρή re καὶ ἀχράαντος dvéprety,” it
must be allowed by every candid critic to flow ““πέδακος ἐξ
ἱερῆς. Ἔ 1 know not whether in the progress of his work Mr.
Fox would have employed that kind of reasoning which ‘ un-
folds a general view of the causes that influence the character
and disposition of the people at large,” and which, in the opi-
nion of the Reviewer and my own, are “ essential to the true
perfection of history ;” but, if I mistake not, the understanding
of Mr. Fox was thoroughly qualified for such investigations, and
his work even now is ‘‘ more full of argument, and what is pro-
perly called reflection, than most modern historians with whom
I am acquainted.” §

The observations strewed by Mr. Fox over his work recal to

rectum omnino et elegans esset, dicerentque plurima non tantum
nove, sed etiam prave atque absurde.”

Wolfius, the learned annotator upon Reizius, very properly re-
fers us to page 39 seqq. of Pierson’s Preface to Moeris, where the
same subject is discussed very copiously and judiciously. I shall
not quote the words of Pierson, because his edition of Moeris is
a much more common book than the work of Reizius.

* I hope not to be accused of pedantry for supporting my as-
sertion by a fewinstances. Vide Moeris on προσβαΐνειν, which
is really an Attic word, as distinguished from dyvappryacbar—
T. Magister in voce Aperayn—and Phrynichus in ἴγδιν (which
is an older and better reading than iyény ) which he rejects, when
he prefers Oveiay.

+ Luciani Soloecista, sect. i. 1 Callimachi Hymn, in Apoll.

§ See Edinburgh Review.

THE REIGN OF JAMES II. 401

my mind Addison’s description of fine writing. They are natu-
ral without being obvious. They by accident, rather than de-
sign, exhibit the peculiar * and amiable character of the writer.
They grow out of the subject, and “ to every seed”’ of morality
or policy which is “sown” in the narrative they give as it were
*< its own body.” In truth, this History may be compared to a
country in which the beauties that diversify the scenery bear no
resemblance to the profusion and gaudiness which betray the
solicitude of art, but are the native and spontaneous produce of
the soil, diffuse a fragrance which refreshes the senses without
overpowering’them, and are decked with colours, sometimes
mellow but without faintness, and sometimes glowing but with-
out glare.

Do we not sympathize with Dr. Johnson when he tells us that
the English Dictionary was ‘ written, not in the soft obscurities
of retirement, or under the shelter of academic bowers, but
amidst inconvenience and distraction, in sickness and in sor-

* In the pathetic close of the narrative which Mr. Fox has
given us of Argyle’s death, there are certain φωνᾶντα συνετοῖσι
which may lead us tosuspect that he, at the moment, had in view
the possibility of a similar fate to himself, if he ever should be
placed in similar circumstances. Reflection, habit, principle,
sensibility, all the pure and all the noble qualities of nature acted
in mild and sweet concert upon the mind of the writer, and they
awake in the reader every tender and every generous sympathy of
pity for ideal suffering, and reverence for real virtue. Of the
interest created in men of genius by these imaginary situations,
when self-love and self-respect recommend themselves by attend-
ant simplicity and sincerity, we have a striking instance in a
very eloquent passage, where Bishop Warburton describes Mr.
Bayle as “a man who, to the utmost strength and clearness of
reasoning, has added all the liveliness and delicacy of wit, and
who, pervading human nature at ease, struck into the province
of paradox, as an exercise for the unwearied vigour of his mind.”
He who thus writes of other men must have experienced in him-
self something similar to that property which he describes.
When the pen of Warburton was employed upon a passage where
so much originality is united with such vigour in the conception,
and so much ease with such dignity in the language, a vox indus
must have whispered to him again and again,

‘* Mutato nomine de me
Fabula narratur.’

VOL. IV. 2p

402 NOTE UPON MR. FOX’S HISTORY OF

row?” Why then should we not do Mr. Fox that justice which
the best feelings of our heart will not permit us to refuse to Dr.
Johnson? Mr. Fox’s History was composed amidst many inter-
ruptions from the difficulty of procuring authentic papers, from
the tardy and irksome operations of the mind, when it has to
methodise and qualify probable conjectures, in opposition to
long received but unfounded assertions, from the toil of eluci-
dating obscure or comparing contradictory statements, from the
bustle of party, from the fatigues of office, from the languor of
approaching disease, and from those sweet endearments which
he found in the society of a beloved family and long-tried friends,
and which to such a man were far more interesting than the
prospect of posthumous fame.

Really and professedly the work of Mr. Fox is ‘* incomplete
and unfinished.”* But whatever may be for a time the success
of criticism in the attempts that have been made to depreciate
the merit of it, the season is not distant when the writer, if he
were living, might exclaim with a well-known poet of antiquity,

“« ἀβά--
τιστός εἶμι φελλὸς ὡς
Ὑπὲρ ἕρκος ἅλμας. ἢ

Though objections may be raised against the disposition of the
parts, the work will still be entitled to the name of a history.t
We know that Dionysius, in his letter to Pompey, “περὶ Πλά-
τωνος," has with great severity criticised Thucydides in his choice
of ἃ “ὑπόθεσις, which is neither “ καλὴ ᾿ nor ““κεχαρισμένη,"
in his comparative ignorance “ πόθεν τε ἄρξασθαι καὶ μέχρι τοῦ
προελθεῖν δεῖ---τίνα δεῖ ἐπὶ τὴν γραφὴν πραγμάτα παραλαβεῖν,
καὶ τίνα παραλιπεῖν---διελέσθαι τε καὶ τάξαι τῶν δηλουμένων
ἕκαστον ἐν ᾧ δεῖ τόπῳ," and in that diathesis of the writer him-
self, which is ““ αὐθέκαστος καὶ πικρὰ, καὶ rn πατρίδι τῆς φυγῆς

* See Lord Holland's Preface. + Pindar. Pyth. 2.

1 ““Τῶν συγγραμμάτων, doa μὲν ἂν ἢ κατὰ τὴν λέξιν, ἢ κατὰ
τὸν χειρισμὸν, ἢ κατ᾽ ἄλλο τι διαμαρτάνηται τῶν ἰδίων μερῶν»
ἀντεχήται δὲ τῆς ἀληθείας, προσίεσθαι φησὶ τὸ της ἱστορίας ὄνομα
τὰς βίβλους" ὅταν δὲ ταύτης παραπέσῃ; μηκέτι καλεῖσθαι δεῖν ἱσ-

ropiay.”—Polyb. Megal. Hist. lib, xii. sect. ὅ,

THE REIGN OF JAMES II. 408

μνησικακοῦσα." In all these respects he decidedly prefers Hero-
dotus to Thucydides, and yet another Greek writer, who in
learning and talents was not inferior to Dionysius, composed a
well-known work “ περὶ τῆς Ἡρόδοτου κακοηθείας." Modern
scholars read with attention the censures both of Dionysius and
Plutarch, but they do not read with less attention, with less pro-
fit, or less delight, the works of Herodotus and Thucydides
themselves. The secret charm, which acts upon the readers of
Mr. Fox’s History, and which ultimately will preserve the fame
of it from the attacks of criticism, is to be found in his unfeigned
and unceasing regard to truth. He is equally exempt from that
deliberate falsehood which is utterly inexcusable, and from that
ignorance of truth which a great historian of antiquity allows in
some cases to be venial.* In the statement, and, where it was
possible, the solution of doubtful evidence, in developing the pro-
perties of actions and the characters of agents, in applying to
the dark and crooked machinations of human policy those sim-
ple but hallowed rules of morality which our unprejudiced judg-
ments, and our uncorrupted feelings invariably approve, Mr. Fox
has discharged his trust with such ability as rarely has been
equalled, and such fidelity as never has been surpassed. He has
rescued his readers from those delusions to which they were ex-
posed from the blunders of Dalrymple, the calumnies of Mac-
pherson, the partial decisions, the disingenuous omissions, and
the captivating but sometimes unauthorized discussions of Mr.
Hume, In telling the story of the times of which he treats, he
distinctly and fully lays open to our view the servility and profli-
gacy of English ministers, the want of foresight, and want of
moderation in many of our English ecclesiastics, and the mean-
ness, insincerity, insatiable ambition, and odious cruelties of two
royal oppressors,

‘The conductors of the British Critic professedly decline giving
“ their opinion of the genius of Mr. Fox for historic composi-

* “Δύο μὲν τρόπους φαμὲν εἶναι ψεύδους" ἕνα μὲν τὸν κατ᾽
ἄγνοιαν, ἕτερον δε κατὰ προαίρεσιν, καὶ τούτων δεῖν τοῖς μὲν κατ᾽
ἄγνοιαν παραπαίουσι τῆς ἀληθείας, διδόναι συγγνώμην" τοῖς δὲ
κατὰ προαίρεσιν, ἀκαταλλάκτως éxey.—Polyb. Megal. Hist. lib.
Xil. sect. ὃ.

20 2

404 NOTE UPON FOX’S HISTORY OF

tion.” They grant that “if age had moderated that sanguine
temperament which made him hunt after extremes in facts and
in principles, there is enough in his work to shew that he might
have become a fine historian.” ‘They represent what they think
‘“‘ the wrong placing of some parts of his history, and the great
disproportion of others, as being only offences against the me-
chanical laws of composition, and, as such, easily avoided.” They
speak of ‘numerous admirers, who firmly believe that every
thing which was the product of his pen must have been a fault-
less model of excellence ἴῃ 118 kind.” ‘* Id quia volunt credunt
quoque” * may be true of many readers, and possible it is that
the acknowledgments which I have made upon the imperfections
of Mr. Fox’s style may not expiate my guilt in praising it, nor
protect me from being classed with the herd of blind and abject
idolaters. But I should beg leave to remind my accusers that in
our own country, and our own times, there is another class of
men, who are equally numerous, and equally clamorous, with the
panegyrists of Mr. Fox, and who would be eager to depreciate
every excellence, and exaggerate every defect that can be found
in him, as a statesman, aspeaker, a writer, and a man.

The conductors of the British Critic controvert the conclusions
which Mr. Fox has drawn from Barillon’s correspondence. They
peremptorily deny that James had applied for, and Louis XIV,
promised him his aid to reduce England to an absolute monarchy,
so far as that point could be established by the papers of Barillon,
They maintain that ‘‘ however the general tenor of the papers of
Barillon gave a semblance of probability to Mr. Fox’s opinion
that James pursued the general establishment of the faith of the
Roman church in these kingdoms with a zeal less ardent than
that which actuated him in his plan to establish absolute mo-
narchy, yet it can be shown, upon the authority of James him-
self, that his overweening confidence in the infallibility of the
reasons producing his own religious conviction Jed him into the
most singular of errors; that of supposing that the admission of
a toleration must of necessity be ultimately followed by the con-
version of the whole body of people to Romanism.” Here a
wide field for discussion opens itself to any disputant, who might

* Quintil. lib. vi. cap. 2.

THE REIGN OF JAMES II. — 405

be more disposed than I am to examine the soundness of the
Reviewer's arguments, and the tendency of his positions. He
might say that Mr. Fox cannot be blamed for not qualifying his
opinions by the evidence of papers which he had never read—
that, according to the Reviewer's own concession, “ those opi-
nions have a semblance of being founded on the general tenor
of Barillon’s papers,” which Mr. Fox had read—that the projects
which James in his old age and in exile had prepared for the
instruction of his son, and, as he imagined, his successor, are not
direct and decisive proofs of the objects which he pursued while
he was on the throne—that from change in external circum-
stances, his primary view of altering the government might have
become secondary, and his once secondary view of subverting the
English church might have become primary—that the attain-
ment of this end might in his estimation be a powerful mean for
the speedier and fuller attainment of another end—that men
sometimes do not see distinctly, and sometimes will not acknow-
ledge ingenuously, the motives by which they are really actuated
—that James might display his piety for the very purpose of con-
cealing his ambition—that to profess his design of introducing a
new, and, as he believed, a true religion, would be meritorious—
that to proclaim any ulterior design of destroying totally the
liberties of a people would have been unsafe—that a professed
zealot readily excuses, and even applauds himself, but that an
oppressor in exile does not openly invite advocates or auxiliaries,
while he has not the power of crushing the refractory, and re-
warding the obsequious.

My esteem for some ingenious and learned men, who are
known to write in the British Critic, prevents me from stating
many of the objections which their remarks have suggested to
me. Let me rather perform the less ungracious task of allow-
ing their diligence in examining Barillon’s papers, of congratu-
Jating their good fortune in having once had access to an im-
portant manuscript which no longer exists, and of commending
their zeal and fidelity in communicating its substance to an in-
quisite and impartial public. The analysis which they took of
that document in 1777 convinces me that the prejudices of
James were unsubdued by the discipline of experience, and that
the leisure afforded to him by long and_inglorious banishment,

406 NOTE UPON. FOX’S HISTORY OF

was employed in maturing that system which he had formed im-
perfectly before his accession to the throne, and which he had
pursued with a strange mixture of cunning and rashness, imbe-
cility and violence before his abdication. It shows his folly in
considering it as certain, that if a toleration were to be esta-
blished, the people, whom he had provoked by his undisguised
attachment to what he conceived the true religion, would in
time be won over to it by the ‘establishment of a toleration—his
inconsistency, in regarding the bulk of that “ very people as too
enlightened to put themselves into that situation without a force
which could oblige them to it”—his arrogance in holding that
“‘ the king should always be in such a state that subjects should
always look up to him with obligation for not violating their
privileges’ —his hypocrisy in decoying the members of a Pro-
testant church and Protestant dissenters to become instruments
of introducing a religion which they disbelieved, dreaded, and
then detested—his subtlety in assigning to them military employ-
ments for the purpose of counteracting their political principles
—and his unalterable determination ‘ to be satisfied only with
such a share of power as would have placed absolute authority
too nearly within his own reach,’ and so to alter our modified
monarchy, that in the hands of a skilful and vigorous successor,
animated by a father’s example, and needing not his wariness, it
might have been speedily converted into a despotism. If desires
thus unconstitutional were the principle and main spring of his
plan of government, the monarchy of England would by his suc-
cess have been instantly ‘‘assimilated to that of France,” and
as the country would have had no security against a further
increase of physical strength in the Crown, it must in a short
time have resembled a despotism in appearance, and approached
it in reality. Inthe indulgence of ambition, as of every other
inordinate passion, when the opportunity and the means are
within the reach of such a being as man, in such a situation as

royalty
** nemo

Peccandi finem posuit 5101." Ὲ

Under every possible aspect of the question, and with every

* Juv. Sat. xiii.

THE REIGN OF JAMES II. 407

probable calculation upon the evidence, the reign of James II.
supplies the most instructive lessons to subjects of every class,
and to Protestants of every denomination. If Barillon’s cor-
respondence proves no more than some respectable critics of our
own age allow to be proved by it, the king’s own papers, as
lately produced by those very critics, contain enough to justify
our fixed disapprobation, and unbounded fears. If Mr. Fox be
right, as I believe him to be, in the order* which he assigns to

* A kind of side light is thrown upon the real views, or at least
the real character of James IT. by his conduct to the inhabitants
of Maryland. The settlement of that colony was made under
the auspices of Lord Baltimore, by his brother, and about two
hundred persons, Roman Catholics, and most of them of good
families. ‘‘ The free toleration” which his Lordship allowed,
“ for all who professed the Christian religion, of whatever deno-
mination, and which was never in the least instance violated, en-
couraged a great number, not only of the Church of England,
but of Presbyterians, Quakers, and all kinds of Dissenters, to
settle in Maryland, which before that was almost wholly in the
hands of the Catholics. Lord Baltimore, though guilty of no
mal-administration in his government, though a zealous Roman
Catholic, and firmly attached to the cause of King James the
Second, could not prevent his charter from being questioned in
that arbitrary reign, and a suit from being commenced to deprive
him of the property and jurisdiction of a province granted by the
royal favour, and peopled at such a vast expence of his own.
But it was the error of that weak and unfortunate reign, neither
to know its friends nor its enemies ; but, by a blind precipitate
conduct, to hurry on every thing, of whatever consequence, with
almost equal heat, and to imagine that the sound of the royal
authority was sufficient to justify every sort of conduct, to every
sort of people. But these injuries could not shake the honour
and constancy of Lord Baltimore, nor tempt him to desert the
cause of his master. Upon the revolution he had no reason to
expect any favour; yet he met with more than King James had
intended; he was deprived, indeed, of all his jurisdiction, but he
was left the profits of his province, which were by no means in-
considerable.”—European Settlements, vol. ii. p. 230. Lord
Baltimore, though a sincere and even persecuted Papist, was
capable of tolerating Protestants. James the Second, though he
loved Popery very well, appears to have loved despotic power
much better. William the Third was favourable to the cause of
Protestantism in every part of the world. He restrained the
power of the Roman Catholics in Maryland, where, under a pro-

408 NOTE UPON FOX’S HISTORY OF

the intentions of James, the church must have fallen an easy
prey to the zeal of the King, when his love of arbitrary sway had
been gratified by his victory over the state. If Mr. Fox be
wrong;, the church would have been sacrificed as the first victim,
and from the co-operation of religious fervour with political
attachment in a people newly converted, the triumph of James
over our civil liberties must soon have followed. If the enact-
ment of the habeas corpus act was disagreeable to the King,
when he reflected upon it in his retirement, because, as he then
conceived, it rendered a standing army necessary, we can hardly
suspect him of any permanent reluctance to yield to such neces-
sity, while he wielded the sceptre.* But if the act had been
repealed, when the King had a standing army at his command,
the liberty of the subject would have been deprived of its best
security at a crisis the most formidable, and under a monarch
who looked upon every accession of strength to his subjects, as
an obstacle to his own pursuits, and an encroachment upon his

prietor less enlightened or less generous than Lord Baltimore, it
might have been abused to the annoyance of the new settlers.
But he forgave the opposition of Lord Baltimore, and his Roman
Catholic adherents, he respected their property, he tolerated their
religion, he set an example of wisdom and justice, which in a
short time his American subjects were graceless enough not to
follow, for “upon the revolution, when Power had changed
hands in the province, the new men made but an indifferent re-
quital for the liberties and indulgences they had enjoyed under
the old administration, deprived the Catholics of all the rights of
freemen, adopted the whole body of the penal laws of England
against them, and would, in all probability, have gone to the
greatest lengths in the same spirit, if the moderation and good
sense of the government of England had not set some bounds to
their bigotry.”—European Settlements, vol. ii. p. 231.

* In point of fact “he told the two Houses, that the militia
in which the nation trusted, having been found, during the late
rebellion, altogether insufficient for the safety of government, he
had increased the regular forces to double of their former num-
ber: and demanded a fresh supply for the support of this addi-
tional force.”—See Russell’s Mod. Hist. vol. iii. page 457. The
King, who had doubled his army, under the plea of a rebellion
already subdued, would not have been very scrupulous about in-
creasing it, if his subjects had continued their opposition to the
establishment of Popery, and the extension of royal prerogative,

THE REIGN OF JAMES II. 409

own claims. Ifthe project for toleration had been so far carried
into execution by lenient measures as to make way for the esta-
blishinent of Popery, the loyal ecclesiastics who had extolled
passive obedience would have been deceived and degraded. But
if stronger measures had been requisite to give effect to sucha
scheme of toleration, leading to such consequences, the judicial
eampaign of Jefferies, and the military massacres of Kirk may
teach us what was to have been expected from the equity of
judges, the tenderness of soldiers, and the clemency of a king,
visionary without genius, precipitate without courage, em-
boldened by partial success, irritated by partial resistance, he-
sotted by the spells of superstition, and depraved by the lust of
domination. Contemplating the awful reverses of fortune, the
detections of artifice, and the defeats of outrage, which the his-
tory of James presents to us, while we condemn the tyranny of
his actions, we may give him credit for the sincerity of his faith
—we may pity what we may suppose to be his religious mistakes
—we may make some allowances for his political prejudices—
but, as consistent churchmen, and as free-born Englishmen, we
ought to bear in mind the mischiefs which must have flowed
from those mistakes and those prejudices, if our forefathers had
not delivered themselves and their posterity by a well-timed and
well-conducted revolution.

The Bishops, I grant, did well in preferring the church to the
monarchy, when they were compelled to make their choice, and I
further grant that they are not to be accused of inconsistency,
because they never defended such temporal power in the King
as in their judgment would have enabled or authorized him to
overturn our ecclesiastical establishment. It must however be
acknowledged, that an earlier discovery of the dangers which
were gathering round them would have done honour to their sa-
gacity, and preserved them from many rash professions, and
many perilous compliances. It can hardly be denied, too, that
the events which gave rise to the bill of exclusion in a former
reign,* and the disputes which followed it, were sufficient to

* | mean that of Charles 11. The attachment of ecclesiastics
to Charles I. is more excusable, for he firmly supported the
English Church. ‘*’The Court of Rome, by its agents the Jesuits,

410 NOTE UPON FOX’S HISTORY OF

justify a little more caution, and a little more steadiness than
were manifested by some of our prelates, or by the University of
Oxford. Warned by the example of their forefathers, the eccle-
siastics of these days may learn to stand aloof from the first ap-
proach to extremes of any kind, to distrust the specious promises
of zealots, or bigots, or hypocrites, ‘‘ aras et sceptra tueri,” and
to meditate upon the latent but powerful causes by which ‘“ am-
bitio malesuada ruit.”* Wary without timidity, and firm without

endeavoured in the first instance to gain the King and his party,
and by their means to crush the Puritans. When the steadiness
of the King to the Church of England disappointed them of this
object, they turned against him, and were accomplices in his
ruin.’—Symmons’s Life of Milton, p. 186. At this distance
of time it must appear strange to us, that they who remembered
the constancy and fidelity of the father in his opposition to the
Church of Rome, did not take an earlier alarm at the designs of
the son in favour of that church. Their judgment perhaps was
blinded by their favourite doctrine of non-resistance, and their
inveterate hatred of the Puritans.

* These were the two mottos on the medals that were struck
after the execution of Monmouth. We shall readily allow that
unfortunate nobleman to have been a rebel. But what name
shall we assign to the sovereign who put Monmouth to death
without the formality ofa trial, suffered Mrs. Gaunt to be burned
alive for her charity to the wretch that betrayed her, and re-
sisted all applications for the pardon of Lady Lisle, though “ it
was well known that her heart had ever been loyal,”’ and that her
son, by her commands, had been “ sent to fight against the
rebels whom she was accused of harbouring ?” James, it seems,
excused himself by the promise he had made to Jefferies not to
pardon the unfortunate lady. But was this King, who in the
beginning of his reign “ passed fora man of great sincerity and
great honour,’’ equally attentive to another promise which he had
given before the Privy Council, and repeated in the discourse
which he afterwards made to his Parliament—the promise of go-
verning according to the laws, and of preserving the established
religion ? When James, upon his accession to the throne, pro-
fessed before the Privy Council his ‘* resolution to maintain the
established government, both in church and state,’”’ what was the
language of his courtiers? ‘“ We have now the word of a king,
and a word never yet broken.” But he soon did break it, for the
whole of his short reign, as Mr. Hume allows, consisted of at-
tempts always imprudent, often illegal, sometimes both, against
whatever was most loved and revered by the nation. Whatever

THE REIGN OF JAMES It. 411

obstinacy, they will sometimes infer the tendency of measures
from the characters of men. Collecting principles from observa-
tion upon past events, they will ascertain the true value of pre-
cedents, as applicable to the present state of public affairs—they
will learn not only to reverence and support the legitimate pre-
rogative of the crown as inseparable from the real interests of the
church, but to confide in it as amply sufficient to protect them,
while it is neither violently enlarged, nor insidiously contracted
—they will never prostitute learning in the service of adulation,
never sacrifice religion to worldly policy, never violate their own
trust, nor endanger their own welfare by contending for more
or approving of less than the constitutional rights of the throne.
Such an alliance between Church and State is very intelligible
and very important—it is compatible with the just pretensions of
both—it is adapted to the proper uses of both—and, when ac-
companied by a spirit of moderation in the priesthood, and of
patriotism in the sovereign, most conducive will it ever be to
the stability of the government, and the happiness of the com-
munity.

Experience has shown the impolicy of the Star-chambers and
Inquisitions. Governments have now the evidence of facts to jus-
tify them in stretching forth the arm of their protection, and in
doling out something more than the usual pittance, even of their
favour* to all persons who, “ calling and professing themselves
Christians,’ have the testimony of their own conscience for
having been “ guided in the way of truth.” But the spirit,
which so often disguises, from ourselves and from other men,
the deceitfulness and malignity of persecution, has been convict-
ed of equal hostility to the moral and intellectual improvement of

extenuations may be urged for his exercise of the dispensing
power, other parts of his conduct can never be vindicated by
*‘reason founded on such principles as are usually admitted by
lawyers.” —See Hume, v. last p. 247. edit. 1782.

* Of such favour, as far as it has been asked by the great body
of Roman Catholics, and might, in my opinion, be safely granted
by Protestants, | should say with Old Hesiod,

“ Πλείστη δὲ χάρις δαπάνη τ᾽ ddvylorn.”
Op, et Dies, ν. 723.

412 NOTE UPON FOX’S HISTORY OF

the human species, to the comfort of individuals and the har-
mony of society, to the dictates of sound philosophy and the pre-
cepts of pure religion.

As to religious liberty, it was rather the slow effect of our re-
formation than the professed ground upon which our reformers
acted, even while the principle of it was virtually assumed in
their actions, and when the struggles of religious sects, newly
awakened to a sense of their rights, had stirred up erroneous
and extravagant notions upon the degree to which those rights
were to be extended. The arguments employed in opposition to
them gradually brought the fundamental truths upon which to-
leration is rested more nearly and more distinctly within the
view of the most temperate opponents to the church of Rome.
Our knowledge upon the subject is now increased, our passions
have very much cooled, and, at this distance of time, when a man,
whether Protestant or Romanist, looks back to the violences into
which all parties were precipitated, upon our first separation,
the history of that tumultuous age will give him too much rea-
son to exclaim “ Iliacos intra muros peccatur, et extra.” *

- Among the numerous blessings for which we are indebted to
the accession of William III. let it not be forgotten that the ge-
nuine principles of religious freedom have been more diligently
examined and more widely disseminated. The light of know-
ledge has restored to their native comeliness and brightness

* Warburton describes the infirmities of the first reformers in
the most animated language. ‘* The spirit of persecution has a
marvellous malignity in its nature: so that when every other ini-
quity of papal power had now been detected and expelled, this
still stuck behind.

«‘ There is scarce a material error in the Church of Rome
which doth not soothe or cherish some of our corrupt passions
and prejudices. But persecution flatters them all. It flatters our
spiritual pride, the vanity of superior knowledge, and a purer
faith. It confirms our bigotry, the mistaken zeal for the honour
of God and holy Church ; and it supports our ambition, the itch
for mastery and misrule. Were it not for so powerful a bias,
this iniquity, which had most imbittered the thraldom of our
first reformers, and kept them longer in their chains, must on
their first deliverance have been immediately detected and
marked out for execration.”—Warburton’s Discourses on Church
Authority.

THE REIGN OF JAMES II. 413

many truths which, viewed as they once were, in the faint twi-
light of uncertainty, or through the cloudy medium of contro-
versy, had assumed shapes and colours not really belonging to
them : and even from error it has cleared away many imaginary
deformities, which in seasons of turbulent or partial discussion
had disgusted the pious and alarmed the contentious, In the
present condition of the world, that restless and relentless tem-
per which once actuated the members of the church of Rome,
is visibly assuaged, a spirit of inquiry has imperceptibly in specu-
lative points produced a spirit of moderation, and few, if any,
of the practical mischiefs which Popery might formerly have
brought down upon us, are any longer to be dreaded in our
own country. Even those few may be ascertained by amicable
discussion, and averted by sound discretion. Gladly, therefore,
should I hail the day in which the religious tenets of the Ro-
man Catholics should not be permitted to obstruct the full re-
covery of their civil rights, and in which the Church of England,
providing at once for its own interest and its own honour,
should display to every other church in Christendom a glorious
example of ““ holding the faith in unity of spirit and the bond of
peace.”

For my part, though it may be my lot to differ from the church
of Rome in several doctrinal points more widely than some of its
fiercest opponents, I shall always think it unworthy of me, as an
Englishman and a Protestant, to treat the members of that
church as incorrigible outcasts from civil society, and stubborn
apostates from all religious truth. I shall never cease to explore
the good as well as the bad effects of the Papal power in ages*
when the rude barbarism and military ferocity of European na-
tions seem to have been checked by no restraints more eflica-
cious than that power, so far as history has set before us the

* After writing this sentence I had the satisfaction to find that
Mr. Gibbon was of the same opinion. ‘The authority of the
priests operated,” says he, “ as a salutary antidote. They pre-
vented the total extinction of letters, mitigated the fierceness of
the times, sheltered the poor and defenceless, and preserved or
revived the peace and order of civil society. But the independ-
ence, rapine, and discord of the feudal lords were unmixed with
any semblance of good.”—Ch. 61.

414 NOTE UPON FOX’S HISTORY OF

order of events, or the operation of causes. 1 shall always re-
‘member that by the monastic institutions were preserved to us
the means of acquiring that knowledge which, co-operating some-
times from accident and sometimes from design, with other cir-
cumstances, has enabled men in all countries, whether Catholic
or Protestant, to become progressive in the better use of their
faculties and the better discharge of their duties. I shall always
Jook back with triumph upon the contributions which foreign
Cathoiics have made to the arts, to science, and to every branch
of polite learning, whether ancient or modern. I should often
remind my countrymen, that English poetry, and the English
language have been enriched by a Dryden and a Pope, who, if
they had lived in our own days, and had ceased to “ be fined and
taxed for” their notions of “ hereditary right,’ might yet have
complained, like other “ sufferers” of ““ certain laws,’’ which
continued to deny many “ posts of profit and trust’’* to the
Catholics on account of their religious opinions alone.
Attending to history not less than theological controversy, I
shall always bear in mind ‘‘ that however at the era of the Cru-
sades the Latins of Europe were below the Greeks and Arabians
in learning, industry, and art, their successive improvements and
present superiority may be ascribed to a peculiar energy of cha-
racter, to an active and imitative spirit unknown to their more
polished rivals” }—‘ that the Greeks were stationary and retro-
grade, while the Latins were advancing with a rapid and progres-
sive motion’ {—“ that the character of the man prevailed over
the interest of the Pope in Nicholas V. who was the friend and
patron of the most eminent scholars of his age”§—* that Flo-
rence, and the rest of Italy were actuated by a similar spirit”—
that Grocyn, Linacer, and Latimer, who introduced the know-
ledge of the Greek language into the University of Oxford, had
previously acquired their own knowledge of it in the Papal do-
minions—that in those dominions the learned Greek refugees
from Constantinople met with protection and encouragement—
that Leo X. and other Popes were the munilficent patrons of
scholars—and that even in our own times the contents of ma-

* See Pope’s imitation of Horace’s Second Epistle, book ii.
+ Gibbon, chap 61. t Ch, 66. § Ch. 66.

THE REIGN OF JAMES II. 415

nuscripts, treasured in the libraries of Roman Catholics, have
been freely communicated for the use of the two learned English
Protestants in their meritorious labours on the text of the He-
brew Scriptures and the Septuagint.

Knowing that mixture of wisdom and folly, good and evil,
which pervades the intellectual and moral world—disapproving,
in some respects, the use of images in the church of Rome; and
yet looking to the collateral effects of it on those elegant or use-
ful arts which flourish in civilized life; 1 shall always avow my
assent to the remarks of a judicious traveller, who tells us that
“Ἅ from the controversies of the Greeks about abstruse and mys-
tical questions, the personal interference of their Emperor in ec-
clesiastical affairs, and the indiscriminate rage of the Iconoclasts,
who in the eighth century had destroyed, not only the remain-
ing statues of classical antiquity, but those of the ruder ages
found in churches, we may account for the decline and fall of
the arts in Greece—that if, upon the removal of those arts to
Rome, the dogmas of the Catholic religion had been equally ad-
verse to them, the same neglect and subversion must have hap-
pened—but that, in the western division of the church, the
crowded niches evince the veneration in which the statuary was
there holden, while the art itself was considered as unholy in
Greece, and no encouragement was given to the artist.’**

I shall always reflect with pleasure upon the agreeable and
useful qualities, the manners and accomplishments, the solid
virtues and exemplary devotion of many individuals of the Ca-~
tholic persuasion with whom it is my good fortune to be per-
sonally acquainted. I shall always honour the self-denial, and
commiserate the sufferings both of them and their forefathers,
because I know that neither hope nor fear, neither ambition
nor avarice, neither the experience nor the expectation of un-
merited severities, has shaken their firmness in adhering to the
opinions which are not my own. I shall always be ready to
confess that, according to my views of human nature, the tares
of error are seldom rooted up rudely without disturbing the
wholesome seeds of truth, that the downfall of superstition is
not invariably followed by the empire of reason, and that in

* Dallaway’s History of Constantinople, p. 109,

410 NOTE UPON FOX’S HISTORY OF

the present state of things the sudden, violent, and entire de-
struction of the Papal power might lead to consequences most
injurious to the good morals of those persons who are now accus-
tomed to obey the Bishop of Rome as their spiritual head only,
I shall always maintain openly and unequivocally that, in far the
greater part of those doctrines which the Church of England has
classed among the essential truths of Christianity, the Church of
Rome has long professed, and continues to profess the same be-
lief.* I shall always acknowledge with gratitude that chiefly to
the literary as well as the religious zeal of our papal ancestors,
the English Universities are indebted for ‘‘ great and goodly
cities, which we builded not ; for houses full of all good things,
which we filled not; for vineyards and olive-trees, which we
planted ποῖ; 7 for statutes and ordinances which, after the
lapse of centuries, and after a succession of mighty changes,
both in private and public life, have not ceased to be profitable
to learning, morals, and piety; and for means most abundant
and most efficacious to guide, assist, and encourage our rising
youth in every pursuit which adorns and invigorates the human
mind. When we ““ have eaten and are full, then let us beware
lest we forget” the wisdom, munificence, and generosity of those
founders, who ‘‘ brought us forth out of the land of Egyptian
darkness, and from the house of intellectual bondage.”

᾿ * And now if men will say, I persuade to indifferency, there is
no help for me, for” in condemning James IIT. “ 1 have given rea-
sons against it; J must bear it as well as I can; I am not yet

* « If mere dissent from the Church of Rome be a merit, he
that dissents the most perfectly is the most meritorious. In
many points we hold strongly with the church, He that dissents
throughout with that church will dissent with the Church of
England, and then it will be a part of his merit that he dissents
with ourselves :—a whimsical species of merit for any set of men
to establish.’—Burke’s Letter to Sir H. Langrishe. ‘ There
never has been a religion of the state (the few years of the par-
liament only excepted), but that of the episcopal Church of Eng-
land ; the episcopal Church of England, before the reformation
connected with the see of Rome, since then disconnected, and
protesting against some of her doctrines, and against the whole
of her authority, as binding in our national church.’’—Dallaway’s
History of Constantinople, p. 109, + Deut. vi.

THE REIGN OF JAMES II. 417

without remedy as they are, for patience will help me—let them
take their course, and I’il take mine—only I will take leave to
consider this (and they would do well to do so too), that unless
Faith be kept within its own latitude, and not called out to patro-
cinate every less necessary opinion, and the interest of every sect,
or peevish person; and if damnation be pronounced against
Christians believing the Creed, and living good lives, because
they are deceived or are said to be deceived in some opinions less
necessary, there is no way in the world to satisfy unlearned per-
sons in the choice of their religion, or to appease the unquiet-
ness of a scrupulous conscience.”*—Dedication to Bishop Tay-
lor's Liberty of Prophecying.

Mr. Fox, in page 154 of his History, has made some judicious
observations upon the character of a party which he describes
not only as powerful in the time of Charles and James, but as by
no means inconsiderable during the reign of the two first princes
of the House of Brunswick, when it was lowest. Doubtless, by
a deplorable but not unaccountable fatality, many persons whuse
sincerity, as guardians of the Church, is more indisputable than
their judgment, retained a strong affection to the Stuart family
when in exile, and in the abundance of their aversion to Pro-
testant Dissenters, and ecclesiastical latitudinarians, they became
Jess vigilant against the greater dangers to which the restoration
of that family, and the invincible but not dishonourable attach-
ment of it to the church of Rome might have exposed the esta-
blished religion of this country. Their political zeal may be
imputed to the known difference of opinion between themselves
and their opponents upon the obedience due to sovereigns, and
it is somewhat remarkable that their speculative notions upon
non-resistance gave a secret bias to their minds in favour of that
very cause which must have owed its success practically to the

* Mr. Gibbon, suo more et modo, observes, “ I am sorry to
say that the three writers of the last age by whom the rights of
toleration were so nobly defended, Bayle, Leibnitz, and Locke,
are all laymen and philosophers.”—Vol. v. cap. 54. In my turn
I am glad to observe that, not long before the same time, the
same rights were nearly with the same ability defended by Jeremy
Taylor, an ecclesiastic, a scholar, and a man of venius, who
“ preserved the substance with the name of religion,” and who
exercised the ‘‘ freedom” while he cherished the ‘ temper” of
true ‘ philosophy.”

VOL. IV. or

418 NOTE UPON FOX’S HISTORY OF

most open resistance to the reigning monarch. Their religious
zeal may in part be imputed to some recent controversies upon
the Trinity, the Test, and other topics, which naturally and de-
servedly attract the notice of ecclesiastics. But the rebellions of
1715 and 1745 raised the greatest alarm about Popery, and the
effects of that alarm were still more visible in the low church
party, about whom Mr. Fox is silent, than in the high party,
whom he has noticed. The former, consistently enough, were
anxious to provide for the security both of our civil and reli-
gious rights. The latter, upon the arrival of mischief, would have
been faithful to our religious rights, though for the preservation
of our civil liberty they neither felt nor professed to feel much
solicitude. But in the fear and the hatred of Popery the cham-
pions of civil liberty were, I say not more sincere, but more ac-
tive and more conspicuous, and so it happened that, even when
the spirit of the monarch then on the throne was favourable to the
general cause of toleration, the low church party multiplied dis-
tinctions and exceptions to the prejudice of those fellow-subjects
who adhered to the church of Rome. Bishop Hoadley con-
sidered The Measures of Submission to the Civil Magistrate, dis-
cussed the Original Institution of Civil Government, wrote many
argumentative tracts in the Bangorian controversy, and there-
fore found it impossible to soften the resentment of his ecclesi-
astical brethren by a very elaborate Treatise on the Reasonable-
ness of Conformity to the Church of England. But his fears
and antipathies towards the Church of Rome are manifest in the
masterly dedication which he addressed to Pope Clement ΧΙ.
which was at first prefixed to Steele’s Account of the State of
the Roman Catholic Religion throughout the World, and has
since been published in the second volume of the Bishop's works.
Warburton, however offensive some of his writings may be from
a spirit of dogmatism, certainly was not an intolerant. bigot;
but his enmity to the Church of Rome is visible, not only from
his eloquent sermon upon the rise of Antichrist, but from many
passages in his Alliance, where he agrees with Rousseau * that a
polytheistic worship, which damns all out of its pale, and Popery,
which brings in an imperium in imperio, are more hurtful than

* Page 226,

THE REIGN OF JAMES II. 419

beneficial to the firm constitution of the State, and where speak-
ing of four sects whose opinions ought to be restrained as per-
nicious to society, he assigns reasons for restraining the Atheist,
the German Anabaptist, and the Quaker, and adds to his Cata-
logue the English Papist, who, owning a foreign ecclesiastical
power superior to all temporal dominion, should not be tole-
rated in any sovereign state.* He plainly hints, that in his
opinion few English Papists would disown the superiority of that
foreign ecclesiastical power to all temporal dominion. Jortin
was, I believe, descended from a family of French refugees, who
came to England after the revocation of the Edict of Nantz.
His mind had been early and deeply imbued with a just detesta-
tion of that spiritual tyranny which the Church of Rome had
exercised so frequently and so fatally. He was the rational but
undaunted advocate of religious freedom; yet, such was the
force of habit, that he seems to have considered any improve-
ment in the sentiments of Catholics as a moral impossibility, and
any relaxation of the laws enacted against them in this country
as a dangerous experiment. Archdeacon Blackburne felt a
stronger alarm than any of his contemporaries about the en-
croachments of Popery. He pointed the terrible artillery of
ridicule and argument against Papal doctrines and Papal dis-
cipline, and perhaps, under the influence of rooted prepossession,
he inwardly suspected that opportunities might occur when the
transition from the Church of England to the Church of Rome
would not be difficult to a certain class of ecclesiastics, whose
stiffness in orthodoxy, and whose predilection for the hierarchy,
he was not accustomed to treat with much tenderness. If, how-
ever, any of these celebrated men had been now living, I hope
that they would have perceived their error and retracted it,
when they found that the Roman Catholics of England had be-
gun to study and to acknowledge the best principles of religious
freedom, that they were asking for a large and liberal toleration
without the smallest possible chance of converting it to the
purposes of establishment, and when, in the explicit, emphatic,
and solemn forms which the legislature had prescribed, they be-
fore heaven and earth were prepared to renounce all obedience

* Page 304,
2E2

490 NOTE UPON FOX’S HISTORY OF

to such a spiritual power as directly or indirectly encroached
upon the temporal dominion of an English king. If they had
refused, or even hesitated, to assist in easing the shoulders of
their Christian brethren from a most galling yoke, I should have
said to them, ‘‘ Ye know not what spirit ye are of”—ye are in
effect calling, or at least teaching others to call, for “ fire from
Heaven” upon a numerous class of your fellow-creatures, who
have lost the power, and who disclaim the inclination of lighting
again those flames which persecution had so often kindled upon
earth—ye know not “ the signs of the times” in which a gra-
cious Providence has ordained you to live—ye are contending
only for party-liberty, which ye would stretch out one way only
to narrow it in another—ye are not ashamed of using in sub-
stance the very same pretences for persecuting others that the
enemies of your forefathers used for persecuting them.*

When I look back to the conduct of the Tories in the reign of
James II. and even later times, their sagacity appears to ’me less
unquestionable than their integrity. Mr. Hume, indeed, tells us
that ‘‘ the Tories have been so long obliged to talk in the repub-
lican style, that they seem to have made converts of themselves
by their hypocrisy, and to have embraced the sentiments as well
as language of their adversaries. There are, however,” says he,
“‘ very considerable remains of that party in England, with all
their old prejudices.” + After the extinction of the Stewart line,
they have nothing to fear from the willingness of a sovereign to
change their religion ; and having reason to indulge the expec-
tation of becoming the favoured party, they in their own minds
have no restraint from the excess of their political tenets.
** They love liberty,” says Mr. Hume, ‘‘ but they love’ monarchy
more.’ ‘Their love of liberty, however, is too often confined to
words, in which few men will venture to avow any hatred of it;
while in their actions their love of monarchy is a more uniform
and predominant motive. Their pride is not violated by wrongs,
which fall with equal severity upon classes not so likely to be
selected for those distinctions which are conferred by the Crown,
and the same pride is exquisitely gratified by the prevalence of

* See Account of European Settlements, vol. ii. p, 232.
+ Hume’s Essay on the Parties of Great Britain.

THE REIGN OF JAMES II. 421

those opinions which enable them to exercise a more uncon-
trolled sway in their own circle, and for their own ends. I be-
lieve, however, that many of them bow before the throne with-
out any direct consciousness of bad intention. I should impute
to them the want of foresight, rather than the want of virtue.
I give them credit for sincerity in their attachment to Protest-
antism as well as monarchy. My only fear is, lest they should
multiply the enemies of both, by the blind and stubborn neglect
of every opportunity to conciliate them. To a body of men, in
whose leading principles I do not concur, I shall not presume to
offer any advice, because it might be equally unwelcome and un-
profitable. But with their Protestant opponents I should expos-
tulate more freely, because I cannot abandon the hope that ex-
postulations addressed to them may have greater effect. Let me,
then, at this momentous crisis, entreat them to remember, that
if liberty of conscience had not been practically asserted, when
in speculation it was understood imperfectly, the Church of
England would never have existed—that, if the machinations
afterwards meditated, and under the insidious pretence of tole-
ration attempted against it, had not been foiled, that church
would long ago have been subverted—that the minds of kings,
as well as subjects, swarm with contradictions; and that the
ruling passion, after a successful conflict with the inferior pas-
sions, draws over their strength to its own party—that Ferdi-
nand and Isabella, who had favoured the Holy Brotherhood, and
protected their subjects against an oppressive nobility, were led,
by their love of power, aided as it was by their bigotry, and tri-
umphing over their humanity, to establish and extend the dread-
ful tyranny of the Inquisition—that Charles the Fifth had not
ceased to be a Papist, when, with impious mockery, he directed
prayers to be offered up in Papal churches for the deliverance of
the very Pope who by Charles’s own orders, and for Charles's
own purposes, had been thrown into confinement—that his reli-
gious prejudices co-operated with his political—that his favourite
creed seemed to him a most powerful instrument for the ends of
his more favourite ambition—that, before he had taken counsel,
not from an abject flatterer, but a trusty monitor in his watch,
he looked upon an uniform system of belief and worship as con-
ducive to an uniform system of obedience—that Louis XIV. who

4992 NOTE UPON FOX’S HISTORY OF

assisted and even bribed Charles II. to thrust back the Church of
England from Protestantism to Popery, had in 1664 imposed
most humiliating conditions upon Alexander the Seventh, when
Crequi, the French ambassador, thought himself affronted by
the guards of his infallible Holiness; and in 1687 sent the Mar-
quis de Lavardin to Rome with an armed force to sustain the
iniquitous claim of the franchises, and insult Innocent the Ele-
venth in his capital *—that for several centuries the power of
the Pope has not been very formidable, unless assisted by the
secular power of its adherents—that the probability of obtaining
that assistance is now very slender—that, by standing armies
and other resources, princes have found a surer support for their
authority than their forefathers received from Papal bulls -—
that, in order to make their own government more regular and
more independent, Papal sovereigns have of late resisted openly
the claims of the Pope—that, even in foreign countries, Catholic
subjects have begun to distinguish with greater accuracy be-
tween spiritual and temporal power — that the general effects of
theological tenets are experimentally known to be controlled by
other and more general properties, which have their root in
human nature itself—that, in the barter of commerce, { and in
the harmless pleasures of social intercourse, ὃ Papists and Pro-

* See Russell's Modern History, vol. iii. p. 344, and Gibbon’s
History, chap. 70.

+ ‘‘ Les Excommunications, les Interdits sont des Foudres,
qui n’embrasent un Etat, que quand ils trouvent des matiéres
combustibles. II n’y en avoit point alors; mais peut-étre Robert
craignoit-il qu’il ne s’en format.”—Voltaire’s Essay on the Spirit
and Manners of Nations, vol. ii. cap. 39.

{ “ Are not very many of the Catholics intimately acquainted
with their Protestant brethren, their partners in trade, their
tenants, their landlords, their customers, their agents, their ser-
vants, their friends and companions in private life? Do we not
mutually partake of the hospitality of each other, clergy with
clergy, laymen with laymen, in numerous mixed companies of
different religions and occupations.”—Dr. Troy’s Letter to Sir
J. C. Hippisley, dated Dublin, June 12, 1805.

§ The passage which in our translation runs thus, “ the Jews
have no dealings with the Samaritans,” means, I believe, that
there was no convivial intercourse between them: “e contextu

THE REIGN OF JAMES II. 493

testants can now live together without quarrelling about the
true faith—that, in some parts of the Continent, Protestants and
Catholics worship in the same sanctuary on the same day—that
in Ireland, Papists fought under the banner of William the
Third, while Protestants risqued their lives in the cause of his
Catholic rival—that, in the war of 1745, Lutherans, Calvinists,
and Church of England men united with German Catholics
against the arms of France—that, at this very hour, the inha-
bitants of Spain and Portugal are, together with their Protestant
allies, shedding their blood for the defence of a common and
most glorious cause—that, however it may once have “ been
thought essential to the Roman Catholic religion to inspire a
violent hatred to every other worship,” * milder and juster sen-

evangelistz certum est, non licuisse Judeis eodem cibo et potu,
quo Samaritani, uti: idque phrasi μὴ συγχρᾶσθαι significare.
Neque enim novum est, voces ad victum pertinentes ἐλλειπτικῶς
subintelligi.’ Confer ἑτοιμάξειν, Luke ix. 52. xxii. 12. Mark
xiv. 15. and παρασκευάξειν, Acts x. ‘* Ad hunc itaque modum
et Samaritis dixerit, ov συγχρῶνται; h.e. non una utuntur cibo
et potu. Scio hoc ita vulgo accipi, ac si omne commercium
cum Samaritis interdictum Judzis fuerit. Sed vereor ut hoc
ostendi possit.”—Vide Bossii, Dissertat. ad 2 Tim. ii. 22. in the
second part of Thesaurus Theolog. Philolog. p. 700. ““ Malim
tenere explicationem Grotii et aliorum, juxta quos verto: non
enim amice utuntur Judzi Samaritanis: Ita ut nullam Judezis
inter Samaritanos intercessisse familiaritatem asseratur. Ita
simplex χρῆσθαι haud raro occurrit.’’—Isocrates, adv. Callim. p.
550. ““τῶν δὲ χρώμενων τινὲς τούτῳ, nonnulli vero, qui illo
familiariter utebantur.”—Joseph. Antiq. lib. xviii. ο. 8. p. 630.
“ σφόδρα γὰρ ἀλλήλαις ἐχρῶντο, ai dé γυναῖκες Magna has inter
mulieres familiaritas intercesserat.'’"—Plutarchus, in Arato, p.
1048. “ἄνθρωπον ob πόνηρον, ἀλλὰ Kai κεχρημένον ἐκείνῳ, ho-
minem non malum, imo et ipsi familiarem.’’—Vide Kypke, Ob-
servationes Sacre ad Johan, c.iv. v.9.) In the Latin language,
the sense of wéi is similar to that of χρῆσθαι in the foregoing
pee :
** Si sciret regibus uti,
Utere Pompeio Grospho.”

And more fully in the following :

“Με Capitolinus convictore usus amicoque
A puero est.” Horar.

* Hume on the Standard of Taste.

494 NOTE UPON FOX’S HISTORY ΟΕ

timents are now avowed alike by their laity and their clergy—
that, even “‘in dividing the sacerdotal from the regal office,*
and bestowing it on a foreigner, who has always a separate in-
terest to that of the public,” they bestow it upon one who,
in the present condition of Europe, can rarely have an opposite

* «Upon this subject there is a difference of opinion between
Mr. Hume and Mr. Gibbon. ‘Though a Christian philosopher,”
says Mr. Gibbon, “anda patriot, will be equally scandalized by
the temporal kingdom of the clergy, yet Mr. Hume seems to
have been hasty in concluding that if the civil and ecclesiastical
powers be restored in the same person, it is of little moment
whether he be styled prince or prelate, since the temporal cha-
racter will predominate.’—See Hume’s History, i. 389. and Gib-
bon’s History, vi. 70. The history of past ages is, I think, in
favour of Mr. Hume’s opinion. But there is little occasion for
Protestants to enter into the controversy, because there is little
or no danger that the Pope will again acquire any large share of
that temporal power,t which for several centuries has been on
the wane, and is now scarcely visible. The inconveniences which
Mr. Gibbon found in the sacerdotal power of the Pope are, the
frequency of election, and that education in a convent which is
most adverse to reason, humanity, and freedom, and the primi-
tive stain of which will adhere to the mind and manners of a
Pope.—Chap. 70. Isee many other inconveniences, which, how-
ever, it is unnecessary for me in this place to enumerate. But I
must grant at least a qualified assent to the following statement
of Mr. Gibbon: “ The ecclesiastical government may be praised
in its present state, as a mild, decent, and tranquil system, ex-
empt from the dangers of a minority, the sallies of youth, the
expenses of luxury, and the calamities of war.’ — Chap. 70.
We in our own days have seen that the Pope suppressed the Or-
der of the Jesuits, with the concurrence, and indeed at the insti-
gation, of Roman Catholic sovereigns. But if a Pope had been
inclined to abolish the Inquisition in Spain or Portugal, it may
be doubted whether such an attempt would not have been op-
posed, not only from the prejudices of the people, and from su-
perstition and the love of spiritual dominion in the priesthood,
but from secular views of policy and ambition in their most Ca-
tholic and Faithful Majesties: Regum timendorum in proprios
greges by whom the imperium Jovis was recognized, or resisted,
as it suited their convenience. ©

+ See Hume on the Protestant Succession.

t See Appenpix, No. I,

THE REIGN OF JAMES II. 425

political interest, and that they have accompanied the grant by
express limitation * to every kind and every degree of pretension
which directly or indirectly encroaches on the temporal rights of
any sovereign—that the real and visible interest of the Pope him-
self is to propitiate rather than to incense Protestant subjects
and Protestant kings; and that having lost every prospect of
establishing his own religion in Great Britain, he must in his
own proper agency implore even the toleration of it as a favour,
rather than demand it as a right—that the Catholics, who, even
when Mr. Hume wrote,t} were less hostile to the Whigs, from
experience of their tolerating spirit, have, upon longer reflec-
tion, and perhaps after the discipline of longer and sharper per-
sonal sufferings, been more fully won over to the sounder parts
of their political system—that the danger from any religious
party is to be measured by the relative situation in which it
stands to other parties, at any given period—that, if present ap-
pearances may be trusted, the Church of England has far less to
fear from Catholics than from the members of a sect eminently
wise in their generation, daily increasing in numbers and activity,
and implacably hostile to the cause of Catholicism—that nothing
perhaps ‘‘ but zeal can overset an established religion ; and that
an over-active zeal in friends is apt to beget a like spirit in an-
tagonists” {—that there scarcely “ever occurs in any deliberation
a choice which is either purely good or purely ill” §—that,
by the course of public affairs, we, in all probability, must, ere
long, be compelled to choose between measures which must irri-
tate, and measures which may conciliate—that if, upon a balance
of all circumstances, it should appear more safe to conciliate
than to irritate, the principles avowed by English Whigs point
at once to lenient expedients ; and that in tolerating and even

* See an Abstract of the Answers of the six foreign Roman
Catholic Universities of the Questions proposed to them in the
year 1788, and the Letter from Dr. Troy, titular Archbishop of
Dublin, and Dr, Maylar, titular Bishop of Cork, and other im-
portant papers, in the Appendix to Sir Charles Hippisley’s very
useful book, printed in London for Faulder, but, 1 believe, not
published.

+ See Essay on Superstition.

{ Hume's Essay on the Coalition of Parties.

§ Hume on the Protestant Succession,

420 NOTE UPON FOX’S HISTORY OF

favouring the claims of the Catholics, moderate Whigs, whether
laymen or ecclesiastics, will be quite as praiseworthy for good
sense and liberality, as their predecessors were for discernment
in suspecting, and firmness in resisting, the Catholic supporters
of the Stuart family.

The ardour and the curiosity of men upon the controverted
subjects of religion have visibly cooled, But experience should
teach us, that if we suffer the principles of religious freedom to
be undermined by those pretexts which politicians are seldom
unable, and zealots seldom unwilling to employ, we shall make
room for speculative and practical encroachments upon that po-
litical freedom which we have long enjoyed, and by which the
dignity and security of the Crown are blended with the rights
and happiness of the people. :

The foregoing remarks I would recommend with peculiar
earnestness, but with all becoming deference to the consideration
of those ecclesiastics who can love and esteem Tories, while they
differ from them, and who aspire to the praise of consistency in
the application of their own tenets to the business of life. It is
by good actions, the fruit of good principles, they must hope to
give efféct to their own good intentions, and to soften that dis-
like which in former ages was excited against their order by the
cruelty of persecutors, the haughtiness of hierarchs, the narrow-
ness of polemics, and the servility of venal and temporising flat-
terers. Indifferent they may be to the bluster of Bolingbroke,
the jeers of Gibbon, and the buffooneries of Voltaire. Ignorant,
however, they cannot be of the formidable accusations which
have been set in array against them by an assailant who united
in his own character all the advantages of a profound thinker,
an elegant writer, and a most amiable man. To themselves
indeed, as to the teachers in every other church, he spoke the
language of good sense and good morality, when he said,
“Where the difference of principles is attended with no contra-
riety of action, but each may follow his own way, without inter-
fering with his neighbour, as happens in all religious contro-
versies ; what madness, what fury, can beget such unhappy, such
fatal divisions?’’* But to their forefathers, as I shall ever con-

* Hume's Essay on Parties in general.

THE REIGN OF JAMES II. 427

tend, he did great injustice, when sacrificing historical accuracy
to philosophical acuteness, he said, that “the resemblance in
their superstitions long united the high church Tories and the
Roman Catholics in support of prerogative and kingly power.”*
I enter not, for the present, into any controversy with persons
who class the differences between the Church of England and the
church of Rome among those “ unintelligible disputes which
are not worthy the reflection of a man of sense.” But, if upon
doctrine and discipline, the dissent of our forefathers from the
Romish church had not been sincere, and, in their judgment,
wide, they would with little reluctance have surendered their
own religious establishment to the prejudices of James 11. and
they would have been impelled to make the surrender by that
very fondness for mystical dogmas, and that very eagerness for
spiritual domination, which have been so frequently, and, in
many points, so unjustly imputed to them. My anxious desire
is, that my own contemporaries would endeavour to refute the
charges alledged against them, by performing other duties,
which seem to me to be required by the exigences of other times.
If they will consider the history of past ages, ‘as written for
their own learning’’—if they will not resist the “ tendency of
science to be changed into conscience,” and to make that which
is reasonable to become “‘ a law’’t—if they will look abroad to the
actual state of society—if they will attend to the changes which
have taken place in the directions and results both of speculation
and practice —if they will calculate the effects of that impatience
which men, who give themselves credit for being improved, feel
and express against every obstacle to farther improvements,
whether real or supposed—if they have been instructed that
** all laws divine and human are desirous of sweet and merciful
interpretations, and that of themselves they love to yield to ne-
cessity and to charity” {— if, by a becoming mixture of vigilance
and forbearance they are careful “ not to let their good be evil
spoken of’ deservedly—if, in singleness of heart, they will them-

* Hume’s Essay on Superstition.
+ Taylor’s Ductor, book ii. chap. 1.
t Taylor's Ductor, book i. chap. 6.

428 NOTE UPON FOX’S HISTORY OF

selves hold fast to that,’ which by themselves has been embraced
as true—“‘if, in a spirit of faith unfeigned, they will learn to
love the brethren, whether they be of Paul, or of Apollos, or of
Cephas—then will they “ walk worthy of the vocation wherewith
they are called,” and triumph over the accusations of their bit-
terest and most powerful adversaries. They will shew “ that
they can bear contradiction with patience’—that they have sub-
dued that ‘‘ pride” which is said ‘ to support their vindictive dis-
position”—that, ‘‘ acting as a society, they are” not “for ever
actuated by ambition, pride, revenge and a persecuting spirit’’—
that, as individuals, they not only have a considerable share in
the learning of the times,” but in all the various advantages
““ of an extended and progressive civilization’”— that “ their
taste and eloquence are’ not “ always better than their skill in
reasoning and philosophy ;” and that, for the ‘‘ noble virtues of
humanity, meekness, and moderation,” which ‘“ very many of
them” are by Mr. Hume himself allowed to ‘‘ possess,” they “‘ are
beholden” not more ‘‘ to nature or reflection,” than to the pre-
cepts of their religion, the constitution of their church, and ‘ the
genius of their calling.”*

Mr. Gibbon tells ust that “‘ the modera times of religious in-
difference,”—I should say moderation,—‘‘ are most favourable to
the peace and security of the clergy, who under the reign of su-
perstition had much to hope from the ignorance, and much to
fear from the violence of mankind.” Among other reasons for
which I would, in one instance, alter the language before I
adopt the observations of Mr. Gibbon, I ought to state, that the
very indifference of which he spoke, and perhaps approved,
would be eventually injurious to the interests, to the honour, to
the personal morals, and the official usefulness of a Christian
priesthood. It would relax their diligence, not only in theologi-
cal inquiries, but in those critical, historical, and philosophical
researches which are necessary preparations to their profession,
which are inseparably connected with their labours in defending
and explaining the truths of religion, natural and revealed, and

* See Hume’s Essay on National Characters, Note 1.
+ Chap. 69.

THE REIGN OF JAMES II. 429

which have the additional, though collateral advantage of quali-
fying them to partake in every kind of progressive knowledge,
upon every subject of literature and science. Having received
the first impulse to study from the desire of accumulating that
various information which they are to employ as clergymen, they
become scholars, philosophers, and good writers, as well as good
theologians. But their ardour in pursuits which, as connected
with profane learning, deserve the praise of every impartial un-
believer, would be chilled, many of their attainments would be
useless, much of their genius would lie dormant, if a general in-
difference to religion really prevailed. On the other hand,
‘though they inculcate moderation and practise it, they will find
sufficient incitements to their industry, and sufficient employ-
ment for their understandings among ἃ civilized people to whom,
indeed, they are peculiarly responsible for the neglect or the use
of the means which are afforded them for intellectual improve-
ment. They will ‘‘ hope” for little, “ from the ignorance οὗ
mankind,” if they endeavour to enlighten it—they have little
‘* to fear from the violence of mankind,” if they do their duty in
assuaging it, by precept and example.

In recommending our religious tenets to those who differ
from us, a good and wise man will at first act in conformity to
_ the spirit of a caution, which Quintilian recommends in the edu-
cation of youth, ‘‘ ne studia qui amare nondum possunt, oderint.”
He will take care lest his own passions obstruct the operations of
his own understanding—he will be content to enlighten gra-
dually, before he expects to convince impartially—he will be
studious not to provoke, if he honestly wishes to persuade—he
will show by his own example the happy influence of his own
tenets—and, though he should fail in enlarging the number
of converts, he will have the conscious merit of attempting to
assuage the animosities of foes. The history, whether of Catho-
lics or Protestants, does not encourage me to repose any large
confidence in the precision with which men in power have been
accustomed to calculate the energies of moral causes, or the
authority of moral obligations. But upon subjects intimately
connected with virtue and religion, persons in private stations
would do well not to trifle with their own responsibility in a life
to come, and if certain questions now afloat were to be decided

430 NOTE UPON FOX’S HISTORY OF

by an appeal, not to the wavering temper of human policy, but
to the pure and uniform spirit of Christianity itself, “ good will
to men” would be recommended as the most powerful in-
strument for restoring and perpetuating “ peace upon earth.”

“41 perceive,’ says Dr. Paley, ‘no reason why men of dif-
ferent religious persuasions may not sit upon the same bench,
deliberate in the same council, or fight in the same ranks, as
well as men of various or opposite opinions upon any controvert-
ed topic of natural history, philosophy, or ethics.”* This prin-
ciple has, in fact, been already recognised by the legislature in
their relaxation of many severe statutes which once were in
force against the Catholics, Such however is the unalterable
constitution of the human mind, that in certain circum-
stances the experience of indulgence excites men to a more
anxious investigation into rights, that the removal of fear is
succeeded by the perturbations of hope, and that while preten-
sions, reasonable in the estimation of those who urge them, are
resisted, previous concessions are generally imputed to some dis-
ingenuous motives. Protestants may be found, as well as Catho-
lics, who thus state the dilemma. If the Catholics ought to be
trusted, more ought to be granted to them—if the Catholics
ought not to be trusted, too much has been granted to them al-
ready. ‘To retreat is inglorious, to halt long is impossible, and
to advance, in the judgment of some men, might be indiscreet.
Without entering directly into the controversy, I shall content
myself with observing that one of the arguments employed
against the Catholics is directly opposite to the known practice
of our legislature in the most important regulations of policy and
religion, and is utterly incompatible with the adaptation of any
government to those changes which causes innumerable and ir-
resistible are producing in the sentiments and interests of man-
kind. ‘In earthly affairs,” says Mr. Gibbon, “ it is not easy to
conceive how an assembly of legislators can bind their succes-
sors, invested with powers equal to their own.”t¢ We are all
aware of the practical difficulty, and they who from their high

* On Religious Establishments, p. 582.
{ Vol. vi. p, 409.

THE REIGN OF JAMES II. 431

stations are authorised, and indeed bound to decide upon it,
should refiect very seriously upon those changes, which are
silently taking place in the general character of our country,
should have “‘ a quick and accurate feeling of the tendencies of
this varying character, should endeavour to trace the causes and
the modes of the variation itself, should attend to the aggregate
of population at any given period, and to the numbers of particu-
lar classes, and should direct their attention to every thing which
affects the character of individuals—manners, education, prevail-
ing occupations, religion, taste, and above all, the distribution of
wealth, and the state of prejudice and opinions.”* If these va-
rious and important objects were regarded with the impartiality
which they deserve, the counsels of ministers, and the regulations
of Parliament would be favourable to the commonweal.

In the extremes of religious credulity, and its opposite, there
is a secret and restless distrust, which makes men look out for
support from the zeal and the number of converts. But when
the favourite opinion is supposed to prevail, the perturbations of
fear are succeeded by the triumphs of pride, and pride imper-
ceptibly generates a propensity towards jealous or scornful into-
Jerance. There is also an intermediate, and, I think a happier
state of mind when, firmly standing within the pale of our own
community, we abstain from all annoyance of those who are
without it; gladly give admission to every one who from con-
viction wishes to be admitted; and indulge affectionately, but
not ostentatiously, the pleasing hope that they who come over
to us will be delivered from some debasing error, or gradually
brought nearer to some useful truth. Upon this principle I,
like other men, should feel great satisfaction in any accession of
number to the religious community in which I myself was edu-
cated, and the interests of which will ever be dear to me. But
1 am convinced, from long observation, that unity in religious
opinions is unattainable—that the attempt to produce it by arti-
fice or force recoils upon its employers—that every truth, really
interesting to mankind, is discovered more fully and more clearly
by the investigation of inquirers, whose ability and perhaps mo-

* See the masterly critique in the Edinburgh Review upon Mr.
Fox's History.

439 “NOTE UPON FOX’S HISTORY OF

tives to inquire are various—that the spirit of proselytism, even
in honest men, is often accompanied by excess of zeal, impatience
of contradiction, and a secret propensity towards intolerance—
that public measures ought to be guided by views of the public
good, at once precise and Jarge—and that the public good itself
is most effectually promoted and secured by a temper of general
moderation among the different members and different classes of
society. ‘If Popery,” says Dr. Paley, “and Protestantism were
permitted to dwell quietly together, Papists might not become
Protestants, (for the name is commonly the last thing that is
changed,) but they would become more enlightened and inform-
ed: they would by little and little incorporate into their creed
many of the tenets of Protestantism, as well as imbibe a portion
of its spirit and moderation.” * ““ Would we let the name Τ

* See, as before, Paley, p. 580.

+ lam much less anxious to multiply converts from the Church
of Rome, than to mitigate the prejudices of those who conscien-
tiously remain in it. All the great ends of morality and of public
peace would be answered by the gradual approach to Protestant
notions, or at least to that spirit which is the glory of genuine
and consistent Protestantism. But the attempt to make prose-
lytes might stir up unprofitable and even pernicious contro-
versies.

In the fifth volume of Mosheim’s Ecclesiastical History, we
have an account of a projected union between the Gallican
Church and the Church of England; and I am sure that great
commendation is due to Dr. Maclain, not only for his explana-
tion of the spirit by which our own establishment is actuated,
but for his defence of the learned and temperate Archbishop
Wake, against the errors and censures of Dr. Mosheim.

In the fourth volume of Grotius’s works there is an excellent
treatise called Georgii Cassandri de Articulis Religionis inter
Catholicos et Protestantes Controversis ad invidissimos Impera-
tores Augustos Ferdinandum I. et Maximilianum II. Ejus Suc-
cessorem Consultatio, I have read it with great delight; I re-
ceived great instruction from the Annotata which Grotius wrote
upon it ; and from a subsequent work, called Rivetiani Apologe-
tici pro Schismate contra votum Pacis facti Discussio.

The failure of Wake’s plan and of Ferdinand’s for a kind of
συγχρητισμὸς in religion, would, I think, discourage prudent men
from endeavouring to accomplish a direct and formal union be-
tween the Church of Rome and the Church of England. ‘The
opinion of Grotius made a deep impression not only upon Laud,

THE REIGN OF JAMES II. 433

stand,’ Dr. Paley adds in a note, “ we might often attract men,
without their perceiving it, much nearer to ourselves, than if they
did perceive it, they would be willing to come.”

Sheldon, and Hammond, whom Warburton has censured with
great sharpness, but upon the very learned Archbishop Bramhall,
and such were the apprehensions of the Protestant Dissenters in
England, that Mr. Baxter published a book which he called a
Treatise of the Grotian Religion. Bramhall replied to it with
vigour, acuteness, and erudition, worthy of a champion who had
grappled most skilfully and most bravely with the puissant
Hobbes. “11 acknowledge,” says he, ‘‘the very title of Mr.
Baxter's book did not please me. Different opinions do not make
different Religions. It is the Golden Rule of Justice, not to do
that to another which a man would not have done to himself,
He would take it unkindly to have his own religion contradis-
tinguished into the Prelatical religion, and the Presbyterian reli-
gion, and the Independent religion, and the Anabaptistical
religion: and then to have his Presbyterian religion subdivided,
either according to the number of the Churches, into the English
religion, and the Scottish religion, and the Gallican religion,
and the Belgian religion, and the Helvetian religion, and the
Allobrogian religion; or of all the names of the Reformers, into
the Calvinistical religion, and the Brownistical religion, Zuin-
glian religion, and Erastian religion, &c. For all these have their
differences. And so himself in his preface to this very treatise,
admits those things for pious truths, for which we have been
branded with the names of Papists and Arminians. The Church
of Christ is but one, one fold and one Shepherd, Christian reli-
gion is but one, one Lord, one faith, one hope. ‘Then why doth
he multiply religions, and cut the Christian faith into threds, as
if every. opinion were a fundamental article of religion ?”"—See
Bramhall’s Works, p. 607.

Such sentiments would do honour to the most enlightened
prelate in an age far more enlightened than that in which Bram-
hall lived. Happy were it for the Christian world, if the same
principles were avowed in the same spirit by men who are safe
from persecution, as Bramhall was not—who enjoy advantages
which Bramhall did not—who have a smoother access than
Bramhall had to the knowledge of religious truths—and who in
the better circumstances of their times may find stronger encou-
ragements than Bramhall found to moderation and charity.

Bishop Taylor has twice adverted to the subject of union with
the Church of Rome, and I think that intelligent and serious
Protestants will be much interested by the statements and ob-
servations of that excellent prelate. ‘* There is great reason for
princes to give toleration to disagreeing persons, whose opinions

VOL. IV. OF

434 NOTE UPON FOX’S HISTORY OF

The remark which Dr. Paley has made upon the importance
of names is worthy of his sagacity, and happily for this country

by fair means cannot be altered; for if the persons be confident,
they will serve God according to their persuasions ; and if they
be publicly prohibited they will privately convene, and then all
those inconveniences and mischiefs which are arguments against
the permission of conventicles, are arguments for the public
permissions of differing religions, because the denying of the
public worship will certainly produce private conventicles, against
which all wise princes and commonwealths have upon great rea-
sons made edicts and severe sanctions.’—Epist. dedicat. to Dis-
course on Liberty of Prophesying. ‘‘ King James, of blessed
memory, in his Letters to the States of the United Provinces,
dated 6 March 1613, thus wrote: ‘Magis autem e re fore si so-
piantur, authoritate publica, ita ut prohibeatis ministros vestros
ne eas disputationes in suggestum aut ad plebem ferant, ac dis-
tricte imperetis ut pacem colant, se invicem tolerando in ista
opinionum ac sententiarum discrepantia, * * * * * * eoque
justius videmur vobis hoc ipsum suadere debere, quod neutram
comperimus adeo deviam ut non possint et cum fidei Christianz
veritate, et cum animarum salute consistere,, &c. The like
counsel] in the divisions of Germany, at the first reformation, was
thought reasonable by the Emperor Ferdinand, and his excellent
son Maximilian; for they had observed that violence did exaspe-
rate, was unblessed, unsuccessful and unreasonable, and there-
fore they nade decrees of toleration and appointed tempers and
expedients to be drawn up by discreet persons, and George Cas-
sander was designed to this great work, and did something to-
wards it; and Emanuel Philibert, Duke of Savoy, repenting of
his war undertaken for religion against the Pedemontans, pro-
mised them toleration, and was as good as his word; as much is
done by the nobility of Polonia. So that the best princes and the
best bishops gave toleration and impunities ; but it is known that
the first persecutions of disagreeing persons were by the Arians,
by the Circumcellians and Donatists, and from them they of the
Church took examples, who in small numbers did sometime per-
suade it, sometime practise it !”—Ibid.

«* Let us consider what ways men have propounded to find out
truth, and upon the foundation of that to establish peace in
Christendom: 1. That there is but one true way is agreed upon ;
and therefore almost every Church of one denomination that lives
under government propounds to you a system, or collective body
of articles, and tells you, that’s the true religion, and they are the
Church, and the peculiar people of God: like Brutus and Cassius,
of whom one says, ubicunque ipsi essent, praetexebant esse rem-

THE REIGN OF JAMES II. 439

the persons who now adhere to the Bishop of Rome have anti-
cipated the wishes of many reflecting Protestants, who remember

publicam : they supposed themselves were the commonwealth,
and these are the church.

«©2. Others cast about to cure this, and conclude that it must
be done by submission to an infallible guide; this must do it or
nothing; and this is the way of the Church of Rome.

*< 3. Some very wise men finding this to fail, have undertaken
to reconcile the differences of Christendom by a way of modera-
tion. Thus they have projected to reconcile the Papists and
‘Lutherans, the Lutherans and Calvinists, the Remonstrants and
Contra-Renionstrants, and project that each side should abate of
their asperities, and pare away something of their propositions,
and join in common terms and phrases of accommodation, each
of them sparing something, and promising they shall havea great
deal of peace for the exchange of a little of their opinion. This
was the way of Cassander, Modrevius, Andreas Frisius, Erasmus,
Spalato, Grotius, and indeed of Charles the Fifth in part, but
something more heartily of Ferdinand the Second. This device
produced the conferences at Poissy, Montpelier, at Ratis-
bon, at the Hague, at many places more: and what was the
event of these? Their parties when their delegates returned,
either disclaimed their moderaticn, or their respective princes
had some other ends to serve, or they permitted the meetings
upon uncertain hopes, and a trial, if any good might come; or
it may be they were both in the wrong, and their mutual abate-
mem was nothing but a mutual quitting of what they could not
get, and the shaking hands of false friends; or it may be it was
all of it nothing but hypocrisy and arts of craftiness, and, like
‘Lucian’s man, every man would be a man and a pestle when he
pleased.” —Taylor'’s Via Intelligentiz, Sermon, preached before
the University of Dublin. The whole discourse is a master-piece
of eloquence. But I shall content myself with adding the follow-
ing passage from Taylor's address to the reader :

*« J have often thought of those excellent words of Mr. Hooker,
in his very learned discourse of Justification. Such is the unto-
ward constitution of our nature, that we do neither so perfectly
understand the way and knowledge of the Lord, nor so sted-
fastly embrace it when it is understood ; nor so graciously utter
it when it is embraced, nor so peaceably maintain it when it is
uttered, but that the best of us are overtaken, sometime through
blindness, sometime through hastiness, sometime through impa-
tience, sometime through other passions of the mind, (where-
unto, God knows, we are too subject, ) that I find by true expe-
rience, the best way of learning and peace is that which cures all!

Or 2

430 NOTE UPON FOX’S HISTORY OF

that Papist, as ἃ term of reproach, was originally employed by
Martin Luther. Our English contemporaries disclaim the ap-

these evils, as far as in the world they are curable; and that is
the ways of holiness, which are therefore the best and only way
of truth. In disputations there is no end, and but very little
advantage: but the way of godliness hath in it no error, and no
doubtfulness.”—Prefatory Address to the Via Intelligentiz.

In plain truth I prefer, with Dr. Paley, a gradual and mutual
approach of opinion among individuals improving themselves in
general knowledge, and not irritating each other by controversy
to any formal and express declaration in one church upon its
approach to another church in disputed points of doctrine. Men
who are endowed with good sense and enlightened by education
may differ less and less from one another, while the ignorant and
prejudiced would take an alarm at the smallest authorised con-
cessions to those who differ from them in matters of faith. I
believe that the general experience of mankind will induce men
of observation to acknowledge that the answer of Barleam, a
Legate from the Greek Church, to Benedict XII. was very judi-
cious: ‘* Thirty or forty of our doctors may agree with those of
the Vatican in their love of truth and unity of belief, but what
would be the use or the recompense of such agreement? The
scorn of their brethren and the reproaches of a blind and obsti-
nate nation.”—Gibbon’s History, chap. 66.

While freedom of inquiry continues, and while it is aided by the
growth of the soundest principles in criticism, ethics, and the
more useful parts of metaphysics, changes upon speculative
points will gradually be wrought in the minds of reflecting indivi-
duals, and if those changes be accompanied by a spirit of mutual
respect and mutual charity, the influence of that spirit will si-
lently diffuse itself among all the members of all religious socie-
ties. A direct and avowed intercommunity of doctrine and dis-
cipline will become less necessary, and if a favourable opportunity
should arise for attempting such intercommunity, even partially,
the attempt itself will be Jess difficult. ‘The freedom of private
persons in communicating their opinions, if used with discretion,
must contribute to the discovery or the elucidation of important
truths, and though the yovernors of Protestant churches may see
good reasons for caution in making any large and public changes
in the forms of ecclesiastical establishments, yet the members and
even teachers of those establishments, by communicating to the
world the results of their laborious and impartial researches will
have little to fear from the sarcastic observation of Bossuet: “ IL
est bien permis de changer dans la nouvelle reforme, mais il n'est
pas permis d’avouer qu’on change.”"—Var. ν. i. p. 405.

THE REIGN OF JAMES II. 437

pellation of Papist, and by disclaiming it they mean to give a
pledge for their sincerity in denying that their spiritual head has
any authority whatsoever in the temporal concerns of the Eng-
lish government. I should myself have wished to see the word
Papist applied only to those persons who formerly acknowledged
that imperium in imperio, which every regular and independent
government would be disposed to resist ; and, as to the change of
appellation which has taken place among ourselves, we may pre-
sume that our countrymen were directed to their choice by that
prudence which induces men to shake off an odious and alarm-
ing name, and by that pride which makes them impatient of
carrying about themselves even the sign of subjection to a kind
of power which they no longer recognize.

In opposition to the opinions and the wishes which I have
just now expressed, some well-meaning, and I add, well-in-
formed persons may contend for a doctrine which is supported
by high authority, and which I, therefore, shall proceed to ex-
amine, so far as the belief of it may tend to perpetuate and
inflame the differences which exist between Protestants and
Roman Catholics.

That the ‘Pope is Antichrist,” Warburton represents “ as
the great Protestant principle;”’** and in a most eloquent ser-

,

* «The great Protestant principle,” as it is called by War-
burton, was honoured by a strenuous advocate in James the First,
who, as Mr. Zouch tells us, (Life of Sanderson, page 42,) ‘* was
so well pleased with Dr. Robert Abbot’s book de Antichristo,
that he ordered his own Commentary upon part of the Apoca-
lypse to be printed with it, when the second edition appeared,
in 1608.” The work of Abbot contains all the historical and
critical learning which belongs to the subject; the latinity is clear
and vigorous, and the arguments employed in it refute, I think,
the attempts of Bellarmine to prove ‘‘ Nomen Antichristi literale
et mysticum proprium esse non appellativum ; Antichristi sedem
in Ecclesia Hierosolymis esse debere, ante Christi tempus tribus
annis et dimidio definiri posse, ἃς. After comparing the work
of the Oxford professor with the Commentary of James, I very
much doubt the justness of the panegyric, which Launcelot An-
drews, in his preface to the Opera Regia, has bestowed upon a
royal polemic, whom his tutor Petrus Junius of Seaton had called
θεοδίδακτον. James, even before he attained the age of twenty,
had manifested his hostility to Popery by his Paraphrasis Apocalyp-

438 NOTE UPON FOX’S HISTORY OF

mon he states the causes which brought that principle into tem-
porary disrepute. ‘‘ The moderation,” says he, ‘ of Grotius and

seos, to which his Pia Meditatio on the twentieth chapter is sub-
joined in the collection of his works.

Favourable as was the reception, which the writings of James
are known to have met from the ecclesiastics of his day, I much
doubt whether his consistency and sincerity bore any proportion
to his zeal. In Scotland he, with his hands lifted up to heaven,
blessed God, ““ that he had honoured him to be a king over the
sincerest kirk in the world—ridiculed the church of Geneva for
keeping Pascha and Sale, and represented the service of the
neighbouring Church of England as an evil missa and wanting
nothing of the miss but the liftings, &c.”—See note on Rapin.

But when he sat on the throne of England, he is said by Rapin
to “have thought all religion good, provided it taught obedi-
ence to Sovereigns, and preserved the hierarchy, which” the
youthful panegyrist of an anti-espiscopalian church afterwards
considered as *‘a fundamental article.”

In the Epistola Dedicatoria, Robert Abbot thus addresses him:
““ Te vero unum illud adhortamur, et flexis genibus obsecramus,
ut quod coepisti facere magis magisque facias, ut Ecclesiz Ro-
mane pestes et contagia depellas, idque operam des quod a regi-
bus terre se Deus expectare denunciat, postquam Babylonice
meretricis jugum excusserint. Odio habebunt illam et desolatam
facient, et nudam, et carnes ejus comedent, et ipsam igne con-
cremabunt. In quam rem qui te hactenus intelligimus cura
omni et cogitatione tam vehementis incubuisse, dubitare non
possumus quin futurum sit, ut primis postrema respondeant et
lisdem perpetuo vestigiis, ad Christi honorem advigiles, et exter-
minium Antichristi.”

What the professor thus earnestly requires from the king, the
king, after he began to be suspected, with equal earnestness pro-
fessed for himself when, in answer to the petition of Parliament,
he said, ‘* that what religion he was of his books did declare,
when he wished it to be written in marble and remain to pos-
terity a mark upon him, if he should swerve from his religion ;
for he who doth dissemble with God, is not to he trusted with
men, and when he protested before God that his heart had bled,
when he had heard of the increase of Popery.” Yet he joined
with his courtiers in branding George Abbot, Archbishop of
Canterbury, and brother of the Professor, with the name of Pu-
ritan, because this honest prelate ‘ in discharge of his consci-
ence towards God, and duty to his majesty, had told him, that he
was labouring to set up the most damnable and heretical doctrine of
the Church of Rome and the Whore of Babylon, and that it would

THE REIGN OF JAMES II. 439

Episcopius, and a visionary scheme of Laud,* who had been
bred up in college with an aversion to the Puritans, indisposed

be hateful to God, and grievous to his good subjects, the confes-
sors of the Gospel, that his majesty, who had so often disputed
against those heresies, should now show himself the patron of
those doctrines which his own pen told the world, and his con-
science told himself, were superstitious.”

While he encourged reproaches and taunts against a Protest-
ant Archbishop, he assured the Catholic Archbishop of Ambreun,
that “‘he perceived him to be a man sent from God, to whom he
might truly open his mind, and that he always had a good opi-
nion of the Church of Rome.” He became so reconciled to An-
tichrist, that in order to accomplish his own favourite purpose of
marrying his son to a great royal family, he affected to treat all
the disputed points between the Church of Rome and the Church
of England as “ mere scholastick questions ’’—assumed the most
specious language of toleration as a disguise to his ambition—
endeavoured to conciliate the court of Spain, by binding himself
and his successors to treat his Roman Catholic subjects with all
possible lenity—made the most favourable terms for the Infanta
to exercise her own religion in England—granted her the right
of educating all her children in that religion till they were ten
years old—afterwards in his negociation with the court of France
pledged himself in detail for Madame to retain the worship pre-
scribed by the Church of Rome, and extended the privilege of
educating her offspring according to that worship from their
tenth to their thirteenth year.

Such was the firmness, and such the sincerity of the royal ene-
my to Antichrist, and the fatal effects of his contracts were visi-
ble in the errors, crimes and sufferings of his descendants. They
who reflect upon the hypocrisy of James ths First and Charles
the Second, and upon the bigotry and inconsistency of James the
Second, may be inclined to think that sovereigns would do well
to meditate upon a plain and wholesome maxim, far more
adapted to their duty and their honour than all the lofty gene-
ralities, which beguiled the credulity and pampered the pride of
James, upon the prerogative of kings: ‘* The bread of deceit is
sweet to man, but afterwards his mouth shall be filled with
gravel.”

* « Archbishop Laud is certainly exempt from any suspicion
of being inclined to Popery ; but he entertained a chimerical no-
tion of the practicability of an union between the Churches of
England and of Rome; and he weakly hoped that this great ob-
ject might be accomplished by mutual and equal concessions.” —
Symmons's Life of Milton, p. 173. I shall have occasion more

440 NOTE UPON FOX’S HISTORY OF

both from pressing Popery with the victorious doctrine of Anti-
christ. Sheldon, a court divine, and afterwards an Archbishop,
denied publickly, in an act, at Oxford, that the Pope was Anti-
christ. Hammond, who was of the same fashionable party,
though much more able and discreet, ventured, in pure aversion
to fanaticism, to adopt the system of Grotius on this head; a sys-
tem to which Popery has been so much indebted ; and which he
seems to have invented, for the sake only of his darling project—
an union between the Romish and Protestant churches.

« The civil wars followed, with the overthrow of the constitu-
tion, by a rabble of armed fanatics, whose second project was to
destroy Antichrist, and erect the fifth monarchy of King Jesus.
After the restoration, divines of the greatest merit were led, by
the severity of their sufferings and their aversion to the fanatic
spirit which occasioned them, to discountenance a doctrine
which had so much contributed to aggravate the preceding mis-
chiefs.

““ Amidst the licentious practices, and the popish projects of
the court of Charles II. whatever concerned the sublimities of
religion, and the mysterious ways of Providence; whatever dis-
graced the Church of Rome, and stigmatised her with the brand
of Antichrist, was sure to be treated with contempt and aver-
sion.

““ Though the revolution removed many of these prejudices,
and by the vindication of religious as well as civil liberty, abated
the rancour of sects and parties against one another; though
from the recent terror and abhorrence of Popery, it produced

than once to express my opinion upon the difficulty, and indeed
the inutility of a direct union between the Church of Rome and
the Church of England. But in justice to the memory of Arch-
bishop Laud I am bound to declare, that the fury of religious
zeal has seldom produced a more unfounded and malignant ca-
Jumny than that which accused our prelate of favouring the
Church of Rome at the expense of the honour, or the interests,
or the safety of the Church of England. Be his errors and be
his faults what they may, he was a sincere and strenuous advo-
cate for our ecclesiastical establishment. Perhaps he fell a mar-
tyr to it.
« Around his tomb let Art and Genius weep.”
JOHNSON.

THE REIGN OF JAMES II. 44]

contrary prejudices favourable to the cause of truth, so that
one might have hoped this capital prophecy might at length
have procured a fair and equitable hearing; yet, alas! the re-
medy came too late; the distemper was grown inveterate, and
Antichrist and Babylon were still held to be the language of
cant and enthusiasm ; so that no eminence of genius, no depth
of science, could secure the writers on this prophecy from con-
tempt.”’*

I believe myself to have some little share in those “ contrary
prejudices,” which the Bishop allows to be “ favourable to the
cause of truth;’’ and to be free from many of those terrors
and resentments which induced some of our forefathers to “ dis-
countenance the doctrine” vindicated by Warburton. I am con-
scious of never having treated with contempt and aversion any
point which concerned “ the sublimities of religion and the mys-
terious ways of Providence.” Though I have many fears of
““ fanatics” not yet “‘ armed,” who may again attempt “ to de-
stroy Antichrist,” I should have little reliance on the protec-
tion which their tenets or their antipathies would afford to the
church or to the state against the encroachments of Popery.
I have had the advantage of reading some learned works which,
under the auspices of Bishop Warburton, have procured “a
fair and equitable hearing,’ to what he denominates “a ca-
pital prophecy.” Ido not call “ Antichrist and Babylon the
language of cant and enthusiasm,” in some of my enlightened
contemporaries. I see “ depth of science” in Joseph Mede;
“ eminence of genius” in Bishop Warburton ; acuteness of rea-
soning and elegance of diction in Bishop Hurd; a spirit of dili-
gent inquiry in Bishop Newton and Bishop Halifax. But I
long have been, and I expect long to continue, a sincere and
firm advocate for Protestantism, though I entertain many se-
rious doubts upon the evidence which has been employed to
establish the favourite doctrine of Warburton and his adherents
about Antichrist.

Fearing that the inconveniences of a direct union with the
church of Rome would more than balance the conveniencies, ἢ
should be sorry to see that union attempted. Suspecting, how-
ever, that the subject of Antichrist has been nearly exhausted by

* See Sermon XI. on the rise of Antichrist, vol. iii.

442 NOTE UPON FOX’ HISTORY OF

the learned theologians whom I have already enumerated ;
observing that some of the ecclesiastics who lately preached the
Warburtonian lectures have gradually retreated to other topics
than those which Warburton was peculiarly solicitous to bring
into a train of equitable discussion ; attentive, also, to the re-
ligious and civil concerns of Europe at the present hour, I am
not sure that any signal advantage can arise to Protestantism
from a continuance of the controversy. If it be really the wish
of English Protestants to make their Roman Catholic brethren
good subjects, it seems to me that a more improper method
cannot be adopted than to tell them again and again—to tell
them from the pulpit and the press—to tell them in a temper
not very mild, and in terms not very courteous, that the spiritual
head of their church is described in the sacred writings as ‘ the
man of sin, the son of perdition, Antichrist, denying the Father
and the Son.” If, indeed, I were convinced not only that the
doctrine itself is scriptural, but that my countrymen are in danger
of relapsing into Popery, 1 might think myself bound to incul-
cate that doctrine argumentatively and temperately, as at once
seasonable and true. Ido not, therefore, censure the zeal of
other men who, for the foregoing reasons, insist upon it; and
other men have no right to be offended with me because, after
perusing the same books, I have not embraced the same opi-
nions, or because I am fearful of the consequences to which the
active dissemination of those opinions may lead; not so much
from their want of conformity to obscure texts or a contro-
verted book in the New Testament, as from their want of adap-
tation to what I think the present condition of society. Again,
if I were to admit that Warburton is right in speculation,
but were satisfied at the same time that my country is in no
immediate danger of falling back into Popery, I should be in-
clined to preserve upon the doctrine of Antichrist the same
silence which my ecclesiastical brethren are now content to pre-
serve upon Transubstantiation and Purgatory, which continue,
I suppose, to be taught among Roman Catholics, but are no
longer disputed in the private families of Protestants. By zea-
lous proselyte-makers they have rarely been introduced for these
twenty or thirty years even in Polemical writings, and, if men-
tioned at all inthe conversation of Churchmen or Dissenters,

THE REIGN OF JAMES II. 443

are ranked, as they were at the Reformation, among the most
erroneous tenets of Catholicism. Perhaps, I should see peculiar
reasons for holding my peace upon this topic, and leaving it with
events to strengthen and illustrate the arguments which have
been already adduced. Antichrist, we are told, has not yet
fallen; but he is doomed to fall; and the circumstances which
are related in the Apocalypse, if I followed the common interpre-
tation of them, might dispose me to believe that his fall is not
very distant. Is it not my duty then to assist in fulfilling a
prophecy which I suppose myself to understand ? Perhaps it is.
But certainly I am not required, nor even authorized, to concur
in fulfilling it by such means as are inconsistent with other
duties, which are at all times obligatory upon Christians ; and
among which I must be permitted to rank the exercise of can-
dour and charity. I must not forget that the prophecy is allowed
to relate to the mysterious ways of Providence. I must not for-
get that in scanning those ways I am a fallible being, that other
men, equally fallible, but equally well-intentioned, do not see
them in the same point of view, and that even though my faith
be right, my practice may be wrong. . If I were deliberately to
undertake the office of executing, so far as in me lieth, what I
suppose to be predicted, possible it is that I should be hurried
into some of those extravagancies and crimes which enthusiasm
engenders, and which, however efficacious they may be in de-
stroying the kingdom of Antichrist, may eventually disturb the
security of earthly kingdoms lawfully established. Probable, too,
it is, that suffering my zeal to outstep my knowledge, I should
now and then violate those principles of “ civil and religious
liberty,” which, as Warburton tells us, ‘* were vindicated at the
Revolution ;” and inflame “that rancour of sects and parties
against one another, which was then abated.”

When we rest the general defence of Protestantism upon a
principle, on the soundness of which learned Protestants differ
widely among themselves—when we not only interpret the past
but anticipate the future, and thus assign to contingency nearly
the strength of certainty—when that interpretation refers the
ordinary effects of ordinary causes to the extraordinary dispensa-
tions which prophecy involves—a discreet believer would hardly
deny the possibility of error, though his application of what is

444 NOTE UPON FOX’S HISTORY OF

written in the Apocalypse to the Church of Rome appears to him
well-founded. He may think that theologians have already said
enough to awaken the attention of Christians, and to prepare
them for setting a great value upon the great proof which great
events in the moral world are now furnishing for the credibility
of revelation. But if it should ultimately appear that those
events, however they may shake earthly dominions, yet leave the
kingdom of Antichrist in possession of power, lessened, indeed,
but still pernicious, he may hereafter have occasion to repent of
his confidence, and to confess that the polemics whom he fol-
lowed have said too much, that they have injured the cause
which they meant to defend, that they have increased the animo-
sities of Christians against one another, and brought not only
Protestantism but revelation itself into additional disrepute with
persons who previously were not favourable to the doctrines of
either.

I do not wish to disturb the faith of any man who holds the
same opinion with Warburton about Antichrist. But 1 should
be sorry to see him maintain it in a spirit of dogmatism, and yet
more sorry to observe that, by the secret operation of it upon his
mind, he is induced to attack the tenets of the Church of Rome
with increased severity, and to treat Roman Catholics either as
Christians or as members of civilized society with diminished
respect or diminished kindness,

In the alarming state of public affairs both at home and
abroad, persuasion seems to me the only expedient to which a
good man attached to Protestantism would now have recourse,
and should he happen to be wise as well as good, he will not fail
to recollect that the success of his attempt to persuade will very
much depend upon a right choice of time and topic. In truth,
if the events now passing before us really are accomplishments
of a prophecy ; if the ways of Providence, as connected with that
prophecy, are gradually becoming less and less mysterious ; if
the Roman Catholic, who has an equal interest with the Pro-
testant, in examining that prophecy, and contemplating those
ways, still retains his conviction that the Pope is not Antichrist,
a Protestant may find other employments quite as laudable, quite
as useful, and quite as safe, as men usually find in the resuscita-
tion of controversies which have been suspended without any

THE REIGN OF JAMES II. 445

visible mischief to the peace of communities, or the morality of
individuals. He may adore, in humble silence, the mysterious
ways of God. He may discern additional reasons, not only for
his faith in Christianity, but for his adherence to Protestantism.
He may lament what he conceives to be the blindness and ob-
stinacy of those Catholics whom such clear and numerous
proofs do not convince. But if, assuming the end proposed by
the Deity, he takes upon himself to determine what are the
means most efficacious to accomplish it; if, in the indications of
a prophecy, rapidly and, as he would say, notoriously advancing
towards a completion, he sees a warrant for strong measures of
annoyance to justify a strong opinion; if he should hold that
considerations of political expediency, and all the growing habits
of civilized men in the social virtues of moderation and mutual
forbearance are to yield to the authority of his religious belief ;
if he ventures to do what in the general course of worldly affairs
would be evil, in order that good, according to his own particu-
lar persuasion upon a particular case, may come the more
speedily ; surely he, as a moral agent, must incur a responsi-
bility which, to every dispassionate and reflecting observer,
would appear most awful.

In the mean time, whether a Protestant of this kind be right
or wrong, the well-known tendencies of education, habit, indig-
nation, pride, fear, and even mistaken piety, leave little or no
room for us to doubt what influence such opinions, accompanied
by such measures, will probably have upon the mind of a sincere
Roman Catholic. His sufferings will stir up his passions, and his
passions will impede the operations of his understanding. He is
more likely to be confirmed in his error than to be reclaimed
from it when the destroyers of Antichrist have added, what he
thinks intolerance and insult to what they call the orthodox in-
terpretation of a prophecy, externally and recently supported by
the unequivocal evidence of facts. He may feelingly ackuowledge
that the prophecy of “sending not peace, but a sword,” has
already been fulfilled in a sufficient degree to justify the foresight
and veracity of the Being who uttered it, and to furnish very
humiliating proofs that a most holy name has been more than
once prostituted by Christian zealots for purposes most unchris-
tian. Without attempting to vindicate the persecuting spirit of

440 NOTE UPON FOX’S HISTORY OF

his forefathers, he may suspect that some of his Christian bre-
thren are rather dim in discerning, or rather slow in endeavour-
ing to accomplish another prediction, which is equally clear and
important, and which encourages Christians of all churches and
all sects to indulge the pleasing hope that the ultimate and most
blessed effect of their religion will be, “‘ Peace upon earth and
good-will towards men.”

I wish the cause of Protestantism to be ever victorious over
the erroneous doctrines of the Romish church. But let it not
be the “ victory of force atchieved by the weapons” of perse-
cution—let us not permit what is clear in ethics to be darkened
by what is doubtful in politics—instead of multiplying decisions
or conjectures on the ‘‘ mysterious” counsels of the Deity, let us
contemplate and obey his explicit and direct commands.

I know not, my friend, whether the critical and theological
subjects upon which I have thrown out my thoughts, will appear
to you or to other men digressions. All I have to say in my own
vindication is, that the contents of Mr. Fox’s History, and the
remarks made upon it, excited those thoughts in my mind, and
that, believing them not unlikely to interest you, I have submit-
ted them, as I shall in the sequel submit some other reflections,
suggested by the same causes, to your serious consideration.

I hold, with Mr. Burke, that it was ‘* not a fundamental part
of the settlement at the Revolution for the state to be Protestant
without any qualification of the term—for a religion to be
established which was nothing but a mere negation of some
other—for a scheme to be professed by ourselves and imposed
upon others, without any positive idea of doctrine, discipline,
worship, or morals.”* [ maintain that in the doctrine, disci-
pline, and worship of the Established Church no alteration should
ever beattempted without the utmost caution—none without the
general approbation of its members—none without the consent
and even co-operation of its teachers—none without the grave
deliberation of Parliament and the formal assent of the Sovereign.
But I also hold that “ toleration, being a part of moral and poli-
tical prudence, ought to be tender and large—that a tolerant
government ought not to be too scrupulous in it investigations,
but may bear without blame very ill-grounded doctrines—that

* Letter to Sir H. Langrishe.

THE REIGN OF JAMES II. 447

the disfranchised part of a people cannot think themselves in a
happy state, to be utterly excluded from all its direct and all its
consequential advantages—that the popular part of the constitu-
tion must be to them by far the most odious part of it—and
that if they who compose the privileged body have not an in-
terest, they must but too frequently have motives of pride, pas-
sion, petulance, peevish jealousy, or tyrannic suspicion, to urge
them to treat the excluded people with contempt and rigour.’’*
Mr. Fox cannot be supposed to have bestowed much attention
upon the writings of theologians, and perhaps he little suspected
that men who agreed with him upon political subjects held no-
tions very different from his own upon the extent of toleration.
But it has fallen in my way to know, and it is my duty as a lover
of truth to state, that to praise for vigilance and jealousy against
the church of Rome, our low-church fathers were equally enti-
tled with the high-church party, and that the blame of conti-
nuing that vigilance and that jealousy, when they are not eaually
necessary, ought to fall with equal weight upon the successors of
both. The old Puritans were perhaps more indignant against
the Papists than any class of churchmen. But the more enlight-
ened, and, I wish it were in my power to add, the most nume-
rous class of Dissenters, + in our own days, have formed more

* Letter to Sir H. Langrishe, p. 312.

+ I have often had occasion to observe that statesmen can
contrive to gratify the revenge or the vanity of religious parties,
without affording, or meaning to afford to them substantial re-
lief; that what Dissenters suffer does net always add to the
security of the church; and that what the church loses is not
always an acquisition to the cause of religious liberty. My opi-
nion is confirmed by some striking occurrences in the reign of
Charles and James the Second, and abundant are the materials
which they supply for reflection to vigilant and impartial ob-
servers, both within and without the pale of our ecclesiastic esta-
blishment.

“« From the insurrection of the fifth monarchy men, Clarendon
and the ministry took occasion to infer the dangerous spirit of
the Presbyterians and of all the sectaries: but the madness of the
attempt sufficiently proved that it had been undertaken by no
concert, and never could have proved dangerous. ‘The well-
known hafred, too, which prevailed between the Presbyterians
and the other sects, should have removed the former from all sus-

448 NOTE UPON FOX’S HISTORY OF

exact and more consistent opinions upon the principles of tole-
ration. As a most unfeigned and most anxious well-wisher to

picion of any concurrence in the enterprise. But as a pretence
was wanted, besides their old demerits, for justifying the intended
rigours against all of them, this reason, however slight, was very
greedily laid hold of.

The Catholics dreaded an entire union among the Protestants.
Were they the sole Nonconformists in the nation, the severe ex-
ecution of penal laws upon their sect seemed an infallible con-
sequence ; and they used therefore all their interest to push mat-
ters to extremity against the Presbyterians, who had formerly
been their most severe oppressors, and whom they now expected
for their companions in affliction.

“« The church party had, during so many years, suffered such
injuries and indignities from the sectaries of every denomination,
that no moderation, much less deference, was upon this occasion
to be expected in the ecclesiastics. Instead of enlarging their
terms of communion, in order to comprehend the Presbyterians,
they gladly laid hold of the prejudices which prevailed among
that sect in order to eject them from their livings.

“Α combination had been entered into by the most zealous
of the Presbyterian ecclesiastics to refuse the subscription re-
quired by the Bill of Uniformity, in hopes that the bishops would
not dare at once to expel so great a number of the most popular
preachers. The Catholic party at Court, who desired a great
rent among the Protestants, encouraged them in this obstinacy,
and gave them hopes that the king would protect them in their
refusal. The king himself, by his irresolute conduct, contributed
either from design or accident, to increase this opinion.” —
«About two thousand of the clergy, in one day, relinquished
their cures ; and to the great astonishment of the court, sacrificed
their interest to their religious tenets. The church enjoyed the
pleasure of retaliation; and even pushed, as usual, the vengeance
further than the offence.’—Hume’s England, chap. i. Reign of
Charles II. 4th edit. 1762.

From this statement it appears that the Catholics, who were
favoured by the King, concurred with Churchmen in depressing
the Presbyterians, and at the same time encouraged the Presby-
terians in resisting the terms proposed by the Church. It will
now be seen that, in order to undermine the Church, the same
king adopted measures which in appearance were favourable to
the Dissenters. ‘‘ Under the pretence,” says Hume, of easing
the Protestant Dissenters, Charles and the Duke of York agreed
upon a plan for introducing a general toleration, and giving the
Catholics the free exercise of their religion ; at least, the exercise

THE REIGN OF JAMES II. 449

our ecclesiastical establishment, I should rejoice at the preva-
lence of the same principles among men whose erudition, virtue,

of it in private houses. The two brothers saw with pleasure so
numerous and popular a body of the clergy refuse conformity ;
and it was hoped that, under shelter of their name, the small and
hated sect of the Catholics might meet with favour and protec-
tion.”

Let us go on to the next disastrous reign :

«« James was become a great patron of toleration, and an
enemy to all those persecuting laws which from the influence of
the Church had been enacted both against the Dissenters and
Catholics. Not contented with granting dispensations to parti-
cular persons, he assumed a power of issuing a declaration of
general indulgence, and of suspending at once all the penal sta-
tutes by which a conformity was required to the established re-
ligion.

“In order to produce a better reception for his edict of tole-
ration, the king, finding himself opposed by the Church, began
to pay court to the Dissenters; and he imagined by playing one
party against another, he should easily obtain the victory over
both ; a refined policy which it much exceeded his capacity to
conduct. His intentions were so obvious, that it was impossible
for him ever to gain the sincere confidence and regard of the
Nonconformists.” Mr. Hume, with his usual sagacity, assigns
reasons “‘ for which all the King’s favours must have appeared to
every man of judgment among the sectaries insidious "—*‘ yet such
was the pleasure reaped from present ease, and such the animo-
sity of the Dissenters against the Church, who had so long sub-
jected them to the rigours of persecution, that they every where
expressed the most entire duty to the King and compliance with
his measures ; and could not forbear rejoicing extremely in the
present depression of their adversaries.”"—Ch. i. James IT.

Such were the ill-founded and short-lived triumphs of Church-
men against Dissenters, of Dissenters against Churchmen, and of
Catholics, as it appears from the sequel of our history, against
both. But what is the lesson of sound policy, which well-in-
formed and well-intentioned men should learn from these events ?
It is purely to cherish a spirit of mutual forbearance and govd-
will, to abstain from acts of severity against others, lest from the
dark and shifting views of state-craft they should recoil upon
ourselves—to unite in protecting the rights of religious freedom
from the insidious favour and the rude hostility of worldly-minded
men, who convert our virtues and weaknesses, our love and ha-
tred, our hopes and fears, into instruments of wicked purposes,
which are rarely detected till it is too late to oppose them,

VOL. IV. ize

450 NOTE UPON FOX’S HISTORY OF

and piety I must ever reverence. I deprecate the day in which
the intolerance of churchmen should furnish our adversaries
with the opportunity for objecting to us, “‘ What so pure as
some of the morals included in some theological systems ? What
so contrary to the spirit of Christianity, and to the well-being of
society, as some of the practices to which the injudicious or in-
temperate defence of those systems gives rise ?’’*

““ To fear where no fear is’’ has been represented to us as a
mark of that weakness which by the constitution of the moral
world stigmatizes and ultimately defeats the aims of wicked-
ness. But will a good man hastily impute deliberate perjury to
a class of men, who in the ordinary concerns of life have never
manifested the slightest disrespect to the sanctity of an oath?
Will he suppose that among the descendants of families, most
respectable for their antiquity and their opulence, even the sense

Under the harsh sentiments which a numerous body of modern
sectaries are wont to avow against modern Catholics, there may
be lurking ‘‘ an opinion,” as Mr. Hume, in his Essay on the Par-
ties of Great Britain, calls it, ““ not only of affection, but inte-
rest,”” not only a fondness for their own peculiar tenets, but a
jealousy of the sway which teachers acquire over their followers,
from the propagation of such abstruse and mysterious dogmas as
soothe the mind with a consciousness of merit in the prompt, in-
discriminate, and entire submission of reason to faith. In our
own days I should think it a perilous experiment for any minis-
ter to play off the prejudices and passions of those sectaries
against Roman Catholics, and the sectaries, who are by them-
selves denominated “ rational dissenters.” At the same time 1
should think those Catholics and those Dissenters very short-
sighted, if, for the sake of some immediate and temporary grati-
fication, they should rejoice in the success of any measure which
is directly or indirectly injurious to the safety or even the respec-
tability of our own ecclesiastical establishment. If all parties
were disposed to take large and just views of their interests in
society, and their duties from religion, they would find that in
forbearing to do injury to others they most effectually provided
for their own honour and their own security—they would not
promote the bad, but unknown designs of other men, and they
would aim at no advantages for themselves which an enlightened
and virtuous member of the community would be inclined to
oppose.

* See Hume's Natural History of Religion.

THE REIGN OF JAMES II. 451

of honour is utterly extinguished? Will he to-day impose a
strong pledge for their loyalty, and to-morrow declare that they
who gave it are incapable of making any long resistance to the
illusions of casuistry, or the instigations of bigotry, and that
without hesitation or remorse they will be guilty of ingratitude
and perfidy to their protectors, rebellion to their governors, and
mockery of their God? * When required to look back upon
their peaceable and inoffensive behaviour for more than forty
years, will he endeavour to bring down odium upon them by the
revival of refuted assumptions, or antiquated and exploded tales ?
When entreated to contemplate the galling effects of long-con-
tinued and much-abused restraints, will he maintain that the
power of self-respect to appreciate insult, or self-preservation to
discern injury, belongs exclusively, or even pre-eminently, to his
Protestant brethren ? Will he, ‘‘ from generation to generation,”
persist in “ visiting the sins of the fathers upon the children,”
who hate us only because they are conscious of being themselves
hated for offences not their own? Will he not rather wish to
*« show mercy unto thousands,” who, if they were encouraged to
*‘love” the law, would find it their interest as well as their duty
to ‘‘ keep its commandments?” Asa citizen, as a man, and as
a Christian, will he not be disposed to ‘‘ comfort them again now
after the time that he ” and his progenitors have ‘ plagued
them, and for the years wherein they have suffered” the most
humiliating and the most mortifying adversity ?”

* The spirit in which some men talk of the distrust which
Protestants ought to cherish against the insincerity of Roman
Catholics in taking oaths, reminds me of what passed in the
trials of Grove and Pickering. ‘ Scrogges, the Chief Justice,
instead of being counsel for the prisoners, as his office required,
pleaded the cause against them, brow-beat their witnesses, and
on every occasion represented their guilt as certain and uncon-
troverted! He even went so far as to affirm, that the Papists
have not the same principles which Protestants have, and there-
fore were not entitled to the common credence which the prin-
ciples and practices of the latter call for. When the jury brought
in their verdict against the prisoners, he said, You have done,
gentlemen, like very good subjects, and very good Christians,
that is to say, like very good Protestants.”—Cap. v. of the reign
of Charles 11. Hume’s History, 1762.

9c 2

452 NOTE UPON FOX’S HISTORY OF

The principle upon which alone any legal restraints imposed
upon the Roman Catholics can be justified, has been stated by
no writer with more precision and more perspicuity than by Dr.
Paley. “ἍΤΕ the members of the Romish church,” says he, “ for
the most part adhere to the interests, or maintain the right of a
foreign pretender to the crown of these kingdoms; and if there
be no way of distinguishing those who do from those who do not
entertain such dangerous prejudices ; government is well war-
ranted in fencing out the whole sect from situations of trust and
power. But even in this example it is not to popery that the
laws object, but to popery as the mark of Jacobitism, which is
the sole cause of suspicion, and the sole justification of those se-
vere and jealous laws which have been enacted against the pro-
fessors of that religion, and which, as it was accidental in its ori-
gin, so probably it will be temporary in its duration ; and these
restrictions ought not to continue one day longer than some
visible danger renders them necessary to the preservation of pub-
lic tranquillity.”* What the visible danger now is, or in what
quarter any invisible danger may be lurking, are points upon
which no satisfaction has yet been given to my mind by the
moans of Mr. Abraham Plimley, the prattle of Mr. Chancellor
Perceval, the rant of Mr. Privy Counsellor Duigenan, or the
yell of No Popery. Jacobitism has ceased, and the Pope remains.
But his power is considerably diminished, the political prejudices
of his adherents are no longer supported by the hopes, or inflamed
by the resentments which Jacobitism once inspired, their mili-
tary connection with foreign potentates is nearly dissolved, the
most respectable part of them are neither unable: nor unwilling
to derive some advantage from the general diffusion of know-
ledge, and it were an outrage upon all probability to maintain
that their advice, authority, and example, should not have some
degree of salutary influence upon the lower classes of persons,
who, from their participation of the same common sufferings in
the same common cause, are in a peculiar manner attached to
their superiors and dependent upon them. If external circum-
stances give us no reason to apprehend danger from the Roman

—_—_—_-.

* Paley on Religious Establishments, p. 584.

THE REIGN OF JAMES II. 453

Catholics, are we likely to find it in the internal structure of the
human mind? 1 think not. We rarely do good to our fellow-
creatures without experiencing a subsequent feeling of kindness
to those whom we have endeavoured to please. As rarely do we
receive good without mingled sentiments of respect and grati-
tude, when the obligation is conferred upon us, not by indivi-
duals with whom pride may induce us to compare ourselves, but
by governments and communities, to the dignity of which our
own importance bears no proportion, and to the strength of
which we can look up fer protection without any consciousness
of personal abasement. Mutual forbearance, if the experiment
were made, would gradually lead to mutual confidence, and they
who persist in rejecting our faith may by our practice be per-
suaded to imitate our charity. ‘‘ Do the Roman Catholics,”
says a very sensible writer, “‘ hope to conciliate those whom they
style their Protestant brethren, by telling them that they are not
Christians?” No, most assuredly, for it were a false and foul
accusation. But do the Protestants in their turn hope to conci-
liate the Catholics by telling them that, because their fathers
were persecutors, they are themselves inclined to persecute, and
therefore ought to be scantily and jealously tolerated—that nei-
ther experience nor reflection has softened that bigotry which
formerly was an object of just and general terror—and that the
church of Rome, even in its decline, will by its secret emissaries
employ the same machinations, and aim at the perpetration of
the same outrages by which it disturbed the repose of the Chris-
tian world, when it was in the zenith of its power?

Much as I respect the abilities of Dr. Milner* and of the late
Mr. Archdeacon Sturges, I shall ever lament the controversy in
which they were engaged, because I know the effects which it
has produced among some weak men in the church of Rome,

* I must observe that Dr. Milner was not the aggressor, and
that he sustained the defensive part with great acuteness and
great spirit. But upon the revival of what controversialists have
written about the indignities and wrongs which our Protestant
and Roman Catholic forefathers inflicted on each other, I hold
generally, and at this time I hold more especially, Ais κράμβη
θάνατος.

454 NOTE UPON FOX’S HISTORY OF

and some very wise men in the Church of England. Upon the
same principles of prudence and moderation I most pointedly
condemn the rashness and uncharitableness of those persons who
lately sent forth Ward’s Controversy of Ordination, which was
first printed in London in 1719, and republished in Dublin in
December 1807. An answer to Ward’s fallacious reasonings
and invidious statements has been written by the Rev. Thomas
Elrington, D. D.* late Senior Fellow of Trinity College, Dublin.
It was put into my hands by a prelate,t whose solid judgment
and unsullied integrity will ever entitle him to my esteem and
confidence. In addition to the praise which is due to Dr. El-

* After writing this sentence I had the satisfaction to meet
with Dr. Elrington’s judicious Reflections on the appointment of
Dr. Milner as the political Agent of the Roman Catholic Clergy
in Ireland, printed at Dublin, in 1809.

As a well-wisher to the Petition of the Roman Catholics, I
should be sorry to see a great political measure obstructed by
scholastic distinctions, by invidious references to the reigns of
Mary and Elizabeth, or by harsh, and 1 think most unmerited
reflections upon the character of William the Third. Let the
professions of allegiance which the Roman Catholics make be
clear, distinct, unequivocal, conceived in the spirit, and expressed
in nearly the words of the celebrated Remonstrance signed by the
English Roman Catholics, in 1640, and transmitted afterwards
by Walsh to the Irish Catholics. After serious and temperate
discussion among themselves, and with their parliamentary
friends, ‘‘ upon the appointment of Bishops to fill the vacant
Sees in Ireland,” let them, without cavilling and without ter-
giversation, consent to such interposition of the temporal power
as the circumstances of the times have rendered necessary—such,
as without ensnaring their sincerity, or impeding their real use-
fulness in spiritual concerns, may calm the fears and soften the
jealousies of their Protestant fellow-subjects—such, as upon the
plainest and soundest principles of mutual good-will and fair
dealing, may ‘‘ enable their Governors to be satisfied of the loy-
alty of the person to be appointed, and” therefore “‘ is just,
and ought to be agreed to,”—See Elrington’s Reflections, p.
35 to 48.

Heaven forbid that a very great and a very good cause should
be cramped by the subtleties of casuists, or defeated by the pre-
judices, the resentments, and the ill-timed, though perhaps well-
meant zeal of a few individuals.

+ Dr. Nathaniel Alexander, Bishop of Downe.

THE REIGN OF JAMES II. 455

rington as a faithful narrator and a judicious reasoner, I ought
to state that the part which he took in the controversy was de~
fensive, that he meant to reply to a book, the contents of which
must at this season have been most inflammatory to the minds
of Catholic zealots in Ireland, and that by replying to it with
so much ability and so much discretion he has discharged an
important duty to that establishment in which he is a most me-
ritorious teacher.

Having pursued a train of reflections which one part of Mr.
Fox's History suggested to me, I shall now return to the British
Critic.

Among the aphorisms selected by the Reviewer from Mr.
Fox’s History this is the third: “The Lawfulness of the As-
sassination of Tyrants, meant to be honoured by the Greeks
with the name of Tyrannicide, rests partly on the fact that cases
may exist in which the office of the sword of justice may be
undertaken by another.” “If they have existed,” Mr. Fox, says,
«< they have been in instances where trial has been wholly out of
the question, as in that of Cesar and other tyrants.” ‘In page
10 he half meets,” says the Reviewer, ‘ the point of assassina-
tions of this description being justifiable, but with an evident
bias to the affirmative. An opinion of his probably formed, or
at Jeast first avowed, after his visit at Paris, in the last peace, and
his very honourable and distinguished reception at the ‘Thuil-
leries.”

As the Reviewer has described that “ combination of circum-
stances which called upon him for particular care in the account
he was to give of Mr. Fox's History :” as he has farther professed
to ““ feel that it was no common cause or person to which his literary
duty at that instant called him to sit in judgment :” as he has
farther still declared that, ““ in his strictures on Mr. Fox as a
writer, the character of Mr. Fox the statesman had not been men-
tally adverted to;” I must ascribe the passage just now quoted
to that ‘ flutter and hurry of spirits, which,” as Mr. Hume says,
in his essay on the Standard of Taste, ““ attend the first perusal
of a piece, and which confound not only the genuine sentiment
of beauty,” but, as I would add, the import of propositions, and
the principles of opinion. The Reviewer certainly meant to im-
press on the minds of his readers that Mr. Fox was generally an

456 “NOTE UPON FOX’S HISTORY OF

advocate for regicide, ‘ honoured * by the Greeks with the
name of Tyrannicide’—that he transferred to modern times his
approbation of what happened to ‘‘ Cesar and other tyrants” real
or supposed in times of antiquity—that he insinuated, by his bias
to the affirmative, something more and something worse than he.
dared to affirm—that he might possibly have formed, though he
did not avow his opinion before his late visit to Paris—that, by
the contagion of French example, and the blandishments of
French adulation, he had been induced to avow it, on his return
from the French capital—and that, in opposition to his own re-
peated declarations in Parliament, he probably was not displeased
with the destruction of Louis XVI. under the gullotine. Less
than this scareely any reader can understand from the words of
the Reviewer, and more than this is not necessary to bring down
upon Mr. Fox the detestation of every enlightened statesman,
every honest man, and every civilized people in Europe.

Instead of compressing Mr. Fox’s opinion into the form of an
aphorism, I shall endeavour to collect what it really was from the
whole of the passage to which the Reviewer has adverted.
‘* Strafford,” says he, ‘‘ was a great delinquent, and well deserved
the severest punishment. But nothing short of a clearly proved
case can justify or even excuse a departure from the sacred rules
of criminal justice ; for indeed it can rarely happen that the mis-
chief to be expected from suffering any criminal, however guilty,
to escape, can be equal to that resulting from the violation of the
substantial rules of criminal proceedings; to which the innocent
owe the security of all that is dear to them.” Thus far Mr. Fox
seems to me to have said nothing to which any zealous loyalist,
or any virtuous man can object. Whether the criminal be a sub-
ject ora king; whether he be more or less guilty; Mr. Fox's

* The irony of the Reviewer, however amusing to Partizans,
will not be quite satisfactory to scholars. They who understand
the manners, or the governments, or the language of Greece,
must be aware that for Regicide, as distinguished from Tyranni-
cide, there is no Greek word to be found or even expected. The
distinction is entirely modern, and every modern Regicide,
whether justly or unjustly, considers, or at least professes him-
self a Tyrannicide, I know not that any modern language has
definitely assigned an honourable sense to the word.

THE REIGN OF JAMES II. 457

proposition is so large as to show that the mischief to be expected
from his escape is less than the mischief of punishing him by “a
departure from the sacred rules of criminal justice,” when re-
course can be had to those rules. Now, for the conviction of
subjects, laws are generally provided ; though in some cases, as
where bills of attainder have been passed in England, the of-
fenders have been punished by an ex post facto law; and in
Rome the associates of Cataline were put to death without the
authority of an express law; and the necessity of the measure
was the only plea that could be urged to justify or even excuse
the severity of it. Inregard to sovereigns, no state, in point of
fact, has ever consigned, or, I hope, ever will consign, supreme
power to any person upon conditions to the violation of which
is explicitly affixed any penalty of exile* or death. Hence, in
bringing a sovereign to trial, the most formidable difficulties
arise. The proof of his guilt must be established by the letter of

* I should have added dethronement, if the privilege of union
among the Arragonese had not entitled them, under certain cir-
cumstances, to withdraw their allegiance from the reigning So-
vereign, and to elect a successor. Dr. Robertson, who says that
he had not found, in any author whom he had an opportunity
of consulting, the constitutional form of the oath of allegiance,”
yet acknowledges ‘the spirit of it to have been agreeable to the
spirit of the Arragonese constitution ;” and thinks it “ probable
that the many authors who had produced the ancient Spanish
words in which it was expressed, had taken it from some writer
of credit, whose work had not fallen into his (i. 6. Robertson's)
hands.”’

“Τὴ the ninth century, when the provinces of Navarre and
Arragon, which Charlemagne had conquered, had formed them-
selves into the kingdom of Navarre, and chosen for their king
Inigo, Count of Bigorre, “ἃ sort of Magna Charta was, at his
election, drawn up for securing the liberty of the people from all
tyrannical extensions of the King’s prerogative. The people
of Navarre afterwards negligently lost the benefit of this, but the
Arragonese being wiser, would never give it up, and to this day
enjoy many privileges founded on that original compact, which
was called from the place where it was agreed upon, the Fore of
Sobrabe.”’—~See vol. i. of Puffendorf's introduction to the History
of the principal States of Europe; page 39 of Sayer's translation,

If we descend to later times we shall find the language of
Moreton, in his embassy to Queen Elizabeth, yet more emphati-
cal: ‘* Gens Scotorum, cum ab initio libera esset, reges se jure

458 NOTE UPON FOX’S HISTORY OF

regulations, angrily and recently introduced in consequence of
crimes that were previous to them ; or by circuitous and preca-
rious deductions from the general laws of self-preservation, or the
general principles of government as instituted for the protection
of subjects. ‘The mind, upon such occasions, is left without any
guidance from written and definite rules. It finds only
doubtful and imperfect analogies in precedent, and if the
passions of resentment or fear did not impel men to decision,
their reason would seldom permit them to decide rigorously
against an accused and captive king.* All this Mr. Fox un-

sibi creavit, ut imperium populi suffragiis mandatum, si res pos-
ceret, eisdem suffragiis adimere posset. Hujus quoque juris ex-
pressam habent imaginem, que, in regno ineundo usurpantur
cerernonie * * * * * idem vero apertissime potest intelligi, ex
inoffenso veteris Juris tenore, ex quo apud Scotos regnari coeptum
est, ad nostram usque memoriam servato, cum nemo, interea,
hoc jus non modo abrogare, sed nec convellere, aut ulla in parte
imminere tentarit : cum tot reges, quos enumerare longum esset,
majores nostri regno exuerint, exilio damnarint, carceribus
coercuerint, supplicio denique affecerint : nec unquam tamen de
legis ascerbitate minuenda mentio facta est.” (Buchanan. Rev.
Scotic. lib. xx. p. 398.) We read the foregoing words in the
twentieth book of a History written by Buchanan, whom Selden
calls “‘ that hater of monarchs who hada malicious dislike of
giving titles and attributes of great honour to Princes.”—See
Selden upon Titles of Honour, chap. vi. p. 1.

We must observe that, according to Moreton’s own account,
the conditions imposed, even in barbarous ages, on the Scottish
kings, do not appear to have been expressed in any regular for-
mulary ; and as to the symbolical import of ceremonies which
Moreton has not explained, I can form no opinion upon it.

* In endeavouring to show that “kings are under the laws,
as well as their subjects, and that regal guilt from its greater
consequences ought to be corrected with severer infliction,” Mil-
ton quotes the opinions of Luther, Zuinglius, Calvin, Bucer, Pe-
ter Martyr, Parzus, Gilby, and Christopher Goodman: see Mil-
ton's ‘‘ Tenure of Kings and Magistrates.” ‘‘ Those authorities,”
says Milton’s biographer, “‘ unquestionably demonstrate that the
responsibility of kings to a human tribunal is a doctrine which
has not been uniformly considered as incompatible with Christian
theology: but their support cannot be extended to the full as-
sertion in the title of this piece, ‘ that it is lawful for any who

THE REIGN OF JAMES II. 459

derstood quite as well as the Reviewer or myself, before he
met with what is called ‘‘ an honourable and distinguished

have the power to call to account a tyrant ;” &c. though this as-
sertion be a little qualified by the subsequent words, ‘ and after
due conviction to depose and put him to death.” (Symmons’s
Life of Milton, p. 252,3.) In order to establish the lawfulness
of putting a wicked king to death, Milton requires not only due
conviction, but “ that the ordinary magistrate should have neg-
lected or denied to do it.” Many enlightened patriots would
disagree with Milton upon the circumstances which would have
led him to call the conviction of a tyrant due, But it is proper
for us to remember that Milton’s opinions ypon the lawfulness
of trying a wicked king are very distinct frorn the tenets of those
persons, if such there be, who would maintain the right of de-
stroying him by assassination. ‘The above-mentioned work of
Milton was intended for an answer to the objections of the Pres-
byterians—the very men, who, in common with the Royalists,
coudemned the execution of Charles, and the progenitors of the
very men, who in our own days have been reproached for a crime
which those progenitors did not commit, and accused of retain-
ing that principle of tyrannicide which they neither have inhe-
rited, nor, so far as my observation extends, are disposed to
adopt.

In the reigns of George the First and Second, some orthodox
tories wished those monarchs whom they considered as usurpers,
to be dethroned, even at the hazard of seeing their dethronement
followed by their death. The presbyterian whigs showed them-
selves loyal subjects through the course of two rebellions which
broke out in those reigns, and they seemed to be satisfied with
that form of monarchical government, which was settled at the
revolution. Upon the general doctrine of passive obedience
they never appeared to differ materially from Mr. Hume, who, in
his remarks on the debates of Parliament in 1675, has discussed
the question in terms so precise, and upon grounds so equitable,
that no sophistry can deface his statement—no legal, or theologi-
cal, or metaphysical distinctions can impair it—no legitimate rea-
soning can overthrow it—no ingenuity can improve it by addi-
tion or correction. From ἃ change, not perhaps for the better,
in their peculiar situation as sectaries—from the novel and im-
portant discussions to which our disputes with America gave rise,
and from a favourite and fashionable custom of viewing political
subjects through the medium of metaphysical abstraction, some
of them may, at a later period, have been inclined towards spe-
culative republicanism, Butin no book I ever read, and in no

460 - NOTE UPON FOX’S HISTORY OF

reception at the Thuilleries : and though to the popular and
even Parliamentary statements of some conversations which were

conversation I ever heard, have they attempted to lay down rules
for the deposition or personal destruction of wicked kings. Prac-
tically they have not been proved to be guilty of treason, and
even of sedition they have not been convicted, except in two
or three instances, where writings were interpreted without
any striking marks of candour, and sentences pronounced without
any unusual relaxation of severity. If their general opinions,
then, be not in their direct and obvious tendency, dangerous toa
free and mixed government, why are they to be treated with far
less kindness than they formerly experienced from a dynasty,
which their forefathers assisted in raising to the English
throne, and supported against the armed and unarmed par-
tisans of the Stuart line? If they be dangerous to such a
government, but in their remoter and more doubtful tenden-
cies only, does the history of mankind give us reason to believe that
they will be weaned from their errors by the frowns of titled and
pensioned courtiers, the taunts of mercenary witlings, the
anathemas of frantic mystics, or the vulgar and venomous
execrations of a deluded and inflamed rabble? Men, however,
there are, to whom it does not seem incompatible with prudence
or equity, to hunt down a body of their fellow.subjects, who are
making no inconsiderable progress in general knowledge, who
have begun to share with their countrymen in the praise, not
only of scientific research, but of polite literature, and who,
from their extensive dealings in commerce, must be useful mem-
bers of a community the political interests of which are now
interwoven Closely with the causes of its commercial prosperity.

If for sentiments so unfashionable and so unpopular, a mode-
rate churchman were compelled to look for shelter in the autho-
rity of high example, he might find it surely in the good humour,
good sense, and good spirit of Bishop Morley. ‘ When that
prelate was consulted by the mayor of a country corporation
what method he should take to root out the fanatics in the year
of his mayoralty, the Bishop, now grown old, first preached
friendliness to him by ordering him a glass of Canary as oft as
he started the question in company: and next admonished him,
when alone, to let those people Jive quietly, in many of whom
he was satified there was the true fear of God, and who were not
likely to be gained by rigour and severity.”—Kennet’s Register,
p- 816, quoted by the learned Mr. Zouch in the life of Isaac
Walton, p. 43.

Thus did an ecclesiastic, venerable from station, and wise from
experience, repress the insolence of office and the harshness of

THE REIGN OF JAMES II. 461

said to have passed there, it is in my power to give the most
direct contradiction, I must own that, not having heard of any

intolerance; and let us not forget, that Bishop Morley spoke of
Dissenters, who in their love of literary attainments and their
discharge of social duties, were far inferior to the sectaries to
whom | advert.

Among the advantages of a steady, but mild and upright go-
vernment, it is always intelligible, as well as acceptable, to a ge-
nerous and reflecting people. It conquers misrepresentation by
the testimony of facts. It drives away the unsubstantial visions
of theory by the broad daylight of experience. It satisfies, when
contemplated in its principles, and captivates when felt in its ad-
ministration. Little does it leave us to fear from studied and
plausible refinements, the fallacy of which has been detected in
a country where they had been decorated by eloquence, fortified
by philosophy, and addressed to the judgment and passions of the
multitude with violent, but temporary and baleful effect. Under
such a weight of evidence the stubbornness of party zeal sinks
down, subdued and exhausted ; and the intellectual pride of man,
instead of roving after discoveries, or panting for changes, is
abashed at the recollection of the past, and dismayed at the pros-
pect of the future.

This is not a season for partial retrospects, or declamatory ex-
aggerations. For, terrible as they are, the outrages which we have
to deplore, the blame is to be laid, largely indeed, but not exclu-
sively, upon that which is called French philosophy. If there
had been no previous and just grounds of complaint from the
want of sympathy and mutual dependencies between the different
orders of the state—none, from artificial obstructions to the ac-
quisition of private property—none, from the profuse expendi-
ture of the public revenue—none, from burthensome taxes—
none, from unnecessary wars—none, from the injudicious, or the
corrupt, or the oppressive administration of government, meta-
physicians might have invented their systems, experimentalists
might have boasted of their projects, and demagogues might
have poured forth their invectives, without any signal or lasting
mischiefs to the monarchy, or to the nation, Enough then has
happened to supply men of all parties and of all classes with va-
luable instruction, if they really wished to be instructed. Enough
has happened to put governors and the governed on their guard,
against the extremes of that stiffness which bends not to unwel-
come realties, and that precipitation which catches at fair ap-
pearances. Enough has happened to convince me that the pre-
servation of the public peace among ourselves is peculiarly
dependent upon the encouragement of public union and concord,

462 NOTE UPON FOX’S HISTORY OF

discussion between Mr. Fox and Napoleon upon the subject of
assassination, I am quite unable to show how far Mr. Fox was

If, therefore, churchmen could be brought to believe that the more
enlightened part of the sectaries retain the use of common sense
upon political topics, it would hardly be denied that the recent
and melancholy experience of a neighbouring state must have
disciplined their minds into some degree of sober and serious re-
flection. It is my wish to conciliate rather than to provoke them.
It is my opinion that no harm would be done if churchmen,
acting towards them in the true spirit of Protestanism, would
endeavour to convince them that in the safety and prosperity of
the Established Church sectaries would find the most effectual
barrier against the jealousies and prejudices which they entertain
against each other.

Base it were at such ajuncture, if I should permit any per-
sonai considerations to restrain me from communicating to you,
dear Sir, or to the public the result of my own long-continued,
various, and intense observation upon the sentiments of indivi-
duals, and the characters of classes. Let me then confess, even
at the hazard of giving offence in some quarters by the confes-
sion, that English Presbyterians and English Catholics do not
appear to me the most numerous, or the most formidable ene-
mies now to be found among us, to the church, or to the state.
In all probability other persons to whom I advert, have, for the
present, very imperfect and confused views of the extravagancies
into which themselves, or their successors, may hereafter be pre-
cipitated by what they might think favourable opportunities for
seizing that ascendancy to which they are supposed by many vigi-
gilant and dispassionate observers to aspire. Heaven forbid that
the arm of the secular power should be raised against them, or
the sacred rules of toleration violated, while they are content to
multiply converts, without transgressing the laws. Yet, as
slaves to their own prepossessions and passions, or dupes to the
wiliness of other men, they may become dangerous instruments
in disturbing those ecclesiastical and political systems which have
been long, and I add with equal sincerity and confidence, most
happily established in this kingdom.

“ The worst of madmen,” says a poet of our own country, “ is
a saint turned mad ;” and, if I were asked from what quarter the
greatest havoc to human virtue and human happiness was to be
apprehended, I should say from a host of armed fanatics, cajoled
and instigated by leaders, who take King Jesus for their watch-
word, while they “‘ say in their hearts there is no God.”

Much as I condemn the levity and profaneness of Voltaire, I
am sometimes pleased with the shrewdness of his observations

THE REIGN OF JAMES II. 463

confirmed in his former notions, or beguiled into new ones, by
the arguments or the courtesies of the French Emperor. I must,
however, be permitted to add, that unless the Reviewer has re-
ceived some particular information which has not reached the
generality of his readers or myself, he should have been content
with opposing Mr. Fox’s aphorisms, as expressed in Mr. Fox's
History, without communicating to the public a vague suspicion
that Mr. Fox had made Napoleon the keeper of his conscience,
and that the gratification of his vanity had overcome his scru-
ples, his discretion, his loyalty, and his humanity. If Mr. Fox,
during his stay at Paris, had taken up new and dangerous opi-
nions on the subject of Tyrannicide, did he, on his return, jtry
his skill in what to him was a new, and what in him and every
other minister would be the despicable trade of dissimula-
tion? Did he so far conceal his bias towards assassination, as to
elude the suspicions of a sagacious sovereign, by whom he was
called to a most honourable office, and of a Parliament, before
which he had occasion to speak upon the most important ques-
tions of foreign and domestic policy ?

Mr. Fox thus proceeds: ““ ifsuch cases ever existed, they must

upon political subjects, and I believe that the Sovereigns of Pro-
testant states have a real and great interest in attending to the
cautions which are suggested to them in the following passage :

« Arrétez-vous un moment pres du cadavre exhumé de ce
célébre Empereur Henri [Vme. plus malheureux que notre
Henri IVme, Roi de France. Cherchez d’ou viennent tant d’hu-
miliations et d’infortunes d’un cété, tant d’audace del’autre, tant
de Princes immolés a la religion : Vous en verrez l'unique origine
dans la populace ; c’est elle qui donne le mouvement ἃ la super-
stition. C’est pour la Forgerons, et les Bucherons de l’Alle-
magne, que l'/Empereur avoit paru pieds nus devant |l’Evéque
de Rome ; c’est le commun peuple, esclave de la superstition, qui
veut que ses maitres en soient l’esclaves, Des que vous avez
suffert que vos sujets soient aveuglés par la fanatisme, ils vous
feront & paraitre fanatique comme eux; et si vous secouez le
joug, qu’ils portent, et qu’ils aiment, ils se soulevent. Vous avez
cru que plus les chaines de la religion, qui doivent étre douces,
seraient pesantes et dures, plus vos peuples seraient soumis:
vous vous étes trompé: ils se servent de ces chaines pour vous
géner sur le trOne, ou pour vous en faire descendre,”—Essai sur
les Mceurs et l’Esprit de Nations, tom. ii. cap. 46.

4ρ4 ΠΝΟΤΕ UPON FOX’S HISTORY OF

have been in instances where trial was wholly out of the question,
as in that of Cesar and other tyrants. But when a man is once
in a situation to be tried, and when his person is in the power of
his accusers or judges, the danger to the community never can
be such as to justify the violation of the fundamental rules of
criminal proceedings.” Mr. Fox, also, expresses a very strong
doubt whether such violation can be justified by any other cir-
cumstance whatsoever. In the intermediate passage, where he
speaks of Cesar and other tyrants, I find the want of Mr. Fox's
usual perspicuity and precision. ‘The topic immediately before
him was, how far self-defence, or any other cause could warrant or
palliate the breach of judicial rules. But, “in the case of Cesar
and other tyrants,” trial, according to his own account, “ was
out of the question.” In such a case judicial rules could neither
be preserved nor violated ; and therefore the argument drawn
from cases in which there is a trial, is not directly applicable to
cases in which there is no trial. His mind had passed rapidly
from Strafford, who was a subject and a minister, to Cesar and
other potentates, whom he calls tyrants—from Strafford, who
had perished under an unjust sentence, to Cesar and other per-
sons who had perished without any sentence at all; and to whose
case, therefore, considerations founded upon ‘‘ the departure
from the sacred rules of criminal justice,” were, in the technical
language of lawyers, irrelevant. He has stated, but not with
sufficient perspicuity, a case distinct from the general rule. But
let this pass. What Mr. Fox’s opinion was upon the reasons
which might justify or excuse the destruction of Cesar and
other tyrants, who were not brought to trial, Mr. Fox has not
told us, nor perhaps thought himself required to tell us, with the
clearness and correctness which we are accustomed to find in
his reasoning. In truth, he glanced quickly and shortly upon
the case of tyrannicide, and eagerly returned to the subject from
which he set out, viz. ‘‘ Departure from the sacred rules of cri-
minal justice.” In regard to Charles, Mr. Fox* opposes, as un-
satisfactory, the best justification of his death, that, ‘* while he
lived, the republic would never have been secure.”’ He does not
consider even the danger of the republic as sufficient to warrant

* Page 13.

THE REIGN OF JAMES II. 465

more than the imprisonment or banishment of the King. He
shows the futility and inconsistency of every plea drawn from
the example afforded by his death; and, without justifying the
mode adopted by Cromwell and his adherents, in subjecting their
monarch to trial and to a public execution, he is content to call
it less dishonourable than the secret assassination of Edward 11.
‘Richard 11. Henry VI. and Edward V. His commendation, if
such it should be called, is bestowed, not upon the justice, but
the publicity of the act.

But while we reprobate the cruel persecutors of the cruel
Strafford, let us not forget that, in the reign of Charles IT. “ in-
timidation, corruption, and illegal evidence were employed to
obtain a verdict against Sydney; and that convictions against
evidence, sentences against law, enormous fines and cruel impri-
sonments, were the principal engines employed for breaking the
spirit of individuals, and fitting their necks for the yoke.’ *

I will not deny that the words ‘‘ justify or excuse,” may, with-
out any great violence of construction, be applied to Mr. Fox’s
sentence upon the fate of ‘* Cesar and other tyrants.” But shall
it be said that persons who approve of the manner in which
Cesar was put to death, are necessarily bad citizens or bad men ?
Was not the deed applauded in ancient times by the humane
Cicero,} the virtuous Marcus Brutus, and even the stern and ex-

* Mr. Fox's History, page 55.

The cruelty of this execrable tyrant in other respects ought
not to be forgotten. ‘ During the Usurpation men had been
convicted of high treason, but simple death was the utmost in-
fliction, and the axe or the halter put the speediest period to the
existence of the criminal. But on the restoration of the mo-
narchy, the old barbarity of the laws was admitted in its full
horror. The bowels were torn from the yet breathing sufferer,
and the public feeling was either disgusted or hardened by the
spectacle of torture, or the most ferocious punishment.”—Sym-
mons’s Life of Milton, p. 430.

+ ‘* Cesare interfecto, inquit Antonius, statim alte extollens
M. Brutus pugionem, Ciceronem nominavit, atque ei recupera-
tam libertatem est gratulatus.”’—Philippic 2nd.

Among other pleas Cicero afterwards says, “ quid interest, inter
suasorem ἴδοι! et probatorem, Omnes boni quantum in ipsis
fuit, Caesarem interfecerunt.”’—lIbid.

VOL, Iv. 2H

400 NOTE UPON FOX’S HISTORY OF

emplary Cato? Ifwe descend to the opinions of men in our
own country, and even in our own age, we shall find that an
emiently pious prelate, and another illustrious scholar, have ex-
pressed the same approbation of tyrannicide which Mr. Fox has
expressed, but in terms more energetic and more copious ; and
that Mr. Hume, the zealous advocate for kings, has assigned for
the practice the same reason, and, in substance, the same apo-
logy which Mr. Fox has assigned, in the want of trial for of-
fenders.

““ Gladium suum,” says Bishop Lowth, “ pariter et lyram pa-
tric et libertati Aleeeus consecraverat. Equidem tam vehemens
tamque animosum dicendi genus, a tali ingenio tractatum, per-
multum habuisse momenti necesse est in hominum meantibus,
cum ad omnem honestatem erigendis, tum a scelere absterren-
dis; maxime vero in favendo, et sustentando illo vigore animi
atque generosa ᾿Αξιώσει, que libertatis alumna eadem est et cus-
tos. Num verendum erat ne quis tyrannidem Pisistratidarum
Athenis instaurare auderet, ubi in omnibus conviviis, et aque ab
infirma plebe in compitis quotidie cantaretur Σκόλιον illud Cal-

Akenside alludes to the story in these animated lines:

““ Look then abroad through Nature, to the range

Of planets, suns, and adamantine spheres

Wheeling unshaken through the void immense ;

And speak, O Man! does this capacious scene

With half that kindling majesty dilate

Thy strong conception, as when Brutus rose

Refulgent from the stroke of Czsar’s fate,

Amid the crowd of patriots ; and his arm

Aloft extending, like eternal Jove,

When guilt brings down the thunder, call’d aloud

On Tully’s name, and shook his crimson steel,

And bade the father of his country hail !

For lo! the tyrant prostrate on the dust,

And Rome again is free.”

Pleasures of Imagination, book i.
Akenside has been suspected of a bias towards republicanism.

But is every republican an advocate for assassination ὃ Akenside
more than ‘ half meets the question” of Cesar’s death. But
does it follow, from his approbation of the Roman conspirators,
that he would have applauded the assassin of an English sove-
reign ?

THE REIGN OF JAMES ITI. 467

listrati nescio cujus, sed ingeniosi certe Poete et valde boni
Civis ?” Lowth then quotes the regicide Σκόλιον at full, and
thus proceeds: “‘ Quod si post Idus Martias e Tyrannoctonis
quispiam tale aliquod carmen plebi tradidisset, inque suburram,
et fori circulos, et in ora vulgi intulisset, actum profecto fuis-
set de partibus deque dominatione Cesarum. Plus mehercule
valuisset unum ‘Apyodiov Μέλος quam Ciceronis Philippice
omnes.’’*

This passage, without the aid of a comment, sufficiently shows
the judgment and the feelings of the learned writer upon the
tyrannicides of antiquity.

To exquisite taste, and learning quite unparalleled, Sir Wil-
liam Jones is known to have united the most benevolent temper
and the purest morals. But shall we accuse him of a bias to-
wards assassination because he translated the Scholion of Callis-
tratus, or because he has imitated a glowing and animated Frag-
ment of Alczus? I will quote, in part, the words of that most
amiable and most wonderful man.

«« Thus Harmodius shone thy blade,
Thus, Aristogiton! thine,
Whose, when Britain calls for aid,
Whose shall now delay to shine ?
Dearest youths in islands blest,+
Not like recreant idlers dead,
You with fleet Pelides rest,
And with godlike Diomede.”

* Prelect. I. de Sac. Poes. Heb.

+ In some Latin verses ad libertatem, Sir William Jones
writes in the same strain :

“* Quis myrtea ensem fronde reconditum
Cantabit ? Illum, civibus Harmodi
Dilecte servatis, tenebas :

Tuque fidelis Aristogiton.
* & %* 4% * *

* * %* * * *

O ter placentem Palladi victimam !
Nec tu minorem Roma dabas Jovi;

in ἢ

408 NOTE UPON FOX’S HISTORY OF

Here it must be fairly allowed that Sir William Jones, when
writing English poetry, and fired at the moment with the spirit
of an antient Greek poet, transferred tu Britain a precedent
from Athens. But if he had been writing prose, he was too
good an historian, too good a logician, and too good a citizen,
to have confounded the Athenian with the English government.
Speaking of his own contemporaries, he tells us that the deed of

Ex ore cum Bruti sonaret
Sanguine Cesareo rubentis
Vox grata Divis, grataque Tullio.”

If Mr. Fox had written the foregoing verses they would have
been urged as proofs of his guilt, and I should have said,

‘“multa in homine, Demea,
Signa insunt, ex quibus conjectura facile fit ;
Duo cum idem faciunt, spe, ut possis dicere,
Hoc licet impune facere huic, illi non licet :
Non quod dissimilis res sit, sed quod is qui facit.”
Terent. Adelph.

The general tenor of Jones’s political writings, and the con-
tents of a particular book which produced a well-known prose-
cution at Shrewsbury, would enable me to repel any comparisons
injurious to Mr. Fox. But I honour both these worthies, and
both do I acquit of any bias to the assassination of kings.

Cremutius was accused for having praised Brutus, and for
having called Cassius, Romanorum ultimum. In his defence he
says, ‘* Titus Livius eloquentiz ac fidei preclarus in primis, Cn.
Pompeium tantis Jaudibus tulit, ut Pompeianum eum Augustus
appellaret. Neque id amicitiz eorum offecit. Scipionem, Af-
ranium, hune ipsum Cassium, hune Brutum, nusquam latrones,
et parricidas, que nunc vocabula imponuntur, seepe ut insignes
viros nominat. Asinii Pollionis scripta egregiam eorundem me-
moriam tradunt.”—Taciti Annal. lib. iv. par. 8.

If any prosecution had been commenced against Lowth, or
Jones, or Akenside, for supposed inuendos in their commenda-
tion of the Roman Tyrannicides, each of them might have said
with Cremutius: ‘‘ Suum cuique decus posteritas rependit. Nec
deerunt, si damnatio ingruit, qui non modo Cassii et Bruti, sed
etiam mei meminerint.” Let the accusers of such writers re-
member the remark of Tacitus upon the ultimate effects of such
accusations, “ Punitis ingeniis gliscit auctoritas. Neque aliud
externi reges, aut qui eadem sevitia usi sunt, nisi dedecus sibi,
atque illis gloriam peperere,”

THE REIGN OF JAMES II. 469

Wentworth was not less glorious, nor the meed of Lenox less
brilliant.
‘* Noblest chiefs! a hero’s crown
Let th’ Athenian patriots claim,
You less fiercely won renown,
You assum’d a milder name.
They through blood for glory strove,
You more blissful tidings bring,
They to death a tyrant drove,
You to fame restor'd a king.”

I should hope that a friendship begun in childhood, and con-
tinued, without interruption, through boyhood, youth, and man-
hood, enables me to understand the character of Sir William
Jones ; and, believing myself to understand it, I have no hesita-
tion in asserting that, with all his fondness for the tyrannicides
of antiquity, he would have Jooked with horror upon the assassin
of an English king. Catching, indeed, the spirit of antiquity,
when he was imitating antient poets, Sir William thus writes in
his translation and expansion of the Fragment from Alczus :

«* Men who their duties know,
But know their rights and knowing dare maintain,
Prevent the long-aim'd blow,
And crush the tyrant while they rend the chain.
These constitute a state.”

Such was the language of an English subject, and an English
Judge. But I disdain to vindicate him, as he would have dis-
dained to vindicate himself, from the charge of being an advo-
cate for the assassination of Christian kings.

Let us now turn to Mr, Hume: ‘‘'I'he maxims of antient po-
litics contain, in general, so little humanity and moderation,
that it seems superfluous to give any particular reason for the
violences committed at any particular period: yet I cannot for-
bear observing that the laws, in the latter ages of the Roman
Commonwealth, were so absurdly contrived, that they obliged
the heads of parties to have recourse to these extremities. All
capital punishments were abolished. However criminal, or,
what is more, however dangerous any citizen might be, he could

470 NOTE UPON FOX’S HISTORY OF

not regularly be punished otherwise than by banishment; and it |
became necessary, in the revolution of party, to draw the sword
of private vengeance; nor was it easy, when laws were once
violated, to set bounds to these sanguinary proceedings. Had
Brutus himself prevailed over the Triumvirate, could he, in
common prudence, have allowed Octavius and Anthony to live,
and have contented himself with banishing them to Rhodes or
Marseilles, where they might have plotted new commotions and
rebellions? His executing C. Antonius, brother to the Triumvir,
shews evidently his sense of the matter. Did not Cicero, with
the approbation of the wise and virtuous of Rome, arbitrarily
put to death Cataline’s associates, contrary to law, and without
any trial or form of process? And if he moderated his execu-
tions, did it not proceed, either from the clemency of his tem-
per, or the conjuncture of the times? A wretched security in a
government which pretends to laws and liberty.”*

If any man will calmly compare the foregoing passages, which
I have quoted fully and fairly, with the words of Mr. Fox, he
will find me justified in maintaining that Mr. Fox held no other
opinion than Bishop Lowth and Sir William Jones did upon the
tyrannicides of antiquity, and that he has assigned no other rea-
son than Mr. Hume did for the practice.

But would it be consistent with common candour, or even
common sense, to infer from these opinions that Bishop Lowth,
or Sir William Jones, or Mr. Hume, or Mr. Fox, would have
stood forth as the advocate of a Jaques Clement, a Ravaillac, a
Gourney, or a Montravers, or a Tyrrel, and his three bloody
associates, Slater, Dighton, and Forest ?

In looking back to these odious offenders, we can hardly fail
to observe, that religious zeal is not less treacherous, and per-
haps more sanguinary, than political The English assassins
just now mentioned were profligate hirelings. But the French
regicides dispatched their victims voluntarily, cordially, gra-
tuitously, and with a latent feeling, common to the Pharisees of
old, and their Christian successors in bigotry, that they were
““ doing God service.” Fanaticism, under all disguises,f and at

* Essay on the Populousness of Antient Nations.
+ See Aprennix, No. Il. p. 543.

THE REIGN OF JAMES II. 47}

all times, is pregnant with danger to all the members of society,
from the highest to the lowest. But if I were asked where a
monarch who governs well, or a monarch who governs ill, is
personally most safe, I should have the testimony both of history
and philosophy in my favour, when I said—in a land of civil and
religious freedom. There, and there only, the moderation and
the magnanimity inspired by freedom throw a curb upon popu-
lar fury, and there tyranny itself is more deeply dreaded and
more keenly hated than the tyrant.

Who shall answer for the general opinion which he might
himself have adopted, if he had been a native of Greece or
Rome? For my part, I approve not the encroachments of
Julius Cesar. But if, with my present feelings, I had been in
the Senate House, I should have arrested the arm of the conspi-
rators, and though told even by Brutus, that “the great Julius
had bled for Justice’ sake,’’ I should not have waited for the
speech of Antony before I had said, with the indignant plebeian,

«¢ We'll burn his body in the holy place,
And with the brands fire all the traitors’ houses.” *

I detest the cruelties of Domitian, and yet I am overpowered
with an involuntary and irresistible emotion of pity, when I read
“illum correpto deductoque ad terram Stephano colluctatum

* Shakspeare.

+ If the account which I have heard of some circumstances in
the late assassination of the unfortunate Emperor Paul be accu-
rate, there is a strong resemblance in the resistance made by
him and by Domitian to their respective murderers. The perfi-
dious and sanguinary Chancellor of Paul might, in some respects,
have found his own prototype in Stephanus, “qui Domitille
Procurator, et tune interceptarum pecuniarum reus consilium
obtulit * * * * professusque conspirationis indicium, et
ob hoc admissus, legenti traditum a se libellum, et attonito suf-
fodit inguina.’”’-—Suetonius, ibidem, Stephanus, no doubt, exe-
cuted the deed which the Russian Chancellor was content only
to encourage and to facilitate. But each betrayed his royal
master, under pretence of revealing a crime, to which the one
was an accessory, and in which the other was a principal. The
guilt of the Chancellor, from his high and confidential situation;
was greater than the guilt of Stephanus, who held only a subor-
dinate employment, and was under some fear for his own per-
sonal safety.

472 NOTE UPON FOX’S HISTORY OF

diu, modo ferrum extorquere, modo, quanquam laniatis digitis,
oculos effodere conatum.” *

I honour the Roman Senate when, instead of leaving Nero
to violence from the dagger, or perfidy from the poisoned bowl,
they passed a decree ‘‘ut puniretur more majorum.” My ab-
horrence of the enormities perpetrated by that tyrant is vivid
and inextinguishable; and yet my heart shrinks within me,
when, upon the approach of the Equites who had been sent to
drag him alive from his palace, I read “ trepidanter effatus

“Ἵππων μ᾽ ὠκυπόδων ἀμφὶ κτύπος οὔατα βάλλει,
‘Ferrum jugulo adegit, juvante Epaphrodito a }1061115.᾿ 1

I know the arguments which antient writers have used in de-
fence ᾧ of tyrannicide, and against it. I know the impressions
which are made upon the minds of scholars when they read

«The songs
Of Grecian Bards, and records writ by Fame
For Grecian Heroes.” §

But let us not go back to Cesar, or Jason of Phere, or the Siculi
Tyranni,|| if we are anxious to learn how we should ourselves
judge, or feel, or act, in the relations in which we stand to our
own governors, in our own times. We live in a more civilized
age. Weare protected by milder governments. We are guided
by the light of a more pure and holy religion. “All kinds of
government,” says Mr. Hume, “ free and absolute, seem to have
undergone, in modern times, a great change for the better, with
regard both to foreign and domestic management.’4[ We can-
not reflect upon antiquity, nor indeed upon later times, without
perceiving that ‘the Tyrannicide or assassination approved by
ancient maxims, instead of keeping tyrants and usurpers in awe,
made them ten times more fierce and unrelenting. We cannot

* Suetonius, in Vita Domitiani, par. 17.

+ Suetonius, in Vita Neron., par. 49.

t Some of those arguments may be found in the Tyrannicida
of Lucian, see vol. ii. ed. Reitz.

§ Pleasures of Imagination, book ii.

|| Vid. Hor. Epist. ii. lib. i.

4] Hume’s Essay on Civil Liberty.

THE REIGN OF JAMES II. 473

converse with men of ordinary or extraordinary sense and virtue
among our contemporaries, without observing that “‘ Tyrannicide
is upon that account,” (and, let me add, upon many more ac-
count sdeeply interesting to the cause of morality,) ‘‘ abolished by
the law of nations, and universally condemned as a base and
treacherous method of bringing to justice those disturbers of so-
ciety.”’*

I should look with an eye of suspicion and disdain upon any
moral philosopher, or any political writer, or any religious
teacher, who would make the smallest compromise upon this im-
portant subject. Tyrannicide, I know, was practised by the an-
cients in the hour of rage, and approved in calmer seasons. From
the frailty and wickedness of man there is danger, lest that which
has often happened in remote periods should sometimes happen
again. I am no stranger to the blindness or the fury of fanati-
cism, whether political or religious. My reason tells me that
they are able to burst the strongest barriers of justice and hu-
manity. My imagination can set no bounds to their ravages,
when opportunities and incitements to their action unhappily
occur, I have been an immediate observer of the effects which
the temporary situations of public affairs, or the momentary pas-
sions of private men can even now produce. I have been present
when my fellow-christians and my fellow-subjects have attempted
at least to excuse what they were not hardy enough to justify, or
depraved enough to commit. I have heard some expressions of
satisfaction, when the plot for the assassination of Paul suc-
ceeded. I have witnessed some involuntary signs of regret, when
another plot, aimed against the life of another Emperor, was un-
successful.t I have resisted, and I always shall resist, the prin-
ciple of assassination, unequivocally and universally in Christian
countries. I will not, in any case, hold parley with distinctions
and exceptions. I feelingly remember that ‘‘ there is no virtue
or moral duty but what may, with facility, be refined away, if we

* Hume’s Essay on Passive Obedience.

+ Of the detestation in which Mr. Fox held assassination, we
have a decisive proof in his behaviour to the miscreant who
offered his services in the murder of Napoleon. This weli-au-
thenticated fact may be opposed to the surmise and insinuations
of the Reviewer upon Mr, Fox's theoretical opinions.

474 NOTE UPON FOX’S HISTORY OF

indulge a false philosophy, in sifting and scrutinizing it, by every
captious rule of logic, in every light and position in which it may
be placed.” *

I should turn away with disgust and with horror, from the
most ingenious reasoning, and the most eloquent remonstrances
upon extreme cases, real or hypothetical. In regard to cases
which fall short of extremes, I have often reflected upon the dif-
ficulty which we find in fixing upon adequate and appropriate
terms to describe them—upon the unsteadiness of our judg-
ments, as different parts of a complicated subject present them-
selves to our mind in rapid and disorderly succession—upon the
impossibility of anticipating all the circumstances which consti-
tute the merits or demerits of a particular question when it oc-
curs—and above all upon the danger of familiarising our
thoughts to any strong determination upon our own manner of
acting at a season which has not yet arrived, and in which men
are usually impelled to act by the hopes they feel at the moment,
or by their fears, or by their sympathy with a whole people exas-
perated by long oppression, and resolved to obtain redress by vio-
lence against the oppressor. In the fearful contemplation, there-
fore, even of such cases as, in appearance, are not the worst, I
should oppose the warnings of experience, the authority of laws,
the sanctions of religion, and the voice of unperverted nature it-
self, to the cold abstractions of theory, the obliquities of casuistry,
and the extravagancies of fanaticism.

““Α speculation,” says Taylor, ‘‘ considers the nature of things,
abstractedly from circumstances physically or metaphysically, and
yet, when it comes to be reduced to practice, what in the head
was innocent, will, upon the hand, become troublesome and cri-
minal.”

In the whole circle of politics there is, indeed, no question
upon which we can say more justly, than in the spirit of Taylor
every good man will be disposed to say, upon the most plausible
apologies for assassination: ‘‘ They ought not easily to be drawn
into rules, lest” factious and vindictive men “‘turn them into a
pretence.’’t

* Hume's Essay on the Original Contract.
+ Ductor Dub. book i, cap. 4. { Ibid. chap. 2,

THE REIGN OF JAMES II. 475

There is no question upon which my head or my heart re-
quires any shorter or surer direction than upon this topic, I find
in this aphorism: by the secret poinard, or the treacherous cup,
Thou shalt do no Murder.

But hateful and pernicious as I know the crime of assassination
to be, from circumstances innumerable and quite inexcusable,
there is another species of homicide still more hateful and more
pernicious. I mean that which is effected by a perverse interpre-
tation of laws—that by which our best security is abused to our
destruction—that from which the meanest and the greatest sub-
ject can rarely escape, when the conspiracy against life is con-
ducted by a crew of perjured witnesses, and deluded or corrupted
jurymen : by the cavils, sophistries, declamations, and invectives
of venal crown-lawyers ; by the acquiescence or the aid of tem-
porizing judges; and at the mighty nod, or with the approving
smile, or with the anticipated connivance of sceptered oppressors.
Under the Tudors and the succeeding dynasty, such murders
were not unfrequent, and to this hour the havoc made by them
among the innocent and the guilty chills my soul with horror,
Since the expulsion of the Stuarts one attempt only of this kind
has, I believe, been made among us. But it was marked, as I
have heard from an eminent lawyer, with the peculiar demerit
of combining accumulative with constructive treason. It was
foiled, as I have read in the chronicles of the day, by the good
sense and firmness of an English jury ; and it gave occasion for
a keen-eyed observer to say of the prime mover in this medi-
tated deed of blood, ““ Jamdiu sullaturit animus ejus et pro-
scripturit.” *

It is difficult to frame clear and definite laws, and it might
be yet more difficult te execute them against offenders who,
like the persons of whom I am speaking, skulk behind prece-
dents and analogies ; and in the quiet course of earthly affairs,
there is nearly sufficient protection for us in the integrity, or at
least the discretion, of individuals, and in the authority of public
opinion, But the assassin, unless he be employed by wicked
politicians for a wicked end, is always exposed to detection ;
and upon detection punishment follows closely and surely ; and

* Οἷς, ad Attic, lib. iii, Ep. xii.

470 NOTE UPON FOX’S HISTORY OF

along with punishment go the loud and just execrations of his
indignant fellow-creatures. :

Who among us has not shed a tear of pity, when he read the
tragical end of the infatuated Edward, of the headstrong
Richard, of the meek and pious Henry, and of that guileless
youth, who, though his brother was perhaps immolated by a
later and yet more fiinty-hearted usurper,* seems to have
perished, somewhere or cther, by the dark contrivances of an
ambitious and inhuman uncle? But let it not be forgotten
that, even at a later period, the cause of assassination has in this
country met with a royal patron,+ who, like her progenitors,
and some of her successors, was surrounded by a servile herd,
skilful enough and ready enough to

«Mark the keen glance, and watch the sign to hate ” t

Yes—Elizabeth ‘‘ had the person of Mary Queen of Scots within
her power.” Elizabeth had brought to trial, before an English
court of judicature, Mary, who was not a subject of the English

* Henry the Seventh.

+ At this distance of time, and with the imperfect materials
with which history has supplied us, we have no clue to the ex-
tent of the immediate and real guilt of Henry VII. or Richard
ILI. in the cruel murder of English princes. As to later times,
Burnett tells us, upon the authority of Tyrconnel’s papers, said
to be found at Dublin after the flight of James the Second, that,
in a letter from that nobleman to the Queen at St. Germain’s,
he professes to have ‘‘ no hope, except in Jones’s business’ —
that, from the information given to Burnett by Lord Caermar-
then, ‘‘ Jones had been commissioned to assassinate William the
Third ;” and that, according to another of Tyrconnel’s papers,
James, ‘* who did not like the thing, was satisfied in conscience
and honour by the advice of his counsellors.” I am disposed to
acquiesce in any objection which tends to rescue the memory
even of such a senseless bigot, and such a merciless tyrant as
James, from the infamy of giving encouragment to the assassi-
nation of a competitor for the throne of England. Has it been
explained to us, 1 would ask with Dr. Leland, ‘‘ how papers of
such importance were suffered to be left in the camp, when the
baggage of James had been previously sent to Dublin, in expec-
tation of a defeat ?’’—See Leland’s History of Ireland, vol. iii.
page 568.

t Johnson.

THE REIGN OF JAMES II. 477

laws. Elizabeth had employed her minions to condemn Mary,
by the grossest violation of all the rules under which the meanest
offender might have found protection from the criminal proceed-
ings of English justice. Elizabeth attempted to do more. Eli-
zabeth, as Robertson says, ‘‘ hinted to Paulet and Drury, as well
as to some other courtiers, that now was the sincerity of their
concern for her to be shewn; and that she expected their zeal
would extricate her out of her present perplexity.” When the
bloody warrant had been signed, Elizabeth commanded “ her
secretary Davison to write a letter to Paulet in less ambiguous
terms.” Elizabeth is represented, under the signatures of Da-
vison and Walsingham, as ‘taking it most unkindly that men
professing that love towards her that you do,” says the docu-
ment, ‘‘ should, in a kind of sort, for lack of the discharge of
your duties, cast the burden upon her, knowing, as you do, her
indisposition to shed blood, and especially of that sex and qua-
lity, and so near to her in blood,* as this said queen.” Eliza-

ea ee en Oe I τς

* Elizabeth, I must own, met with a rival, not only to her
power, but to her wickedness, in Philip the Second. By his com-
mand Antonio Perez had murdered an Escovedo, the favourite of
Don John of Austria. Afterwards his Catholic Majesty stirred
up a vigorous prosecution against the offender, partly in order
to conceal his own share of guilt with Perez the assassin, and
partly to avenge himself on Perez the pander, who had tricked
him in a contemptible amour. His Catholic Majesty also, in
1568, ordered the heir of his crown, Don Carlos, to be executed,
professedly, indeed, to punish an attempt which he accused his
son of having made against the life of his sovereign and his father,
but more probably, as historians say, to effect his purpose of mar-
rying Isabella, to whom Don Carlos had been betrothed.—Vid.
Puffendorf’s Introduction to the History of the Principal States
of Europe, vol. i. p. 79, in Sayer’s Translation. I should be
among the first to execrate and to punish such enormities, when
committed by miscreants who are subject to the laws. But I
scorn to extenuate or dissemble them, when they are perpetrated
by the orders, and for the ends of sceptered murderers, whom the
laws cannot reach. The Prince who employs an assassin, against
his subjects, or his enemies,

“Τὴ semet legem sancivit iniquam.”’—Hor.

There is little occasion to blacken the memory of that wicked
monarch, Charles II. by the aid of invidious conjectures. It is

478 NOTE UPON FOX’S HISTORY OF

beth hypocritically talks of the restraints which sex and quality,
and near relation, imposed upon her own conscience, in the
very moment when her ministers, in her name, by her command,
and for her ends, were encouraging Paulet to imbrue his hands
in blood, without any regard to sex, or quality, or relationship.
Elizabeth, when she heard of Pauiet’s refusal to commit the
deed of horror, called him “a dainty and precise fellow.” Eli-
zabeth, when she was disappointed in Paulet and Drury, as
Richard the Third had been in Sir Thomas Brackenbury, found,
or supposed herself to have found, another Sir James Tyrrell in
Wingfield ; and by name she pointed him out as a person “‘ who
had both courage and inclination to ‘‘strike the blow.” These
things were done by Elizabeth in the corner of a court—done by
a wretch, who, with mingled cunning and audacity, urged her
own unwillingness to shed blood, as the very reason which
should induce a fellow-creature and a subject to shed it without
reluctance and without remorse. When she could find no hand
to execute what her own depraved heart had conceived ; when,
by false alarms and by false accusations, she had inflamed a

very possible that he had not formed any design against the life
of Milton, who, as he says of himself, was ‘‘ in darkness, and
with danger compassed round,” and who, as Richardson informs
us, ““ apprehended himself to be in danger of his life ; first from
public vengeance (having been very deeply engaged against the
royal party), and, when safe by pardon, from private malice and
resentment. He was always in fear; much alone, and slept ill.”
—Richardson, page 291. I know the last biographer of Milton
to be largely gifted with learning, taste, acuteness, candour, be-
nevolence, and piety, and therefore I shall quote the words
which he uses after producing the testimony of Richardson:
‘«* Milton’s apprehensions were not those of a weak mind, or felt
without sufficient cause. The murder of Dorislaus and of As-
cham, at the Hague and at Madrid, had shown to the world that
royalist vengeance could assassinate; and the fate of Ludlow,
pursued with daggers into the heart of Switzerland, fully demon-
strated that at the time of which we are speaking, party rancour
had resigned no portion of its revengeful and sanguinary atro-
city.”—-Symmons’s Life of Milton, page 462. Iam much dis-
posed to acquit Charles himself of any murderous purpose against
Milton. But what apology has yet been framed for his partici-
pation in the death of Doryslaus and Ascham ?

THE REIGN OF JAMES II. 479

whole Parliament, and deluded a whole people, into compliance
with her infernal wishes; when she had employed every artifice
of female craft, and every engine of regal power, to “‘secure the
advantages that might arise from Mary’s death, without appear-
ing to have given her consent to a deed so infamous ;” Eliza-
beth, as was justly said by the unfortunate victim of her tyranny,
set the first example of violating the sacred person of a sovereign
prince. ‘She violated,” says a sagacious and indignant histo-
rian, ‘‘ the most established principles of law and justice, the
honour of hospitality, the reverence of her sex, the holiness of
religion, the security of engagement, the ties of relation, the
feelings of humanity, the sanctity of innocence, and the majesty
of kings,”
** Scelus hoc quo nomine dicent,
Qui Bruti dixere nefas.” *

Compared with the complicated and systematic wickedness of
Elizabeth—a sovereign, and the descendant of sovereigns—with
her envy, with her hypocrisy, with her wanton insolence, with
her savage cruelty, with her outrages against royalty, and with
her apostacy from nature, the guilt which an impartial man
would ascribe to the destroyers of Charles I. and the yet more
atrocious murderers of Louis XVI. must strike his mind with
diminished surprize, diminished terror, and diminished detes-
tation.

As to the Reviewer, I am persuaded that he holds the same
sentiments with my own, upon the odious and infamous practice
of assassination. But I shall not apologize for the freedom with
which I have examined, and endeavoured to refute, his insinua-
tions against Mr. Fox, as the advocate of modern assassins.

I read with equal surprize and concern the broad declaration
of the Reviewer in the British Critic, that “in terms proceeding
from a spirit of the most morose and illiberal bigotry, Mr. Fox
every where sedulously expresses himself against churchmen and
the church,” The levity with which Mr. Fox speaks of the Ad-
dress from Oxford is, I confess, offensive to me, for 1 hold with
Sir William Jones, that ‘ wit ought to be wholly banished from

a πα Ἕνα ee

* Lucan, lib. viii,

480 NOTE UPON FOX’S HISTORY OF

vi
historical composition.” * Indeed I have always felt the strongest
indignation at the sarcasms of Gibbon, and the raillery of Vol-
taire, when misplaced in history, and when misdirected against
religion. But if in the gravest and severest terms of reproba-
tion I should have expressed my own sentiments upon the lan-
guage of many prelates and many ecclesiastics in the reign of
James, I should not have been conscious of any “ illiberal bigotry
against churchmen and the church;” and perhaps I should
have been impelled to adopt such terms from my conviction that
the solid interests of the church are inseparably connected with
the constitutional liberties of the subject, and with such prero-
gatives in the crown as are not unconstitutional.”

No part of Mr. Fox’s History excited a more powerful interest
in my mind than that in which he describes the execution of the
Duke of Monmouth. I reverence the learning and disinterested-
ness of Bishop Hooper,t the piety of Bishop Ken,{ and the gene-
ral moderation of Archbishop Tenison. But I shuddered on
reading the behaviour of Bishop Ken and Bishop Turner § to the
unfortunate nobleman. Among the most rigid accusers of Mary
Queen of Scots, no one has stood forth as an apologist for the
brutal behaviour of Fletcher, the Dean of Peterborough. Yet a
better plea might be urged for his justification than can be δά-
duced in favour of our two English prelates. Mary died in the
belief and profession of a religion which the Dean considered as
unauthorised by the Scriptures, and as dangerous to her. salva-
tion. Monmouth lived and died a professed and sincere mem-
ber of the English church. The spirit of the times may form
some sort of excuse for the Bishops, in dwelling before the mo-

* Preface to Nadir Shah.

+ Without any application for preferment he was made Dean
of Canterbury by Queen Mary, while William was in Holland,
and afterwards in the reign of Anne, when her Majesty wished
to remove him from the see of St. Asaph to that of Bath and
Wells, he refused to be translated, till the importunity of his
friend Dr. Ken, the deprived Bishop, overcame his reluctance.

t The character of Bishop Ken has been drawn by the hand of
a skilful master, Mr. Thomas Zouch. See page 11 of his Life of
Isaac Walton, No. 5.

§ According to Rapin these were the two prelates who on the
scaffold disputed with Monmouth about non-resistance.

THE REIGN OF JAMES Il. ~ 48]

ment of execution upon those topics of non-resistance, &c. which,
as the Reviewer tells us, were then of great weight, but have
since fallen into less consideration. I hope, however, that such
topics will always be remembered by my countrymen, often be
considered by them, always stripped of theoretical disguises,
always watched in their practical tendency; and that the opi-
nions of Monmouth’s spiritual counsellors wpon those topics will
always be condemned by English subjects, and always disclaimed
sincerely and unequivocaliy by English ecclesiastics. My disap-
probation of the behaviour imputed to the Bishops is chiefiy
directed against the confession, which they endeavoured to extort
from a fellow-creature who had fallen from the height of pros-
perity, who saw death before him in its most terrific form, who
meekly acknowledged the justice of his sentence, and who seri-
ously considered himself as standing upon the verge of eternity.
But “ no confession,” says the Reviewer, ‘‘ that Monmouth could
make, of which his rebellion against James, and his connection
with Lady Harriet Wentworth did not form parts, could be re-
ceived by the Bishops as such* according to the rubric; the

* I do not distinetly understand, to what the phrase, as such,
refers—could not a general confession, as such, have been accepted
on the scaffold, without any violation of the rubric? This is the
very res qua de agitur.

Upon a subsequent perusal, I am inclined to believe the mean-
ing to be this: ‘* No confession Monmouth could make, of which
his rebellion against James, and his connection with Lady
Harriet Wentworth did not form a part, could be received by the
Bishops according to the rubric,” inasmuch as that rebellion and
that connection did not form a part of that confession. If this
be the meaning of the learned Critic, he will pardon me for say-
ing that, in my opinion, the passage gains nothing’ in precision,
and loses something in perspicuity, by the addition of the words
**assuch.” It would have been intelligible to any reader without
such addition, and after repeated trials was perplexing to my
‘mind, with it. But when the explanation I here offer is admitted,
I see no reason for altering the terms in which I have stated the
rem qua de agitur between the Reviewer, as the accuser of Mr.
Fox, and myself as his advocate. The rubric does not, like a
book of casuistry, set before us a long series of particular cases,
and then point out those in which a minister is to require special
confession, and those in which he may dispense with it, and be
content with a general one, The same rubric, indeed, does con-

VOL. IV. ie

482 NOTE UPON FOX’S HISTORY OF

censure of Mr. Fox ought therefore to have been directed against
the rubric itself; not against men who simply obeyed the direc-
tions of the church in which they occupied high stations, and
were therefore particularly pledged to observe them.”

Upon any other occasion J] should have felt the strongest re-
luctance to enter into any discussion upon the rubric of the
Church of England, while I was expressing my opinion upon the
merits of Mr. Fox as an historian. But the reflection made with
so much seriousness and so much confidence by the Reviewer has
connected the subject with a material event in the history of our
country, and has excited in my mind an additional and very un-
expected interest. Whether Mr’ Fox has blamed the Bishops
indecorously, or whether he ought to have blamed them at all,
are questions very distinct from his right to blame the rubric.
For the rubric did not forbid the Bishops to receive from Mon-
mouth a confession in which his rebellion against James did not
make a part, and therefore the high stations which they occupied
in the church did not imply such a pledge to the observance of the
rubric as required them to demand from Monmouth such a con-
fession as included directly and specifically his rebellion against
James. In order, then, not so much to vindicate the memory
of Mr. Fox as to explain the obligations really imposed upon

tain directions, according to which, the minister under certain
circumstances is to call for a particular confession from a man
who is desirous of taking the sacrament, and, also, to move a
sick man to confession when he is troubled in his conscience,
and wishes to be absolved. But it does not contain either gene-
ral or special directions for a clergyman to require either general
or special confession from a person who, like Monmouth, was at
the place of execution: and this is the very point upon which
the Reviewer and I are at issue. If, then, generally, though
tacitly, the rubric permitted the Bishops to accept a general con-
fession, upon such an occasion, the Reviewer does not stand in
need of any aid from me to discover, that the particular case of
Monmouth, both in his rebellion against James, and his inter-
course with Lady Harriet Wentworth, not being particularly ex-
cepted, falls under the general permission.

This minuteness, I fear, will be tiresome to my reader. But
it will convince the Reviewer of my respect for him, and of my
great unwillingness to misunderstand him, and to be myself mis-
understood,

THE REIGN OF JAMES II. 483

the venerable prelates by the rubric, I shall proceed to justify my
own position by the following minute and faithful detail.

It is proper for me to lay down a preliminary distinction be-
tween that which passed in the prison, and that which passed on
the scaffold. I do not take upon myself peremptorily to affirm
or peremptorily to deny that the rubric enjoined the Bishops to act
in some respects as they are said to have acted, while they were
with Monmouth in the prison. But I would be understood to
deny directly and unequivocally that they were obliged, or even
warranted by the same rubric to demand from Monmouth a par-
ticular confession when he was on the scaffold. Their obliga-
tion and their warrant, as I shall have occasion hereafter to re-
peat, if they can be found at all, must be found elsewhere than
in the quarter to which alone the Reviewer has directed our
attention.

In what part of the rubric, let me ask, were these prelates
directed or even authorised to demand such a confession at such
atime? According to the Homilies, indeed, upon obedience to
the higher powers, as we shall see presently, the invasion amounted
to rebellion. The doctrines contained in those homilies may be
true, and may be important. But they are not made by the
church, as I shall hereafter show more at large, subjects of par-
ticular confession to laymen. Doubtless the connection of Mon-
mouth with Lady Wentworth was in the view of the homilies and
of common-sense adulterous, and though some mitigating cir-
cumstances had decoyed the offender into a state of self-delusion
upon the malignity of the offence, yet Tenison and Hooper, wien
they were with him in prison, evidently with the intention of
giving him the sacrament, were justified by the rubric itself in
their previous endeavours “ to convince him of the falsehood of
his opinion.” ‘* Monmouth,” says Rapin, ‘‘ chose rather to de-
prive himself of the communion itself than to own his engage-
ments with that lady to be unlawful.” When the well-meant
endeavours of these divines to convince him of his error had
thus failed, they might in the opinion of some persons be far-
ther justified by the rubric in refusing to let him partake of
the sacrament.* But with that refusal ended their office, as

* The predecessor of James died in communion with the |
212

484 NOTE UPON FOX’S HISTORY OF

prescribed by the rubric. Compassion and piety might have
induced them to resume the subject of Monmouth’s adultery,

Church of Rome. But while it was treason to say that he lived
so, his libertinism was very undisguised and unrestrained. Many
ecclesiastics who attended him were men of distinguished learn-
ing and irreproachable morals. But it is no where recorded of
them that they ‘‘ advertised Charles that he should in no wise
presume to come to the Lord’s table until he had openly declared
himself to have truly repented, and amended his former naughty
life, that the congregation,” consisting of Lords of the Bed-
chamber and other grave and scrupulous courtiers, ‘* might
thereby be satisfied, which before were offended.”

While James was connected with Mrs. Sedley he was under
the direction of Popish counsellors, and it is unknown to me
whether they strictly adhered to the seventh canon of the Council
of Trent, which declared it necessary by the divine law to confess
before the sacrament “‘ omnia et singula peccata mortalia, which
any one does remember or can recollect by due and diligent
meditation.” The orthodoxy of those ecclesiastics who refused
the communion to Monmouth on account of his criminal inter-
course with Lady H. Wentworth, may not have been brought to
the test in any religious intercourse with their frail sovereign.
But nothing less than that charity ‘ which believeth all things,
and hopeth all things,” would induce some men to presume, that
from the same sense of duty to the authority of the rubric they
would with the same firmness have forbidden James, as they for-
bad Monmouth, to be a partaker of the sacrament. Ifthat rubric
be so clear, so peremptory, so obligatory, as it has been Jately re-
presented, what apology can be offered for the Very Reverend
Deans of the Royal Chapel, and other ecclesiastics, who in latter
times must like other men have heard, and like other men have
believed the stories which were in Circulation about two titled
courtezans, whom it is unnecessary to name ?

‘¢ Paruit omnis
Imperiis, non sublato secura timore
Turba, sed expensa Superorum et Cesaris ira.’
Lucan. ἘΝ iii,

In their transactions with a subject and a criminal, ecclesias-
tics may go a great length, always with impunity, and sometimes
even with credit for their official exactness and their personal
sanctity. But there are certain situations in which they may
suspect some convenient truth to be lurking under the beggarly
elements of that philosophy which taught ‘‘ omnes virtutes me-
diocritate quadam esse contentas ; (Cicero pro Murena) and if

THE REIGN OF JAMES II, 485

while they were with him upon the scaffold. But as the sa-
crament was not to be administered to him there, the direc-
tions of the rubric, as connected with it, were no longer ap-
plicable. Even the topics of non-resistance and rebellion ought
to have been discussed in the prison rather than upon the scaf-
fold ; and if Monmouth, before receiving the sacrament, had ap-
peared to his spiritual counsellors obstinate or impenitent, they
might perhaps, even upon those subjects, as well as upon that of
adultery, have exercised their own discretion in refusing him the
sacramental bread and cup. “If any man be an open and
notorious evil liver,” says the rubric, ‘‘ or have done any wrong
to his neighbours by word or deed, so that the congregation be
thereby offended ; the curate, having knowledge thereof, shall ad-
vertise him that in any wise he presume not to come to the
Lord’s table until he hath openly declared himself to have truly
repented and amended his former naughty life, that the congre-
gation may be thereby satisfied, which before were offended.”
Monmouth by his rebellion may be said to “‘ have done wrong to
his neighbours,” and by his intercourse with Lady Wentworth
to have been “ a notorious evil liver.” But what is the Curate
required to do by the rubric? He is to “ advertise him that
“he presume not to come to the Lord’s table.” What is the
curate required to do even in the administration of the sacra-
ment? ‘ To exhort the people that they make,” not a particu-
lar, but “ an humble confession of their sins,” and that, not to
man, but “ before Almighty God.” What is the ground upon
which previously to the sacrament the curate is required to ad-
vertise any person who would partake of it? ‘ That the con-
gregation, which before were offended, may be satisfied, when

they had been asked why they swerved a little from the letter of
the rubric, some of them might have pleaded a scriptural rule
against ‘* over much righteousness,” and others might have
waxed bold under the shelter even of a heathen moralist,
‘* Insani sapiens nomen ferat, equus iniqui,
Ultra quam satis est, virtutem si petat ipsam.”
(Hor. Ep. 6. lib. i.)

Shade of Whiston, wilt thou judge these men? Are not their
ways unequal? In all thy own intercourse with kings or with
subjects, were not thy ways equal ?

486 NOTE UPON FOX’S HISTORY OF

the offender has openly declared himself to have truly repented
and amended his former naughty life.’ Were the spectators,
whom I am willing to consider as the congregation, so offended,
to the knowledge of the Bishops, that they would not have been
satisfied without the particular confession which the Bishops ex-
acted? If they were not so offended, the Bishops’ requisition
was authorised by the rubric prefixed to the communion. If
they were so offended, the requisition was ill-timed, and there-
fore unauthorised, because the season for administering the sacra-
ment had passed by. Now for the honour of the English Church
I will subjoin part of a note upon this subject, written by the
learned and pious Dr. Nicolls. ““ Some severe discipline, such
as the repulse of Theodosius, might not be amiss, while it was
grounded only upon piety and zeal for God’s honour, as it was
in ancient times. But afterwards other not so warrantable pas-
sions mixed in the minds of those who ministered in holy things,
and some persons were debarred the communion out of pique
and resentment. There was an imperial injunctien prohibit-
ing all, both Bishops and Presbyters, from shutting any one
from the holy communion before just cause be shown whether
the holy canons do give them the power so to do;* and the
canon did not also allow a discretionary power to the priests
to thrust away every ill person from the sacrament; Etiam cri-
minosus ingerens se in Communionem non est repellendus, sed
potius privatim inducendus et admonendus. The compilers of
the rubric in Edward the Sixth’s time limited this discretionary
power of the minister even to notorious crimes, to admonish
such persons that they first abstain, and only upon obstinacy to
repel. But nevertheless this gave occasion to several exceptions
and disputes, and therefore in the last revision of the Common
Prayer, repulsion was not left to the absolute power of the mi-
nister, but he was obliged to give notice to the Diocesan, and to
take his advice therein ; and still it remains so uncertain what is
notoriety both in presumption, law, and fact, that a minister is
not out of danger of transgressing this rule, if, before judicial
conviction of the crime he goes farther than advising any person
to abstain.” Nicolls’s observations may be of use to ministers in

* Vid. Novell. 123. Canon XI.

THE REIGN OF JAMES II. 487

their intercourse with persons who are not placed in Mon-
mouth’s unhappy situation ; and though Monmouth himself had
been judicially convicted, yet they contain no principle which
justifies his ghostly counsellors in calling for particular confes-
sion after the sacrament had been refused to him.

The rubric to which the Reviewer appeals, does not supply any
directions for the treatment of persons who are to suffer death
by a sentence of the law.* But let us see what analogies it

* In Mr. Reeve’s very useful edition of the Book of Common
Prayer, he has judiciously inserted a Form of Prayer for the
‘Visitation of Prisuners, which had been annexed to the Irish
Common Prayer Book by the authority of the Irish govern-
ment, ever since the reign of Queen Anne. He supposes, how-
ever, that by the fifth article of the Union, Stat. 4 Geo. III. ch.
67. any such addition to the English Common Prayer is repealed
and annulled. Ifit be so, 1 should be happy to hear that an act
were to pass, not only for restoring the above-mentioned form to
the Irish, but for introducing it into the English Prayer Book.
The topics are, indeed, very pertinent, the Janguage is simple and
solemn, and a spirit of the most rational and most pure devotion
prevails through the whole. The authors have largely availed
themselves both of the matter and the phraseology contained in
our service for the Visitation of the Sick, and in the best passages
of the Commination. The minister is directed ‘‘ to admonish a
prisoner particularly concerning the crime wherewith he is
charged, and to exhort him if he has any scruples that he will
declare the same, and prepare himself for the holy communion
against the time when it may be proper to administer it to
him.” A criminal under sentence of death is ‘* required not
to let any worldly considerations hinder him from making a
true and full confession of his sins.” The minister is ‘* to ex-
amine whether he repent him truly of his sins, exhorting him
toa particular confession of the sin for which he is condemned,”
and the particular confession to which he is thus exhorted seems
to be preparatory for absolution, “ which is to be granted to him,
if he humbly or “ heartily desire it.” Let us suppose a similar
form prescribed by the Church of England. Monmouth did not
ask for absolution, he did not deny the sin for which he was con-
demned, and the dispute between him and the spiritual counsel-
lors was merely about a name. He did not even insinuate that
his sentence was unjust, and if the ecclesiastics who attended him
had been specially authorised, as they were not, to require “ a
true and full confession of his sins,” still it may be doubted whe-
ther that full confession ought not to be restricted to the instances

488 NOTE UPON FOX’S. HISTORY OF

may suggest from the directions given to ministers in the Visita-
tion of the Sick, The minister is to “ examine whether the
sick person repent him truly of his sins, and be in charity with
all the world, exhorting him to forgive from the bottom of his
heart all persons that have offended him ; and if he hath offended.
any other, to ask them forgiveness; and where he hath done
injury or wrong to any man, that he make amends to the utter-
most of his power.” ‘‘ Here shall the sick person be moved to
make a special confession of his sins if he feel his conscience
troubled with any weighty matter. After which confession the
priest shall absolve him, if he humbly and heartily desire it.”
Now if Monmouth had declared himself in general terms truly
penitent of his sins, and in charity with all the world—if he did
not feel his conscience troubled with those matters which the
prelates, indeed, thought weighty, but he did not—if he desired
no absolution from them—if he wished to receive their spiritual
advice without asking for ease to his conscience in the particular
cases upon which they insisted, I see not how analogical argu-

“in which he had “‘ wronged or injured his fellow-creatures,”
and for which a criminal under sentence of death is in the very
same sentence required to “ give all the satisfaction which is
in his power.” But if it should be said that in the beginning of
the sentence “ a man is required to examine himself and his
estate both towards God and towards man,” yet it does not ap-
pear that he is called upon to make a minute, particular, explicit
confession of every sin which he at any time of life has committed
against either. The plain fact is, that even full confession is
recommended only in general terms, and that particular confes-
sion is explicitly required only upon the crime for which the sin-
ner has been condemned.

Some years ago, when I was accustomed to visit persons under
sentence of death, | often felt the want of a proper service. I
eould not persuade myself to read some prayers and some exhor-
tations which [ found in books. They seemed to me such as
would be either unintelligible or unprofitable to offenders, whe-
ther obdurate or penitent, and such as the wisdom, picty, and
humanity of English prelates would, I am confident, not au-
thorise for the use of the English clergy. I will therefore re-
peat my earnest wish that the Irish service may be adopted,
and, let me add, without addition or correction, for in its pre-
sent form it appears to me to have been drawn up with the
greatest possible conformity to the best possible models,

THE REIGN OF JAMES II. 489

ments drawn from the rubric for the Visitation of the Sick
obliged or even authorised his spiritual attendants to persevere
in demanding special confession. They might have advised and
instructed him upon the special guilt of any sin, whether small or
great. They did advise and instruct him upon the special
guilt of two offences which appeared to them very great. But
they were in the rubric directed to ‘‘ move him to special confes-
sion,” then, and then only, when “ he felt his conscience trou-
bled.” If their vindication rests upon prudence, or pity, or
loyalty, or general anxiety for Monmouth’s salvation, there may
be room for difference of opinion upon the conduct of the
bishops as influenced by such motives. But there will also be
room for some men to suspect that political tenets had their
share in leading the bishops to persist in a train of questions
which under the circumstances of the moment must have dis-
quieted the mind of Monmouth, with little or no probability of
promoting his repentance. J hope that few men now living
would imitate the example of those bishops, and I am confident
that their justification must be found elsewhere than in the ru-
bric. Mr. Fox would probably have opposed the dictates of his
good sense, and the feelings of his delicacy and humanity, to the
authority of the rubric, if it really had contained the directions
which it is said to contain. As a well-wisher to the Church of
England, I have endeavoured to show that no such directions
are contained init. ‘ The letter” of it, as understood by myself,
might serve to “ make alive.’ But “ the spirit” of it, as under-
stood and acted upon by Monmouth’s ghostly counsellors, would
in many cases ““ kill” most cruelly.

I shall now proceed to examine how far the regulations of our
church, as they respect the homilies, compelled or even war-
ranted the bishops to require from Monmouth any particular
confession while he was on the scaffold. As this subject is not
familiar to the generality of readers, I shall be under the neces-
sity of having recourse to much detail. ‘The number of homilies
in the time of Edward VI. was twenty-one. ‘Their titles are
subjoined to the thirty-fifth article. The last, against disobedi-
ence and wilful rebellion, consists of six parts. Twelve more
homilies were added in the reign of Elizabeth ; and among them
is an exhortation in three parts “ concerning good order and

490 NOTE UPON FOX’S HISTORY OF

obedience to rulers and magistrates.” The article on the homi-
lies, as we now have it, runs thus: “ The second Book of Ho-
milies, the several titles whereof we have joined under this arti-
cle, doth contain a godly and wholesome doctrine, and necessary
for these times; as doth the former books of homilies, which
were set forth in the time of Edward the Sixth; and therefore
we judge them to be read in churches by the ministers, diligently
and distinctly, that they may be understanded of the people.”
Now to what extent are the laity concerned in the homilies ὃ Ac-
cording to the article they are “to understand them.” But
from what person, at what time, and in what place are they to
hear them? In the Preface, published during the reign of Eli-
zabeth, “ her Majesty commandeth, and strictly chargeth all
parsons, vicars, curates, and all others having spiritual cure,
every Sunday and holiday in the year, at the ministering of the
holy communion ; or if there be no communion ministered that
day, yet after the Gospel and Creed, in such order and place as is
appointed in the Book of Common Prayers, to read and declare
to their parishioners plainly and distinctly one of the said homi-
lies, in such order as they stand in the book, except there be a
sermon, according as it is enjoined in the Book of her Highness’s
Injunctions ; and then for that cause only, and for none other,
the reading of the said homily to be deferred unto the next Sun-
day or holiday following. And when the foresaid Book of Ho-
milies is read over, her Majesty’s pleasure is, that the same be
repeated and read again, in such like sort as was before pre-
scribed.” The laity, it appears, are to understand the homilies,
because, says the article, ““ they contain good and wholesome
doctrine, and necessary for these times,”* and, according to

* You will be glad, my friend, to see Bishop Warburton’s ac-
count of the homilies upon non-resistance. ‘‘ After the Refor-
mation, the Protestant divines, as appears by the homilies com-
posed by the wisest and most disinterested men, such as Cran-
mer and Latimer, preached up non-resistance very strongly, but
it was to oppose Popery. The case was this. The Pope threat-
ened to excommunicate and depose Edward. He did put his
threat into execution against Elizabeth. ‘This was esteemed
such a stretch of power, and so odious, that the Jesuists con-
trived all means to soften it. One was, by searching into the
origin of civil power, which they brought rightly, though for

THE REIGN OF JAMES II. 49].

Elizabeth’s Preface, “they were printed anew as containing
certain wholesome and godly exhortations to move the people to

wicked purposes, from the people, as Mariana and others. To
combat this, and to save the person of the Sovereign, the Pro-
testant divines preached up divine right. Hooker, superior to every
thing, followed the truth. But it is remarkable that this non-
resistance, which at the Reformation was employed to keep out
Popery, was at the Revolution employed to bring it in. So eter-
nally is truth sacrificed to politics.” See Letter 84 of the Cor-
respondence between Bishop Warburton and Bishop Hurd, lately
published. Now the difference between the conduct of the
ecclesiastics at the Revolution and the Reformation seems to be
this. Latimer and Cranmer intended to keep Popery out. But
the ecclesiastics in the time of James did not intend to bring
Popery in, though it must be owned that the submission which
they inculcated in civil affairs would have put into the hands of
the king such power as would eventually have enabled him to
make any change he pleased in things ecclesiastical. ‘They acted
well when they resisted, and reasoned ill in the selection of the
only grounds upon which resistance according to them was justi-
fiable. The exception to the general rule, which they at first
tacitly, and afterwards openly, maintained, served only to show
the fallacy of the rule itself. Notwithstanding the king’s supre-
macy, he is to be resisted when he would make Protestantism
give way to Popery. Why is he not to be resisted when he en-
deavours to raise a system of absolute power upon the ruins of
a free and mixed government? ‘‘ Cum ventum ad verum esset,”
the Bishops distinguished. But no such distinction is expressed
or even hinted in the canon ; none in the oath of the king’s so-
vereignty taken at ordinations; none in that bidding prayer,
which was enjoined by Ehzabeth in 1559 to be used by the clergy,
which was not altered by a Committee appointed in 1661 to pre-
pare aform of prayer before the sermon, and which describes
the king as “supreme governor in these his realms, and all
other his dominions and countries, over all persons and in all
causes ecclesiastical as well as civil.” I know not whether this
was one of the propositions which the ecclesiastics in the reign of
Charles 11. would have thought themselves bound to retain or to
qualify. But 1 do know that ecclesiastics in the reign of James
II. were not called upon to inculcate non-resistance by that dan-
ger from Popery to the King’s person which led Cranmer and
Latimer to insist upon the doctrine.

The transfer of the supremacy from the Pope to Henry VIII.
made perhaps that capricious and sanguinary monarch more fa-
vourable to the cause of the Keformation, But however service-

4992 NOTE UPON FOX’S HISTORY OF

honour and worship Almighty God, and diligently to serve him,
every one according to their degree, state, and vocation.” But

able it might have been in protecting a newly established church,
it may in later times have produced inconveniences not foreseen
by our first reformers, and experienced, but certainly not reme-
died, by their successors, ‘* Can any thing,” says Warburton,
“be more absurd than that when the yoke of Rome was thrown
off, they should govern the new church, erected in opposition to
it by the laws of the old? The pretence was, that it was only
by way of interim, till a body of ecclesiastical laws could be
framed. But whoever considers that the body of canon laws
proceeded from and had perpetual reference to an absolute and
spiritual monarch, and were formed upon the genius, and did
acknowledge the authority of the civil laws, the issue of civil des-
potism ; I say, whoever considers this will be inclined to think,
that the Crown contrived this interim from the use the canon
law was of to the extension of the prerogative. However, it is
certain that the succeeding monarchs, Elizabeth, James, and
Charles, prevented our ever having a body of new ecclesiastical
laws from a sense of this utility in the old ones, and a conscious-
ness that if ever they should submit a body of new laws to the
legislature, the Parliament would form one altogether upon the
genius of a free church and state. This I take to be the true
solution of this mysterious affair, that wears the face of so much
obscurity and scandalous neglect.’’—Letter 81 of the Correspon-
dence between Bishops Warburton and Hurd. I shall not pre-
sume to offer any advice to my ecclesiastical superiors about re-
taining or altering either the homilies or the canons. But if the
Bishop be not mistaken, the constitution of the church may in
some respects appear less favourable than I could wish, either to
religious or civil freedom. It retains homilies which were ne-
cessary for the times, in preserving the person of the king from
the machinations of Popery, and the principles of which were
transferred to his power when his person was no longer in dan-
ger, and when his power, as at the Revolution, was more limited
than it had been in the reigns of Edward, Elizabeth, and the
Stuart line. It adheres, also, to canons which were borrowed
from Popery— which are connected with the exercise of the
king’s power, not the safety of his person—which partake of the
genius, and perpetually refer to the letter of a civil code, “ the
issue of despotism,” and which yet are intended to regulate the
notions of clergymen upon the kind and degree of that allegiance
which is due to the head of what we are accustomed to call a
free church and state. Such is the result of Warburton’s posi-
tions. It were indecorous, I grant, to talk of scandalous neg-

THE REIGN OF JAMES II. 493

the laity, before whom they were to be read, are neither directly
nor indirectly required to declare any assent to them as articles of
faith, nor without the grossest absurdity could they have heen
called upon to consent to the use of them. But what is the ob-
ligation imposed upon the clergy, as teachers of the laity? They
are to ‘‘ read the homilies diligently and distinctly, that they
may be understanded of the people.” No express injunction, nor
even tacit permission, is given for reading them in any other place
than the church, or at any other time than Sundays and holi-
days, or for any other purpose than that of conveying instruc-
tion in ‘‘ godly and wholesome doctrine, and necessary for these
times.”

Doubtless, according to the doctrine contained in the homi-
lies, Monmouth’s invasion, as I said, amounted to rebellion, and,
in the time of James, a minister reading those homilies in the
church, might, for several reasons, take occasion to tell his
hearers, that they contained doctrines peculiarly necessary for
those times.

The principles which so long prevailed * in the church, on the

lect ; but it is venial, I hope, to allow something of “ obscurity
in these matters.’ Ecclesiastics, however, are generally required
to submit to them to a varying and indefinite extent, and politi-
cians are not wholly unable to account for the continuance of
this vague obligation. In the mean time, the silent and salutary
influence of knowledge and civilization has done much in miti-
gating the evils flowing from positive rules and institutions,
which they who introduced them chiefly intended for other pur-
poses, and which they who now retain them are not accustomed
to enforce with unabated rigour.

* The political and religious disputes which preceded the
reign of James [. will enable us to account for the lofty notions,
which prevailed in that reign about kingly power, and we should
always bear in mind that in opposition to the pretensions of the
Papal See, the King of England had been declared Head of the
Church, and that for this reason churchmen would be more
strongly attached to the regal office. The events which had re-
cently occurred before the restoration of Charles If. were not
likely to bring about any material alteration in the language or
sentiments of ecclesiastics, who, like other men, would be more
strongly affected by particular and present circumstances in the
adoption of general principles, and, like other men, might not
always see the propriety of “ submitting one general rule to ano-

494 NOTE UPON FOX’S HISTORY OF

divine right of kings and non-resistance, are strongly inculeated
in the homilies. ‘* Let us consider the scriptures of the Holy

ther which is still more general.”—Paley on Religious Establish-
ments, p. 575. It becomes us at this time of day to make large
allowances for what we think the prejudices and errors of our
forefathers ; and though it is impossible for me to commend the
behaviour of the bishops to Monmouth at the time of his execu-
tion, I do not consider them as particularly blameable for the
opinions they held upon the duty of obedience. Can the church
boast of a prelate more learned, sagacious, meek, temperate, and
pious than Jeremy Taylor? Yet in his Ductor Dubitantium he
holds the same language with the bishops of Charles and James’s
time on the rights of kings, and he endeavours to defend them,
not only by the authority of revelation, but by the law of nature.
He discusses the question at large in the third chapter of his third
book, and he contends, that ‘‘ not only kings must be obeyed,
but that subjects have nothing to do, but something to suffer, if
kings be evil and unjust, crueland unreasonable, enemies of their
people, and enemies of mankind.” In our own days I should be
very sorry if the doctrine of passive obedience were resumed in
pulpits. But I should be equally, and perhaps more sorry, if
Christian teachers were directly or indirectly to expatiate upon
the principles of resistance. Barrow furnishes us with a sure
and a safe direction for our instruction. ‘* Are the objections
against obedience so clear and cogent, as are the commands
which enjoin and the reasons which enforce it? Are the incon-
veniences adhering to it apparently so grievous as are the mis-
chiefs which spring from disobedience? Do they in a just ba-
lance counterpoise the disparagement of authority, the violation
of order, the disturbance of peace, the obstruction of edification,
which disobedience produceth ?”—-Sermons, iii. 291. I allow,
indeed, that in the present improved form of society, there may
be less necessity than our forefathers felt for insisting upon the
duty of obedience; and I even contend that for our progress both
in civil and religious liberty we are indebted to the violation of
those very rules which ecclesiastics in former ages carried to a
most unreasonable excess. As to extreme cases, I would leave
the speculative consideration of them to professed writers upon
politics, and I know that when they occur in practice they usu-
ally suggest expedients which the minds of men are rarely unable
to discern, or unwilling to employ. ‘‘ When we assert,” says
Mr. Hume, “ that all lawful government arises from the consent
of the people, we certainly do them a great deal more honour
than they deserve, or even expect and desire from us. Reason,
history, and experience show us, that all political societies have

THE REIGN OF JAMES II. 495

Ghost, which persuade and command us all obediently to be sub-
ject, first and chiefly to the King’s Majesty, Supreme Governor

had an origin much less accurate and regular; and were one to
choose a period of time, when the people’s consent was least re-
garded in public transactions, it would be precisely on the esta-
blishment of a new government.’ The present state of France
is one instance in proof of Mr. Hume’s position. ‘In a settled
constitution their inclinations are often studied,” and, I add, that
their rights ought never to be violated, nor their interests ever
neglected. In this country, “ the plan of liberty,” as Mr. Hume
observes, “ is settled, and its happy effects are preved by expe-
rience—the people cherish monarchy, because they are protected
by it,” and ‘‘ the menarch,” if he is wise, “ will favour liberty,
because he is created by it,” and because for every purpose of
reasonable and virtuous ambition he is strengthened by it.—See
Hume's Essays on the Original Contract, the Coalition of Parties,
and the Protestant Succession. If I were asked the ground of my
obedience, I should readily answer with Mr. Hume, ““ because so-
ciety could not otherwise subsist.” If I were farther asked why, as
an instructor, ‘‘ I should always incline to their side who draw
the bond of allegiance very close, and consider an infringement
of it as the Jast refuge in desperate cases ?’’ I should answer, that
if the principle of obedience were slackened among a people,
society could not subsist long or well, But such an inclination
would by no means lead me into the gross and perilous absurdi-
ties of passive obedience ; and when the advocates for those ab-
surdities shall ‘‘ carry their doctrine to such an extravagant height
as positively to exclude the exceptions” arising from “ extraor-
dinary cases δ᾽ then J shall think it ‘* necessary to insist on these
exceptions, and defend the rights of injured truth and liberty,”—
Hume on the Original Contract, and on Passive Obedience.
After all the decrees of dogmatists, and all the subtleties of
lawyers, salus populi is the ultimate rule to which every man of
reflection tacitly or expressly refers every principle and measure
of legitimate government, and every political right and duty
both of governors and the governed. He will submit to incon-
venience and wrong, because from experience he must know that
submission in most cases is a less evil to himself and to society
than resistance. But from that which makes submission neces~
sary he will not transfer the name of good, to that to which he
submits. He will render to Cesar, not indeed all the things
which Cesar under all circumstances may be disposed to claim,
but all, however many, or however precious, which by the autho-

rity of public law framed for the public weal, do really belong to
Cesar.

496 NOTE. UPON MR. FOX’S HISTORY OF

over all, and next to his honourable Council, and to all other
noblemen, magistrates, and officers, which by God’s goodness be

Looking to facts, not to theories, and collecting from them
the resemblances and differences of human characters and human
affairs, he will come to some such conclusion as the following,
upon the actual condition and conduct of subjects and princes,

With judicious culture, and in a favourable climate, Liberty,
he will think, “‘stands like a fair and vigorous tree, teeming with
the richest and noblest burthen, and by its comeliness inviting
the beholder to repose under its shade. Yet, when neglected,
it is soon seen with all the marks of decay. When overnursed,
it “exudes from its sickly trunk a number of deformed fungusses,
which call themselves of that tree because they stick upon its
surface, and suck out the little remainder of its sap and spirits.”
—See Preface to the first edition of Warburton’s Julian. Even
where it has assumed the most lovely form, the meanest vermin
are silently busied in tainting its branches, and the ““ wild boar
from the forest” is impatient to root it up. But royalty is a
sturdier plant, which finds sustenance for itself in almost every
soil, increases in strength and bulk, whether the fruits which it
bears be noxious or wholesome, flourishes under the scorching
sun, yields very rarely to the rude tempest,

““ et quantum vertice ad auras
7Etherias, tantum radice in Tartara tendit.”

I do not profess to have read more than scattered quotations
from the writings of Bracton and Fortescue. I had indeed been
accustomed to consider them as ‘“‘ the two most learned, and al-
most the only learned of our ancient lawyers.’—Warburton.
But 1 lately have learned from Bishop Warburton that they not
only bear express testimony ‘‘ to our free and limited govern-
ment, “ but deduce the origin of civil rights from the people,”—
See Warburton’s Letters, 81. I would be understood to state
the fact, upon the strength of Warburton’s assertion, but not to
express an entire and unqualified assent to the principle, which
Warburton held in common with Bracton and Fortescue.

While power is exercised for the benefit of the people, few mis-
chiefs can arise from theories upon the origin of government.

One of the fundamental articles of my political creed may be
found in the language of Elizabeth to her Parliament. “1
know,” said the Queen, ‘‘ that the commonwealth is to be go-
verned for the good and advantage of those that are committed
to me, and net of myself to whom it is committed; and that an
account is to be one day given before another tribunal.”

THE REIGN OF JAMES II. 497

placed and ordered. For Almighty God is the only author and
provider for this fore-named state and order, as it is written of
God in the Book of the Proverbs: through me Kings reign,
through me Counsellors make just laws, through me do Princes
bear rule, and all Judges of the earth execute judgment: 1 am
loving to them that love me. Here Jet us mark well and remem-
ber, that the high power and authority of Kings, with their mak-
ing of laws, judgments, and offices, are the ordinances not of
man, but of God; and therefore is this word, through me, so
many times repeated.”* “ [et us all mark diligently, that it is
not lawful for inferiors and subjects, in any case, to resist and
stand against the superior powers ; for St. Paul's words be plain,
that whosoever withstandeth shall get to themselves damnation ;

Upon the same article of my creed I will make a second appeal
to regal authority in James the First.

“1 do acknowledge that the special and greatest point of dif-
ference that is betwixt a rightful King and a usurping tyrant is
in this, that whereas the proud and ambitious tyrant doth think
his kingdom and people are only ordained for the satisfaction of
his desires and unreasonable appetites; the righteous and just
King doth by the contrary acknowledge himself to be ordained
for the procuring of the wealth and prosperity of his people, and
that his greatest and principal worldly felicity must consist in
their prosperity.”

Such is the evidence which the public address of a King to his
Parliament supplies upon the duties and the uses of the kingly
office ; and well it were if the actions of the great were corres-
pondent to that test which he upon another occasion laid down
for enabling us to appreciate the sincerity and honour of a So-
vereign.

“It becometh a King, in my opinion, to use no other elo-
quence than plainness and sincerity. By plainness [ mean, that
his speeches should be so clear and void of all ambiguity that they
may not be thrown, nor rent asunder, in contrary senses, like
the old Oracles of the Pagan Gods. And by sincerity | under-
stand that uprightness and honesty which ought to be in a King’s
whole speeches and actions; that, as far as a King is in honour
erected above any of his subjects, so far should he strive in since-
rity to be above them all, and that his tongue should be ever the
true messenger of his heart. And this sort of eloquence may you
ever assuredly look for at my hands.”

* First Part of Exhortation concerning Good Order, &c.

VOL. IV. 2K

498 NOTE UPON FOX’S HISTORY OF

for whosoever withstandeth, withstandeth the ordinance of God.
Our Saviour Christ himself and his apostles received many and
divers injuries of the unfaithful and wicked men in authority ;
yet we never read that they, or any of them, caused any sedition
or rebellion against authority.”—** The wicked Judge Pilate said
to Christ, Knowest thou not that I have power to crucify thee,
and have power also to loose thee? Jesus answered, Thou
couldest have no power at all against me, except it were given
thee from above. Whereby Christ taught us plainly, that even
the wicked rulers have their power and authority from God, and
therefore it is not lawful for their subjects to withstand them, al-
though they abuse their power ; much less then is it lawful for
subjects to withstand their godly and Christian Princes, which do
not abuse their authority, but use the same to God’s glory and to
the profit and commodity of God’s people.”’*

These general doctrines were, I doubt not, believed by the Bi-
shops who attended Monmouth, and who in all probability
thought them necessary for the times in which they lived. But
they must have been aware that the homilies were farther consi-
dered as the great storehouse of arguments, fit “‘ to be diligently
read and understanded by the people,” in opposition to the
Church of Rome, and whether they looked to the reign of
Charles II. or of his successor, they must have thought it not
quite unnecessary to employ those homilies for the purpose of
fixing their hearers in their attachment to the cause of Protest-
antism. The sixth and last part of the homily against disobedi-
ence and wilful rebellion is replete with complaints and accusa-
tions against ‘ the injuries, oppressions, raveny, and tyranny of
the Bishops of Rome, usurping as well against their natural
Lords the Emperors, as against all other Christian Kings and
Kingdoms, and their continual stirring of subjects unto rebellions
against their sovereign lords.” The subject is resumed in the
third part of the exhortation, added in the reign of Elizabeth.
** Let us all fear the most detestable vice of rebellion, ever know-
ing and remembering that he that resisteth or withstandeth com-
mon authority, resisteth and withstandeth God and his Ordi-
nance, as it may be proved by many other places of holy Scrip-

* Second Part of the Sermon of Obedience.

THE REIGN OF JAMES II. 499

ture. And here let us take heed that we understand not these,
or such other like places (which so strictly command obe-
dience to superiors, and so straitly punished rebellion and dis-
obedience to the same) to be meant in any condition of the pre-
tensed or coloured power of the Bishop of Rome. For truly the
scripture of God alloweth no such usurped powers, full of enor-
mities, abusions, and blasphemies. But the true meaning of
these and such places be to extol and set forth God’s true ordi-
nance, and the authority of God's anointed Kings, and of their
officers appointed under them. And concerning the usurped
power of the Bishop of Rome, which he most wrongfully chal-
lengeth, as the successor of Christ and Peter; we may easily per-
ceive how false, feigned, and forged, it is, not only in that it hath
no sufficient guard in holy Scripture, but also by the fruits and
doctrine thereof.”

᾿ Knowing the indolence which prevents men from consulting
evidence to which they are merely referred, and the little atten-
tion which is paid to general assertions, I have, even at the ha-
zard of appearing tedious, produced such passages as are suited
to my purpose. Now it is apparent from those passages, that
the dangers to which the people of England were exposed from
the see of Rome are pointed out in the very same homilies that
inculcate and explain the duty of obedience to Kings; and if the
Bishops were impelled by a general sense of their duty to read
and expound them in the prison for the edification of Monmouth,
as a member of the Church of England, we can hardly suppose
that they used one part, and omitted another. ‘Their royal mas-
ter, no doubt, would have commended them for bringing home
to the conscience of Monmouth the guilt of rebellion ; but would
he have been equally pleased, if he had been told that Monmouth
had heard from their mouths the bitterest reproaches against the
Church of Rome ?*

eee ο.......

* We know the command which James issued to the Bishop
of London, to suspend Dr. Sharp, who disregarding the King’s
injunctions to avoid controversy, had particularly distinguished
himself by his opposition to Popery, and by his contempt of those
“who had been induced to change their religion by such pitiful
arguments as the Romish missionaries could suggest.” We far-
ther know, that when the Bishop declared his inability to obey

2x2

δ00 NOTE UPON FOX’S HISTORY OF

It is upon the present occasion important for us to ascertain,
not only what are the doctrines really maintained by the Church
in our homilies, but what directions are given for the use of
them ; and as some of those doctrines are closely connected with
the case of Monmouth, the Bishops might perhaps have been
justified in communicating them to him, as holden by the Church,
and fit to be taught by the minister before a congregation. But
that communication, if it had been made, ought to be considered
as an act of mere personal discretion, and not of official obedience
to any directions given in the rubric, or any other part of the
ecclesiastical code. The homilies, as 1 have repeatedly granted,
might have been read for the instruction of Monmouth while he
was in prison. But I have no where met with any injunctions
for ecclesiastics to demand either general or particular confes-
sions upon any point of faith or practice, as contained in the ho-
milies. Pity and good sense might have warranted the Bishops in
requiring general or particular confession upon those actions
which were inconsistent with the common rules of morality, or
the common precepts of religion. But neither the rubric, nor
any injunctions connected with the homilies, compelled them to
call for particular confession under the circumstances in which
Monmouth was placed.

Mr. Fox, I suppose, like the generality of laymen, knew little
of the rubric or the homilies. But if his knowledge of them had
been quite as accurate as that of ecclesiastics ought to be, he
would have laid the blame, so far as blame may be due, not upon
the rigour of ecclesiastical rules, but upon the zeal of ecclesi-
astics. Whether the Bishops can be defended upon other
grounds than the authority of the rubric, is a question upon
which the decision which satisfies other men may not be satisfac-
tory to me, and versa vice the reasoning which convinces me,
may not convince them. According to my notions of decorum
and humanity, the Bishops would have done well not to have
insisted upon the topic of obedience with such earnestness at
such a time. I do not accuse, nor even suspect them of servility,

the commands of his sovereign, James resolved to punish him,
and “ for that purpose employed an expedient,” says Mr. Hume,
“4 the most illegal and the most alarming.”

THE REIGN OF JAMES II. 501

or hypocrisy, or habitual unfeelingness. But I shall ever main-
tain, that upon this one occasion their attachment to a favourite
doctrine carried them too far in imbittering the sorrows of one
who was “at the point to die’’—in ruffling the spirits of one
who had seriously prepared himself for eternity — in calling for
“© ten words,” which, if they had been uttered, might have been
imputed to fretfulness under the importunity of his advisers, or
to terror at the approach of death—and, above all, in presuming
that the repentance of Monmouth was imperfect, while they
were bending the knee before the Father of that Lord “ of whom
the whole family in Heaven and in earth is named’’—while the
headless trunk of a fellow-creature lay weltering in blood before
their eyes—and when his soul had passed into the presence of
that Being, ‘“‘who trieth,” and is alone worthy to try, “the heart
and the reins.” What was the language of their dying master to
a thief, who, in one short sentence, had expressed his sudden
and general contrition? It was this: “ Thou shalt be with
me in Paradise.” What was the prayer blended with apology
which he offered up for his own murderers, who had made no
confession, and perhaps felt no remorse? It was this: ‘‘ Father,
forgive them, for they know not what they do!” Weak and sin-
ful creature, whosoever thou art, king or subject, bishop or cu-
rate, ““ go and do thou likewise !”

They who censure Mr. Fox for his strictures upon the ques-
tions which were proposed to the Duke of Monmouth will hardly
refuse their commendation to his remarks upon the omission of
the Bishops to press their penitent to the only declaration by
which he could make any satisfactory atonement to those whom
he had injured.* ‘* Monmouth, in the paper published at Lyme,
had accused his Sovereign of having burnt London, murdered
Essex in the Tower, and poisoned his brother, and there is no
circumstance from which we can collect that he himself believed
these horrid accusations to be true.” But the Bishops, who
knew the fact, were silent upon it. The critics, who must have
felt that Mr. Fox could not be wrong in condemning that silence,
have not been courteous enough to say that he was right. In
his better days Monmouth would have blushed at the meanness

502 NOTE UPON FOX’S HISTORY OF

of alie; and if he had been seriously exhorted upon a subject,
which in the awful hour of death left no room for self-delusion
to the weakest, or self-approbation to the most obdurate of man-
kind, surely he would in a moment have trembled at the recollec-
tion of his guilt, and spontaneously have uttered ten times ten
words of humble and contrite recantation.

Let us turn to another interesting scene in another country,
not very distant from us, and now more closely united to us by a
common interest in government, liberty, commerce, literature,
and science,

Judicious and humane was the behaviour of Mr. Chartris and
Mr. Annand, who attended the unfortunate Argyle. When
Chartris came to him, “ Argyle’s first caution to him was, not to
try to convince him of the unlawfulness of his attempt, concern-
ing which his opinion was settled, and his mind made up.”*
The subject, however important it might appear to Chartris, was
not resumed by him while Argyle was in prison, nor was it dis-
cussed when he was on the scaffold, though he there had the ad-
ditional assistance of Mr. Annand, who, “ in all probability, was
an episcopalian, and had been sent to him by the government.’
Just before Argyle’s death, they prayed with him, but did not dis-
pute.”’+ They reminded him, indeed, that ‘‘in his prayers he

* Page 200.

+ The English rubric makes no-distinctions founded on the
fortunes or titles of offenders, and upon the greater danger
of their example from their greater rank. Yet Monmouth was
treated with a degree of severity not usually employed with
ordinary malefactors, They are exhorted in the prison and
at the place of execution to confess the fact for which they are to
suffer, or some other heinous crime, which has, with probability,
been imputed to them, and the discovery of which may procure
redress for the injured party, protect innocent men from false ac-
cusation, or lead to the detection of unknown accomplices. But
it rarely happens, that the Ordinary, in consequence of their
denial, forbids them to partake of the sacrament. Monmouth
acknowledged the invasion, and does not appear to have vindica-
ted it—he acknowledged, also, his intercourse with an unfortu-
nate lady, he attempted to justify it, and the notoriety of the fact
may be thought to warrant the Bishops in their endeavours
to correct his mistake, and awaken his conscience. Still, it is to
be observed, that upon criminal connections of this kind, other of-

THE REIGN OF JAMES II. 503

had said nothing of the Royal family.’ But they were satisfied
when “ he referred them in this matter to what he had said at
his trial concerning the test.’ When he had “ addressed the
people on the south side of the scaffold, Mr. Annand repeated
his words with a louder voice. When he addressed them a
second time, in the same, or the like words, on the north side,
Mr. Annand repeated them again, and added, this nobleman dies
a Protestant.” But there was no altercation whether the episco-
palian form of Protestantism, adopted by Annand, or the Presby-
terian form, professed by Argyle, was most warranted by the
authority of scripture, or most likely to conduct Argyle to future
happiness. Unmoved by the gentle entreaties of Monmouth, or
by his repeated declarations, or by his determined resistance, the
Bishops continued to harrass him, even to the last minute, with
unwelcome rebukes and unavailing expostulations. But Char-
tris and Annand, though perhaps not inferior to the Bishops in
loyalty and orthodoxy, preserved more respect for fallen great-
ness, and more tenderness for a conscience which, on the sub-
ject of his invasion, must have appeared misguided to both of
them, They thought it no breach of allegiance to their earthly
master, to be content, on this one occasion, with serving their
heavenly. However adverse to the political cause of Argyle, and
however convinced of his political guilt, they suffered themselves
to be hurried into no offensive importunity. They resisted no
distinctions which Argyle might have made between invasion
and rebellion. They pronounced no harangues upon the religious
obligation to passive obedience. They demanded no particular
confession. They offered up no petition for the acceptance of
Argyle’s ‘‘ general and imperfect repentance.”

-_—_—

fenders under sentence of death are seldom or never urged
to make special confessions, Possible, too, it is, that if Mon-
mouth had assented to the favourite opinions of the Bishops upon
non-resistance, a subject upon which the rubric is silent as
to confession, he might have met with milder treatment
upon another subject, which under some circumstances has been
supposed to fall under the directions given by that rubric for the
conduct of a minister towards notorious evil livers who wish to at-
tend the sacrament. It is very painful, but very necessary for
me, to be thus minute.

504 NOTE UPON FOX’S HISTORY OF

At the execution of Mary Queen of Scots, even the Earl
of Kent, when his sense of propriety, or of humanity had com-
pelled him to repress the brutal zeal of Fletcher, permitted Mary
to pour forth her prayers without interruption. The Bishops,
after they had interposed in checking the vulgar taunts of
the Sheriff who had insulted Monmouth, again expatiated upon
the topics’jwhich they had been again and again desired to dismiss,
and squandered in fruitless and senseless wrangling those precious
and; still remaining moments which ought to have been em-
ployed wholly in humble and fervent supplication. Yet their
general wisdom and general goodness are indisputable, and the
record of their failings may be of use, as a restraint upon
the pride of other men less wise and less good, and upon
the zeal of such ecclesiastics as may hereafter be called upon to
perform the same melancholy duties to a public criminal.

«‘ Mr. Fox,” says the Reviewer, “‘ where he enters into the last
scenes of the lives of those who suffered for rebellion under
James, exceeds in length what might be allowed to the close of
an historical eulogy.” ‘The object οὗ all this diffusion is to re-
commend to our affections the memory of these men; and affec-
tion, we know, will make men look on many crimes in its object
as the result of fine qualities, and political crimes ultimately as
virtues. In cases in which there are no materials to work up
or force into such artful eulogies, accounts solicitously particu-
larised may introduce apparent but false occasions, to place the
conduct and memory of those who condemned the act of those
political martyrs, in lights both odious and ridiculous.” I do
not distinctly understand what is meant by “ a false occasion.”
But I do suspect that in the foregoing passage there is a lurking
insinuation that Mr. Fox had stepped beyond the confines of his-
tory into the regions of poetry.

“ Kai ποῦ καὶ βροτῶν φρένας-
ὕπερ τὸν ἀληθῆ λόγον
δεδαιδαλμένοι ψέυδεσι ποικίλοις

ἐξαπατῶντι μῦθοι.

* Pind. Olymp. 1,

THE REIGN OF JAMES II. 505

The question to my mind is simply this. Did the circum-
stances which Mr. Fox relates pass in the prison, and on the
scaffold, or did they not? If they did, my judgment upon
the merits of Mr. Fox’s History, as a composition, tells me that
in his manner of relating these circumstances, Mr. Fox has per-
formed the part of a faithful and wise historian. If they did
not, my sense of morality tells me that he is a flagitious slanderer.
As to the diffusion to which the Reviewer objects, it is merely a
question of taste. If it be converted intoa question of party,
there are men to whom “ disticha” might appear “ longa,” if
employed to throw blame upon the Bishops who attended Mon-
mouth. But there are other men who would be inclined to say

** Non sunt longa, quibus nihil est quod demere possis,”’*

With a delicacy most honourable to his discernment and his
feelings, Clarendon informs us that “ the saintlike behaviour of
the blessed martyr, and his christian courage and patience at his
death, are all particulars so well known, and have been so much
enlarged upon, in a treatise peculiarly writ to that purpose, that
the farther mentioning it in this place would but afflict and
grieve the reader, and make the relation itself odious as well as
needless.’’*t But if Clarendon had ‘ told” the melancholy story
of that time, he would have found nothing to censure in the con-
duct of Juxon, and the commendations due to that prelate have
been amply bestowed by many writers. If, however, Charles
had been attended by the Puritan teachers of the age, they
would, in all probability, have insisted on controversial topics ;
and for the honour of God, and what they called the true faith,
would have endeavoured to make a convert of the royal sufferer.
Doubtless, if such a frightful scene had passed, it would have
been the duty of historians to reprobate the unfeeling bigots.

Upon looking into Gilbert Stuart’s History of Scotland, I find
that he has employed nearly four pages closely printed in octavo ,
upon the dismal circumstances which occurred the night
before the execution of Mary; and that to the odious spectacle
in the hall at Fotheringay he has assigned nearly five pages more.

* Martial, lib, ii. ep. 77. + Hist, book xi.

506 NOTE UPON FOX’S HISTORY OF

I see not one particular which a good man would wish to
be omitted, and in this part of his history, the narrative of Stuart,
in clearness, fullness, and pathos, surpasses even that of his
eloquent predecessor, Dr. Robertson.

I am really unable to discover the ground upon which Mr,
Fox can be accused of employing “ diffusion to make men look
upon the crimes of the object of their affection as the result of
fine qualities, and political crimes ultimately as virtues.”

If James had been successful in his attempts to establish
Popery, and to acquire what the Reviewer calls, ‘‘ such a share of
superiority and power as would have placed absolute authority
too nearly within his reach,” his opponents,* I hope, would have
been the objects of affection to the accuser of Mr. Fox, as wellas
to myself. Many of the crimes imputed to them would be

* They who yielded to the King in civil, but resisted him
in ecclesiastical affairs, have little claim to please, either for the
keenness of their foresight, or the consistency of their logic.
When the king is called supreme, over the church, we presume
that he is bounden to support that church, as it is recognised by
the legislature. But, in point of reasoning, why should supre-
macy imply unlimited and arbitrary power in things civil, when
it does not imply such power, even according to the avowed
notions, and resolute measures of James’s Bishops, in things ec-
clesiastical? In point of fact, if the King should gain an exces-
sive ascendancy in the state, and if it be criminal to resist him in
his endeavours to gain it, what practical security is there for the
church, when it becomes his will and pleasure to introduce
by force a new form of religion, and to set himself, or the Bishop
of Rome, or the Patriarch of Constantinople at the head of it?
In such a case, he might with some plausibility urge the plea
of conscience, and duty towards the Deity; a plea, which if
alleged in vindication of his encroachments upon our civil! rights,
would hardly impose upon the meanest understanding.

I have in page 491 observed, that the Bishops (set up a dis-
tinction which the service, canons, and homilies of the church do
not. But the writers of that service always assumed that the
ecclesiastical supremacy of the King, which had been originally
conveyed to him on the introduction of Protestantism, would be
employed by him uniformly and solely for the protection of the
Protestant cause. The fault of the Bishops was their want
of discernment, that the supremacy of the Sovereign in the state,
also, was in its principle conditional, and implied an obligation

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THE REIGN OF JAMES II. 507

admired by us as “ the result of fine qualities.” Their “ political
crimes” would have been considered, not *‘ ultimately,” but pri-
marily and unmixedly “as virtues.’ The sufferer would be
called by us a hero. We should find a patriot in the rebel, and
a martyr in the heretic. As to Russell and Sydney, I shall not
dissemble that their memory will ever be precious to me, that [
shall ever love their virtues, ever reverence their talents, ever la-
ment their fate, and ever execrate the hand which signed
the warrant for their death. Sydney was innocent even of poli-
tical crimes, and Russell suffered a punishment far exceeding his
legal guilt, for the act by which he was tried had expired.

Doubtless Mr. Fox holds up to our admiration the integrity and
magnanimity of Argyle, and he represents the “ fine qualities” of
Monmouth so as to conciliate our affection and esteem. But he
has so described Argyle’s invasion as not to impress us with any
favourable opinion of his discretion, a quality which, upon such
occasions, Mr. Fox has shown to be inseparable from virtue.

Of Monmouth Mr. Fox informs us that ‘ he possessed quali-
ties which, in a popular government, were far more effective
than the most splendid talents *—that during the life of Charles
his youthful mind was fired with ambition, and that he consi-
dered the putting of himself at the head of a party, as the means
by which he was most likely to attain his object—that his de-
clared enmity to his uncle, the Duke of York, was one of the
circumstances which overpowered the obligations of filial duty

which lay upon him to govern his subjects in their temporal con-
cerns, according to the directions and by the authority of the
Jaws.

The plain truth is this. An English Sovereign is no more
authorised to turn a free into an arbitrary government, than to
raise a Roman Catholic upon the ruins of a Protestant church.
The vestiges of a change in religion may be more distinct, and
the process more rapid, than those of a change in the affairs of
state, But the danger in the latter case, is not, therefore, less ;
it may even be greater from the circumstance of gradual and si-
Jent introduction; and, when the evil is at once conspicuous,
imminent, and radical, the right and even the duty of resistance
are indisputable. They, at least, who controvert the foregoing
positions are alike hostile to the Reformation and the Revolution,

* Page 167.

508 NOTE UPON FOX’S HISTORY OF

and gratitude, and seduced him into such conduct as, in any
other subject might have been meritorious, but in him was
doubtful and extremely culpable—that his attachment to the
Protestant religion, and to the civil liberties of the country co-
operated with his friendship for some of the Whigs, his admira-
tion of their talents, and his love of their principles, in suggest-
ing to him high schemes of ambition, of which it is difficult to
discover the precise object *—that his invasion in the reign of
James was ill-planned and ill-executed—that. he could have no
prospect of efficient aid from Scotland—that he was destitute of
money—that he neither gained nor had reason to expect support
from the great families—that he confided weakly in the mo-
mentary breath of popular applause—that he published a decla-
ration, equally unsatifactory to the commonwealth-men,f the
favourers of hereditary right, and the more rational advocates of
monarchy—that hisflexibility had degenerated intoa habit, f which
made him often follow the advice, and yield to the entreaties of
persons whose character by no means entitled them to such de-
ference—that, by the advice of Grey, to whom he was partial
from long friendship, and of Ferguson, whom he never could
have mistaken for an honest man, he had been persuaded to the
unjustifiable step of declaring himself King—that the most
guilty act of his life was lending his name toa declaration which
was published at Lyme, which accused the King of being an
incendiary, a murderer, and even a fratricide: and that the guilt
of these atrocious calumnies is heightened, because he does not
himself appear to believe them to be true.’ In these represen-
tations of Monmouth’s character and actions, I see no traces of
any attempt to recommend his real “ crimes to our affection,”
to throw an air of “ virtue over his political crimes,” or to re-
present them as resulting so much from his “ fine qualities,” as
from weakness in his judgment, and excess in his ambition.

At the close of some very severe remarks made upon the cen-
sures which Mr. Fox passed on the Bishops who attended Mon-
mouth, and on the “ morose and illiberal bigotry” which Mr.
Fox is accused of indulging against churchmen and the church,

* Page 168. t Page 233. t Page 271.

THE REIGN OF JAMES II. 509

the critics of whom I have been speaking have thus written :
** Infidelity,” say they, “‘ has its bigotry as well as superstition,
and is as rabid and relentless.”

That infidelity, as well as superstition, is accompanied by
bigotry 1 readily admit, and the events of our own times have
given us melancholy proofs, that, during the short career of its
triumphs, it can be “ as rabid and as relentless.’ But why is the
general observation introduced in this place? Will the Reviewer
take upon himself to justify to their full extent the political
tenets of those churchmen who are the objects of Mr. Fox’s in-
dignation as an historian? Is the indignation which Mr. Fox
upon one occasion expresses against such members of the
Church of England so unqualified and so unrelenting, that it was
impossible for him to feel and avow it without a total disbelief,
and even an inveterate hatred of Christianity itself? Was it de-
corous or honourable in the Reviewer to throw out a general
charge of this kind without attempting to support it by particu-
lar passages, bearing the most unequivocal marks of determined
and incorrigible infidelity? Will the Reviewer suspect me of
any predilection for infidelity and disloyalty, because, when a
schoolboy, I maintained indignantly, as Mr. Fox has since done
calmly, that the order of words was not accidental in a certain
formulary, for which ‘ chicane in law, and casuistry in lawn,”
have not yet produced such proofs as to convince me that the
substance of that formulary is warranted by the constitution, or
by the Scripture—because 1 do not class passive obedience and
non-resistance * among the articles of religion, which are to re-

* J suppose that scarcely any ecclesiastic of our own days could
conscientiously declare what Burnet calls a special assent to every
particular of the homilies concerning obedience, and against
wilful rebellion ; and even upon the main of the doctrine that is
taught in them there is a general, though tacit consent to allow
such difference of opinion, as it were not very easy, nor indeed
very prudent, to limit by a series of definite propositions. In
veneration for the Gospel, in submission to the laws, and fidelity
to the throne, the scholars of Locke and Hoadley have little to
fear from comparison with the admirers of Filmer and Atterbury.
For my part 1 hold myself, as a Christian, bound to obey the
laws of my country, and dutifully to serve, honour, and submit

δ10 NOTE UPON FOX’S HISTORY OF

gulate my belief, or the political maxims which are to guide my
conduct—because I have long been enamoured of those princi-

to the powers by which those laws are enacted and administered.
But I also hold that, asa Christian, I am authorised to venerate
and to maintain the civil rights of my countrymen. I therefore
shall always lament the indiscretion of ecclesiastics, when they
contend for opinions, which in their legitimate and practical
consequences, lead to the extravagancies of Rousseau, where he
tells us, that ‘‘ Le Christianisme ne préche que servitude et dé-
pendance. Son esprit est trop favorable ἃ la tyrannie pour qu’
elle n’en profite pas toujours. Les vrais Chretiens sont fait pour
etre esclaves.’—Lettre a M. de Beaumont, p. 198. Anxious for
the honour of my religion, for the comfort and instruction of
my fellow Christians, and for the happiness of my fellow subjects,
I shall always declare in the words of an eloquent prelate,
«« That grandeur and elevation of mind, that sublimity of senti-
ment, that conscious dignity of our nature, redeemed at so high
a price, which true religion keeps alive ; which Holy Scriptures
dictates; and which the Spirit of the Lord inspires, will be ever
pushing us on to the attainment and preservation of those civil
rights which we have been taught by reason to know are ours :
and which we have been made to feel by experience, are, of all
ours, the most indispensible to human happiness.”—Warbur-
ton’s Alliance, page 258.

Among the apologies which Mr. Hume adduces for the preju-
dices and faults of the Stuarts, and some of which it were unjust
to reject indiscriminately and totally, he says, “ the flattery of
courtiers also blinded them, and above all that of the clergy, who
from several passages of the Scriptures, and those wrested too, had
erected a regular and avowed system of tyranny and despotic
power.’—Essay on the Protestant Succession. I know not the
value which other men may set upon the opinion of Mr. Hume,
yet I see with great satisfaction that he throws the blame not
upon religion, but upon the teachers of it; and with great satis-
faction, also, have I noticed the incidental and indirect testimony
which other unbelievers have borne to the political usefulness, or
at least harmlessness of the Scriptures. If they had contained
passages which by a fair construction were favourable to the cause
of despotism, what occasion was there for theologians to wrest
any texts ὃ and that texts were so wrested was the opinion not
only of Mr. Hume, but of many learned and sincere believers.
But if it be said that the Scriptures in the real and obvious sense
of words countenanced despotic power, then surely we have
stronger reason for admitting the justness of Mr. Hume's re-
mark, that “ there never was a grosser contradiction than appears

THE REIGN OF JAMES II. dll

ples of justice, benevolence, and equality, which form the true
creed of a party * espoused by me in my youth, and after expe-

between the doctrine of passive obedience, and the resistance
which the advocates of that doctrine made to James the Second
at the Revolution.”—See Hume’s Essay on the Parties of Great
Britain.

Upon this supposition, I must acknowledge the inconsistency,
while I honour the sincerity and the courage of the dignified ec-
clesiastics. But rejecting the supposition itself, I would make
many allowances even for their errors, and as to the great bulk
of the clergy I should with some qualification assent to the ex-
cuse which a very ingenious prelate has made for them. ‘“ It is
no wonder the clergy should be most solicitous about what was
their proper care; what they best understood; and what was
then deemed to be in most danger: that if they knew little of
the nature and rights of society, they might be well excused, as
they had been misled bya set of court divines, who had betrayed
and sacrificed the principles of the Reformers to the practices of
James and Charles the First’s ministers; and as they had never
been taught by experience, the blessings of a free government,
regulated upon true principles.”—Warburton’s Sermon on the
Suppression of the Rebellion.

For a bias in the minds of ecclesiastics towards such a degree of
regal power as might eventually endanger the blessings of a free
government, I should sometimes be disposed to account, not
from servility, not from arrogance, not from a tyrannic temper,
but from that intellectual weakness against which even the ex-
perience of their countrymen since the Revolution has not been
sufficient to preserve every individual, whether in a clerical pro-
fession, or indeed out of it. 1 should not upon every occasion be
incensed against unthinking persons, when I was told by them,
that the Scriptures are rather favourable to absolute monarchy,
because I have seen some approaches to that tenet in writers
whose talents, literary attainments, and virtues I ought to revere.

Even the acute and sagacious author of the Fragment upon
Government confesses, that in his youth, and during his resi-
dence in an English university, he had imbibed opinions similar
to those which were entertained by many ecclesiastics in the reign
of James. ‘J saw,” he says, “ strong countenance lent in the
sacred writings to monarchic governments, and none to any
other. I saw passive obedience stampt with the seal of the
christian virtues of humility and self-denial."—Page 47. Such
are the words of Mr. B. where he gives ‘a short sketch of the

* Fox’s History, p. 267.

512 NOTE UPON FOX’S HISTORY OF

rience of its worth and usefulness, respected by me even in man-
hood and old age—because, with Dr. Paley,* I believe a religious

wanderings of a raw, but well-intentioned mind in its researches
after moral truth.” Perhaps he was then so content with look-
ing to the ““ genius of the place he dwelt in, the authority of the
state, and the voice of the church in her solemn service,” that he
did not very often, nor very carefully consult his Bible, or, when
he did consult it, his prejudices gave to his mind in the interpre-
tation of it a bias which he afterwards could not resist, when the
prejudices themselves had been corrected and renounced. What-
soever may be the result of his subsequent inquiries, goodness of
intention, I am sure, will never forsake him; and as his know-
ledge is now more extensive, and his judgment more mature, I
should gladly submit to his consideration my reasons for believ-
ing him mistaken, when he supposed the doctrine of passive obe-
dience to be warranted by the Scriptures.

«« They lent,” says he, ‘ strong countenance to monarchic go-
vernment, and none to any other.” Be it so. But do they, also,
countenance the abuses of that government ? 7

From the rise of the Jewish monarchy under Saul, and after
the separation of the tribes into the governments of Judah and
Israel, the sacred writers lived under kings—they were surrounded
by kings in neighbouring states—they were subject to kings
under the Babylonian and Assyrian captivities. But would Mr.
B. refuse to the Eastern style of the sacred writers the privilege
of using that lofty phraseology which we find in Homer, where
kings are addressed, as Διοτρεφεῖς, and Avoyevets? Has he not
often smiled at the inferences in favour of absolute monarchy,
drawn from the well-known passage,

“ εἷς κοίρανος ἔστω,
Eis βασιλεύς ""
Does he imagine that the poet meant to condemn aristocracies,
or democracies, because he speaks respectfully of that regal form
of government with which alone he, in all probability, was ac-
quainted ? Let Mr. B. reason in the same fair and plain way
about the Jewish writers, and when the king is called ‘ the
Lord’s anointed,” let him call to mind the Jewish ceremony of
unction, and impute to the phrase no larger meaning than it
conveyed to a Jewish ear. It was the sign of an office, to which
great respect was due among the Jews, and indeed among every
other people, where the title was used. But as to the modern
notions of inviolability and sanctity, however countenanced they
may be by the laws of modern states, they imply far more than

* Chap. 10.

THE REIGN OF JAMES II. 513

establishment to be ““ no part of Christianity, but only the means
of inculcating it’—because I hold civil and religious liberty to

any critic will assign to the phrase we are considering, in the
sacred writers.

Do not the historical books record, and upon many occasions
reprobate the crimes of the Jewish kings, both in their personal
and regal characters? In their didactic writings, such as the
Psalms and the Proverbs, is any praise bestowed upon the bad
actions of monarchs? Are not frequent and earnest exhortations
to good actions set before them? Do not the prophetic writings
abound with bold expostulations addressed to wicked kings—with
severe reproaches—with terrible denunciations of the vengeance
which their enormities would bring down upon them and their
subjects ? Let us turn to the apocryphal books. Is there any mark
of adulation in the answer made by a young man, and reported
to a king? ““ Wine is wicked, women are wicked, kings are
wicked, all the children of men are wicked. As for the truth, it
endureth, and is always strong.”—1 Esdras, ch. iv. How can
the pernicious effects of evil counsellors upon the measures of a
government, or the happiness of a people, be more luminously
described than in the book of Esther, where ministers are men-
tioned as ‘* beguiling with their lewd disposition the innocency
and goodness of princes, causing by fair speech many that are in
authority to be partakers of innocent blood, and enwrapping
' them in remediless calamities ?’—Ch.16. Do not the books of
Maccabees contain precepts and examples which recommend to
our esteem the efforts of patriotism engaged in vigorous resist-
ance to oppressors? What do we read in the book of Wisdom ?
*« Great men and judges and potentates shall be honoured—yet
is there none of them greater than he that feareth the Lord.”
** The Lord hath cast down the throne of proud princes, and set
up the meek in their stead.”—-Ch. 10. ‘All, except David, and
Ezekias, and Josias, were defective: for they forsook the law of
the Most High, even the kings of Juda failed.” —Ch. 49.

Now the sacred historian did not assume the office of an apo-
logist when he represented David as guilty of adultery and mur-
der, and sinking under the terrors of an awakened conscience,
after Nathan had upbraided him with his aggravated wickedness
—the sacred historian did not lend any ‘‘ strong countenance”’ to
despotism, when he described David as gaining, and deserving to
gain, the throne by successful opposition to a sovereign who was
not longer worthy to reign-—the sacred historian did not hold the
language of flattery, but of justice, when he spoke of David as a
man “ after God’s own heart ;” for he applied the term, as
scholars now apply it, to some eminently meritorious actions

VOL, IV. ὩΣ,

514 NOTE UPON FOX’S HISTORY OF

rest on the same ground of general utility, and to be interwoven’
in the essential and vital principles, of the English constitution—:

of David in his regal capacity. In profane history we meet with:
scattered instances where unwelcome truths were conveyed to the
ears of kings by the priestess of an oracle, by a faithful counsel-
lor, by a personal friend, or by a philosophic churl. But among
the Jews we find a succession of men who thought themselves
privileged by their prophetic office to advise, to rebuke, and to
threaten their lawful sovereign, and who seem also to have availed
themselves of the privilege frequently, boldly, and at the hazard.
of their liberty or their lives, from the caprice of profligates or
the vengeance of tyrants, With equal intrepidity they pointed
their indignation against the deceiver and the deceived—against
the “ ancient and honourable heads” of a nation, “ who caused
it to err—against the seers,” who ‘‘ ran when the Lord had not
sent them,” ““ prophecied smooth things when he had not spoken
to them,” “ and shouted, peace, peace, when there was no peace”
—against the priests “who strengthened the hands of the
wicked,” and perhaps boasted, ‘‘ we are wise, and the law of the
Lord is with us”—against “‘ the people who, when the prophets
prophecied falsely, and the priests joined hands with them, loved
to have it so.”

Whatsoever may be the attachment of Christian potentates to
the authority of national churches, it does not appear that pre-
lates, or chaplains, or confessors, were allowed to reprove their
royal masters publicly ; and when we find the Scotch Presbyte-
rians alledging the precedents they had from the Jewish prophets
for inveighing against the vices of their own monarchs, our un-
derstandings spurn at the fallacy of their logic, our sense of pro-
priety revolts at the coarseness of their manners, and we impute
even their well-founded reproaches, not to the magnanimity of
virtue, but the audacity of fanaticism.

In regard to passages in the New Testament, quoted as they
are, not from the gospels, for they are nearly silent on the sub-
ject, but from the writings of Saint Peter and Paul, I am sure
that so acute a reader as Mr. B. would acquit them of the mis-
chievous tendency which has been imputed to them, if his meri-
torious labours in other researches were for a time suspended,
while he examined the defence and explanations of those pas-
sages, for which the Christian world is indebted to Sydney, to
Locke, to Hoadley, and other writers not eminently favourable
to the cause of despotism and non-resistance. To the general
assertion of Mr. B. I would dispassionately and respectfully op-
pose the foregoing detail. If that excellent man had thrown out
any strictures upon doctrines merely speculative, and as such

THE REIGN OF JAMES II. 515

because while I entertain the most profound respect for the
talents and virtues of a Laud and a Tillotson, I prefer the mo-

controverted among Christian polemics, I should have left it with
other men to confute him. But when we are inquiring, “ non
disputandi causa, sed ita vivendi” (Cicero pro Murena)—when
the question relates to a point of fact closely connected with
morals-—-when we would settle whether the sacred writings do
or do not inculcate tenets most injurious to society, I cannot
look with indifference upon what I believe to be the erroneous
decision of so profound a thinker, and so honest a man. ;

_ As to the virtues of humility and self-denial, I shajl not upon
this occasion fly for shelter to the distinction which Montesquieu.
has made between “ counsels and laws.”—Book xxiv. chap 6.
In. the obvious and familiar sense of the words, humility and
self-denial are virtues, which in a state of moral discipline we are
often required to practise as men and as subjects. Experience
shows them to be connected with the peace of tamilies, neigh-
bourhoods, and governments. Philosophy will allow them to be
parts of prudence, temperance, decorum, and submission to
those laws upon which the existence of society must depend.
They have indeed their boundaries ; and these boundaries will,
by a discreet and impartial inquirer, be discovered in the well
understood principle of utility, for which Mr. B. himself stre-
nuously contends, and upon which he states some political
limitations in ch. 1, sect 43, and ch. 4, sect. 39, 40, and 41.
** Utility,” says Mr. B. ““ is that standard to which men in gene-
ral refer a law or institution in judging of its title to approba-
tion or disapprobation.” That principle enables us to under-
stand whence it is that, although “ force is always on the side of
the governed, and governors have nothing to support them but
Opinion, yet it is an opinion of an interest most powerful and
constant,” for men are led to resign their own sentiments and
passions to those of their rulers by a sense of the public advan-
tage which is reaped from government, together with a persua-
sion that the particular government which is established is
equally advantageous with any other that could be easily set-
tled.”—Hume's Essay on the First Principles of Government. In
that principle we see a reason why governments, “ in propor-
tion as the habit of obedience” (which, according to Mr. B. con-
stitutes their power) ““ is more perfect, recede from, and in pro-
portion as it is less perfect approach to a state of nature.”—
Fragment on Government, book i. chap. 12. Upon that princi-
ple, rightly explained and rightly applied, I should maintain with
Montesquieu, that “ citizens of the Christian profession, being
infinitely enlightened with respect to the various duties of life,

a: ἢ

516 NOTE UPON FOX’S HISTORY OF

deration of the one to the rashness of the other—because in the

exoteric and esoteric doctrines of the English Church I have met

and having the warmest zeal to fulfil them, must be perfectly
sensible of the rights of natural defence—that the more they be-
lieve themselves indebted to religion, the more they would
think due to their country—that the principles of Christianity,
deeply engraven upon the heart, would be infinitely more
powerful than the false honour of monarchies, than the humane
virtues of republics, or the servile fear of despotic states.” —Book
Xxiv. chap. 6.

I once heard it remarked, that if the records of the crimes com-
mitted by monarchs are to be considered as satires upon the dig-
nity of the monarchial office, no records are more full nor any
satires more poignant than those which are read in the historical
books of the Old Testament. It should be remembered, how-
ever, that of the contemporary kings we have scanty and ob-
scure accounts; and therefore the comparisons which we insti-
tute between the kings of Israel and Judah and other sovereigns
of the same ages, must be grounded on the mere probability,
that, as the people were more ignorant and ferocious, the rulers
partook of the same odious character. But without giving an
unqualified assent to the above-mentioned remark, I see in it
truth enough to show, that no improper “ countenance is lent”
to worthless kings, in a book which frequently relates their faults,
sometimes condemns them, but never attempts (as a late philoso-
phical historian has done in the reigns of English kings) to vin-
dicate, or even extenuate them. It must be owned, that when
we read the actions of the Israelitish and Jewish monarchs,
we do not very often find them entitled to moral approbation ;
and the same may be said of the impression made upon our
minds by the histories of many other potentates, both ancient
and modern, But would the Jews have been justified in re-
volting from every bad king, upon every strong provocation from
his evil measures? I broadly and promptly say, they would not ;
and for this plain reason, because the consequences of frequent
revolts would have been more pernicious than the consequence
of general submission. Now as experience shows that in all
other governments similar consequences are nearly at all times
to be apprehended, religion surely goes hand in hand with sound
policy, when it generally and forcibly inculcates the duty of cbe-
cience—a duty which results, as do all other duties, after our
notions of obligation, merit, and moral approbation have been
analysed into their elements, from what upon the whole is our
real interest, and the violation of which is productive of more
misery than happiness, or, (as Mr. B. would say,) ‘ more pain

tt i i

THE REIGN. ΟΕ JAMES II. 517

with no rule by which I am pledged to entertain any hatred
whatsoever to Dissenters, whether Protestant or Catholic—be-

than pleasure,” not only by the positive appointments of political
societies, but by the established and known order of those causes
which pervade the moral constitution of the world.

My opinion is, that there is not the smallest difference between
religicn and philosophy in the tendency of the moral principles
which they inculcate, so far as those principles promote the pub-
lic welfare of communities. Both are favourable to good order,
favourable to obedience, favourable to the habit of honouring the
king, as indeed civilization, as usage, as law, as the love of re-
spect when due to ourselves, and the unperverted sentiments of
the human heart, also, teach us to honour him, Both, like-
wise, are favourable to diligence, prudence, temperance, deco-
rum, justice, self-command, reasonable self-love, benevolence, and
all those private and personal virtues which promote human hap-
piness more constantly, and upon the whole more largely even
than public virtues, which silently prepare and discipline the
human mind for great exertion where the ends to which exer-
tion is directed are visibly good, and which restrain our restless
and irregular passions from disturbing society under the pretext,
for such we experimentally know it often to be, of reform or im-
provement. Both, in effect, though with different modes of
phraseology, represent princes as ‘‘ ministers to us for good,” as
intended for ‘‘ a terror to evil doers,” as ‘‘ decreeing justice,”
as subject to those laws of the moral world by which authority,
if well employed, must be strengthened, and if ill employed, may
be weakened as rulers who ought to be “ able men, men of
truth,” “‘ men who hate covetousness, men who should do no
unrighteousness in judgment, who should not respect the person
of the poor, nor honour the person of the mighty,’ men in whom
it is “an abomination to commit wickedness,’ men whom
«mercy and truth preserve,” and whose ‘ throne is upholden
by mercy and established by righteousness,” men who, when
they will ‘*‘ no more be admonished” are inferior to a poor and
wise child,’ men who, when their eyes and hearts are for the
shedding of innocent blood, for oppression and for violence,”
will not always be permitted “ to reign, because they clothe
themselves in cedar,’ men who, when they “ take the bad coun-
sel of the young, reject the sound advice of the old, answer the
people roughly, and say they will add to their burdens, and not
ease them,” are in danger of incurring what Rehoboam experi-
enced when the tribes revolted against him, and chose themselves
aking. Whether, indeed, we refer the punishments of wicked
rulers to an ordinary or an extraordinary providence—whether

518 NOTE UPON FOX’S HISTORY OF

cause “as much as lieth in me I would live,” and exhort others
to live, ‘‘ peaceably with” the Lutheran, Greek, Roman, and

we look upon them as events flowing from the same causes,
which every where more or less govern the concerns of men, or
as divine judgments, they are equally conformable to our sense
of right and wrong, and are equally to be considered as proofs
of the baleful consequences which bad policy and bad morals
tend to produce in the condition of bad kings. The principle of
utility then is virtually recognised in sacred history, though the
term is found only in philosophical writings. But let us remem-
ber that the same principle puts us in mind “ to be subject to
principalities and powers, to obey magistrates, to be afraid of
the powers, and to render tribute to whom tribute is due, custom
to whom custom, fear to whom fear, and honour to whom
honour.”

The gospels, as I have observed, are nearly silent upon subjects
purely political, and in the way of direct precept they lend little
countenance to the advocates or to the opponents of absolute
power. He whose kingdom was not of this world made no op-
position to Cesar’s government, or Cesar’s representative in
Judza. But even Milton, in defending the death of Charles the
First upon the scaffold, says a learned and sagacious biographer,
** can cite from the sacred writings of the Christians only two or
three passages, which prove nothing more than that the blessed
Jesus did not assign to monarchs all the attributes which were
given to them by the adulation of the world, or feel for wicked
sovereigns more respect than he entertained for wicked men.”"—
Dr. Symmons’s Life of Milton, page 252.

As to extreme cases, the Scriptures, then, I grant, do not lay
down any general rules which authorise resistance. But the
same wariness is preserved in the more deliberate and important
exercises of the human mind, in historical investigations of
causes and effects, in the laws of civilized nations, and in all
those systems of philosophy which are founded upon experience,
appeal to the sober judgment of mankind, and are adapted to
the practical concerns either of private or public life. The habit
of contemplating such cases may generate a predilection for po-
litical theories, compounded of assumptions, conjectures, and de-
ductions from facts which have been arbitrarily selected for pur-
poses of illustration or proof, and severed from other facts lead-
ing to other deductions. But ἃ strong presumption against
the truth of those theories may always be found in their want of
conformity to the real situation of man, to his complex na-
ture, and to his various and mutually dependent interests in a
“state of society.

THE REIGN OF JAMES II. 519

Genevan churches, and all other Christian societies—or, finally,
because with the Jight of natural religion, and in the spirit of re-
vealed, I think it my duty to be “ kindly affectioned towards all
Jews, Turks, infidels,” schismatics, ‘‘ and heretics,” as belonging
to “ one” great “ fold under’’ the care of “ one” good “ shep-
herd?” How does the sacred and indispensable duty of doing
good, especially unto those of the household of “ faith,” absolve
me from the obligation to do good, if it be possible, to all other
men? Are they not endowed, like myself, with rational facul-
ties, capable of physical happiness and social union, and placed,
or at least believed by me to be placed in a state of discipline, as
subjects of reward or punishment in a life to come? Why, then,
should I “ judge them,” or “ set them at nought,” or, by my in-
tolerance, “‘ throw stumbling-blocks in their way” to the adoption
of that religion which I have embraced as true? ““ To their own
master,” as they are “" fully persuaded in their own mind, every
one of them standeth or falleth. Yea,” I trust, “they will be
holden up;” for, by methods and for purposes quite unknown to
me, the moral Governor of the universe “ is able to make them
stand.” *—Romans, ch. 14.

I lament the errors of the advocates for non-resistance, when
they seem to me to misinterpret either the examples recorded or
the admonitions enforced in holy writ. Let us, however, do jus-
tice not merely to the general rectitude of their intentions, but
to the occasional validity of their reasonings—let us acknow-
ledge that the maxims of sages, and the decisions of lawyers, to
which they occasionally appeal, evince the previous existence of
a sentiment for the long continuance and wide extent of which
-we must be unable to account, if under no aspect whatsoever,
and in no degree whatsoever, it be warranted by experience.
Let us remember, that while they insist upon the decisions of
fathers, the decrees of councils, and, as they believed, the com-
mands of the Deity himself, they again and again argue upon the
principle of utility, they in effect represent our interest as insepa-
rable from our duty, and hold up, not only the moral turpitude
of rebellion to our abhorrence, but the physical mischiefs of it to
our fears :

““ Naturam expellas furca licet, usque recurret.”

* I am glad that Jortin reasoned on the same principles with
myself. ‘Them who are without God judges, He best knoweth

520 NOTE UPON FOX’S HISTORY OF

Anxious I shall never be to defend myself against such charges
as infidelity or disloyalty, founded upon the approbation and

“ how to deal with the Pagan world in general, and in particular
with those Pagans who were so far estranged from Him as to fall
into the Epicurean impiety. To his righteous judgment let us
leave them.”—Jortin in his sixth Dissertation.

Clemens Alexandrinus supposes, that the law of nature, as
discoverable by philosophy, would save a heathen ; and the prin-
ciple on which he founds his reasoning, extends, surely, to all
persons, who, having formed their moral and religious opinions
honestly and seigtheaed act up to them, when formed, sincerely
and steadily. ‘“ ov μόνον τοίνυν ὁ πιστὸς, ἀλλὰ καὶ ὁ ἐθνικὸς
δικαιότατα κρίνεται" ἐπειδὴ γὰρ ‘Her ὃ O Θεὸς, ἅτε προγνώστης ὧν,
μὴ πιστεύσοντα τοῦτον; οὐδὲν ἧττον, ὅπως τὴν Ὑε καθ᾽ ἑαυτὸν
ἀν ἀδέξηται τελείωσιν, ἔδωκε μὲν φιλοσοφίαν αὐτῶ, ἀλλὰ πρὸ τῆς
miorews.—Stromat. lib. vi. p. 795.

Having in page 231 mentioned with approbation the argu-
ments which Pistorius has employed on the ends of future
punishments, I am solicitous to avert from him and from myself
the imputation of that singularity, which upon religious subjects,
is often thought to imply rashness, An opinion may not be the
more probable, nor perhaps the more authoritative, because
it was maintained by a father of the Christian Church. But
if persons among them of acknowledged ability and piety have
thought that punishment as administered by the moral Go-
vernor of the Universe is intended, among other purposes,
for the correction of the suffering offender, surely a believer
in our own days may properly appeal to the testimony of
such writers and may justly contend that, upon the tenets which
he holds in common with them, no objection ought to be raised
against the sincerity of his own assent to the credibility of reve-
lation, or his own reverence for the attributes of the Deity. Now
1 would refer you to vol.i. p. 352 of Jortin’s remarks upon Eccle-
siastical History, where you will find an introductory distinction
made by Aristotle, between τιμωρία and κόλασις --τις διαφέρει
δὲ τιμωρία καὶ κολασις ἡ μὲν γὰρ κόλασις τοῦ πάσχοντος ἕνεκά
ἐστιν ἣ δὲ τιμωρία τοῦ ποιοῦντος. IT would add (as Jortin does
not refer) that the foregoing passage occurs in lib, i, cap. 10, of
the Rhetorics, in the Cambridge octavo edition, of 1728. In
conformity to that distinction Aristotle elsewhere says, ΡΝ γὰρ
τιμωρία παύει τῆς ὀργῆς, ἡδονὴν ἀντὶ τὴς λύπης ἐμποιοῦσα.
—Ethic. Nicomed. lib. iv. cap.5. ““ μηνύουσι δὲ καὶ αἱ κολάσεις
γινόμεναι διὰ τούτων, ἰατρεῖαι γὰρ τινές εἰσιν. For ἀκολασία,
and κεκόλασθαι, see lib. 111, cap. 12. But we are chiefly interest-
ed in the passages which Jortin quotes from page 895 of lib. vii.

THE REIGN OF JAMES Il. 521

avowal of such tenets as I have just now stated. But I am not
equally indifferent about the insulted memory of a n ost beloved
and respected friend, and in justice to him I will produce from
his History in detail every passage in which he directly or indi-
rectly adverts to religion.

In page 15, when Mr. Fox is considering the general effect
produced upon the minds of men by the execution of Charles, he
says, “‘ it cannot be doubted but that the opportunity given to
Charles for displaying his firmness and piety has created more re-
spect for his memory than it would otherwise have obtained.”
Does Mr. Fox here accuse Charles of weakness or of insincerity
in his religious faith? Does he not grant that the piety of the
King, together with his firmness, operated so powerfully upon
the minds of men as to counteract the effects which other-
wise would have been produced by his imperfections, and
what our historian must have believed to be, his crimes ?

and page 764 of Clemens Alexandrinus, in Stromat. (Paris
edition) and in his reference to page 794 and the Notes. Clem.
Alex. does not, in his terms, observe the distinction laid down by
Aristotle, between κόλασις and τιμωρία, as may be seen in page
795. But it is apparent that he believed all future punishments
to be corrective to the sufferer, and preparatory for the gradual
attainment of greater or less degrees of happiness. Upon those
degrees you may consult the Note in page 794, and the text in
pages 865, 866. Jortin, on the question from page 895 of the
Stromat. adds, “‘ Origen was of the same opinion, and perhaps
carried it somewhat farther.” As Jortin has not here employed
either reference or quotation, I shall point out the places where
Origen’s sentiments may be found: see vol. i. pages 58S and 677
of the Paris edition published in 1733; vol. iii. pages 267, 444 ;
vol. iv. pages 16, 296, 560,575,640. The learned reader would
do well to consult paragraphs 10, 16, 17, 23, 24, 26 of Huet’s
Origeniana.

Let me observe, that the purgation by air, water, and fire,
which Virgil mentions in vv. 741, 2,3 of the sixth ποιά, and
which was to continue for a thousand years, seems confined to the
souls, Quibus altera fato Corpora debentur. ‘‘ De Heroum,
Philosophorum, et bonorum animabus que Plato addit, Poeta
tacet, nec adjicit quid de iis fiat, quibus tam alte labes ista insidet,
ut elui nequeat, qui tamen plures numero esse debent. Scilicet
hi jam ante in Tartarum erant detrusi."—See Excurs, 13,
of Heyne upon the sixth Aneid.

529 NOTE UPON FOX’S HISTORY OF

In page 16 we are told that ““ whatever might be the advan-
tage gained to the cause of liberty by the terror of the ex-
ample operating upon the minds of princes, such advantage is far
outweighed by the zeal which admiration for virtue, and pity for
sufferings, the best passions of the human heart, have excited in
favour of the royal cause.” Did not the piety of Charles. hold
a distinguished rank among those virtues which at this very hour
increase our pity for his sufferings, and which among all con-
siderate men of all succeeding ages will soften the odium

‘which has fallen upon the royal cause?

When Mr. Fox speaks of the University of Oxford, as passing
that famous decree, which “ condemned formally, as impious and
heretical propositions, every principle upon which the constitu-
tion of this or any other free country can maintain. itself,
and stigmatised such principles as contrary to the holy scrip-
tures, to the decrees of councils, to the writings of the fathers,
and the faith and profession of the primitive church ;” he adds,*
such is the manner in which churchmen will abuse, when it suits
their policy, the holy name of that religion whose first precept is
to love one another, for the purpose of teaching us to hate our
neighbours with more than ordinary rancour.” Mr. Fox and I
may be mistaken in thinking those principles essentially necessa-
ry to the constitution of every free country, and in believing that
churchmen, when it suited their policy, have sometimes abused the
name of religion. But we are not mistaken, when we call that
name holy—when we call the precept, which it gives us to love
one another, its first and great moral commandment; or when
we think it a violation of that commandment to teach men
to “ hate their neighbours with more than ordinary rancour.”

In page 57 he considers it “ not as a judicious and honest use,
but a perversion of scripture, if men had so applauded the decla-
ration which was ready for the press at the time of Charles the
Second’s death, as to pronounce it an additional proof of the

maxim
“* nunquam libertas gratior extat

Quam sub rege pio.
What is this, as connected with Mr. Fox’s views of Charles's

* Page 51.

THE REIGN OF JAMES II. 523

conduct, but in effect to say, that without the perversion of
scripture, true liberty and true piety could not be represented,
upon scriptural grounds, as likely to receive any solid benefit
from the declaration of a prodigal and profligate monarch, who
had been neither humbled by adversity nor soothed by prosperity
—who was equally ready to promise where he could deceive,and
to threaten where he could intimidate—who had shown himself
capable of abandoning his love of voluptuous ease, and the shifts
of temporising accommodation, when he met with opportunities
for the bolder assumption and the sterner exercise of regal
power—who had endeavoured by force of arms to give effect
to his illegal and insidious proclamation of indulgence in religion,
and then, not from virtuous remorse, but abject fear, had broken
the seal of the deed with his own hands—who by practising upon
popular credulity had brought an odium upon popular principles
in order to undermine and ultimately subvert popular rights—
who had deluded and persecuted Protestant Dissenters in Eng-
Jand, and bound himself by a solemn pledge to accomplish the
downfal of the Established Church—who in Scotland let loose the
fury of Episcopalians against Covenanters, while he kept in
reserve a host of Papists who at.a proper season were to crush
Episcopalians—who had shut up the Exchequer, seized upon
charters, violated his engagements with Parliament, and squan-
dered upon minions and mistresses the grants which had been
made him for the protection of his subjects—who had spared
a Lauderdale, skreened a Danby, disgraced the faithful Cla-
rendon, ruined the patriotic De Witt, sacrificed a Russel, a Syd-
ney, anda Stafford, to the rigours of a sentence which he knew to
be unjust, betrayed Holland, deserted Spain, and for the basest
purposes of foreign and domestic policy sold himself again
and again as a groveling, shuffling, intriguing pensioner to the
bigoted, arrogant and ambitious Sovereign of France. Congra-
tulations and encomiums even upon such a Prince may be read in
addresses from short-sighted academics and low-minded courtiers,
But the vindication of such a Prince, as Mr. Fox thought, is not
‘to be found in the genuine spirit or letter of the Scriptures. Is
it the custom of infidels to bear such testimony to the consistency
of those Scriptures with the best rules of government, and their
usefulness even in the temporal concerns of mankind? Can

524 NOTE UPON FOXS HISTORY OF

it be the duty of Christian teachers to extract their praises
of such a man as Charles, or their defence of such a governor,
from the hallowed oracles of God? Reasons, I grant, they had
for dreading the Puritans whom Charles was known to detest, and
the Papists whom he was known to favour. But was there not
equal reason to look with some distrust upon a Prince who
openly encouraged those unrestrained vices and those undisguised
opinions by which every truth of religion and every principle
of morality were endangered ?

«© Quis Dardana ab ortu
Menia mutato tantum jam tempore credat ?
Luxus, et insanis nutrita ignavia lustris,
Consumptusque pudor peccando, unusque relictus
Divitiis probrosus honor lacerabat hiantem
Desidia populum, ac resolutam legibus urbem.
Nec vitiis deerant vires. Malefacta veneno
Assyrio manibus vestris, medioque dierum
Regales epulz, atque ortu convivia solis
Deprensa, et nulla macula non illita vita.
Tum populo sevi patres, plebesque senatus
Invidia leta, et collidens dissona corda.”*

In page 96 Mr. Fox praises Richard Baxter as a pious
anda learned man. Who will deny it ?

In page 201 he tells us that “ the religious concerns in which
Argyle seems to have been very serious and sincere, engaged
much of his thoughts on the day of execution. But his religion,”
Mr. Fox adds, “ was of that genuine kind which, by representing
the performance of our duties to our neighbour as the most ac-
ceptable service to God, strengthens all the charities of social life.”
If the most orthodox man living were to describe and to praise
the Christian religion as a rule of life, could he describe it more
accurately, or praise it more ardently, than Mr. Fox has done
in the words above quoted? Mr. Fox, we may allow, was de-
lighted with the political principles and political conduct of
Argyle. But let us remember that those principles and that con-

* Silius Italicus, lib. xi, 1, 30.

THE REIGN OF JAMES II. 525

duct are not*exclusively the objects of Mr. Fox's commendation,
He praises Argyle for being pious. But he also praises Christian-
ity for instructing Argyle in that kind of piety which carried him
onward from the love of God to the love of his neighbour.

In page 204 we read, “Let him be weighed ever so scru-
pulously, and in the nicest scales, he will not be found, in a
single instance,{wanting in the charity of a Christian, the
firmness and benevolence of a patriot, the integrity and fidelity of
a man of honour.” I believe that, in the enumeration of a
man’s virtues, infidel writers do not tell us, so earnestly as
Mr. Fox has told us, that with the firmness and benevolence
of a patriot, and the integrity and fidelity of a man of ho-
nour, theirj hero united the charity of a Christian. Surely
Mr. Fox has upon this occasion extolled a Christian virtue in
terms strictly Christian.

With evident marks of sympathy and approbation Mr. Fox
represents Argyle ‘‘ as desiring Mr. Annand and Mr. Chartris to
pray for him, as praying for himself with much fervour and de-
votion, as offering his prayers to God for the three kingdoms of
England, Scotland, and Ireland, as asking pardon for his own
failings both of God and man, as praying that there never may
be wanting one of the royal family to support the Protestant re-
ligion, and that if any had swerved from the true faith, God
would turn their hearts.” When Argyle a third time addressed
the people, and said, ‘‘ I die not only a Protestant, but with a
hearty hatred of Popery, prelacy, and all superstition whatso-
ever,” Mr. Fox does not dissemble his wish that these last ex-
pressions “had not been uttered, as there appears certainly some-
thing of violence in them unsuited to the general tenor of his
language,” and of that general tenor Mr. Fox seems to have ap-
proved, lecause it was adapted to the situation of a dying man.
Thus far Mr. Fox commends the Christian piety of Argyle, as
displayed at a moment when it peculiarly became Argyle to be
pious ; and he condemns only that excess by which his piety was
made inconsistent with Christian charity. When Mr. Fox relates
the preparation of Monmouth for execution, he faithfully and
solicitously brings forward many circumstances by which the de-
votion of Monmouth most strongly recommends him to our
compassion. ‘‘ Monmouth,” says he, “ was very sincere in his

526 NOTE UPON FOX’S HISTORY OF

religious professions, and it is probable that a great portion of
this sad day was passed in devotion and religious discourse with
the two prelates, who had been sent by his Majesty to assist him
in his spiritual concerns.” Upen the scaffold, Monmouth, he
tells us, “‘ was sure he was going to everlasting happiness, and
considered the serenity of his mind, in his present circumstances,
as a certain earnest of the favour of his Creator. He maintained
that his present courage was owing to the consciousness that
God had forgiven him his past transgressions, of all which he
generally repented with all his soul." Why did Mr. Fox enter
into this detail? 1 perhaps shall be told that he meant to place
in a more odious point of view the conduct of those persons who
in the prison and upon the scaffold “‘ seem to have repeatedly
teazed him with controversy, and to have been far more solici-
tous to make him profess what they deemed the true creed of the
Church of England, than to soften or console his sorrows, and
to help him to that composure of mind so necessary for his situ-
ation.”* So far as this was Mr. Fox’s meaning, he in my opi-
nion meant well; for, if the Bishops had at such a time abstained
from controversial subjects—if they had been more anxious “to
console the sorrows of Monmouth” than “ to make him profess
what they deemed the true creed of the Church of England” —
if they had drawn from the Scriptures what the Scriptures would
have afforded them, other more plain and more efficacious topics
“to help him to that composure of mind so necessary for his
situation "—they would have acted more confurmably to the spi-
rit of their religion, the holiness of their functions, and the ho-
nour of their church. But Mr. Fox meant something more.
He meant to do justice to the Christian sincerity and piety of
Monmouth. He gives not the slightest hint that the faith or the
devotion of Monmouth was the result of weakness or supersti-
tion. He describes them as powerful enough to afford Mon-
mouth that consolation which he sought in vain from his spiri-
tual advisers. Even for their infirmities he apologizes. He
allows “their general uprightness and sincerity as Church of
England men.” He ascribes their conduct, ‘ not to motives of
ἐς servile compliance, but to an intemperate and party zeal for

* Page 263.

:
'

THE REIGN OF JAMES II. 527

the honour of their church.” For the excess of that very zeal
he finds some excuse ‘‘in the general spirit of the times, in
which monarchy was regarded, not as a human, but a divine in-
stitution, and passive obedience and non-resistance were incul-
cated, not as political maxims, but as articles of religion.”*

Where a writer speaks thus seriously of the effects which
serious things produce upon the human mind, at a season the
most serious, is it fair to accuse him of that “rabid and relent-
less bigotry,” which is sometimes chargeable upon the advocates
of infidelity?) I challenge any enlightened and consistent Chris-
tian to read the foregoing quotations from Mr. Fox’s History,
and then, with his hand upon his heart, to tell me whether he
should have expected to find passages, conceived in such a spirit,
and expressed in such terms, from the pen of Mr. Voltaire, Mr.
Gibbon, or Mr. Hume?

In order to show that Mr. Fox has neither directly nor in-
directly attacked religion, whether natural or revealed, and
thus to make the defence of his History against the charge of
infidelity complete, I shall here examine every passage in which
the word ‘ superstition ” occurs.

The activity of the Whigs in persecuting the Popish Plot is
represented by Mr. Fox as ‘‘ the grand engine of their power.”
** When that failed,” says he, “‘ they were soon overpowered by
the united forces of bigotry and corruption. They were hated
by a great part of the nation, not for their crimes, but for their
virtues. To be above corruption is always odious to the corrupt,
and to entertain more enlarged and juster notions of philosophy
and government, is often a cause of alarm to the narrow-minded
and superstitious.’— From the last sentence, whether considered
in the light of a general proposition, or in its particular applica-
tion to the conduct of the Whigs in the Exclusion Bill, no infer-
ence can be fairly drawn to the prejudice of Mr. Fox. If the
Whigs had not “ entertained more enlarged and juster notions
of philosophy and government” than their opponents, the Exclu-
sion Bill would not have been carried ; and if those opponents
had not been narrow-minded, and some of them, in their attach-
ment to the religious opinions of James, even superstitious, a

a a

* Page 264. + Page 94.

528 NOTE UPON FOX’S HISTORY OF

measure, which at the moment was thought favourable to the

cause of Protestantism, must have failed. It is not, however,
certain that Mr. Fox meant to apply the word superstitious to
the religious tenets of any persons who resisted the Exclusion
Bill. He might intend to speak only of the effects produced by
superstitious veneration, i.e. a blind and abject veneration for
monarchy, when the Tories invidiously insisted upon “ the con-
fusion, greatly exaggerated, in the times of the Commonwealth,
and accused every lover of law and liberty of designs to revive

the tragical scene which had closed the life of the first Charles.” .

In speaking of the Bill for the preservation of the King’s per-
son, and the solicitude then felt for the Church of England, Mr.
Fox mentions “ a special proviso being added, “ that the assert-
ing and maintaining by any writing, printing, or any other
speaking, the doctrine, discipline, divine worship, or govern-
ment of the Church of England as it is now by law established,
against Popery or any other different and dissenting opinions, is
not intended, and shall not be interpreted or construed to be any
offence within the words or meaning of this act.’”* He then
remarks, that ‘ only such attacks upon Popery as were favoura-
ble to the doctrine and discipline of the Church of England were
protected by this previso, and consequently that, if there were
any real occasion for such a guard, all Protestant Dissenters who
should write or speak against the Roman superstition were
wholly unprotected by it.” Here Mr. Fox does not, in his own
character, charge superstition even on the Church of Rome.
But the Protestant Dissenters, it is well known, were equally
zealous with the members of the English establishment, in urging
that charge, and Mr. Fox merely uses the word which they
would themselves have used, without expressing approbation or
disapprobation.

When Sir Patrick Hume was concealed in the family burying
place, ‘‘ the means of sustaining life were brought to him by his
daughter, a girl of fifteen years of age, whose duty and affection
furnished her with courage to brave the terrors, as well supersti-
tious as real, to which she was necessarily exposed in an inter-
course of this nature.” Surely the dread which a young lady

* Page 148. 1 Page 172.

-ῳὠὀὀὠἰἀ a ee ae «Ὅν ἃ ἃ. Δ--.. Γ- Π Ἢ

—" w =| Ste

—— “᾽.ἱ ee eS eee ee eS

ὦ

THE REIGN OF JAMES II. 529

of fifteen felt of ghosts, when she was attending her father in
the burying-place of her family, may, in the present state of opi-
nion, be called superstitious, without any imputation upon the
faith of those who apply that term to that dread.

Thus far I see not the slightest appearance of levity or pro-
faneness, where the word superstition eccurs, in the three first
chapters of Mr. Fox's History; and I have quoted every passage
largely, for the purpose of showing by the context what was, and
what was not, the meaning of Mr. Fox when he employed that
word. Among the fragments we read thus: ‘‘ While the Whigs
considered al] religious opinions with a view to politics, the To-
ries, on the other hand, referred all political maxims to religion.
Thus the former, even in their hatred to Popery, did not so much
regard the superstition or imputed idolatry * of that unpopular

* When Milton inculcated the duty of mutual forbearance
among all Christians who appealed to the Holy Scriptures for
the rule of their faith, he excluded from his scheme of ample
toleration the Church of Rome alone, “ whose idolatry was an
offence to the Christian world.” ‘‘ The exercise of their religion,
so far as it is idolatrous, cannot,” he says, ‘ be tolerated, either
in public or private ; not publicly without grievous and insuffer-
able scandal given to all conscientious beholders; not privately
without great offence to God, declared against all kinds of idola-
try.” But Milton was merciful enough not to call for corporal pu-
nishment, or severe fines, because ‘‘ such severities stood not
with the clemency of the Gospel, and should not be employed
beyond what appertain to the security of the state.”

I should be sorry to imitate the example of Bishop Gunning,
“who,” as Burnet tells us, “by setting himself with great
zeal to clear the Church of Rome from idolatry, made many sus-
pect him as inclined to go over, though he was far from it.”
Instead of vindicating or palliating what I think the errors of
any sect or any church, I am disposed to consider the number
and the value of the religious truths which they hold in common
with the religious community to which I myself have the happi-
ness to belong; and such truths, in the opinion of Hooker, are
to be found even among the Roman Catholics. ‘ He affirmed,”
as we are told by Dr. Gauden, “ the Church of Rome, though
not a pure, sound, and perfect church, yet was a true one, in
which the necessary and fundamental means of salvation are pre-
served, but much diseased and obscured by superstitious super-
structure, to the great danger of people's souls, and detriment

VOL. IV. 2 μ

530 NOTE UPON FOX’S HISTORY OF

sect, as its tendency to establish arbitrary power in the state:
while the latter revered absolute monarchy as a divine institution,
and cherished the doctrines of passive obedience and non-resist-
ance as articles of religious faith,”’* Without the smallest hesi-
tation I should say that the tenets of the Tories, in making non-
resistance an article of religion, were superstitious ; by which I
mean, that they were the effect of a blind, abject, excessive reve-
rence for kingly power, a reverence “ full,” as Johnson says in
explaining the word superstitious, “ of idle fancies and scruples
about religion” as peremptorily and universally forbidding resist-
ance to the worst measures of the worst kings —a reverence
which, as Johnson says in his second interpretation, was “ scru-
pulous beyond need” about censuring those principles, and op-
posing those projects which must have shaken the foundation of
our mixed and free government. But Mr. Fox has not said so.
He confines the words superstition and imputed idolatry to the
religious notions of Popery, and, even in so doing, he states, not
so much his own judgment as the opinion of the Whigs: and
who, let me ask, will deny that the most orthodox Bishops in
the reign of James imputed both superstition and idolatry to the
Church of Rome? If any objection should be raised upon the
absence of the epithet ‘“‘ imputed ” before superstition, and the
introduction of it before idolatry, I should say, that the Whigs
certainly ascribe both to the Papists; but that Mr. Fox used the
word imputed because he might suppose it easier to prove the
more general charge of superstition, than the specific charge of
idolatry. He, in all probability, knew little or nothing of the
distinction maintained by Papists and opposed by Protestants
between AovAeia and Aarpeia. But he might consider the latter
charge as at once more odious and more doubtful than the for-
mer. The magnitude of the charge cannot be doubted when we
consider that ‘‘ nothing but the imputation of idolatry, which

and dishonour of the Christian religion in its holy institutions,

morals, and mysteries.” I prefer this opinion of Hooker to the

violent language of Mr. Travers, who “contended against the

Church of Rome as no church of Christ, but wholly a synagogue

of Satan, and the seat of Antichrist."—See Gauden’s Life of

Hooker, quoted in page 258 of Walton's Lives, edited by Zouch.
* Page 275.

THE REIGN OF JAMES II. 531

was thrown on the Catholic religion, could justify, in the eyes of
the Puritans themselves, the schism made by the Hugonots and
other Protestants, who lived in Popish countries.”’*

Now, in point of fact, Whig ecclesiastics among ourselves
have not been less zealous than the Tories in their endeavours to
convict the Papists of idolatrous practice. ‘‘ The approbation,”
says Burnet, “ of the Homilies is not to be stretched so far as to
carry in it a special assent to every particular in that whole vo-
lume ; but a man must be persuaded of the main of the doctrine
that is taught in them.

** To instance this in one particular; since there are so many
of the Homilies that charge the Church of Rome with idolatry,
and that from so many different topics, no man who thinks that
church is not guilty of idolatry can with a good conscience sub-
scribe this article, that the Homilies contain a good and whole-
some doctrine, and necessary for these times ; for, according to
his sense, they contain a false and uncharitable charge of idolatry
against a church that they think is not guilty of it; and he will
be apt to think that this was done to heighten the aversion of the
nation to it.’’+

The same accusation occurs repeatedly in the writings of
Jortin, Blackburne, &c. and I must own, that to almost every
‘Protestant the adoration paid to images has very strongly the
appearance of idolatrous worship. The rubric of our Established
‘Church, it must be further owned, explicitly charges idolatry
upon the Roman Catholics in the following words: ‘* The sacra-
‘mental bread and wine remain still in their very natural sub-
stances, and therefore may not be adored (for that were idolatry,
‘to be abhorred of all faithful Christians).” ‘* Now the rubric
containing the foregoing words was added at the end of the
Communion Office (says Wheatley) in the second book of King
Edward VI. against the notion of our Lord’s corporeal presence
in the Holy Sacrament, but was left out of the rubric when re-
stored by Elizabeth. For it being the Queen's design to unite the
nation in one faith, it was therefore recommended to the divines
to see that there should be no definition made against the afore-

* Hume's History, Appendix to the Reign of James I.
+ Burnet on Article xxxv.

ou 2

532 NOTE UPON FOX’S HISTORY OF

said notlon, but that it should remain as a speculative opinion
not determined, in which every one was left to the freedom of
his own mind.”* After the conference at Hampton Court in the
first year of King James I. the above-mentioned rubric was re-
stored to the place in which it now stands, and from which I
should be happy to see it once more removed. We have a pre-
cedent for moderation even to Roman Catholics. Do we not
know, that in both the books of King Edward the Sixth the last
deprecation of the litany ran thus? ‘* From the tyranny of the
Bishop of Rome, and all his detestable enormities, deliver us.”
This rough expression was expunged in the reign of Elizabeth,
and I have not heard of any proposal for recalling it in later
times, even when our Establishment was in real danger from the
emissaries of the Church of Rome. We now have little to fear
from “his detestable enormities,” and the belief of Protestants
on the subject of the sacrament stands in no need of protection
from invidious accusations of idolatry against the Roman Ca-
tholics. The opinion of Protestants upon the elements is stated
with sufficient clearness and accuracy in other parts of the church
service.

I believe the exclusion of the passage which was restored in the
reign of James I. to be such a measure as would not expose Pro-
testants of our own days to the error of paying any superstitious
or idolatrous adoration to the sacramental elements ; and I am
acquainted with very sensible and pious men who think that our
churches might be adorned with pictures of scriptural history
without any danger to the faith of Protestants from the opinions
and example of the Greek Church. Be this as it may, I shall
always bear in mind two important circumstances which distin-
guish the idolatry of the Church of Rome. It does not, like the
idolatry of the heathens, exclude the belief and worship of the
one true God. It does not like the idolatry of the Jews, intro-
duce another law, which was high treason, nor transfer the obe-
dience of a people from the Deity, peculiarly their Supreme Ma-
gistrate, to any other power, which was rebellion.| Properties,

* Wheatley on the Common Prayer, p. 26.
+ See Warburton’s Defence of his Fast Sermon, preached in
1745.

eS

THE REIGN OF JAMES II. 533

however, it has, which seem to me quite unauthorised by Scrip-
ture, and “ J] am apt to think” that the term was employed by
our forefathers “" to heighten the aversion” of Protestants to a
practice of which I in common with them disapprove. But I
should be unwilling to call every Roman Catholic broadly an
idolator.* May he not see greater force, than I do, in the rea-

* J will tell a plain tale, not with any wish to palliate the prac-
tice of image-worship, but in order to correct a popular mis-
take, which I have sometimes read in theological books, and
which imputes to the Roman Catholics great unfairness in their
management of the Decalogue.

“In the division of the Decalogue, the Christian Churches are
notagreed. The Church of England, and the whole body of
Calvinists, with Josephus, make two distinct precepts of verses
three, seven, Exod. xx. whereas the Roman Catholics and most
Lutherans divide with St. Austin, and make one commandment
of what the former make two, but to keep up the number of ten,
they split what in the other division is deemed the ninth com-
mandment.”’*

Every one who looks into Walton’s Polyglot may see that the
command not to make “ sculptile neque omnem similitudinem,
&c. neque adorare ea, nec colere” is retained in the Latin Vul-
gate: and surely as to the division it is of so little importance,
that we may wonder it ever could beget a controversy. Yet, it
has not only begotten vehement controversies, but unfounded
misrepresentations on the part of Protestants, who maintained
that the Papists had thrown the second commandment out of
the Decalogue, because it condemned their image-worship.”+
“« What seems,” he adds in a Note, ‘ to have given rise to this,
was, the whole commandment having, in elementary catechisms
been thus abridged: ‘Thou shalt have no other Gods but me ;°
in the same manner as the precept concerning the sabbath-
day is frequently abridged into, ‘Remember to keep holy the
sabbath-day.’ ” +

In the admirable summary of the English Church upon our
duty towards God, not a single word is said about the interdict
given to the Jews against making or worshipping graven images;
nor through the whole of our Catechism is there any express
caution introduced against the practice of the Church of Rome.

The learning and acuteness of Dr. Geddes made him a compe-
tent witness. But did his education and office in the Church of
Rome leave hima credible one? Yes, for unless he were ¢ es ti-

* Geddes’s Note on verse 4, Exod. xx.
t Ibid. t Ibid.

534 NOTE UPON FOX’S HISTORY OF

sons assigned for the practice? and is he not also bounden to
adhere to that practice, so long as he is sincerely satisfied with
those reasons ?

Upon this subject I approve the temperate language of Bishop
Taylor, even when he is employing what seem to me the most |
powerful arguments against transubstantiation. “ Their wor-
shipping the elements,” says he, ‘‘ upon the stock of error and
ignorance, I hope will dispose them to receive a pardon, but yet
that also supposes them criminal ; and though I would not, for

tute of common sense and common honesty, he would not, in the
eighteenth century have ventured to misrepresent, where any
ordinary scholar could with ease have detected his misrepresenta-
tion. But let the question be decided by the following passage,
which among many others, strongly marks the candid and in-
genuous mind of Dr. Geddes :

«© Nothing could be more ridiculous than the violent declara-
tions of Protestants against the use of images in the Romish
Church, and the application of this precept to that use; although,
on the other hand, it must be confessed, that the use has some-
times been turned into an abuse bordering on idolatry.” Hence,
though Geddes in his translation of the Hebrew word bpp has
followedJerome and the Greek Ver. “ carved worship ;” he has
added in italick characters the Septuagint Version, εἴδωλον. Dr.
Geddes would, I believe, have given Mr. Fox credit, as I do, for
his moderation, in writing ‘‘ imputed idolatry;” and the Dr. has
himself allowed some grounds for the imputation to exist.

The most satisfactory arguments to my mind are the principle
rather than the letter of a Mosaic prohibition, originally directed
against A’gyptian idolatries, and closely interwoven with the
whole political as well as religious system of the Jewish theo-
cracy: the Scriptural doctrine of one mediator, and the danger
of transferring to any visible representations of the Creator or
his creatures that homage which is due only to one invisible
and spiritual Being. 1 am dissatisfied and even disgusted with
some passages in the famous letter of Gregory the Second to
the Emperor Leo. I have much to oppose to the reasoning of
other and later Romanists. But I respect their researches in
literature and their acuteness in controversy. I am not war-
ranted in arraigning the sincerity of their belief or the up-
rightness of their intentions; and at all events I should be
ashamed of urging against them any invidious and even false

accusations of disingenuous omission, or unauthorised arrange-
ment in the Decalogue,

THE REIGN OF JAMES II. 535

all the world, be their accuser, or the aggravater of their crime,
yet I am not unwilling to be their remembrancer, that themselves
may avoid the danger.”

“1 will not censure concerning the men that do it, or consider
concerning the action, whether it be formal idolatry, or no. God
is their judge and mine; and I beg he will be pleased to have
mercy upon us all.”*

‘© If the nation,” says Burnet, on Article xxxv, “‘ should
come to be quite out of danger of falling back into Popery,
it would not be so necessary to insist upon many of the subjects
of the Homilies as it was when they were first prepared.” I pre-
sume not to point out to my ecclesiastical superiors any of the
alterations which it may be ‘‘ necessary in these times” to make
in the Homilies. But I am convinced, that throughout Great
Britain there is not the smallest danger of a relapse into the
errors of Popery. Ifa Catholic zealot like Pere Coton, confessor
to Henry the Fourth of France, were to say that he could do any
thing when he had his God in his hand and his king at his feet,
meaning him at confession, and the other in effigy of the crucifix
or in the host,” he will be an object of contempt or pity, rather of
terror. The Sovereign now on the throne and his family are
firmly attached to Protestantism, and it is plain enough, not
only from recent events, but from other and better causes, that
neither the members of the Establishment, nor any class of Pro-
testant Dissenters have the least inclination to adopt Catholicism.
Yet when the most enlightened and determined Protestant looks
back to the controversial questions which were agitated in
former times, and which it were useless or dangerous to resume
in our own age, he perhaps would vouchsafe to receive some
instruction from the judicious and candid observations of Jeremy
Taylor: ‘ If it be possible for so great a company of men, of all
sorts and capacities, to believe such impossible things, and to
wonder that others do not eandem insaniam insanire, it will
concern the wisest man alive to be inquisitive in the articles of
his first persuasion ; to be diligent in his search, modest in his
sentences, to prejudge no man, to reprove the adversaries with

* Chap. xiii. par, 14, of the Treatise on the Real Presence,

536 NOTE UPON FOX’S HISTORY OF

meekness, and a spirit conscious of human weakness and aptness
to be abused.”’*

“« There are a sort of men that hate some good things which
the Church of Rome teaches, because she who teaches so many
errors is the publisher and the practicer of those things. I con-
fess the thing is always unreasonable ; but sometimes it is invin-
cible and innocent, and then may serve to abate the fury of all
such decretory sentences as condemn all the world but their own
disciples. 7

“When a prejudice works tacitly, undiscernedly, and irre-
sistibly of the person so wrought upon, the man is to be pitied
not condemned, though possibly his opinion deserves it highly.

“‘ Education is so great and so invincible a prejudice, that he
who masters the inconvenience of it is more to be commended
than he can be justly blamed that complies with it.

“ You may as well charm a fever asleep with the noise of
bells, as make any pretence of reason against that religion which
old men have entailed upon their heirs male so many generations
"ull they can prescribe. And the apostles found this to be most
true in the extremest difficulty they met with, to contest against
the rites of Moses, and the long superstition of the Gentiles,
which they therefore thought fit to be retained, because they had
done so formerly, pergentes non quo eundum est, sed quo itur,
and all the blessings of this life which God gave them, they had
in conjunction with their religion, and therefore they believed it
was for their religion, and this persuasion was bound fast in
them with ribs of iron, the apostles were forced to loose the
whole conjunction of parts and principles in their understand-
ings, before they could make them malleable and receptive of
anvimpresses. But the observation of all wise men can justify this
truth. All that I shall say to the present purpose is this: that
consideration is to be had to the weakness of persons when they
are prevailed upon by so innocent a prejudice, and when there
cannot be arguments strong enough to overmaster an habitual
persuasion bred with a man, nourished up with him, that always
eat at his table, and lay in his bosom, he is not easily to be called

* Epist. Dedicat, to the Treatise on the Real Presence.

THE REIGN OF JAMES II. 537

heretic, for if he keeps the foundation of faith, other articles are
not so clearly demonstrated on either side, but that a man may
be innocently abused in the contrary. And therefore in this case
to handle him charitably is but to do him justice : and when an
opinion in minoribus articulis is entertained upon the title and
stock of education, it may be the better permitted to him, since
upon no better stock nor stronger arguments, most men enter-
tain their whole religion, even Christianity itself.’’*

*« Though, in a matter of consequence, so long as the founda-
tion is entire, every man that errs cannot be suspected justly
guilty of a crime to give his error a formality of heresy ; for we
see many a good man miserably deceived (as we shali make it
appear afterwards), and he that is the best amongst men, cer-
tainly bath so much humility as to think that he may be easily de-
ceived, and twenty to one but he is in some thing or other; yet,
if his evil be not voluntary, and part of an ill life, then, because
he leads a good life he is a good man, and therefore no
heretic.’’+

Such were the sentiments of a prelate eminently distinguished
for learning and piety, and for attachment, unfeigned and unal-
terable, to the established religion of this country. They carry
with them the authority of principles to my mind, because 1 be~
lieve them to breathe the true spirit of Protestantism. Though
employed formerly in some instances against zealots in the
Church of Rome, they may now furnish general rules for assuag-
ing the excess of zeal in other religious communities; and if the
persons who adopt and act upon them should gradually diffuse a
spirit of mutual forbearance among their Christian brethren of
every denomination, their “‘ labour will not be in vain.”

Let it not be supposed that I have the smallest intention to
vindicate those doctrines which my Protestant brethren may
consider as superstitious or even idolatrous in the adherents of
the Church of Rome. But in the present state of public opi-
nion I see more practical harm than practical good in the appli-
cation of such offensive words as might, in a former and less
happy condition of the world, have not been wholly unjustifi-
able. Jam nota stranger to the controversies in which our

* Section 2 on Liberty of Prophesying. + Ibid,

538 NOTE UPON FOX’S HISTORY OF

forefathers were laudably and I think successfully engaged
against the Roman Catholics, and from my own conviction upon
points of faith peculiarly important to Protestants, I shall ever
respectfully and thankfully acknowledge myself indebted to the
writings of Bishop Hall, Jeremy Taylor, Dr. Barrow, John Hales,
Chillingworth, Bishop Warburton, and other celebrated divines
both English and foreign. Great is the information which their
labours will afford to any impartial reader in his closet upon par-
ticular points of doctrine. But the well-known example of Chil-
lingworth should put us upon our guard against any general lan-
guage of contempt or hatred towards persons who generally
hold the faith of the Church of Rome, and who in holding it
may have the same claim with ourselves to the praise of dili-
gence, learning, sagacity, sincerity, virtue, and piety. Where-
soever the truth may lie, the merit of searching for it belongs, I
trust, to both parties, and it were scandalous to deny that great
abilities have been employed by Roman Catholics, as well as by
Protestants. Difference in opinion will not destroy every senti-
ment of moderation and respect in those men who understand
the practical as well as speculative uses to which as scholars and
as Christians they may apply the following words of Jeremy
Taylor: ‘ I knew a scholar once who was a man of quick ap-
prehension and easy to receive an objection, who when he read
the Roman doctors was very much of their opinion, and as much
against them when he read their adversaries, but kept himself to
the religion of his country, concerning which at all times he re-
membered that there were rare arguments, and answers respec-
tively, though he could not then think upon them.”* As to myself,
I hope to live and to die in sincere and affectionate communion
with the Church of England. But I also hope to find a better
way of showing myself either worthy to live, or fit to die within
the pale of it, than by insulting Roman Catholics with the oppro-
brious imputations of superstition and idolatry.

I do not mean to involve Mr. Fox in the guilt of that discretion
and that moderation, which, 1 trust, will ever regulate my own
conduct towards the Roman Catholics. But I hope not to be
unsuccessful in my endeavours to show, that, in the application

* Ductor Dubitantium, book i. chap. 5.

=— ee) te i i oe ee eh ie

THE REIGN OF JAMES II. 539

of the word superstition—a word which is often employed by
infidel writers to throw a kind of indirect reproach upon religion,
Mr. Fox has not even incidentally furnished his enemies with
any pretext for accusing him of latent infidelity,

“« ΤᾺ cinerem, et manes credo curare sepultos.”"*

As it was the lot of Mr. Fox to act in very eventful times, and
to fill for many years a large space in the public eye, his warmest
partizans cannot be surprised at great difference of opinion upon
what the Reviewer calls, “ his sanguine temperament, and his
disposition to run into extremes.’’ When he stands before the
world in the character of a historian, readers of every party are
entitled to form their own judgment upon the literary and poli-
tical merits even of an unfinished work. But the charge of
infidelity must be painful, beyond all other reproaches, to the
better and the greater part of those who admired his talents, or
cultivated his friendship. It is therefore with peculiar anxiety
that I have examined the grounds on which this formidable
accusation is raised, and I trust that the attempt I have made to
refute it will not be offensive to men of virtue, or unsatisfactory
to men of reflection.

Alas! I am sufficiently versed in the history of churches, and
the controversies of churchmen, to know with certainty, and to
lament with sincerity, the “ rabid and unrelenting” spirit which
frequently, I do not say exclusively, distinguishes the odium the-
ologicum. In the very act of defending that religion which
forbids us to ““ judge lest we be judged,” those disputants have
been too prone to censure persons instead of examining things—
prone to confound particular opinions with general principles—
prone to load their adversaries with invidious consequences
which those adversaries did not foresee, or which, being told of
them, they did not adinit, or which, admitting them, they would
not consider as evidences against their views of facts and princi-
ples—prone to assign criminal motives as the causes of erroneous
tenets—prone to let loose indiscriminate reproaches on the daunt-
less inquirer and the shameless scorner—prone to infer deistical
propensities from heresy real or supposed, and to insinuate that

ERE OnE tm se Oe ee ee ee oe

* Virgil, AEneid 4.

δ40 NOTE UPON FOX’S HISTORY OF

professed deism is employed as a cloke for lurking atheism.
Heaven forbid that I, or my friends, or my enemies, should have
“*so learned Christ !”

Bigotry may exist without the adjuncts of infidelity or super-
stition. Possible it is that the Reviewer and myself may not be
without some portion of latent bigotry in the attachment we feel
to our respective opinions in politics and religion ; and well does
it become us “so to try and examine ourselves” that we at the
last day may not be numbered among the false “‘ accusers of our
brethren.” It is proper for me to add, that Mr. Fox imputes
bigotry, not superstition, to the English prelates who attended
Monmouth, that he imputes neither the one nor the other to the
English Church, and that no passage in Mr. Fox’s History, no
position in his other publications, nor any principle, statement,
or even insinuation in any of his parliamentary speeches, will
justify any man of common discretion, or common candour, in
deliberately charging Mr. Fox with infidelity at all—much less
with infidelity aggravated by “‘ morose, illiberal, rabid, and relent-
less bigotry.”” The well-meaning zeal of the Reviewer may have
made him, for the moment, indiscreet and uncandid. But I am
persuaded that, upon reconsidering the sentence of which I have
been speaking, he will be disposed to retract, or to soften it, as
applicable to Mr, Fox.

When Mr. Fox wrote his History he did not foresee that any
part of it would give rise to a discussion upon the rubric. But
his account of the ecclesiastics who attended Monmouth has
induced, we see, some critics to appeal to that rubric for the
justification of those ecclesiastics, and has also been made one of
the grounds for charging Mr. Fox with bigotry and infidelity. I
thought it, therefore, my duty to controvert that opinion, and
to repel that charge, because they were brought forward in a
work which is known to have all the advantages of extensive cir-
culation, of episcopal and ministerial patronage, and of well-
earned celebrity for vigilance, ardour, and activity in the defence
of church and state.

APPENDIX

TO THE

NOTE UPON Mr. FOX’S HISTORY

OF THE

REIGN OF JAMES II.

No. I. p. 424.

As the temporal power of the Pope is now almost annihilated,
the opportunities for him to aim at any extension of terri-
tory taken away, and the incitements for him to engage directly
in the wars of European sovereigns very much diminished, there
may scem little room for Mr. Gibbon’s objections on the
advanced age and confined education of the persons who fill
the chair of St. Peter. To me, however, it appears, that, for
other reasons, these objections have now greater force than ever.
In the present state of Europe it is peculiarly necessary for the
Bishop of Rome to unite great sense with great moderation, and
to avoid the appearance, as well as the reality, of interference in
the secular concerns of Princes, whether Catholic or Protestant.
If the discipline of the Roman Catholic church be gradually
adapted to the exigencies of the times, and a spirit of sound dis-
cretion and forbearance be encouraged in the priesthood, it may
be safely left with the wisdom of his Holiness, jointly, I should ima-
gine with the authority of Councils, to adjust matters of doc-
trine, to avail themselves, as to them may seem fit, of the
general progress made by civilized nations in various branches
of useful knowledge, and to correct, or continue errors, whether
real or supposed, upon political, and even moral and religious
grounds, of which Protestant teachers, after all, may be in-
competent and prejudiced judges. Freedom of enquiry in private
persons, when far extended, and quite unshackled by artificial
restraints, is favourable to the discovery of truth, and through the
progressive influence of truth upon practice, is eventually condu-

δ42 APPENDIX

cive to the best interests of society. But changes made by
authority in the tenets of a religion long established, require
great circumspection in the choice of time and measures—great
observation upon the permanent and fleeting, prominent and la-
tent, causes of manners and opinions—great insight into the po-
litical history, as well as the theological reasonings of con-
troversy—great knowledge of past and present circumstances—
great impartiality and sagacity in the calculation of future
consequences, Why then should we censure any other church
for asserting that right which may be judiciously and virtuously
exercised by our own ?

The intellectual and active pursuits of men—the relations
in which they stand one to another as individuals or classes—the
views which they take of their interests and perhaps their duties
—Governments, manners, and many other external objects con-
nected with their agency, are continually, though for a time im-
perceptibly, undergoing more or less alteration. Hence in their
ecclesiastical as well as their civil concerns, real and com-
plete uniformity is neither attainable, nor indeed desirable,
through many successive generations. Even among those who
set up the highest pretensions to such uniformity, changes,
which it were vain to dissemble, will in many instances be
covered by unprejudiced and serious observers. The well
and the ill-directed love of truth, the struggles of literary
and political competitions, the warfare which arises between the
stubbornness of bigotry and the ardour of novelty, the disuse of
old terms, and the introduction of new ones, both in familiar and
scientific language, co-operate with many other causes in giving
a different turn to the sentiments of reflecting and unre-
flecting men upon religious subjects. But true policy as employed
in watching the properties and extent of those causes, is insepa-
rable from true morality; and in the absence of selfishness,
or indifference, or superstition upon the part of those who
govern the affairs of the world, it might not be very difficult to
balance the comparative inconveniences of precipitation and de-
lay. An ecclesiastical establishment which is intended to guide
the bulk of mankind ought itself, in some degree and upon
some occasions, to be guided by those principles, or modifi-
cations of principles, which have slowly found their way to

TO THE PRECEDING NOTE. 543

the conviction of wise and virtuous enquirers. I therefore
believe that every religious community, keeping in view the nu-
merous and interesting circumstances which I have mentioned in
a foregoing paragraph, might be progressively improved by well-
timed and well-conducted revisions of its tenets and its discipline.
Yet ‘‘a church which frequently modifies. varies, and changes its
doctrines,” is, I do not say with Bossuet, “destitute of the direc-
tion of the Holy Spirit,” but, I do say, deficient in that sound
discretion which, aiming at general utility, and looking to
the comparative importance as well as credibility of religious
opinions, would practically forward the most proper and most be-
neficial purposes of a national church, to which the laws wisely
intend to assign permanent, as well as extensive influence.
Upon the favourite maxim of Bossuet, Mosheim and his learned
Editor have made some very judicious observations, which
may be found in page 310, volume four, of Mosheim’s Ec-
clesiastical History, second edition.

No. II. p. 687.

“When Ravaillac assassinated Henry the Fourth it was from
a principle of religion. But this did not so much abate from the
mischief of the act. It even rendered the act still more mis-
chievous, for a reason we shall see presently, than if it had
originated from a principle of revenge.”’*

The reason is thus explained in page 165.

As to the motive of religion, whatever it may sometime prove
to be in point of strength and constancy, it is not in point of ex-
tent so universal, especially in its application to acts of a mis-
chievous nature, as any of the three preceding (i. e. self-regarding)
motives. It may, however, be as universal in a particular state,
or in a particular district of a particular state. It is liable,
indeed, to be very irregular in its operations. It is apt, however,
to be frequently as powerful as the motive of vengeance, or
indeed any motive whatsoever, It will sometimes be more pow-
erful than any other motive. It is at any rate much more con-

* Bentham’s Elements, p. 162.

544 APPENDIX

stant. A pernicious act, therefore, when committed through the
motive of religion, is more mischievous than when commit-
ted through the motive of ill-will.

On the word conscience there is an interesting Note, of which
I shall produce the most interesting part.

““ Fanaticism never sleeps; it is never glutted; it is never
stopped by philanthropy, for it makes a merit of trampling
on philanthrophy; it is never stopped by conscience, for it
has pressed conscience into itsservice.”” The foregoing observa-
tions are founded upon an accurate knowledge of human nature ;
and many of my countrymen, from their experience of the past,
and with their prospects of the future, would do well to re-
flect upon the justness and importance of them.

Let me take this opportunity of commending, as I ought to do,
most sincerely and most ardently, three pamphlets, for which the
well-wishers to genuine Christianity and our ecclesiastical estab-
lishments are indebted to Mr. Sedewick.* His statements of facts,
his arguments from reason and scripture, and his animated de-
scription of characters, do honour to the elegance of his taste,
the vigour of his understanding, and the soundness of his moral
and religious principles. They will preserve, I trust, many well-
meaning and attentive readers from the sorceries which might be
practised upon their credulity and their piety. But fanaticism,
when it has once taken possession of common minds,

“© Nec modum habens neque consilium, ratione modoque
Tractari non νυ]. Ὁ

The attic raillery of Addison, the caustic satire of Swift, the
solid reasoning of Locke, the energetic eloquence of Barrow, the
profound learning of Taylor, Pearson, Bentley, and Stillingfleet,
the pious expositions of Christian Fathers, the glowing expostu-
lations of Prophets, the simple, sage, and solemn preaching of
Apostles, would be of little or no avail when opposed to them
stand the

““ Θεόκλητοι, θεοδίδακτοι, θεόσσυτοι, θεόπνευστοι, θεόγλωσσοι

- -- %
κήρυκες ᾿Ιησοῦ Χριστοῦ,᾽

* Let me add, that in the first Number of Mr. Cumber-
land’s Review there is a most argumentative and animated cri-
tique on the Life of Mr. Newton lately published by Mr. Cecil.

t Horat.

APPENDIX. 545

such as Whitfield, Wesley, Romaine, Hawes, Hawker, Rowland
Rill, Newton the midshipman, Bunyan the tinker, Boehmen the
shoemaker, and other nameless rhapsodists, whose

“ Θεόρυτοι καὶ θεοτέρατοι λόγοι;

however understood and admired they may be in some of our
conventicles, are not so well adapted to pulpits in what I think
the best Ψυχῆς Ἰατρεῖον in Christendom, the Church of Eng-
Jand.

I have often endeavoured to understand the grounds and the
properties of that vital religion which is so eagerly inculcated,
and so loudly extolled. But the spirit of it I must confess

Οὐκ ἐμοὶ χριστὸς δοκεῖ,
“ ᾽Αλλ᾽ ἔστι πολλῶν ὀνομάτων ἐπώνυμος.
Ἔστιν μὲν ἅδης, ἔστι & ἄφθιτος βία,
Ἔστιν δὲ λύσσα paras. *

The rapidity, stubbornness, and virulence of the malady which
is spreading around us, are equally alarming. By a process scarcely
paralleled in any other kind of intellectual or moral aberra-
tion, this mentis gratissimus error diffuses its influence from the
whole head, over the whole heart. It appears to endow men
with eyes which see not, and ears which hear not. When philo-
sophy, or history, or criticism, offers any aid to the fanatic, he
either

“ Fit pugil, et medicum urget,’+

or answers with mingled scorn and self-complacency to the fol-
lowing effect :

“Ἢ, ΄ δ \ , ‘ ~ > ‘
α PE TIVOCE τὴν νόσον VOTELY, ἐπεί

- τ - - ~ ’
Κέρδιστον εὖ φρονοῦντα μὴ δοκεῖν φρονεῖν.

Now the nobility and gentry among the Roman Catholics have
a visible interest in watching and restraining the zeal of Roman
Catholic priests. Rational Dissenters (as they denominate them-
selves) have embraced a theological system which carries with it
few allurements to enthusiasts ; and widely as they may differ
from the doctrines of the English church, they have far less to

* Fragm. Eurip. or Sophocl. + Horat.
τ Aéschyl. Prom. Vinet. lin. 384.

VOL. IV. Qn

δ40 APPENDIX

dread from its discipline than from those “ wholesome severities,”
which in the giddiness of power, and the blindness of bigotry,
our evangelical sectaries would be impelled by their conscience
truckling to their ambition and vengeance, to employ against
what they would call the impious heretic and the factious schis-
matic. Is it not sound policy, then, to conciliate the Roman
Catholics and Rational Dissenters, and at the same time not to
oppress the common foes of them and the establishment—not to
irritate them by contumelious and legal disabilities for this or that
secular office—not to subject them to stripes or imprisonment—
God forbid this !—but, by well-considered and well-applied regu-
lations to restrain them, as men who might be ready to do evil
that good, according to their own peculiar apprehensions of duty,
and perhaps their own views of their own peculiar interests, may
come—men, who actually do hold language not only the most
insulting to a learned priesthood, but the most inflammatory to
illiterate hearers? Ina printed paper, and with the signature of
their names, have not twelve of these officious missionaries
boasted of having lately introduced the gospel in the neighbour-
hood of a city where, according to the import of their words
and the conceptions of their followers, Heathenism, or Mahome-
tanism, or Judaism, or rank Deism, may have been heard, but
the gospel has not, for centuries upon centuries, either in paro-
chial churches or a cathedral? Not very long ago, nor very far
from the place where I have resided for more than twenty-
three years, and where, to say nothing of well-meant, and _per-
haps well-chosen advice conveyed by sermons, the service of our
Common Prayer Book—a service established by the national
laws, endeared to us by long use, prepared at first by Protestant
reformers, and some of them Protestant martyrs, improved by
subsequent revisions from learned prelates and dignitaries,
selected in many parts from the offices of Christian churches and
the works of Christian Fathers, written almost every where in a
clear and most impressive style, replete with instruction to the
young and the old, the rich and the poor, the prosperous and the
unfortunate, the virtuous and the wicked; and in addition to all
these excellencies of human composition, containing large por-
tions of scripture in the Psalms, Lessons, Epistles, and Gospels—
yes, in that very sanctuary where this very service is generally

TO THE PRECEDING NOTE. 547

performed with due exactness, and, I would add, seriousness,
one of our evangelical preachers, in the presence of a plain and
well-disposed congregation, mingled at the moment witha crowd
of vagrant and intrusive Methodists, expressly and unblushingly
talked of himself as introducing to his deariy-beloved hearers, a
stranger, Jesus Christ.

Introduce seems to be an occasional watch-word of these Mo-
dern Hirim—a tessera by which the faithful champion of reli-
gion is distinguished from the lukewarm hireling who at any
time puts his trust in the ““ carnal weapons”’ of reason and mora-
lity—a Shibboleth which separates the true Gileadites, happily
gifted with “‘ tongues that are for a sign,” from the recreant and
babbling Ephraimites.

If persons bearing high academical titles, and fancying them-
selves in theology, τρίτου κρατῆρος γείσασθαι, thus in effect
represent the whole service of the church as established by law,
and the whole preaching of churchmen, except their own, as
having in them no portion of Christianity, what are we to ex-
pect from other teachers, who understand οὐδὲ τὰ τρία Στησι-
χόρου.

When language of this portentous kind is gravely uttered in
the sanctuary, it makes, and is intended to make, an instanta-
neous and deep impression, which no smooth explanations, no
sly evasions, no partial and compulsory retractations can after-
wards efface.

“ The Papists,” exclaims the fanatic, “ keep the scriptures
from the laity. The English clergy read them, but cannot teach
them, for they understand not the saving truths of the word, nor
feel its vital energies. Precious, therefore, to us, and quite ines-
timable, is the privilege of comparing the regenerate state of man
with his unregenerate. When the ‘ wind blew,’ we, like other
blind and reprobate sinners, ‘ vainly puffed up by our fleshly
minds,’ once supposed ourselves to know ‘ whence it came and
whither it was going.’ But we thankfully remember when and
where, and by what lips touched with the dew of sacred truth,
the “ gospel was first declared’ unto us. ‘To us it is now given
to understand the mysteries of the kingdom of heaven, to be
endowed abundantly with the ‘ means of grace,’ and to be re-
freshed with ‘ the sure and certain hope’ of glory. In the mean

2n2

548 APPENDIX

while the nominal Christian followeth things which have only a
‘ shew of wisdom, and is taken in his own craftiness.’”

But surely, dear Sir, there is no real evil, no unseemly appear-
ance of evil, no dimness in that goodly aspect which a Christian
church favoured by the laws ought to wear in the sight of the
Christian world, when separating the strength from the weakness
of human reason, we call in profane learning to our aid in the
study of sacred—or, when we blend the principles of morality
and occasionally even the words of the wise and virtuous sages
with the simple and hallowed language of holy writ—or, when
We insist upon the love of our neighbour, as a sure criterion of
sincerity and proficiency in the love of our Maker—or, when we
investigate the evidence which natural religion supplies for the
probability of a future state, and at the same time distinguishing
between that evidence, and the animating prospects which reve-
lation opens to us, we hold up to the admiration and the grati-
tude of mankind, the. doctrine of zTERNAL LIFE, as especially
and solely the unmerited and covenanted “‘ χάρισμα τοῦ θεοῦ ἐν
Ἰησοῦ Χριστῷ. If this be Heathenism, where are the well-edu-
cated or the unlearned to look for Christianity? Not, l amsure,
in those new lights which we cannot follow without maintaining,
that for many revolving ages, and amidst the acknowledged pro-
gress of society in arts, science, and civilization, yes, in con-
cerns far weightier, the clergy and laity have been doomed to
wander in utter darkness, mutually deceiving and deceived, mu-
tually corrupting and corrupted—not in quarters where phari-
saical ambition may be lurking, and pharisaical pride has already
stalked forth in open day—not among ithe rapturous panegy-
rists of faith and grace, exclusively understood, and exclusively,
forsooth, experienced by themselves—not among the insidious
or contemptuous revilers of good works, which being * written
by the jaw on our hearts,” and carrying with them “ the wit-
ness of our consciences,” are recommended by us, the unen-
lightened and unregenerate, as indispensable conditions of sal-
vation to all true believers, and indeed all moral agents. ‘That
the majority of Christians in every church and almost every
sect, have net yet been called to the knowledge of any “‘ saving
truth,” and that a few only have been chosen to partake of it,
is a position not very likely, | think, to support the spirits of

a ie ee SS

TO THE PRECEDING NOTE. 549

those who have embraced what we call the gospel, or to check
the triumphs of those who reject it. So, however, within the
bosom of the established church, do some men teach, and so,
within as well as without the pale of it, do many believe.

As a friend to toleration { would not impose restraints upon
mere opinion in controverted points of doctrine; and of my
consistency I give a plain proof, when knowing, and in many
points differing from the respective creeds of Rational Dis-
senters and Roman Catholics, 1 should be glad to see both of
them delivered from certain distinctions, which are directly of-
fensive, and may be indirectly, as some men think, even op-
pressive. But the froth of petulance and the foam of zeal cease
to be only contemptible when, mingling with the venom of
malevolence, they are scattered in the sanctuary. Hence, as a
well-wisher to decorum, to Christian charity, and to the public
peace, I think that such presumptuous vauntings, such outra-
geous revilings, such mischievous insinuations as I have stated
in two of the foregoing pages, call aloud for some notice from
the legislature. Have not our forefathers been told, that “ do-
minion is founded in grace?” Silent, indeed, but rapid is the
growth of such grace, and who but the elect are worthy to ex-
perience its impulses? But they who introduce the gospel to-
day may hereafter think themselves qualified and even com-
missioned from above to found a State.

“ΤΠ passions,” says Malebranche, “ justify themselves,’ and
it'has often been remarked, that hypocrites, while they deceive
others are themselves by themselves deceived. Ambition, how-
ever disguised in the garb of humility, is steady in the pur-
suit of its own purposes, and fanaticism, however it may revel
in the luxuries of its own visions in heavenly things,* is wont to

ae Experience shews that a spirit of fanaticism is cherished by
the circulation of prophecies, which, however they may point
for a time to one definite event, prepare the minds of the credu-
lous and illiterate for participation, or at least acquiescence, in
other changes, as means for the final accomplishment of the de-
sired end. I shall, therefore, leave the venerable prelates, and
other guardians of the English Church, to their own reflections
upon the ultimate tendencies of a letter which appeared in the
Birmingham Commercial Herald of May 1, and the Birmingham
Gazette of May 8, 1809, which is signed by a grave clergyman

550 APPENDIX

turn an oblique and “ lingering look” to things earthly, not,
we shall be told, as ultimate ends, but as favourable means for

of the Establishment, and which, from the circumstances of pub-
lication and re-publication must have been designed to excite
much attention, and to produce considerable effect, in a large
manufacturing town and its neighbourhood. After stating that
“ἃ Joanna Southcott had been falsely accused of three heavy
charges—that, as to the first charge, though Mary Bateman, who
had lately suffered the just sentence of the law at York, had a
seal, yet the wicked and diabolical conduct of Bateman can no
more, in justice, be ascribed to Southcott,’ who, as it appears
from the sequel, distributed her own seals, ‘‘ than the wicked
and diabolical conduct of Judas can be ascribed to our blessed
Lord, because he was one of his disciples ; and this the wise will
understand, though the wicked will not :”

That as to the second charge, Southcott had not predicted the
destruction of Bath on Good Friday, but had pronounced the
person who uttered that prediction “a false prophetess :”

That as to the third charge, Southcott, ‘on the evidence of
fifteen thousand persons, could be proved not to have sold her
seals for half a crown each, nor suffered them to be sold, but to
have given them ‘ without money and without price,’ a free gift
to all who had faith to believe in her inspired writings, as well to
the poor as to the rich:”

The reverend writer thus proceeds :

““ [shall give a short sketch of her divine mission, which is, to
warn the world of the second coming of the Lord Jesus Christ,
to destroy Satan’s kingdom of misery, evil, and woe, and to esta-
blish his own glorious kingdom of love and peace upon earth for a
thousand years, as is promised in the 20th chapter of the Reve-
lations, when he will reign in spirit during that period among
the children of men before the general judgment.

“‘ Her writings only lead those who will follow their directions
to the scriptures of truth, and point out how the promises and
prophecies of that golden book, the Bible, will be fulfilled and
accomplished ; and demonstrate irresistibly, that the kingdoms
of this world will soon become the kingdom of the living God,
and he will reign for ever and ever. Illustrious era! ‘Thine it
is to close the long series of preparation which Providence has
been carrying on from the first of time! ‘Thine to fulfil the
wishes of the worthy and devout of every age and every clime!
Thine to recover man from depredations and dishonour! Thine
to consummate the mission, and to adorn with its brightest ho-
nours the crown of the Saviour of the World! Thine to vindi-
eate the government, glorify the perfections, and illustrate the

ee eae ae

= δ οι SC lS ee Ll

TO THE PRECEDING NOTE. dol

introducing and diffusing vital religion among nominal Chris-
tians. Now the spirit, as well as the notions of the old Puritans,
has spread itself among certain sectaries of our own days, and
their allies in the English church. Hence, towards the Roman
Catholics,

““ vetus atque antiqua simultas,*

all-bounteous character of the God of Love! Thy approach,
glad period, will be hailed by myriads of intelligent beings, who,
animated by thee with a celestial glow of devotion, will give ex-
pression to their raptures in the long-suspended song of angels—
“Glory to God in the highest, on earth peace, and good-will to-
wards men.’
Tuomas Puitip Fotey,
Rector of Old Swinford.

Old Swinford, Worcestershire, April 1809.

I would beg leave to state, that the animated conclusion of Mr.
Foley's letter, beginning with the words “ illustrious era,” is
taken almost verbatim, without acknowledgment, from the close
of a very eloquent sermon, delivered at Newport in the Isle of
Wight, on the Fast Day in 1803; written by the Rev. Robert
Aspland, who does not speak of a millennium, and printed at
Cambridge in 1804 by B. Flower.

* I cannot yield unqualified assent to the sarcastic observation
of Mr. Gibbon, that “‘ the vices of the clergy, to a philosophic
eye, are far less dangerous than their virtues.” 1 hold the gene-
ral proposition to be false, and I should hope, that if he “ who
professed even in a conqueror or a priest to surprise a word or
an action of unaffected humanity,’ (vol. v. p. 155, 251.) had
looked with an unprejudiced eye on the English clergy of his
own days, he would have found abundant reason for approving
in them the practice of those virtues which adorn and sustain so-
ciety, and none for being surprised, if he were to have found that
such virtues are congenial to the letter and the spirit of the reli-
gion which they profess. But Ido most unfeignedly agree with
Mr. Gibbon, when he says, that ‘‘ God has written his existence
on all his works, and his law in the heart of man” (p. 205);—
that “ benevolence is the foundation of justice, since we are for-
bidden to injure those whom we are bound to assist—that a pro-
phet, though he may reveal the secrets of Heaven and futurity,
can in his moral precepts only repeat the lessons of our own
hearts ᾿᾿ (p. 205) ;—that “ many a sober Christian would rather
admit that a wafer is God, than that God is a cruel and capri-
cious tyrant.” (p. 537.) ‘If it be said, that an infidel, even where
he is neither directly nor indirectly defending the cause of infide-

502 APPENDIX

Immortale odium, et nunquam sanabile vulnus
Ardet adhuc.”*

That hatred may be mingled with sincere disapprobation of some
opinions now maintained by the Church of Rome. But it may
also be accompanied by other considerations not entirely spiri-
tual—I mean, by a secret and restless jealousy of that ascendancy
which a religious instructor in the Romish or any other church
may be supposed to gain over his followers, when they have once
been persuaded to associate the idea of merit with prompt and
implicit assent upon mystical or controverted points of doctrine
—to confound inexplicable phenomena with contradictory pro-
positions —to admit interpretations of scripture, which upon
strict inquiry may appear to be against reason, under the pretext
that the subjects are above it—to abandon what is plain, for the
sake of dogmatising upon what is obscure—to pronounce a fa-
vourite teacher infallible in his tenets, because they are the imme-
diate and genuine suggestions of the ‘ Spirit,” not ““ given to
him,” by scant ‘‘ measure,” but abundantly, as is meet, and even
necessary, for the holy duties of one who is professedly and pre-
eminently “an apostle according to the faith of God’s elect.”

““ En animam et mentem, cum qu Dii nocte loquantur.”

lity, rarely sees truth, or writes good sense, on subjects of reli-
gion, I should reply, that the passage last quoted from Mr. Gib-
bon, though similar in principle, does not carry the conclusion
from it quite so far as it has been carried by Lord Bacon. “It
were better,” says this great and real philosopher, ‘‘ to have no
notion of God at all, than such an opinion as is unworthy of him;
for the one is unbelief, the other contumely.”—Essay 18.

They who hold, as I do, that in addition to the bad tendency
of atheism upon the morals of men in private life, it may co-ope-
rate very powerfully with other causes, “in perturbing states,”
will agree with the same philosopher, where he, in the same
essay, observes, ““ Superstition” (he means when united with
fanaticism, as it often is,) ‘‘ hath been the confusion of many
states, and bringeth a primum mobile, that ravisheth all the
spheres of government. The master of superstition is the peo-
ple, and in all” such “ superstition wise men follow fools, and
arguments are fitted to practice in a reversed order.”

* Juven. Sat. 15,

TO THE PRECEDING NOTE. 553

From the usual deceitfulness of the human heart, the love of
power has already incorporated itself with the real or pretended
love of truth. The actual attainment of power may hereafter be
insisted upon as a presumptive argument for the actual discovery
of truth. But when power begins to be exercised, and truth to
be disseminated, by such persons as many of our modern claim-
ants to evangelical knowledge seem to be, disguise will be thrown
aside as useless, restraint will be defied as ineffectual, desire
will increase with possession, right will grow out of conscious
strength, and a “ new earth,” as preparatory to a ‘‘ new hea-
ven,” will soon become the favourite object of reformers, who
have met with external opportunities, and are guided by internal
impulses to ‘‘ make all things new.”

Mr. Pitt, if he were living, would not be inattentive to the
number of these Evangelical Christians, their activity, their am-
ple funds for the purchase of presentations and advowsons, or
their spiritual alliance with two powerful classes of professed»
and, so far, honourable sectaries. Mr. Fox, with equal unwil-
Jingness to invade their social rights, and equal foresight of the
dangers to be expected from their unsocial temper, would have
been disgusted with their arrogance and their uncharitableness.
Mr. Burke, without having recourse to invidious and rhetorical
exaggeration, might have rendered to his country a most im-
portant service, by describing their spirit, unravelling their
sophistry, and developing their real and their distant views. Mr.
Canning, I am sure, has too much good-nature to be tainted with
their virulence, too much good sense to be decoyed by their
wiles, and too much taste to be captivated by their harangues.
He is more conversant, I believe, in Pindar’s Odes than Wesley's
Hymns ; and if one of his colleagues, factus de Rhetore Consul,
were to expatiate upon the soothing unction administered by
these skilful physicians of the soul, the witty but unregenerate
secretary might be tempted to throw the new light of common
sense upon the phrase, and apply to it what Cicero said of Carian,
Phrygian, and Mysian declaimers: ‘‘ Quod minime elegantes
sunt, adsciscunt aptum suis aurius opimum quoddam et adipate
dictionis genus.”’*

a ——— = - ---- --.. ----

* Vid, Orator, vol. ip. 156. edit, Gruter.

554 APPENDIX

On the evidence of our newspapers, the editors of which upen
such topics, rarely err, and yet more rarely have any tempta-
tion to misrepresent, I stated in page 777 that a motion had been
made in Parliament for extending to Scotland the capital pu-
nishment which in England has long been inflicted upon offen-
ders convicted of infanticide ; and as the account was not after-
wards corrected, I thought it my duty to offer some objections to
the supposed harshness of the statute. Great, however, was my
satisfaction upon finding, as I have done, within these few days,
the chief object of the motion is to procure the repeal of an act
which passed in the reign of James the First, and which made the
concealment of the birth of a child a proof of murder, unless the
mother could shew that it was not born alive; that the Bill
therefore, is a measure not of rigour, but clemency ; that the
provisions of it seem to be founded upon some principles for which
I have myself contended ; that the spirit of it cannot fail to be ac-
ceptable to the enlightened people for whose benefit it is de-
signed ; that the mover of it has supplied an additional ex-
ception to that general reluctance which has been observed
in professional men to mitigate the severity of penal laws, and
that for his wisdom and humanity he is eminently entitled to the
thanks of his countrymen, and the praise of his contemporaries.
I could not without great inconvenience exclude from this vo-
lume the sheets which had been printed off before I received the
information above-mentioned. But the seeming impropriety of
suffering them to remain is in some degree lessened by the pro-
bability that several of the observations contained in them have a
tendency to answer other useful ends, besides those to which
they were primarily and more immediately directed.

When my subject led me to give a more correct account than
Petit has done, of the Athenian practice in exposing children, I
took occasion to state my opinion that a similar practice among
the Romans was of great antiquity. I shall, therefore, in this
place insert a passage, which not only establishes the fact, but
contains more direct information upon the origin and provisions
of the Roman law, than I have hitherto been able to find upon
the author and contents of the Athenian,

TO THE PRECEDING NOTE. 555

““ Πρῶτον μὲν eis ἀνάγκην ὁ Ρώμυλος κατέστησε τοὺς οἰκήτορας
τῆς πόλεως ἅπασαν ἄῤῥενα γενεὰν ἐκτρέφειν, καὶ θυγατέρων τᾶς
πρωτογόνους" ἀποκτιννύναι δὲ μηδὲν τῶν γενομένων νεώτερον
τριετοῦς, πλὴν εἴ τι γένοιτο παιδίον ἀνάπηρον; ἢ τέρας εὐθὺς ἀπὸ
γονῆς᾽ ταῦτα δ᾽ οὐκ ἐκώλυσεν ἐκτιθέναι τοὺς γειναμένους ἐπιδείξ-
avras πρότερον πέντε ἀνδράσι τοῖς ἔγγιστα οἰκοῦσιν, ἐὰν κἀκείνοις
συνδοκῇ" κατὰ δὲ τῶν μὴ πειθομένων τῷ νόμῳ ξημίας ὥρισεν ἄλ-
λας τε, καὶ τῆς οὐσίας αὐτῶν τὴν ἡμίσειαν εἶναι δημοσίαν. *

From the foregoing passage it appears that the regulations of
Romulus in some respects resembled those of Lycurgus, and
were adapted to a military people, to whom bodily strength in
man was a necessary qualification for the defence of the state,
and to whom it was also of importance for the number of males
to exceed that of females. ‘The right, then, to expose children
was at once granted to parents, and subjected to regulations, at
Sparta and Rome. But we are quite ignorant what were the
restrictions upon the same right, or, indeed, whether there were
any, among the Athenians, in the constitution of whose govern-
ment there are fewer traces of the military character than we
find in the law ascribed to Lycurgus and Romulus.

* Dionys. Halicarnass. lib. ii. p. 88, edit. Sylburg.

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ἂς

INSCRIPTIONS.

VOL, IV. Qn7

δῦ8

““ Concerning Inscription-writing, my opinions are founded
upon a diligent and critical inspection of what has been pub-
lished by Sponius, Reinesius, Fabretti, Gruter, Muratorius, and
Morcellus. The latter has written one of the most elegant and
judicious books I ever read: and he moreover has published a
volume of Inscriptions written by his own pen, in conformity to
his own rules. None of the common classical writers are of
much use; and indeed I venture upon monumental phrase-
ology, for which no example is to be found in their works.”

So says Dr. Parr himself.

The Inscriptions are arranged according to the dates of
composition.

599

THOMAE - THACKERAY - 5. fT: P.
COLL - REGAL - APVD - CANTABR - OLIM - SOCIO
CHISSELIAE - PARVAE - ATQVE - HAYDONIAE
IN - AGRO - ESSEXIENSI - RECTORI
FREDERICO - PRINCIPI - VALLIAE - A - SACRIS
ARCHIDIACONO - SOVTHRIENSI
SCHOLAE - HARROVIENSIS - PER - XV - ANNOS - MAGISTRO
VIRO - INTEGERRIMO - SANCTISSIMO
ET - AD - IVVENTVTEM - LIBERALITER - ERVDIENDAM
STVDIIS OPTIMARVM : ARTIVM: ET+ SVAVITATE - MORVM
EGREGIE - INSTRVCTO
OVI
CONIVGE * SVI : AMANTISSIMA
LIBERIS: OVE - XIV - SVPERSTITIBVS
DECESSIT - LONDINI - VII * CAL - OCTOBR.
ANNO - DOMINI - M- DCC: LX* AETATIS = LXVIL
ET - IN- SEPVLCRETO » HVIVS* ECCLESIAE
A+ LATERE - OCCIDENTALI - CONDITVS - EST
NEPOTES « EIVS
LL-M - HOC - MONIMENTVM - POSVERVNT

560

DIE - VENERIS - SEPTIMAM - AD « HORAM ° ID ’ IVN.
MORTEM : SIBI : INVITVS - CONTVLIT - CATAPVLTAE :
NIMIRVM - ICTV - CONFECTVS .
CAROLVS - WILLIAMS « SCHOLAE - ETONENSIS « OLIM - ALVMNVS
TRIN - AVL: CANT - TANTVM - SOCIO- COMMENSALIS
ANNO : DOMINI - Μ᾿ DCC: LXVI : AETATIS « SVAE * XX
FORTVNA " IVVENIS - AMPLISSIMVS
FORMA + PVLCHERRIMVS
MORIBVS + OPTIMYVS
VIXIT - OMNIBVS - AMABILIS
CECIDIT - OMNIBVS : DEFLENDVS
DIE - LVNAE - SEQVENTI - TEMPLO - SANCTI + EDWARDI
INHVMATVS : EST - CIRCVM - HORAM - VNDECIMAM
G - HALLIFAX - LL. PROFESSORE - ET - COLLEGII - IPSIVS
TVIORE * PRECES - LEGENTE

561

-

THOMAS - NELSON - ΑΜ.
VIR - FRVGI - INTEGERRIMVS
SACERDOTALIBVS ΙΝ - HAC + ECCLESIA - MVNERIBVS
IN - EXEMPLVM - PERFVNCTVS
ET - DE « SVCCESSORIBVS : SVIS - OVORVM : REDITVS
AVGENDOS : CVRAVERAT « B- M.

DECESSIT - PRID - NON « OCTOB.

ANNO : SACRO - M- DCC: LXX.

AETAT - SVAE ’ LXl.

VOL, IV. 20

562

H:S-E.
ROBERTVS - SVMNER : S: ΤΡ.
COLL » REGAL: APVD - CANTAB - OLIM " SOCIVS :
SCHOLAE - HARROVIENSIS - HAVD - ITA - PRIDEM - ARCHIDIDASCVLVS —
FVIT - HVIC - PRAESTANTISSIMO - VIRO
INGENIVM - NATVRA - PERACRE
OPTIMARVM - DISCIPLINIS - ARTIVM
SEDVLO - EXCVLTVM - VSV - DIVTVRNO : CONFIRMATVM
ET - QVODAMMODO - SVBACTVM
NEMO - ENIM - AVT - IN - RECONDITIS - SAPIENTIAE - STVDIIS
ILLO - SVBTILIOR - EXTITIT
AVT - HVMANIORIBVS - LITTERIS " LIMATIOR
NEMINI : FERE - VEL « FELICIVS + CONTIGIT - JVDICII . ACVMEN
VEL - VBERIOR - ERVDITIONIS + COPIA
EGREGIIS - HISCE - CVM - DOTIBVS - NATVRAE
TVM : DOCTRINAE - SVBSIDIIS
INSVPER » ACCEDEBANT :
IN . SCRIPTIS - VERA + ET - PROPE: PERFECTA « ELOQVENTIA
IN - SERMONE : FACETIARVM " LEPOR : PLANE + ATTICVS
ET - GRAVITATI - SVAVITER - ASPERSA - VRBANITAS
IN - MORIBVS - SINGVLARIS - QVAEDAM - INTEGRITAS " ET « FIDES
VITAE - DENIQVE « RATIO - CONSTANS - SIBI
ET + AD - VIRTVTIS - NCRMAM
DILIGENTER + SEVERE - QVE + EXACTA
OMNIBVS + QVI - VEL + AMICO : ESSENT « EO
VEL - MAGISTRO - VSI
DOCTRINAE - INGENII + VIRTVTIS
TRISTE + RELIQVIT - DESIDERIVM
SVBITA - EHEV ΑΤΩΝΕ - IMMATVRA « MORTE - CORREPTVS
PRID - ID : SEPTEMBR.
Α D+ M-DCC-LXxi,
AET + SVAE: XLI.

563

EST : HIC - LIBER
MVLTIPLICI - DOCTRINA
PVRA - OVE - ETIAM - PIETATE -: PLENISSIMVS
VIRORVM - CONTINET - OPTIMORVM
DE - REBVS - GRAVISSIMIS
GENVINAS - (VTI - AIVNT ) - ATOVE
AKIBAHAOYS
SENTENTIAS - QVAE - PROFECTO - ET ~~ MIHI
SEMPER - CORDI - FVERVNT
PRAECEPTIS - OVE - CHRISTI - IPSIVS
APTISSIME - CONGRVVNT
TERT - ΚΑΙ, - NOV - Μ᾿ DCC: LXXXIII.

202

564

IACOBO - IOHNSTONE - IVN.
QVI ΙΝ" HAC « VRBE " PER - 1X - ANNOS
ARTEM - MEDICAM : EXERCVIT
ET - DVM - AEGRIS “ΙΝ - CARCERE - INCLVSIS
OPEM - FEREBAT
FEBRIS - IBI - SAEVIENTIS - CONTAGIONE - CORREPTVS
DECESSIT + XVII - KALEND - SEPT.
ANNO « CHRISTI - Μ΄ DCC: LXXXIII.
AETAT - SVAE - XXX.
IACOBVS - IOHNSTONE - Μ΄.
FIL: B-M-F°C.,

πο

565

$$$ es

IOANNI - TAYLOR « S-T:P.
LANGOVICI - NATO
ALBI - OSTII - IN - AGRO - CVMBRIENSI
BONIS - DISCIPLINIS - INSTITVTO
NORVICI
AD - EXEQVENDVM - MVNVS - PASTORIS - DELECTO
A.D: Μ΄ ΠΟΘ: ΧΧΧΙΠ.
RIGODVNI - OVO - IN - OPPIDO
SENEX + QVOTIDIE - ALIOVID - ADDISCENS
THEOLOGIAM - ET - PHILOSOPHIAM - MORALEM « DOCVIT
MORTVO
TERT - ΝΟΝ - MART.
ANNO - DOMINI - M: DCC- LXI.
AETAT - LXVI.

VIRO - INTEGRO - INNOCENTI - PIO
SCRIPTORI - GRAECIS - ET * HEBRAICIS - LITTERIS
PROBE « ERVDITO
VERBI - DIVINI - GRAVISSIMO - INTERPRETI
RELIGIONIS « SIMPLICIS - ET - INCORRVPTAE
ACERRIMO - PROPVGNATORI
NEPOTES - EIVS - ATQVE - PRONEPOTES
IN - HAC - CAPELLA
CVIVS - ILLE - FVNDAMENTA - OLIM - IECERAT
MONIMENTVM «+ HOCCE - HONORARIVM
PONI - CVRAVERVNT

566

Are

SAMVELI + IOHNSON
GRAMMATICO - ET " CRITICO
SCRIPTORVM - ANGLICORVM - LITTERATE " PERITO
POETAE : LVMINIBVS « SENTENTIARVM
ET - PONDERIBVS - VERBORVM - ADMIRABILI
MAGISTRO * VIRTVTIS - GRAVISSIMO
HOMINI « OPTIMO ’ ET - SINGVLARIS - EXEMPLI
QVI > VIXIT - ANN - LXXV- ΜΕΝΒ Il - DIEB - XIII.
DECESSIT : IDIB - DECEMBR: ANN - CHRIST: clo ‘loCC- LXXXIIL.
SEPVLT - IN - AED: SANCT - PETR " WESTMONASTERIENS. —
ΧΠῚ ΚΑΙ, - IANVAR « ANN « CHRIST - clo: IoCC: LXXXV.
AMICI - ET - SODALES - LITTERARII
PECVNIA - CONLATA
ΗΜ’ FACIVND - CVRAVER.

ee

ENMAKAPEXSSIMONOQNANTAZIOZSEIHAMOIBH

FACIEBAT
JOHANNES - BACON « SCVLPTOR
ANN - CHRIST - M-: DCG: LXXXXV.

ΙΟΑΝΝΙ - ΒΑΥ͂ΝΕΒ- Α΄ Μ.

COLLEGII ‘ 5: TRINITATIS - APVD - CANTABRIGIENSES « SOCIO
IVVENI - DISERTO : ET - SINE - MALEDICTIS - FACETO
VI - INGENII - AD - EXCOGITANDVM - ACVTA
ET ᾿ FIRMA - AD - MEMORIAM - MIRIFICE - PRAEDITO
GRAECIS - ET - LATINIS - LITERIS - PENITVS - IMBVTO
LEGVM - ANGLICARVM - INTERIORI
ET - RECONDITA - DISCIPLINA - ERVDITO
LIBERTATIS - CONSERVANDAE - PERSTVDIOSO
PATRIAE - BONORYM - OVE - CIVIVM - AMANTISSIMO
SIMPLICI - IVSTO - ET - PROPOSITI
ANIMOSE « ET - FORTITER - TENACI
OVI - VIXIT - ANN - XXVIII - MENS ° Ill - DIEB « XXVIII.
DECESSIT - LONDINI - PRIDIE - NON « AVGYST.
ANNO - SACRO
GVLIELMVS - BAYNES
CONTRA - VOTVM ’ SVPERSTES
FILIO * BENE - MERENTI
H:M-P.

568

FREDERICO - COMMERELL
VIRO : PROBO - MITI - OMNIBVS - AFFABILI
OVI 7 |
HEILBRANII ΙΝ’ GERMANIA HONESTA . STIRPE « ORIVNDVS
ET - INTER - ANGLIAE - CIVES - CONSCRIPTVS
RES - MERCATORIAS
DILIGENTER - ET - FIDELITER - ADMINISTRAVIT
RVRI - TRANOVILLE - PLACIDE: OVE - CONSENVIT
DIEM : SVPREMVM - OBIIT
_ PRIDIE : ID: APRIL.
ANNO - CHRISTI - M: DCC: LXXXVIIL.
AETAT - SVAE + LXXXIl.
ET - SEPVLTVS - EST.- IN - HOC - TEMPLO
QVOD - PIE : SANCTE: OVE
VIVVS - FREOVENTAVERAT
IOANNES + GVLIELMVS + COMMERELL
FILIVS - SVPERSTES
PATRI - BENE - MERENTI
H+ M- PONI + CVRAVIT

—— ἡ

909

Η. 5. . ΥΜ’Ν.
HENRICVS
EDVARDI « ET - MARIAE - DAWSON - FIL: NATV : MAX.
QVI - VIXIT - ANN.- XVIII -M- IL: Ὁ VI.
RELICTIS
DVARDO - FRATRE - ET: MARIA - SORORE - MOESTISSIMIS
OB: PRID - NON - MART.
Α Ὁ: M-DCC-LXXXIXx.

IOANNI ΑΝΌΒΕΥΒ - M - D.
VIRO - DOCTO « PROBO
IN - SVOS - HOSPITALI
ERGA - INOPES - MVNIFICO
QVI - OB - OVINTO : ID - JAN.
AETAT + SVAE ’ LXXV.
THOMAS « SARA > ANNA ~~ ET - MARIA
ET - ISABELLA - LOSH
AVVNCVLO: Β΄’ M.
H'M:D-S°<F.

1!

Ae so

LAETITIAE

THOMAE « ET - LAETITIAE - WEARDEN ᾿ FIL: NAT: MAX.

QVAE - VIXIT - ANN ᾿ XXXVII - MENS: ΠΙ - DIEB - XXVIII.
DECESSIT - QVART + KALEND - APRIL.

ANNO - SACRO - Μ΄ DCC: LXXXXIIL.
CATHARINA - SOROR: EIVS : VNICA : ET - SVPERSTES
ET - CONIVX - EDVARDI : IOHNSTONE : Μ΄’ Ὁ.
MONIMENTVM - HOC - MARMOREVM
ET - FENESTRAM - EI - SVPERADDITAM
D-S:I«F-C.

572

FELICI - VAVGHAN
COLL : IESV - CANTABR - OLIM - ALVMNO ,
VIRO - INTER - AMICOS - COMI - VRBANO - SIMPLICI ~
CAVSARVM - ACTORI - DISERTO

_ET + LEGVM - ANGLICARVM ’ EXIMIE « PERITO

LIBERTATIS « VINDICI + ACERRIMO

IVSTITIAE - VERITATIS~: OVE
SANCTO : ET - SINCERO : CVLTORI

EDVARDO - BROWNE
DE - OSWESTRY ΙΝ - COMITATV - SALOPIENSI
ARMIGERO
QVI ’ VIXIT - ANN - LXXX.
DECESSIT + VIII - KALEND - MART.
ANNO - SACRO - Μ΄ DCC: LXXXXIV.
SARA : CONIVX - THOMAE : NETHERTON - PARKER
HAERES « EIVS - EX ᾿ ASSE
PIO - GRATO + OVE - ANIMO
IN * AVVNCVLVM ’ OPTIME - DE: SE: MERITVM
HOC - MONIMENTVM
FACIVNDVM - CVRAVIT

EDVARDVS + GIBBON
CRITICVS - ACRI - INGENIO - ET : MVLTIPLICI - DOCTRINA - ORNATVS
IDEM - QVE « HISTORICGRVM - QVI - FORTVNAM
{MPERII - ROMANI
VEL: LABENTIS " ET - INCLINATI - VEL: EVERSI - ET - FVNDITVS - DELETI
LITTERIS - MANDAVERINT }
OMNIVM - FACILE - PRINCEPS :
CVIVS «IN - MORIBVS - ERAT - MODERATIO - ANIMI |
CVM - LIBERALI - QVADAM « SPECIE - CONIVNCTA
IN - SERMONE
MVLTAE - GRAVITATI + COMITAS - SVAVITER + ADSPERSA
IN + SCRIPTIS
COPIOSVM - SPLENDIDVM
CONCINNVM - ORBE - VERBORVM
ET - SVMMO - ARTIFICIO - DISTINCTVM
ORATIONIS - GENVS
RECONDITAE - EXQVISITAE* QVE - SENTENTIAE
ET - IN - MOMENTIS : RERVM - POLITICARVM - OBSERVANDIS
ACVTA - ET - PERSPICAX - PRVDENTIA
VIXIT - ANNOS - LVI - MENS - VII - DIES - XXVIII.
DECESSIT - XVII - KAL« FEB - ANNO : SACRO
Μ' DCC: LXXXXIV.
ET - IN - HOC - MAVSOLEO « SEPVLTVS « EST
EX - VOLVNTATE : IOHANNIS - DOMINI - SHEFFIELD
QVI - AMICO - BENE+ MERENTI - ET - CONVICTORI : HVMANISSIMO
H:TAB-D-S-S-P:C,

575

IN - MEMORIAM
GVLIELMI : LEGGE - ANGLI
GVLIELMI - COMITIS - DE - DARTMOVTH
FILH - NATV : SECVNDI
ET - GEORGII - WALLIAE - PRINCIPIS - EX - CAMERARIIS
QVI ΙΝ HAC - VRBE - [GENEVA]
OB - PECTORIS : LENTE - TABESCENTIS - INIVRIAM
ALIOVAMDIV - COMMORATVS
HINC - AD - SEDES “ AETERNAS
DEO : IVBENTE
TANDEM - EVASIT
DIE - VICESIMO . OCTOBRIS
ANNO « DOMINI - M: DCC: LXXXIV.
AETAT + XXVIIL

A ai Kreg
IOANNI « SMITHEMAN
OVI: VIX: ANN : XV° MENS: “ὙΠ: DIEB: XVII‘ HOR: ΠΙ.
DECESSIT - VIII - ID - MART : ANNO: SACRO
JOANNES « ET - MARGARETA " SMITHEMAN
PARENTES + INFELICISSIMI
VNICO - ET " CARISSIMO - FILIO
ΗΝ.
CONTRA " VOTVM - POSVERVNT

577

! IOSEPHO - BALDWIN
SAMVELIS - ET - TRYPHAENAE - BALDWIN - FIL: NAT - MAX.
SCHOLAE : HARROVIENS - ALVMNO
VIRO - ERVDITO - PROBO - INTEGRO
IN - NEGOTIIS - ADMINISTRANDIS * DILIGENTI - SOLERTI - QVE
IN - AMICITIIS - TVENDIS - FIDELI
OVI - VIXIT - ANN - LXXIV : MENS < VII - DIEB: XXVII.
DECESSIT - ID - MART - ANNO~ SACRO - M- DCCC.
ET - LONDINI - IN - AEDE~ SANCTI - PAVLI
AD - HORTVM - COENOBII « SITA " SEPVLTVS - EST
ANNA - OPTIMO - MARITO
H:M-P.
TRYPHAENA
IOSEPHI « ET - ANNAE : BALDWIN - FILIA
OBIT - IV - ΚΑΙ, - FEB.
A-D: M- DCC: LXXXXVl.
AETAT - SVAE - XXXX.
ET - CONDITA « EST ΤΙΝ " SACELLO - SANCTI « LEONARDI ,

VOL, Iv. 2 p

578

MARIAE - GREENE
FIL - NAT: MIN - ADAMI - BLAND
ET - VXORI - MORDECAI - GREENE
QVAE - VIXIT - ANN - LXXVIII - DIEB: VI.
DECESSIT « XI - ΚΑΙ, - MAII
ANNO - SACRO - Μ΄ DCC: LXXXXVI.
ET ΤΙΝ’ HOC - SACELLO - CONDITA - EST
IACOBVS - GREENE - FILIVS : SVPERSTES
ΜΒ Μ-Η:Μ-Ρ.

579

RICHARDO - WARREN
APVD - CAVENDISH - IN - AGRO - SVFFOLCIENSI : NATO
COLLEGII - IESV - CANTAB : OVONDAM - SOCIO
REGIS - GEORGII - TERTII - MEDICO
VIRO - INGENIO - PRVDENTIA: OVE - AVCTO
OPTIMARVM : ARTIVM - DISCIPLINIS - ERVDITO
COMITATIS - ET - BENEFICENTIAE - LAVDE
BONIS - OMNIBVS - COMMENDATISSIMO
QVI - MEDICINAM - DIV - FELICITER : OVE
LONDINI - FACTITAVIT
DECESSIT - X - ΚΑΙ, - IVL.
ANNO - CHRISTI - Μ’ DCC - XCVII.
AETAT + SVAE ᾿ LXVI.
ELIZABETHA - VXOR
ET : LIBERI - DECEM - SVPERSTITES
ΗΜ' FACIVNDVM : CVRAVERVNT

580

EDMVNDO - BVRKE
VIRO
MVLTIS - ET - EXQVISITIS - LITTERIS - IMBVTO
ET - SVMMA : INGENII - PRAEDITO - GLORIA
SODALI
SVIS - AMABILI
ET - IN: OMNI - GENERE - FACETIARVM - ORNATISSIMO
. CIVI
QVI - REMPVBLICAM - PROPRIAM - BRITANNORVM
IDCIRCO - ESSE - OPTIMAM - STATVEBAT
QVOD - REGALIS - SENATORII - POPVLARIS - QVE - IVRIS
CONSENSV : FVNDATA - ESSET
ET - COMMVNIONE - VTILITATIS - STABILITA
CRITICO
QVI - E- RECONDITA - VI - VERBORVM « OVOTIDIANORVM
OVOD + AVT - VERVM - EST
AVT - AD - ID - ΟΥΑΜ : PROXIME - ACCEDIT
ACVTE - ARGVTE «OVE « ELICVIT
INTIMOS - OVOSDAM - ANIMI - SENSVS - PATEFECIT
ET - ADVMBRATAS : IN - EOQDEM - A+ NATVRA
RERVM - IMAGINES
MVLTO - EXPRESSIORES " DEFINIENDO - ET - EXPLICANDO : REDDID)
PHILOSOPHO
QVI - MVLTIPLICES - ET - ABSTRVSAS " REI - POLITICAE - RATION
CVM - DISCIPLINA « MORALI - CONIVNCTAS
VBERRIME - ET - GRAVISSIME - ILLVSTRAVIT
ORATORI
ΟΥ̓! - COPIOSE - ERVDITE - SPLENDIDE - DICENDO " EFFECIT
VT - OMNES - ARTES - SE - PRAEBERENT
COMITES : ELOQVENTIAE - AC : MINISTRAS
ΟΥ̓ - VIXIT - ANN - LXVII - MENS - V* DIES - XXVIL |
DECESSIT + Vill - ID - QVINTIL - ANNO - SACRO - M: DCC: LXXXXVII
ET - BEACONSFIELDIAE ΙΝ - AGRO - BVCKINGENSI
SEPVLTVS: EST ὁ
REX - SENATVS: QVE : BRITANNICVS
H-M-P-P~- IMPEN - PONENDVM « IVSSERVNT

58]

ELIZABETHAE
CAROLI - DOMINI - DORMER
FEMINAE : PVLCHERRIMAE
MATRI - PIENTISSIMAE
QOVAE - VIXIT - ANN - LXVIII.
MENS “ Ill - DIES - XIII.
DECESSIT - Vil - KALEND - OCTOBR.
ANNO - SACRO - Μ΄ DCC: LXXXXVIIL.
IOANNES * STANHOPE - DORMER
ET - FRANCESCA - CONIVX - ROBERTI - KNIGHT
LIBERI - EIVS - NATV - MINIMI
ΗΜ’ SVA -: IMPENSA
PONENDVM - CVRAVERVNT

vane: Satin

RICARDVS : FARMER - 5: ΤΡ.
MAGISTER " HVIVS - COLLEGII
VIR - FACETVS - ET - DVLCIS
FESTIVI - OVE : SERMONIS
GRAECE - ET - LATINE: DOCTVS
SVBTILIS - ATQVE : ELEGANS
IN - POESI - VETERVM - ANGLORVM : EXPLICANDA
ACADEMIAE + CANTABRIGIENSIS - STABILIENDAE
ET - AMPLIFICANDAE - STVDIOSVS
REGIS - ET - PATRIAE - AMANTISSIMVS
VIXIT - ANN + LXIl ‘ MENS - Ill « DIES - XIII.
DECESSIT : SEXTO : ID - SEPTEMBR.
ANNO - SACRO * M- DCC: LXXXXVII.
ET ᾿ CONDITVS - EST - IVXTA - ARAM - VICINI - SACELLI
IN - SEPVLCRO: QVOD : SIBI : VIVVS - NVNCVPAVERAT

083

K

CATHARINAE - MACKINTOSH
FEMINAE - PVDICAE - FRVGI - PIAE
MATRIFAMILIAS
VIRI - TRIVM- OVE : FILIARVM
QVOS - SVPERSTITES - SVI - RELIQVIT
AMANTISSIMAE
VIXIT - ANN : XXXII - MENS - ΧΙ ° DIEB~ XXI.
FECIT - CVM - MARITO - ANN ᾿ Vill - MENS: 1° DIEB< XXI.
DECESSIT - SEXTO - ID: APRIL: ANNO - SACRO
M: DCC: XCVII.
IACOBVS - MACKINTOSH
H-M:CON-B: Μ-Ρ.
SPERANS : HAVD - LONGINOVVM
INTER - SE + ET: CATHERINAM - SVAM
DIGRESSVM - FORE
SIOVIDEM « VITAM « NOBIS - COMMORANDI - DIVERSORIVM
NON - HABITANDI
DEVS - IMMORTALIS « DEDIT

---.-----------.:-.-.....-....αα-΄----.-ς.

84

EDVARDO -: BARETTI
VIRO - INNOCENTI : SIMPLICI - INTEGERRIMO
NATVRA + VSV: OVE - ACVTO
SALE - FACETIIS: QVE - AMICIS - IVCVNDISSIMO
IN : SVSCEPTIS - CONSILIIS - GRAVI : ET - CONSTANTI
DIVITIARVM - NON - VT - SECVM ΄ ΑΥ̓́Τ - MAGNIFICE
SED - RECTE - VIVERET
MODICE - CVPIDO
OVI - FILIORVM - QVOS - VALDE - AMAVIT
TRIVM « SVPERSTES
DECESSIT - XVI - KALEND - DECEMB.
ANNO - SACRO: M- DCC: LXXXXVIII.
AETAT - SVAE - LXIill.
CONIVGI - B- M.
ΗΜ’ SVA~- IMPENSA
FACIVNDVM - CVRAVIT

585

Μ᾿ 8.
ΠΝ + HAC : ECCLESIA « CONDITORVM
IOANNIS - TWEDDELL - OVI - OB - PRID - OCTOBR.
A*D* M:‘DCCC:V: ΑΕΤ - LXXV.
ET - IANAE : TWEDDELL -: QVAE: OB~ Vill - ΚΑΙ, : AVGVST.
Α ἢ M:DCCC°Il: AET : LV.
ITEM : OVE - IOANNIS " TWEDDELL
FILII - EORVM - NATV « MAXIMI
ET - COLLEG - SACROSANCT - TRINITAT
APVD - CANTABRIGIENSES
SOCII " OVI - ATHENIS - OB: XIil - ΚΑΙ, - DECEMBR.
Α D- M: DCC: LXXXXVIIIl - AETAT « XXX.
ET ΙΝ TEMPLO - THESEI - IBIDEM « SEPVLTVS « EST
ROBERTVS - TWEDDELL
PARENTIVM - ET ’ FRATRIS - CARISSIMORVM * SVPERSTES
H:M:P:C.

586

x
HONORATIS + ET - NOBILIBVS " VIRIS
DVNBAR - ET - ALEXANDRO - DOVGLAS
FILIIS - DVNBAR « COMITIS - DE «: SELKIRK
QVORVM - HIC
DVM - IN - LEG - XXXVIII - PEDIBVS - MEREBAT
PESTE
QVAE « IN - GAVDALOVPIAE + INCOLAS - INGRVERAT - CORREPTVS
IBI " DECESSIT - VII - ID - IVN.
ANNO + DOMINI : M- DCC: LXXXXIV.
AETAT + XXVI.
ET - AD " STATIONEM - SVAM « CONDITVS « EST
ILLE .
A + BELLO - QVOD - EXARSERAT
IVDICIO - QVIDEM - ET - VOLVNTATE - ABHORRENS
SED “ΑΒ + RELIGIONE - OFFICII - MILITARIS - NON - DECLINANS
CVM + NAVICVLAE - ANGLICE - DICTAE
THE - TERROR - BOMB-KETCH - PRAEESSET
ET ΙΝ MORBI - QVI - HANC + INSVLAM - INVASERAT
CONTAGIONEM - INCIDISSET ν᾿
OBIIT - ΙΝ - ΚΑΙ, - NOVEMB.
ANNO - DOMINI - Μ' DCC: LXXXXVI.
AETAT + XXVIII.
ET - HIC - SITVS - EST
THOMAS + COMES « DE + SELKIRK
FRATRIBVS « SE + NATV - MAIORIBVS
ET - SIBI - CARISSIMIS
HOC - MONIMENTVM
PONENDVM + CVRAVIT
ANNO + DOMINI : M: DCCC.

υ an a

587

Μ- 8.
IOSEPHI - WARTONI
ETC.
SI - QVIS + ALIVS
INTER - EGREGIOS : MEMORANDI
PROPTER - BENEVOLENTIAM - MORVM - SVAVITATEM
OMNIBVS - DILECTI '
AMICIS " OB - FESTIVITATEM - SERMONIS
ANIMI - CANDOREM
IN - DELICIS - HABITI
SCRIPTORIBVS * ANFIQVIS - SIMVL
ATOVE + RECENTIORIBVS - EXAMINANDIS
INTERPRETANDIS - IMITANDIS
VEL - DOCTORVM - IVDICIO
SINGVLARIS - SCIENTIAE
OVANTA " INSVPER ᾿ CVM - CVRA - AEQVITATE
LENITATE + DILIGENTIA
VSOVE - AD - SENECTVTEM
MVNERE - GRAVISSIMO « INFORMATORIS
PERFVNCTVS « SIT - WARTONVS
HOCCE - MONIMENTVM
DISCIPVLORVM "Ὁ IMPENSIS - STRVCTVM
POSTERIS * TESTETVR

ee ευὕ0ὅΣὅ.»--..---.-.-.-----.-. -.-

088

Η - 5. :Ε.
IOSEPHVS - WARTON - S: Τ΄Ρ.
HVIVS “ ECCLESIAE
PREBENDARIVS
SCHOLAE + WINTONIENSIS
PER : ANNOS : ΒΕΒΕ : TRIGINTA
INFORMATOR
POETA - FERVIDVS " FACILIS * EXPOLITVS
CRITICVS : ERVDITVS - PERSPICAX » ELEGANS
OBIIT - XXIII ΓΕΒ. Μ᾿ DCCC.
AETAT "Ὁ LXXVIII.
HOC - QVALECVNOVE
PIETATIS - MONIMENTVM
PRAECEPTORI - OPTIMO
DESIDERATISSIMO
WICCAMICI « SVI
P- cc.

ὅ89

AEDES - HASCE
QVOD - FELIX - FAVSTVMOVE - SIT
DE - SVA - PECVNIA
REFECIT + AMPLICAVIT : OVE
FRANCISCVS - WRANGHAM
VICARIVS
ANNO - SACRO - M- DCCC: II.

590

IACOBO - IOHNSTONE
QVI - PER - ANNOS - LI.
IN - AGRO - VIGORNIENSI
ARTEM - MEDICAM - PERITISSIME : EXERCVIT
MAGNAM - INGENII : ET - DOCTRINAE - FAMAM
SCRIPTIS - SVIS ΑΤΟΥΕ : ETIAM - INVENTIS - ASSECVTVS « EST
VIXIT - ANN - LXXII.

DECESSIT - IV - ΚΑΙ, - MAII - M- DCCC- I.
QVINOVE - LIBERI : EIVS - SVPERSTITES
PATRI - DE - SE: OPTIME - MERITO
H:M-F:Cc.

591]

IOANNI : IOHNSTONE
VIRO - DOCTO
MEDICO - PERITO
AMICO - OPTIMO
HANC + ERASMI - EFFIGIEM
AB - HOLBENIO « VIA: ET - ARTE - ELABORATAM
Ὁ ἢ" SAMVEL - PARR
OVINTO : KAL « APRIL.
ANNO : SACRO : M: DCCC -Il.

592

Μ 8.
GVIDONIS - COMITIS - VEROVICANI
OVI
POSTOVAM - DANOS
CONTRA - PATRIAM - EIVS - ARMA - INFERENTES
DEVICERAT
SATIS: QVE - BELLICAE - GLORIAE " SIBI - COMPARAVERAT
IN - CELLAM - HVIC - AEDICVLAE - VICINAM
ET - A SANCTO - DVBRITIO - ANTEA - HABITATAM
SVA - SPONTE - SE - RECEPIT
VT - OVO: IN * LOCO: CVM - CONSENESCERET
DEO - PIE - COLENDO - SE - TOTVM : DEDIDISSET
ΠΝ + EODEM - OSSA - IPSIVS
POST - MORTEM - CONDERENTVR
IMAGINEM - HANCCE
RICARDVS - BEAVCHAMP - COMES - VEROVICANVS
REGNANTE + HENRICO - SEXTO
PONI - CVRAVIT

99

IN - HOC - LOCO
QVEM - HENRICVS - OVINTVS : INVISERAT
ET: AD- CANTARIAM - A- SE: FVNDANDAM : DESTINAVERAT
RICARDVS - BEAVCHAMP - COMES : DE - WARWICK
REGNANTE « HENRICO - SEXTO
CAPELLAM - POSVIT
ET - ANNVIS - REDITIBVS - LOCVPLETAVIT
IOANNES - ROVS
ΟΥ͂Μ - IN - COLLEGIVM - CAPELLANORVM - CLIVI . GVIDONICI
FAVENTE - EDVARDO - OVARTO - COOPTATVS - ESSET
CHRONICON : SVVM : DE : REGIBVS « ANGLIAE
IBIDEM - CONSCRIPSIT
ALIOS: QVE : ITEM « LIBROS
QVI : OLIM - DEPERDITI + SVNT
AVT ΙΝ - BIBLIOTHECIS - ETIAM - NVNC - DELITESCVNT
TVRRIM - PROPRIIS - IMPENSIS - EXSTRVENDAM - CVRAVIT
SAMVEL - GREATHEED - A: ἢ: M- DCC: LXIV.
BERTIE - GREATHEED * SAMVELIS - FILIVS
AEDICVLAM - IPSAM - REFECIT
A+D-+M:DCCC'll.

VOL, IV. 2a

594

ROBERTO - PLVMTRE
VIRO - LIBERALIS - DOCTRINAE - STVDIOSO
IVRIS - ANGLICI - BENE - PERITO
IN - CAVSIS - AMICORVM - AGENDIS - DISERTO
ET ΙΝ LIBERTATE - CIVIVM - SVORVM
PROPVGNANDA - ACERRIMO
THOMAS + GVLIELMVS - COKE
L-M-D-D.
ANNO * SACRO: Μ' DCCC: III.

595

OVAE ΙΝ - APSIDA - VICINA - INSVNT
SEPTEM - FENESTRAE - PICTVRATAE
COENOBIO - CANONICORVM - HERCHENRODENSI
OVOD - OLIM’- EXORNAVERANT
FOEDISSIME - DIREPTO - ATOVE - DIRVTO
NOVAM - ET: DEO» VOLENTE - STABILIOREM - SEDEM
IN - HAC: ECCLESIA - NACTAE - SVNT
OPE « ET - CONSILIO
VIRI - IN - OMNI - IVDICIO - ELEGANTISSIMI
DOM - BROOKE : BOOTHBY - DE - ASHBOVRN - AVLA
IN - COMITAT - DERB - BARONETTI
ANNO - SACRO : M: DCCC: IIL.

2? 'a' 2

596

GVLIELMO : VNTHANK
HOMINI » INTEGERRIMO
SVFFRAGATORI - STRENVO

ET + CIVI : SVO ’ CARISSIMO
THOMAS - GVLIELMVS - COKE
L:-M:-D°D.

ANNO - SACRO: M- DCCC: Ul.

597

THOMAE : TWINING - A- M.
HVIVSCE - ECCLESIAE - RECTORI
, VIRO ΙΝ - QVO
DOCTRINA « INERAT : MVLTIPLEX - ET - RECONDITA
INGENIVM - ELEGANS - ET - ACVTVM
SCRIBENDI - GENVS : NON - EXILE: SPINOSVM: OVE
| SED ᾿ ACCVRATVM - ET - EXQVISITVM
IN: REBVS: QVAE : AD - REM: CRITICAM : PERTINENT - EXPLICANDIS
| SERMO - SINE - ACVLEO - ET - MALEDICTIS - FACETVS
ET : SAPORE : PAENE - PROPRIO - ATHENARVM : IMBVTVS
MANSVETVDO - MORVM
ET : COMITAS - SVIS - PERIVCVNDA
PIETAS - ERGA - DEVM - PVRA - ATOVE « SINCERA
SIOVIDEM - HONESTA - DE - EIVS : NATVRA - OPINIONE
STABILI - OVE ΤΙΝ - CHRISTO: FIDE
POTISSIMVM - NIXA - EST
_ET~ CVM - SVMMA - IN - OMNES - HOMINES - BENEVOLENTIA
NVNOVAM - NON - CONIVNCTA
RICARDVS : TWINING - FRATRI - CARISSIMO
NATO « VIII ‘ KALEND - IANVAR Α΄ S - M: DCC: XXXV.
MORTVO : VIII - ID : AVG : M: DCCC ' IV.
CONDITO - COLCESTRIAE ΙΝ - SEPVLCRETO : TEMPLI
AD * MILE-END - SITI
H'M’P-C.

598

ΠΑΝῚ
EX - GENERE - EORVM
QVIBVS : NEWFOVNDLANDIA - NOMEN - DEDIT - ORIVNDO
QVONDAM - TIGRI + DICTO
POSTEA - AMICO
NARIVM « SAGACITATE
OCVLORVM - ACIE
VALIDA - TOTIVS - CORPORIS - COAGMENTATIONE
ATQVE - ACERRIMO - ANIMI - VIGORE
AD - OMNIA - QVAE - PRAESTARE - DEBVIT
MVNERA - APTISSIMO
ΟΝ!
AD - VIRVM " ANTEA : ΑΒ - IPSO - ΝΕ : SEMEL - QVIDEM - VISVM
SED - DOMINVM - BREVI : FVTVRVM
CVM : PROLVENDI - SE - GRATIA - PORTESMVTHIAE
IN - MARE - VLTRA - QVAM - OPORTEBAT
NEC + OPINATO « PROGRESSVS - ESSET
NANDI - QVE " IMPERITVS
ET - CONTRA - VNDARVM - IMPETVM - DIV - LVCTATVS
VIRIBVS - IAM - EXHAVSTIS
ET - GRAVI - STVPORE - SENSIBVS - OPPRESSIS
TEMERE - HVC - ILLVC - SVPER - AQVAS - FLVITARET
SVA + SPONTE - ADVOLAVERAT
PRENSATVM - QVE - CRINIBVS
ET - AD - LITTVS - CAVTE - AC - DILIGENTER - DELATVM
EX: INSTANTI - MORTIS +: PERICVLO - ERIPVERAT
GVLIELMVS - PHILLIPS
CVSTODI - DOMVS - FIDELI
ET - VITAE - FORTISSIMO - CONSERVATORI
SVPER « OSSA - EIVS - SENIO - EMORTVI
H:M-P-C.
ANNO : SACRO : M: DCCC: V.

999

DANIELI - GACHES : A - Μ.
COLLEGII - REGALIS - APVD - CANTABRIGIENSES
QVONDAM - SOCIO
ECCLESIAE - HVIVSCE - ANN - CIRCITER - XXXVIIII - MINISTRO
IRENARCHAE - DE: COMITATV « VARVICENSI
OPTIME : MERITO
SIQVIDEM « AEQVI - ET - BONI : PERITISSIMVS - FVIT
ET : AD: NODOS - LEGVM - SOLVENDOS
QVAM : MAXIME - EXPEDITVS
VIRO
NON : SOLVM - DOCTRINA - LIBERALITER « INSTITVTO
SED - INGENIO - ETIAM ‘ OVOD - ACVITVM : AD - EXCOGITANDVM
ET -AD - MEMORIAM - FIRMVM - ATOVE : DIVTVRNVM<: ERAT
EGREGIE - PRAEDITO
ΟΥ̓! ᾿ VIXIT : ANN - LXXII - MENS - VI.

DECESSIT - IV - ID - SEPTEMBR.

ANNO - SACRO - M: DCCC: V.

MARIA - GACHES - CONIVX « EIVS - SVPERSTES
H'M-P:S-P-C,

600

GVLIELMO - PITT
GVLIELMI - COMITIS - DE - CHATHAM - FILIO - NATV - MINORI
GEORGI - TERTII - A - CONCILIIS - SECRETIS
PVBLICI : FISCI - CANCELLARIO
ET - PRINCIPI - AERARII - PROCVRATORI
QVI - IDCIRCO - QVOD - INDOLEM - HABEBAT
IN - PENETRALIBVS + CLARISSIMI - PATRIS - NVTRITAM
ET - IN - IPSO - IVVENTVTIS « FLORE
ADMIRABILI - QVADAM « VI - INGENII - VIGEBAT
ANNVM : AGENS - VICESIMVM - ET - QVINTVM
GRADVM :- HONORIS - PROPE - AMPLISSIMVM - OBTINVIT
ET - CVM - INCREDIBILI - CIVIVM - SVORVM
COMPROBATIONE - REMPVBLICAM - CAPESSIVIT
ORATORI - QVI - CVM - IN - SENATVM - AFFERRET
LVMINOSVM - ACTVOSVM - QVE - DICENDI : GENVS
ARTICVLIS - ET - MEMBRIS
SINGVLARI - ARTIFICIO - DISTINCTVM
ET - VERBORVM - CVM - VARIETATE - ET + COPIA
TVM + COMPLETO : ETIAM - ET - PERFECTO - AMBITV - ORNATVM
ANIMI : MOTVS - ET - AD - EXCOGITANDVM - CELERES
ET - AD - MEMORJAM - FIRMOS - ET - DIVTVRNOS
MAXIMVM ΙΝ - VOCE - SPLENDOREM
ET : EXIMIAM ΙΝ - GESTV - DIGNITATEM
SVPERBISSIMO - AVRIVM : SATISFACERE - IVDICIO
ET - VOLVNTATES - HOMINVM - QVO : VELLET
FLECTERE - ET - IMPELLERE - POTVIT
DISPENSATORI - PVBLICAE - PECVNIAE
FIDELI : ET - APPRIME - INTELLIGENTI
REGIS - POPVLI*: QVE - BRITANNICI
CONTRA + NEBVLONVM ': NOVIS : REBVS : STVDENTIVM

00]

PRAESTIGIAS ’ ET - EFFRAENATVM - FVROREM
VIGILANTI - STRENVO~ QVE + VINDICI
GALLORVM - QVOTQVOT - VEL - ARGVTIARVM * TENDICVLIS
FVCATO - QVE - ELOQVENTIAE - NITORE
VEL - TVMVLTV - ATQVE - ARMIS
SVMMA - CVM - INFIMIS - PARIA + FACERE
ET - SACRA - PROFANIS - MISCERE - CONARENTVR
ACERRIMO - INIMICO
ACADEMIAE - CANTABRIGIENSIS
DOCTISSIMO - AMANTISSIMO "ΝΕ : ALVMNO
ECCLESIAE + ANGLICAE
DILIGENTI + ET - OFFICIOSO - FAVTORI
HOMINI - QVI : A - DIVITIIS - CONQVIRENDIS
MANVS + OCVLOS - MENTEM - ABSTINVIT
ILLECEBRIS » BLANDAE - VOLVPTATIS
DELINIRI - NOLVIT
ET - HONORIBVS TOT + TAM:QVE-: AMPLIS
QVOS ΙΝ - ADOLESCENTIA - NON : SOLVM - DATOS - SIBI
SED - CREDITOS - QVOQVE + ET » COMMISSOS : ESSE
EXISTIMAVERAT
PER - OMNE - CVRRICVLVM
INDVSTRIAE « ET - CONSTANTIAE + SVAE
DIGNISSIMVM ’ SE - PRAESTITIT
AMICI - EI[VS - ACADEMICI
EX - AERE - COLLATO
HANC + STATVAM - PONENDAM - CVRAVERVNT

GVLIELMVS - PITT
AVLAE - PEMBROKIANAE " QVONDAM - ALVMNYS
ACADEMIAE - HVIVSCE * SEXTVM - CREATVS - BVRGENSIS
A+D:M-DCCC:IV.
SENESCHALLVS - EIVSDEM : COMMVNI « CONSENSV - FACTYS
A+ D+ M: DCC: LXXxx.
SCACCARII - CANCELLARIVS
DOMINVS - PRIMARIVS ° FISCI .
REGIAE - MAIESTATI
A + SANCTIORIBVS : CONCILIIS : EY - A+ SECRETIS
DECESSIT - DECIMO - KAL: FEBR~ A+ D+: M- DCCC: VI.
AETAT - XLVIL.
TALIS : VIRI - GRATE: ET: PIE - MEMORES
CANTABRIGIENSES - OMNIVM - ORDINVM
COLLATA - PECVNIA - POSVERVNT
ANNO « SACRO: Μ' DCCC: XII.

603

| THOMAE « PERCIVAL
SCRIPTORI ᾿ CVIVS : OPERA : PERMVLTA - ET - PERPOLITA
PROBITATE - IPSIVS - ET - MORIBVS
AD - OMNEM -: MEMORIAM - COMMENDATA ᾿ SVNT
MEDICO : RECTISSIMIS - STVDIIS
MAGNA: OVE: PRVDENTIA - ET : EXERCITATIONE : PRAEDITO
LIBERTATIS - SINE - VLLIS : VERBORVM - PRAESTIGIIS
AVT -LVBRICA : ET - PRECIPITI- RERVM: NOVARYM - CVPIDITATE
ACERRIMO - VINDICI
MORBORVM - SOLLERTER - ATOVE - HVMANE - CVRANDORVM
ET - VITAE - SAPIENTER - HONESTE: OVE + INSTITVENDAE
DOCTISSIMO « AC - SANCTISSIMO - PRAECEPTORI
OVI - VIXIT - ANNOS - LXIIl - MENSES - XI - DIEM - I.
DECESSIT : TERTIO - KALEND - SEPTEMBR.
ANNO - SACRO - Μ΄’ DCCC: IV.
ELIZABETHA - PERCIVAL « CONIVX ’ EIVS - PIENTISSIMA
ET - NOVEM - LIBERI - SVPERSTITES
PATRIS - DE: SE * OPTIME - MERITI
Η -M- PCC.

004

THOMAE " PERCIVAL
QVI - NON - SOLVM - AD - SOCIETATEM - MANCVNIENSEM
CONSTITVENDAM
CONSILIO : HORTATV « AVCTORITATE
INCVBVIT
SED - CONSTITVTAM
ANIMO - ERVDITO
SCRIPTIS - ELEGANTISSIMIS
SINGVLARI ‘ MORVM : COMITATE
MVLTVM - ET: DIV: ORNAVIT
SODALES - EIVS - SVPERSTITES
HANC - MARMOREAM + TABELLAM
D:S:I.
P-CC.

GEORGIO ’ COMITI - DE - MACARTNEY
VICE : COMITI - DE - DERVOCK
BARONI - DE - LISSANOORE - ET - PARKHVRST
A: SACRIS : GEORGIO - TERTIO - BRITANNIARVM - REGI
ORDINE - EQVESTRI - AQVILAE - ARGENTEAE
A + STANISLAO - AVGVSTO - REGE - POLONIAE - ORNATO
IDEM: QVE : APVD - ANGLOS - SVOS - IVSSV - REGIO
IN - ORDINEM - BALNEI - ASCRIPTO
OVI
PRIMVM - AD - LADOGAE - PALVDEM
DEINDE - AD - OCCIDENTALES - CYCLADAS
POSTEA - IN ᾿ SACRATI - GANGIS - PENINSVLA
PRAETEREA ΙΝ - IOVIS - HAMMONIS - FINIBVS
DENIOVE - INTER . EXTREMOS - SERAS
MAGNA - ET - HONESTISSIMA - MVNERA
PRVDENTER « STRENVE - FIDELITER « IMPLEVIT
VIXIT - ANNIS ᾿ LXIX - MENS - VIIL.
DECESSIT - LONDINI - PRID - ΚΑΙ, - MART.
ANNO - SAC - M: DCCC: VI.

ET - IN - SVBVRBANIS « SEPVLTVS - EST
ELIZABETHA * HVME « NEPTIS - EIVS - AMANTISSIMA
HOC - MONIMENTVM - HONORARIVM
P-C.

606

HANC - AEDEM
LIBERTATI - SACRAM

ET - A+ VIRO - PATRIAE
BONORVM : OVE « CIVIVM : AMANTISSIMO
FRANCISCO - RVSSELL - BEDFORDIAE - DVCE - INCHOATAM

IOANNES « RVSSELL - HAERES - EIVS

EX - VOLVNTATE - FRATRIS - MORIENTIS

PERFICIENDAM - CVRAVIT

ANNO - CHRISTI « clo: loCCC- Il.

me EB.
IOANNES - COVRTENAY
HOMO ’ LIBERALITER « ERVDITVS
ET: SINE : MALEDICTIS - FACETVS
QVI - PER ’ VITAM : BENE -: LONGAM
NIHIL - CARIVS +: AVT + ANTIQVIVS - HABVIT
QVAM : VT: FAMILARITER « AMICE: OVE +: VIVERET
CVM « CAROLO - IACOBO - FOX
VIRO
OB “ INGENIVM - VERE - ORATORIVM
ET : FIDEM + FACILITATEM « ATOVE : ANIMI - ALTITVDINEM
IN : PRIMIS - AMABILI
OBIIT - ETC.

608

CAROLO " IACOBO " FOX
BARONIS: HOLLAND " DE: FOXLEY - A - MAXIMO: NATV - FILIO- PROXIMO
SEPTIES Α΄ SVFFRAGATORIBVS " WESTMONASTERIENS.
IN - SENATVM - LECTO
REGIAE - MAIESTATI - GEORGI! « TERTII - A - CONCILIIS - SECRETIS
ET - SCRIBAE " PVBLICIS - REBVS - PRAEPOSITO |
VIRO :
NON - SOLVM « ACVMINE " INGENII - ET - CELERITATE
MIRIFICE - PRAEDITO
SED - AB* OPTIMIS - ETIAM
QVAE : AD - SOLIDAM - VERAM - QVE « GLORIAM + VALENT
DOCTRINIS - CVMVLATISSIME - INSTRVCTO
SCRIPTORI |
GRAVI - ET - SVBTILI
QVI : IN - MOMENTIS - OFFICIORVM - PERPENDENDIS |
ET ΙΝ" EXPLICANDIS : RATIONIBVS : BENE - GERENDAE - REIPVBLICAE _
VTILI - SE+ ID - QVOD - HONESTVM - ESSET
NVNQVAM - NON : PRAEFERRE
APERTE " ET - PALAM : PROFITEBATVR
ORATORI
VARIO : ET - VEHEMENTI - ET « VOLVBILI
QVI - EXEMPLORVM « E+ COMMVNI: VITA
ET - HISTORIA : DEPROMPTORVM - COPIA
SENTENTIARVM - LVMINIBVS
EX - INTIMA - PHILOSOPHIA - HAVSTARVM
PONDERIBVS * VERBORVM - SEQVENTIVM - RES - PENITVS * PERSPECTAS
VVLTV « ITEM : GESTV - VOCE " QVAE " SIGNIFICARENT - INGENVE
QVO - SENSV - QVIDVIS - PRONVNCIASSET
MIRAM - 5181 - AVDIENTIAM - FACIEBAT
ET - SVMMAM - AVCTORITATEM " ATQVE - FIDEM " CONCILIABAT

609

SIMPLICIS - VERITATIS - CVLTORI
QVI - SERMONIS - ET - MORVM - SVAVITATE
MENTES - SVORVM - ALLICERE : MALEBAT
OVAM - ARROGANTIA - PERFRINGERE
FRAVDIS - OMNINO - ET - CRVDELITATIS
ACERRIMO - INIMICO
LIBERTATIS - QVA " DECVIT - FORTISSIMO - VINDICI
STRENVO- QVA - LICVIT - SVASORI + PACIS
CIVI - AMANTISSIMO - PATRIAE
ET - MAGIS - SPECTANTI - AD - MEMORIAM - POSTERITATIS
ET - CONSENTIENTEM - BONORVM - LAVDEM
‘QVAM - FRAGILEM - ET - CADVCAM-: PRAESENTIS " TEMPORIS - GRATIAM
ἬΟΜΙΝΙ ITA - CONSILIORVM - QVAE- CONSIDERATE: SVSCEPISSET - TENACI
VT - 5Ε POTENTEM - SVI° ET - SIBI - CONSTANTEM
IN - MAXIMIS - RERVM - ASPERITATIBVS - PRAESTARET
ITA « DECORE - ET - MODERATE - HONORIBVS - INSERVIENDIS - PARATO
| VT - NEQVE - INVIDERET + CVIQVAM - RIVALIVM - SVORVM
/NEQVE - BENEVOLENTIAM " EORVM< QVI- DIGNITATI- IPSIVS - FAVERENT
BLANDITIIS - ET - ASSENTATIONIBVS - CAPTARET
ITA - AD - CLEMENTIAM - ET - MANSVETVDINEM
VEL - A~- NATVRA - SIC - FACTO - VEL: VSV - INSTITVTO
VT - NIHIL - HVMANI: A+ SE~ ALIENVM - ESSE - STATVERET
QVI - VIXIT - ANN + LVII « MENS "ὙΠ - DIEB - ΧΧΙ.
DECESSIT - [D - SEPTEMBR « ANNO « SACRO « M< DCCC: VI.
ET - CVM - FREQVENTIA - NON - VSITATA
AMICORVM - EX - ANIMO: DOLENTIVM
CONDITVS « EST ΙΝ - HAC: ECCLESIA
VI: PROXIM - ID « OCTOBR.
REX - SENATVS - QVE : BRITANNICVS
H:M-P-P+P-IVSSERVNT

VOL. Iv. QR

610

CAROLO - IACOBO : FOX
‘VIRO
SIMPLICI - INTEGRO - INNOCENTI
ORATORI
QVI : DE: MAXIMIS - REBVS : POTVIT
COMPOSITE : ORNATE : GRAVITER : ANIMOSE - OVE - DICERE
CIVI
POLITICAE - DISCIPLINAE - QVAM - A+ MAIORIBVS " ACCEPERAT
PERITISSIMO
IN - TVENDA - LIBERTATE : ACERRIMO
ET - CONCILIANDAE - PACIS
INTER - REGES - AMBITIONE - DISCORDES
NVNOVAM - NON - STVDIOSO
HANC " COLVMNAM
P-P-C.
GVLIELMVS - CHAMBERLAYNE
ANNO : SACRO - M< DCCC: X.

611

VIRO - OPTIMO
IACOBO - MARTIN
CVM : AETATE - IAM - INGRAVESCENTE
A+: PVBLICIS - NEGOTIIS
QVIBVS ΙΝ - SENATV : BRITANNICO
PER ‘ TRIGINTA : ANNOS: DILIGENTISSIME : INTERFVERAT
SVA τ SPONTE - SECESSISSET
THEOKBERIENSES + OVI - IN ᾿ SVFFRAGIIS - FERENDIS
HONORI - EIVS - FAVERE - CONSVEVERANT
IN - TESTIMONIVM : GRATI - ANIMI
QVO - SINGVLAREM - EIVS “ΙΝ - PATRIAM - AMOREM
ET - EXPLORATAM « ERGA - SE: FIDEM * PROSEQVEBANTVR
ARGENTEVM * HOC - POCVLVM
LL: Ὁ " DD.
ANNO -« SACRO : M- DCCC: VIL.

—_—_————— ΄σ5Ψϑ565ὃἷ.

2rQ

EXTRA + PARIETEM - ORIENTALEM : SEPVLTVS - IACET
MATTHAEVS « RAINE
SCHOLAE - HARTFORDIENSIS - ANNOS - L - AMPLIVS - PRAECEPTOR
ECCLESIAE - SANCTI - IOANNIS - DE - STANWICK - XXXVIII - VICARIVS
PAROCHIAE + DE: KIRBY : WISKE~- RECTOR - XXII.
SVSCEPTA - VITAE - MVNERA
CVNCTA - DILIGENTER - ADMODVM - EXPLEVIT
MARITVS : PROBVS - LIBERALIS - PATER
STRENVVS - MAGISTER
ET ΙΝ - TRADENDIS - LINGVARVM - ELEMENTIS - PERITISSIMVS
MAGISTRATVS - INTEGER
THEOLOGVS - HAVD - INDOCTVS
PASTOR : FIDELISSIMVS
NATVS - IV - ΚΑΙ, - OCTOBR - ANNO - CHRISTI - M - DCC - XXVIII.
DECESSIT - VII - ID - NOVEMBR - M - DCCC: VI.
IVXTA - CONQVIESCIT - ESTHERA
QVAM : EX : HONESTA - DE - VAREY - IN - COMITATV - CVMBRIAE —
STIRPE - ORIVNDAM - VXOREM - DVXIT 1
V+ ΚΑΙ, - MAIL: A+ C- M- DCC: LVI.
MVLIEREM - PRVDENTIA - PLVS - QVAM - MVLIEBRI + INSTRVCTAM
PIETATE : ERGA : DEVM -: PARENTES - MARITVM - LIBEROS - EGREGIA
IVSTA - IN - SVPERIORES - PARES - QVE - OBSERVANTIA
SINGVLARI - ERGA - AFFLICTOS - HVMANITATE
MORIBVS - VERE « CHRISTIANIS - INCORRVPTA - FIDE
NATA - ἵν - ΚΑΙ, IVNII: A- C+ M-~ DCC: XXII.
OBIIT - ΚΠ - ΚΑΙ, - IVLII "Μ΄ DCCC: il.
HAVETE - PARENTES - DILECTISSIMI -« SINT
ANIMAE + NOSTRAE « VOBISCVM
E+M-ET-1I-R:- PP.

019

RICARDO - LVBBOCK
NORVICI - NATO
GRAECIS - LATINIS : OVE - LITTERIS
IBIDEM - INSTITVTO
MAGNAM - POSTEA - IN : ACADEMIA - EDINBVRGENSI
LAVDEM - ADEPTO
PROPTER « INGENII - LVMEN
QVOD - IN - THES] - EIVS
DE : PRINCIPIO - SORBILI - CONSCRIPTO - ELVXERAT
VIRO
AB - OMNI - DOCTRINA - LIBERALi
ET - MAXIME : PHILOSOPHIA
CVMVLATE « INSTRVCTO
SERMONIS - COMITATE - ET - SVAVISSIMIS - MORIBVS
EXIMIE - PRAEDITO
DE - AMICIS - SVIS - ET - PROPINOVIS
OPTIME - MERITO
PATRIAE * AMANTISSIMO
ΟΥ̓! - CVM: IN: VRBE - OVA + NATVS: FVERAT
MEDICINAM * PER: ΧΧΙΠῚ - ANNOS
SCIENTIA - ET : PERITE - EXERCVISSET
GRAVI - DIVTVRNO: OVE - MORBO « EFFECTVS
DECESSIT - OVARTO - NON - SEPTEMBR.
A- D+ M-DCCC: Vill - AET - XXXXVIIL.
BRIGITA - LVBBOCK - CONIVX - EIVS - SVPERSTES
Η Μ'’5. 5.» Ρ- α

614

RICARDO - PORSON - Α΄’ M.
BASTONAE “ΙΝ - AGRO - NORFOLCIENSI - ORIVNDO
ET - IN: SCHOLA : ETONENSI
OPTIMIS - DISCIPLINIS - INSTITVTO
COLLEGII - HVIVSCE - QVONDAM - SOCIO
ET - LINGVAE : GRAECAE - IN: ACADEMIA " CANTABRIGIENSI
PER - XV: ANNOS " PROFESSORI
QVI - DECESSIT « VII - ΚΑΙ, : OCTOBR.
ANNO - DOMINI - Μ΄’ DCCC: VIII.
AETAT - XLIX.
ET : IN - HOC - SACELLO « CONDITVS « EST
MAGISTER - SOCII : OVE - PRAEDICTI - COLLEGII
VNA - CVM - EIVSDEM - ALVMNIS
OMNIVM - GENERVM : ATQVE - ORDINVM
ΗΜ’ PECVNIA - COLLATA
Ρ- CC.
INERANT - IN - HOC - VIRO
MVLTAE - ET - RECONDITAE - LITTERAE
EGREGIA : IAM - INDE - A* PVERITIA - INDOLES - INGENII
SVMMA - IN - OMNIBVS ’ STVDIIS - AD - QVAE - INCVBVIT
DILIGENTIA - ET - SINGVLARE - ACVMEN
FIRMA « ET - PROPE - INCREDIBILIS
RERVM - AC - VERBORVM - MEMORIA
FACETIARVM - OVIDAM : LEPOS
NON : MODO ’ AD» SVPERBVM - IVDICIVM

615

INTELLIGENTIVM : ET - DOCTORVM
VERVM ’- ETIAM : AD* POPVLAREM ° SENSVM
MIRIFICE » ACCOMMODATVS
IN ’ ERVENDO « ET : IDENTIDEM - INSTAVRANDO
QVICQVID - VEL: SITV - VETVSTATIS - OBRVTVM
VEL - DEFORMATVM « INCVRIA - LIBRARIORVM
DIV - IN - CODICIBVS - MANV - EXARATIS - DELITVISSET
ACERRIMA ’ ET - ANIMI +: ET - OCVLORVM - ACIES
IN - PROPRIETATIBVS
TVM - PEDESTRIS - TVM ’ POETICI - SERMONIS
EXOVISITE - COGITATE ‘ OVE : ENODANDIS
ET - VERSIBVS
ΟΥ̓ IN - DRAMATICIS * VETERVM « OPERIBVS - REPERIVNTVR
AD » CERTAM - RATIONIS
ATOVE * VSVS - NORMAM - DIRIGENDIS
TERETES - ET - RELIGIOSAE + AVRES
TANTA:* DENIOVE:IN +: GRAECIS* ET~+ LATINIS « SCRIPTORIBVS
CORRIGENDIS « ATOVE - EXPLICANDIS
SVBTILITAS « ET - ELEGANTIA
VT ΒΕΝΤΙΜΕΙ͂Ο IN - RE: CRITICA « PRIMAS - TENENTE
PORSONVS - IVRE : AC: MERITO - VIDERETVR
IN - SECVNDIS - PRAECLARE - CONSISTERE

616

Η 5. Ἑ.
ΙΟΑΝΝΕΒ - MOORE
ALLECTVS ΣΙΝ - EQVESTREM - ORDINEM - BALNEI
A * GEORGIO + TERTIO - BRITANNIARVM - REGE
ORTV - SCOTVS
IMPERATOR - FORTIS - IDEM: QVE - INNOCENS
ET - REI - MILITARIS - PERITISSIMVS
SCIENTIA - ET + VSV
QVI
IN - BATAVIA - CORSICA « AEGYPTO - INDIA + OCCIDENTALI
HOSTES - FVGATOS - VIDIT |
HISPANORVM - TETRA - ET - DETESTABILI - TYRANNIDE - OPPRESSORVM
IVRA : LEGES : ARAS - ET - FOCOS
SVMMO - QVO - POTVIT - STVDIO - TVTATVS - EST
ET - POST - VARIOS - BELLI - CASVS
CVM - AD - CORANIVM - AEGRE - ACCESSISSET
MILITES « SVOS
LONGO - ITINERE " FAME - FRIGORE - ENECTOS
AD - SVBEVNDAM - PRAELII - DIMICATIONEM
HORTANDO - EREXIT
AVDENDO : CONFIRMAVIT
GALLIS - NVMERO - COPIARVM - FRETIS
ET - FELICITATE - DVCIS - PAENE - PERPETVA - SVPERBIENTIBVS
VICTORIAM : Ε΄" MANIBVS " ERIPVIT
LEGIONI - QVADRAGESIMAE + SECVNDAE
PERICVLORVM - SOCIETATE + DIV - SECVM + CONIVNCTISSIMAE
ET - MEMORI - RERVM - IN - AEGYPTO - PROSPERE - GESTARVM
DE + VIRTVTE « DIGNA - COMMILITONIBVS « SVIS

————————

617

GRATVLATVS - EST
ET - VVLNERE - PRO - PATRIA « SOCIIS: QVE - EIVS - ACCEPTO
VITAM + VTL: MVLTVM - ET - SAEPE - OPTAVERAT
BENE + CONSVMMAVIT
XVII * ΚΑΙ, IANVAR : ANNO « SACRO: Μ' DCCC: VIIIL.

GEORGIVS
GEORGII - TERTII « FILIVS

BRITANNIARVM - REGNVM - VNITVM - REGENS

ET - QVI : REGIAE - MAIESTATI

A + SANCTIORIBVS - CONSILIIS " SVNT

| HOC - MONIMENTVM
PVBLICA : PECVNIA - PONENDVM : CVRAVERVNY

| ANNO - SACRO

VOL, ΙΓ. Qr5d

618

A$ o@

IOANNI : FREEMAN : Α΄’ M.
ECCLESIARVM - DE - CAISTER - ET - DE: RACKHEATH
PROPE - NORVICVM - RECTORI
VIRO " ACVMINE « INGENII
DOCTRINA + LIBERALI
ET - ADMIRABILI - QVODAM : FACETIARVM
ET - VRBANITATIS ‘ LEPORE
EXIMIE - PRAEDITO
OVI - VITAM
HONESTISSIME + SANCTISSIME * OVE : ACTAM
CVM - MORTE - COMMVTAVIT
VIII - ID - OCTOBR - ANNO: DOMINI "Ὁ M: DCC: LXxXX: VII.
AETAT - LXXX° IV.

ANNA - FREEMAN
CONIVGI - BENE - MERENTI
Η Μ΄’ PONENDVM - CVRAVIT

619

COLL * VIGORN.
THOMAS - BARTLAM « A : M.

COLLEGII - VIGORNIENSIS - HAVD - ITA « PRIDEM - SOCIVS
POSTEA - ECCLESIAE - CATHEDRALIS " ST - PETRI - EXON.
PRECENTOR - ET ᾿ CANONICVS - RESIDENTIARIVS
HOC - ARGENTVM « MENSALE
IN - VSVM - CAMERAE « COMMVNIS
L*M-D:D.

ANNO « SACRO - Μ’ DCCC: XI.

620

ROBERTO - SMITH - A - M.
COLL - REGAL - APVD - CANTABRIGIENSES
QVONDAM - SOCIO
IVRISCONSVLTO « DE - PLVRIMIS
ET - CIVIBVS - BRITANNICIS - ET > ASIAE - INCOLIS
B- M.
VIRO - OB - INGENII - VIM: INSITAM
OB - MVLTAM - ET: EXQVISITAM - DOCTRINAM
OB - SENTENTIAS ΙΝ’ VERSIBVS - LATINE - SCRIPTIS
VBERES - ATQVE - ARGVTAS
SINE - CINCINNIS " FVCO* QVE - PVERILI
OB - GENVS - ORATIONIS ΙΝ - AGENDIJS - CAVSIS
NON - CAPTIOSVM - ET - VETERATORIVM
SED “ FORTE - VIRILE - VEHEMENS
ET - QVA - RES - POSTVLAVERIT
MAGNIFICVM - ETIAM - AC - SPLENDIDVM
OB - GRAVITATEM ’ SERMONIS - FAMILIARIS
LEPORE - ET - FACETIIS - IVCVNDISSIME - CONDITAM
OB - FIDEM - HVMANITATEM: QVE
IN - VITA - INSTITVENDA
ET ΙΝ - MAXIMIS - NEGOTIIS - PROCVRANDIS
ALTITVDINEM - ANIMI " SINGVLAREM
CVM : ΡΑΜΑ - MVLTIS - LIBERALITER - ERVDITIS - NOTO
TVM - SVIS - OMNIBVS - CARISSIMO
HVNC - LIBRVM
Ὁ Ὁ.
SAMVEL - PARR
QVARTO : ΚΑΙ, +: DECEMB - ANNO - SACRO « M- DCCC - ΧΙ.

621

ANNAM - DAVY
QVAE - VIXIT - ANN - XXXII: MENS - XI - DIEB " XXII.
DECESSIT - IX ΚΑΙ, - OCTOBR.
ANNO - SACRO - M+ DCCC: XI.
FOEMINAM - LIBERALITER - INSTITVTAM
DOMISEDAM + CASTAM - PIAM
ET - CONIVGEM - DE < SE - OPTIME - MERITAM
MARTINVS - DAVY: 8S: T-P.
COLLEGII - CAIVS - ET - GONVILLE - CVSTOS
SVB - HOC - SAXO
CONDENDAM * CVRAVIT

622

IVXTA - HOC - MARMOR
SEPVLTVS - EST
IACOBVS - HOWELL - A: B.
ECCLESIAE - HVIVSCE - PER - XXX - ANNOS - RECTOR
VIR * PROBVS : ET : PIVS
PATER ᾿ MARITVS- OVE : SVORVM - AMANTISSIMVS
QVI : OBIT - XVI * DIE - IANVARII
A+ D: M: DCCC: ΧΠΙ.
AETAT - LXV,
CONIVGE - VNICO « FILIO : ET - TRIBVS - FILIABVS
RELICTIS ᾿ IPSIVS - SVPERSTITIBVS

029

SAMVELI - PARR
D-D.
EDVARDVS - HAMLEY
ΦΙΛΙΑΣ * XAPIN
ὙΠ" ΚΑΙ, - SEPTEMBR.
ANNO - SACRO: M- DCCC: V.

EDMVNDO - HENRICO : BARKER
D.
SAMVEL - PARR
®IAIA> * XAPIN
XIV - KALEND - AVGVST.
ANNO - SACRO : M: DCCC - ΧΠΙ.

EDMVNDO - HENRICO - BARKER
D:D.
SAMVEL - PARR
ΦΙΛΙΑΣ ΚΑΙ * EYNOIAS : XAPIN
XIV: ΚΑΙ, - AVGVST.
Α ἢ. M- DCCC: XII.

624

ANNEAE - CAROLETTAE - BRVCE
FEMINAE ΟΡΤΙΜΑΕ
VXORI - CARISSIMAE
OVAE * DECESSIT - XII - ΚΑΙ, * MART.
ANNO + DOMINI : M: DCCC: XIII.
AETAT + XXXVII.
ET - HIC - LOCI - SEPVLTA : EST
NINIANVS - BRVCE « CONIVX - EIVS
ET ΤΙΝ REGALI - COLLEGIO - MILITARI - CHIRVRGVS
HOC - MONIMENTVM
MOERENS « POSVIT

625

CVM : ALEXANDER - RVSSIAE - IMPERATOR
MENS - IVN - ANNO - SACRO: M: DCCC: XIV.
OXONIVM - INVISERET
SE - SVAM- OVE - SOROREM - VNICE - AMATAM
IN - COLLEGIO - MERTONENSI
VOLVIT - EXCIPI - HOSPITIO
QVOD - NE “ POSTERI : NESCIRENT
STVDIOSE - ATOQVE - HONORIFICE « IIS - COMMODATVM
CVSTOS « SOCII- OVE « EIVSDEM : COLLEGII
HANC : TABELLAM - MARMOREAM
POSVERVNT

VOL. IV. 2s

626

CVM - IN - HOC - CVBICVLO - REGINALI ᾿ DICTO
PROPTEREA * OVOD - HENRIETTA
CONIVX + CAROLI - PRIMI - REGIS - ANGLIAE
OLIM : IN: EO: DORMIVERAT
ALEXANDER * RVSSIAE - IMPERATOR
OQVIESCERE * NON - GRAVATYS - ESSET
XVUI + ET + XVII: ΚΑΙ, : IVLII
ANNO : SACRO: M: DCCC: XIV.

PETRVS - VAVGHAN - COLLEGII - MERTONENSIS - CVSTOS
FENESTRAM ‘ HANCCE - PICTVRATAM
5. ΒΡ’,

627

EX - DONO
REVERENDI - VIRI
ATOVE - IMPRIMIS

DOCTI - SAPIENTIS - PII
MARTINI - ROVTH - Ὁ’ Ὁ.
Vil - ΚΑΙ, " AVG.

ANNO - SACRO - M- DCCC: XV.
MAGD - COLL - OXON.

628

GVLIELMVS - IESSE Α΄ M.
COLLEGII : SACROSANCTAE - TRINITATIS « APVD ‘ OXONIENSES
OLIM - ALVMNVS
COMITI - DE - GLASCVO - A~ SACRIS
RIBBESFORDIAE "ΙΝ - COMITATV - VIGORN.
ET + DOWLESIAE ΙΝ - COMITATV - SALOP - RECTOR
HVIVS « ECCLESIAE : IN: OVA: CONDITVS : EST
VICARIVS - PERPETVVS
ET - CONCIONATOR - POMERIDIANVS
VIXIT : ANNOS - LXXVI‘ MENS: VIII - DIES - XVII.
VIR : ERAT
IVSTVS - INTEGER « RELIGIOSVS
OVI
CVM - SIBI - CONSCIVS : ESSET : SE - EVANGELIO
SINCERE - CONSTANTER* OVE . CREDERE
ET - DEVM - HABERE - IN - QVO
OMNEM - SPEM : SALVTIS - AETERNAE : DEFIGERET
MENTE - OVA: CHRISTIANVM ᾿ DECEBAT - TRANOVILLA
VITAM : CVM » MORTE - COMMVTAVIT
TRICESIMO - DIE - DECEMBRIS - ANNO: SACRO: M- DCCC: XIV.
PASTORIS - OPTIME + DE*: SE - MERITI
GRATE - MEMORES
ET - SPERANTES - FORE
VI - SVVS : ESSET : IDEM : ΟΥ̓ - ILLIVS - EXITVS
AVDITORES « EIVS « ATOVE « AMICI
HOC - MONIMENTVM - PONENDVM : CVRAVERVNT

629

THOMAE ° IACOBO - MATHIAE
VIRO
DOCTRINA : ET ᾿ OPTIMARVM - ARTIVM - STVDIIS : ERVDITO
POETAE - FESTIVO - ET - CONCINNO
PERELEGANTI - CRITICO - ET - PERSVBTILI
HVNC - LIBRVM
D:D.
SAMVEL - PARR
NON : MAII - ANNO - SACRO: Μ' DCCC: XV.

680

GVLIELMO - ROSCOE
VIRO
MVLTIPLICI1 - ET - EXOVISITA - DOCTRINA
INTEGRITATE - SINGVLARI
ET ‘ SVMMA + NON : SOLVM « VITAE: ET - NATVRAE
SED - SERMONIS : ETIAM - COMITATE
PRAEDITO
HVNC - LIBRVM
ΟΥ̓ΕΜ - A - PRAENOBILI - ET : PERERVDITO
AMICO " 8VO
GEORGIO - HENRICO - BARONE - DE - HOLLAND
PAVLO - ANTEA +» ACCEPERAT
Ὁ - Ὁ.
SAMVEL - PARR
®IAIAS * KAI " EYNOIAS “ XAPIN
ΚΑΙ, : DECEMB : ANNO - SACRO Μ΄ DCCC: XV.

631

IOANNI " LYON
PRESTONIAE - IN - PAROECIA - HARROVIENSI
MORTVO
SEXT - NON : OCTOBR : ANNO - CHRISTI - M- Ὁ XCIl.
ET - IN: HAC: ECCLESIA - SEPVLTO
FVNDI - DOMINO - CVLTORI - OVE
ASSIDVO - FRVGI - PROBO
SAPIENTI - SINE: VIA: ET: ARTE
ET - OVIA: BONIS - 5015 " OPTIME « VII - NOVIT
VNICE - FORTVNATO
SCHOLAE - IMPENSIS - EIVS - EXTRVCTAE
ET - AD: PVEROS - GRAECIS - AC: LATINIS : LITTERIS
ERVDIENDOS * INSTITVTAE
GVBERNATORES « MAGISTRI - ATOVE - ALVMNI
HOC - MONIMENTVM - COLLATA + PECVNIA
PONENDVM : CVRAVERVNT
ANNO : SACRO - M: DCCC: XV.

632

COLLEGII - MERTONENSIS
CVSTODI - SOCIIS: OVE
VV ᾿ DOCTISSIMIS - ET - SANCTISSIMIS
A+ QVIBVS
CVM : OXONIVM - INVISERET
LIBERALI : HOSPITIO - RECEPTVS - ERAT
QVO : SVAM : IN: EOS - VOLVNTATEM - SIGNIFICARET
HOC : VAS
L:'M-D-D.
ALEXANDER - OMNIVM « RVSSIARVM - IMPERATOR
ANNO - SACRO - Μ- DCCC: XVI.

633

COLLEGII - MERTONENSIS
CVSTODI - SOCIIS: OVE
VV - DOCTISSIMIS - ET - SANCTISSIMIS
A: QVIBVS
CVM - OXONIVM - INVISERET
LIBERALI - HOSPITIO - RECEPTVS - EST
HOC - VAS
E - IASPIDE - SIBERIANO - FACTVM
MEMORIS - GRATI: OVE - ANIMI - SPECIMEN
D:D.
ALEXANDER - OMNIVM - RVSSIARVM - IMPERATOR
ANNO « SACRO: M: DCCC: XVI.

034

AQVA : EX : HOC - PVTEO : HAVSTA
SITIM - SEDAVIT
RICHARDVS - TERTIVS - REX - ANGLIAE
CVM - HENRICO « COMITE - DE: RICHMONDIA
ACERRIME * ATQVE - INFENSISSIME - PRAELIANS
ET : VITA - PARITER - AC " SCEPTRO
ANTE : NOCTEM - CARITVRVS
XI ΚΑΙ, SEPT: A* D« M: CCCC: LXXXV.

635

IOANNI - IOHNSTONE « Μ΄’ ἢ.
VIRO - ERVDITO « AMICO ’ OPTIMO
HOC - POCVLVM
PATRONI - ADMODVM - HONORATI - THOMAE : COKE
CARISSIMVM * MNHMOSYNON
L‘M-D-D.
SAMVEL - PARR - LL: Ὁ.
SEPT - ΚΑΙ, - FEB* A+ D+ M- DCCC: XVI.
QVI - ERAT « IPSIVS - DIES - NATALIS

636

HENRICO : DISON - GABELL: 8. ΤΡ.
SCHOLAE - VINTONIENSIS - ARCHIDIDASCALO
VIRO
CVM - LIMATO - IVDICIO
ET - MVLTIPLICI - DOCTRINA
ORNATISSIMO
TVM ΙΝ - IVVENTVTE - AD: HVMANITATEM - INFORMANDA
DIV - SCIENTER - ET - PERITE - VERSATO
HVNC - LIBRVM
AMICITIAE - SVAE - MNHMOZYNON
Ὁ: Ὁ.

SAMVEL - PARR

NON - IVN.
ANNO « SACRO - M- DCCC: XVI.

THOMAE - ARNOLD: M: D.
VIRO - INTEGERRIMO - SANCTISSIMO
GRAECIS - ATOVE - LATINIS « LITTERIS - ERVDITO
ET - OPTIMIS - PHILOSOPHIAE « DISCIPLINIS - INSTITVTO
OVI
CVM : IN - HOC - OPPIDO « PER - LIT - ANNOS - MEDICINAM
SCIENTER " AC - PERITE - FACTITASSET
ET - PRAECIPVE : AD - CVRATIONEM - HOMINVM
EX - INSANIA - LABORANTIVM : INCVBVISSET
DECESSIT : IV: NON: SEPTEMBR - ANNO- DOMINI: M- DCCC: XVI.
AETAT + LXXV.
ET ‘ MAGNVM - 501 - DESIDERIVM
APVD : OMNES - BONOS - RELIQVIT
MARIA - CONIVX - EIVS - SVPERSTES
HOC - MONIMENTVM - CONTRA - VOTVM - POSVIT

638

SAMVELI - PARR
HOC + POCVLVM : Ὁ’ ἢ.
GEORGIVS - THACKERAY « S- T- P.
COLL - REGAL - PRAEPOSITVS
ΦΙΛΙΑΣ * KAI * EYNOIAS : XAPIN
ANNO - SACRO: M- DCCC: XVII.

639

CAROLO « FOX - TOWNSHEND
HONORATISSIMI - VIRI - IOANNIS " TOWNSHEND " FILIO
HVIVS - COLLEGII - ALVMNO
ADOLESCENTI : OPTIMARVM - ARTIVM - STVDIIS : ERVDITO
SODALI : OB ‘ SVAVITATEM - SERMONIS : ET - MORVM : AMABILI
QVI - VIXIT - ANNOS - XXI - MENSES - ΙΧ DIES: V.
DECESSIT - IV - NON - APRIL : ANNO: SACRO : M: DCCC: XVII.
CANTABRIGIENSIS « SVI
H:M:LL:M-~- PONENDVM : CVRAVERVNT

040

Ἔν» οὐ οι"

CAROLO - BVRNEIO " LL:D- 5. ΤΡ. A:S: ΕΤ ΒΕ 5 SODALI
GRAECARVM : LITTERARVM : ET - LATINARVM - PROFESSORI
IN - REGIA - ACADEMIA - LONDINENSI
GEORGIO - TERTIO - BRITANNIARVM « REGI - A + SACRIS
ECCLESIAE " LINCOLNIENSIS - PRAEBENDARIO
CLIFFIAE - ET - ECCLESIAE - D + PAVLI - DEPTFORDIENSIS
IN - AGRO : CANTIANO - RECTORI
SCHOLAE - GRENOVICENSIS - PER « XVIII - ANNOS " MAGISTRO
QVI + VIXIT - ANNOS - LX - DIES - XXIV.
DECESSIT + QVINTO - ΚΑΙ, - IANVAR « ANNO + SACRO - clo: IoCCC- XVII.
ET - DEPTFORDIAE : SEPVLTVS - EST
DISCIPVLI - EIVS - HOC - MONIMENTVM - PECVNIA " COLLATA " POSVERVNT
INERANT ΙΝ - HOC : VIRO
PLVRIMAE - ET - RECONDITAE - LITTERAE
IVDICIVM + ARTIS - CRITICAE - PRAECEPTIS
STILI - QVE - FREQVENTISSIMA + EXERCITATIONE - LIMATVM
ET ΙΝ - NODIS - REI - METRICAE - SOLVENDIS
EXIMIA - QVAEDAM + SOLLERTIA
IN + LIBRIS - QVOS - LATINE - AVT - ANGLICE - CONSCRIPSIT
LVCIDVS + ERAT - SENTENTIARVM - ORDO
ET : SINE - FVCO - NITOR - VERBORVM
SERMONEM - EIVS - AD - MAGNAM
ET - INGENII " ET - DOCTRINAE - OPINIONEM - COMMENDABANT
MOTVS - ANIMI - AD +: EXCOGITANDVM - CELERES
VOX - PLENA - ET - CANORA
ACIES - OCVLORVM - ACERRIMA - ILLA - QVIDEM
SED - HILARITATE + TOTIVS - VVLTVS « SVAVITER - TEMPERATA
ET - ARGVTIAE " IVCVNDISSIMO « LEPORE - CONDITAE
QVVM - IVVENES : AD + POLITIOREM - HVMANITATEM - INFORMARET
ACCVRATIVS « QVODDAM « ET: EXQVISITVS: DOCENDI " GENVS: ADHIBEBAT

641

ET + IN - MENTIBVS * EORVM - AD OMNE: OFFICII - MVNVS : INSTRVENDIS
PERSONAM - MAGISTRI - SVMMA - FIDE - ET - GRAVITATE - TVEBATVR
HASCE - AD : LAVDES - ACCESSERVNT
SINGVLARIS - VITAE - ATQVE + NATVRAE - COMITAS
QVAE « OPTIMI « CVIVSQVE - BENEVOLENTIAM " CONCILIABAT
ET « DISCIPVLOS - AD * AMOREM : ET : REVERENTIAM « PRAECEPTORIS: SVI
MIRIFICE - ALLICIEBAT
ASSIDVVM - ET - VEHEMENS - STVDIVM "ΙΝ « PROMENDIS - CONSILIIS
QVAE : LVDIMAGISTRIS - INDIGENTIBVS - AVT - SENIO - CONFECTIS
SOLATIVM - AC: PERFVGIVM -: PRAEBERE - POSSENT
ET - DIGNA - HOMINE - PERFECTE - ERVDITO + DILIGENTIA
IN - COMPARANDA : BIBLIOTHECA
QVAE « LIBRIS - ALIIS - MANV - SCRIPTIS
ALIS - E« PRELO + EMISSIS
ITA - ORNATA - FVIT
VT - POST » MORTEM : POSSESSORIS " LVCTVOSAM
EMERETVR + SVMTV + PVBLICO
ET - IVSSV - ANGLICI - PARLIAMENTI
IN - BRITANNICO - MVSEO : COLLOCARETVR
MAXIME - AVTEM - IN - BVRNEIO - ELVCEBANT
VOLVNTAS « IN - ANGLICAM - ECCLESIAM + PROPENSISSIMA
SPES : AETERNAE « SALVTIS « PIE ΙΝ * CHRISTO « POSITA
ET +: CONSVETVDO - PVRE - ATQVE - CASTE
VENERANDI : DEVM

VOL. IV. ῶ τ

NATHANIELI " CLAYTON
PROCVRATORI - RERVM : FORENSIVM - PERITO
VIRO - INTEGERRIMO
AMICO : OPTIMO
IN - TESTIFICATIONEM - OFFICIORVM . EIVS - ERGA ’ SE
FIDELITER - ET - GRATVITO - COLLATORVM
ἢ. HVGO - MOISES
ANNO : SACRO: M- DCCC: XVIII.

HVGONI
FILIO - HVGONIS - MOISES - TOY - MAKAPITOY
GRATO - ANIMO : IN- PATREM - EIVS
OPTIME - DE: SE - MERITVM
D:D.

GVL : ETTRICK
ANNO ’ SACRO - Μ’' DCCC: XVII.

643

GVLIELMO - HOPPER - WILLIAMSON
VIRO - INTEGERRIMO
IVRISCONSVLTO - IN : PRIMIS - PERITO
PROPRAETORI - FIDE - ET - DILIGENTIA « SPECTATISSIMO
OB : EGREGIA - EIVS ΤΙΝ - CIVES - SVOS : MERITA
MVNICIPES - NOVI - CASTRI - SVPER - TINAM
HOC - ARGENTVM - L: Μ΄’ CONSCIVERVNT
ANNO - SACRO - M+ DCCC: XX.

bo
»"
τῷ

644

Η 5. -Ε.
GVLIELMVS - ΒΕΝΝΕΤ : 85. TP.
OVI
LONDINI - NATVS
ET - IN: SCHOLA : HARROVIENSI
LITTERIS - HVMANIORIBVS « IMBVTVS
IN - HOC ’ COLLEGIO
SCHOLARIS + SOCII - TVTORIS « OFFICIIS
PER - ANNOS - XXVII.
CVMVLATE - SATISFECIT
POSTEA ' CVM: A+ IOHANNE: COMITE : DE: WESTMORELAND
IN - HIBERNIA « REGIS - LOCVM - TENENTE
HABITVS - ESSET - VNICE : DIGNVS
IN - SEDEM - EPISCOPALEM
CORCAGIENSEM : PRIMO ’ DEINDE - CLONENSEM
EVECTVS ’ EST
INTEGRITATE - ET - INNOCENTIA « SINGVLARI : PRAEDITVS
RECTE ‘ IDEM: ET: SVAVITER : VITAM - EGIT
DIFFICILE - VT - ESSET : IVDICARE
VIRVM : AMICI - MAGIS - DOCTRINAM
MVLTIPLICEM - ILLAM : ET - SVBTILEM : VENERARENTVR
AN: MORVM - FELICITATEM : ET - COMITATEM - DILIGERENT
VIXIT - ANN: LXXIV - MENS: III: DIES - XXII.
DECESSIT - ANNO - SACRO
M - DCCC - XX.

645

HOC - MONIMENTVM ’ POSITVM - EST
EX : VLTIMA + VOLUNTATE
GVILIELMI - BENNET : S- T: P.
QVI
LONDINI - NATUS
ET ΤΙΝ - SCHOLA - HARROVIENSI - LITTERIS - HVMANIORIBVS « IMBVTVS
IN + HOC - COLLEGIO
SCHOLARIS + SOCII : ET + TVTORIS - OFFICUS
PER - ANNOS + XXVII.
CVMVLATE - SATISFECIT
POSTEA - CVM : A « IOANNE : COMITE - DE - WESTMORELAND
IN + HIBERNIA - REGIS - LOCVM : TENENTE
HABITVS : ESSET + VNICE - DIGNVS
QVI : A+ SACRIS - EI - ET "ΑΒ ' EPISTOLIS - SECRETIS : ESSET
IN : SEDEM - EPISCOPALEM
CORCAGIENSEM * DEINDE - CLONENSEM : EVECTVS : EST
INTEGRITATE + ET - INNOCENTIA « SINGVLARI - PRAEDITVS
RECTE + IDEM - ET - SVAVITER " VITAM + EGIT
VT + DIFFICILE - ESSET - [VDICARE
VTRVM + AMICI - MAGIS * DOCTRINAM - EIVS
MVLTIPLICEM « ET - EXQVISITAM + VENERARENTVR
AN - MORVM ' COMITATEM : ANIMVM + QVE
IN - SVOS - BENEVOLVM - DILIGERENT
VIXIT - ANN «: LXXIV + MENS : Ill « DIES - XXII.

DECESSIT - XVil . ΚΑΙ, « AVG,

ANNO : SACRO : Μ' DCCC: XX.
ET + PLVMSTEDIAE ΙΝ - AGRO + CANTLENSI

CONDITVS - EST

646

EX - DONO
GEORGII - COMITIS ΤΑ - ROCKSAVAGE
QVI : PER : HANC - PELVIN - ARGENTEAM
MEMORIAE - SVORVM - TRADI: VOLVIT
HORATIONEM - SEYMOVR - IPSIVS - NEPOTEM
ET - HVGONIS - ET - CAROLETTAE - SEYMOVR - FILIVM:
LICHEFELDIAE - NATVM - FVISSE
DECIMO : QVINTO : DIE " SEPTEMBRIS
ET - VICESIMO . TERTIO : DIE - EIVSDEM - MENSIS
IBIDEM - BAPTIZATVM
ANNO - SACRO: Μ' DCCC: XXI.

047

SERENISSIMI ’ DOCTISSIMI: OVE -« PRINCIPIS
AVGVSTI - FREDERICI
DVCIS - SVSSEXIAE
BIBLIOTHECAE » CATALOGVS
OPERA - ET « STVDIO
THOMAE - IOSEPHI + PETTIGREW
CONFECTVS

648

GRAECAE + POESEOS
THESAVRVM
A > THOMA » MORELL: 5. ΤΡ’ INCHOATVM
OVAM - PLVRIMIS ΙΝ : LOCIS -: EMENDAVIT
LATINA - VOCVM : OMNIVM - INTERPRETATIONE : DONAVIT
NOTIS - OVE : REM - TVM - CRITICAM : TVM : METRICAM
ILLVSTRAVIT
EDVARDVS » MALTBY: 8: TP.

649

THOMAE » DENMAN
VIRO : DOCTRINA « LIBERALITER : INSTITVTO
IVRISCONSVLTO - AD - AGENDVM - PERITO
SENATORI : OVI - POSSET
DILVCIDE : ORNATE * GRAVITER: OVE - ELOQVI
FORTI - ET: CONSTANTI - LIBERTATIS » VINDICI
AEQVI : ET : BONI: PERINDE - AC - IVRIS
CVLTORI : INCORRVPTISSIMO
CALAMITOSORVM : ATOVE : INNOCENTIVM
ACERRIMO - PROPVGNATORI
HVNC : LIBRVM
D:D.
SAMVEL - PARR
®IAIAS * KAI ΒΥΝΟΙΑΣ " XAPIN
HATTONIAE
XIll - KALEND « SEXTIL.
ANNO « SACRO ’ M - DCCC: XXI.

650

SAMVELI « PARR
VT : SVAE : CVM - ILLO : AMICITIAE
INDICIVM : ALIQVOD - EXTARET
HANC « ARISTOPHANIS - EDITIONEM - PRINCIPEM
TESTAMENTO - LEGAVIT
SAMVEL - ROMILLY
FVIT - HIC - VIR
ALTITVDINE - OVADAM - ANIMI - PRAEDITVS
ET - AD : AMABILEM - ILLAM + GRAVITATIS
CVM - FACILITATE - CONIVNCTIONEM
VITA : ET - MORIBVS - COMPROBANDAM
VNICE : IDONEYS
A * PHILOSOPHIA - HISTORIA + ET - VSV
AD » CAVSAS : TVM : FORENSES : TVM - SENATORIAS
CVMVLATE - INSTRVCTYS
IN - DICENDI - GENERE «: NON « VETERATORIO : AVT - DECLAMATORIO
SED - FORTI : ET: VIRILI - EXCELLENS : PRAECLARE
OMNI - ΑΒ INVIDIA : ET - ARROGANTIA
VACVVS «: ATOVE : INTEGER
A‘ SEVERITATE ΤΙΝ + REOS : ABHORRENS
MITIS - ET - MISERICORS “ΙΝ - CALAMITOSOS
PRVDENS « AD «= CONSILIA
PROPOSITI - TENAX
IDEM: OVE : OB - SINGVLAREM
IN + PARENTES - CONIVGEM : ATOVE - LIBEROS -: PIETATEM
ET - INSIGNEM - AD: MAXIMAM «: LAVDEM
PATRIAE » AMOREM
BONIS » OMNIBVS « MERITO - CARISSIMVS

651

ASSERVANDVM ΤΙΝ : BIBLIOTHECA « COLL - EMMAN.
CVIVS - SE - OLIM > FVISSE - ALVMNVM
MEMORI « PIO: OVE - ANIMO : PROFITETVR
HANC + ARISTOPHANIS : PRINCIPEM : EDITIONEM
TESTAMENTO - LEGATAM - SIBI* A - SAMVELE « ROMILLY
L:M:D°D.
SAMVEL: PARR
TERT: ID: APRIL.
ANNO - SACRO

692

HENRICO - BROVGHAM
CAVSAE : SVAE : CONTRA - VETERATORES
ACERBE - ET : ASPERE « ACCVSANTES
PATRONO
GRAVI : ET - VEHEMENTI - ET: DISERTO - ET: FIDELI
HVNC - LIBRVM
GRATI - ANIMI : MNHMOSYNON - DEDIT
CAROLINA
GEORGI : QVARTI : REGIS : BRITANNIARVM
CONIVX
A - IVDICIBVS - ERGA - SE - REAM - INIOQVIS
CONTVMELIOSE “ΙΝ - IVS - VOCATA
AB - OFFICIIS - MVLTORVM
QVOS : FLATV : PROSPERO ‘ FORTVNAE - VSA
BENE - MERENDO - SIBI : DEVINCTOS : ESSE
CREDIDERAT
INOPINATO - DESERTA
A: CONSILIARIIS - PVRPVRATIS
DOMINO ’ SERVIENTIBVS
FOEDISSIME - PRODITA
SED : A+ SCELERE : OMNINO : PVRA
Il + DECEMBR + M: DCCC: XXIII.

653

EDMVNDO - BVRKE
VIRO
TVM - OB * DOCTRINAM - MVLTIPLICEM - ET * EXQVISITAM
TVM - OB: CELERES : ILLOS : INGENII - MOTVS
OVI - ET - AD + EXCOGITANDVM - ACVTI
ET + AD + EXPLICANDVM
ORNANDVMOVE « VBERES « SVNT
EXIMIO - AC + PRAECLARO
OPTIME - DE «: LITTERIS
OVAS + SOLAS - ESSE - OMNIVM - TEMPORVM
OMNIVM : OVE - LOCORVM : EXPERTVS - VIDIT
OPTIME : DE : SENATV
CVIVS - PERICLITANTIS
IPSE - DECVS ’ ET ’ COLVMEN - FVIT
OPTIME - DE~ PATRIA
IN ’ CIVES -: SVI : AMANTISSIMOS « EHEV * INGRATA
NVNOVAM « NON - PROMERITO
LIBRVM * HVNCCE
EA: QVA*+ PAR: EST : OBSERVANTIA
DDD.

-_-——_- + + - — -— ——

654

CAROLO - IACOBO : FOX

AD - SALVTEM - PATRIAE
DIGNITATEM " QVE ‘ TVENDAM - CONTVLERIT
QVOD - IN : SVSCIPIENDIS - SIVE - AMICITIIS

SIVE : INIMICITIIS - HAS - SEMPER - VOLVERIT
MORTALES - HABERE - ILLAS - SEMPITERNAS
QVOD - MENTE - SOLIDA - INVICTA: QVE
PERMANSERIT - IN - PROPOSITO
ATQVE : IMPROBORVM - SPREVERIT - MINAS
QVOD - IN: CAVSA
QVAE - MAXIME - POPVLARIS : ESSE - DEBVISSET
NON : POPVLARITER * ILLE - OVIDEM
VI: ALI - FICTE - ET - FALLACITER - POPVLARES
SED - STRENVE - AC : FORTITER « VERSATVS - SIT
QVOD « DENIOVE “ΙΝ - FOEDISSIMO " ILLO
OPTIMI : PRVDENTISSIMI: OVE - SENATVS - NAVFRAGIO
ID ‘ DEMVM - IMO: ID: SOLVM
QVOD « TVRPE « ESSET
MISERVM - EXISTIMARIT - ATQOVE : ADEO « CVM : BONIS
LIBERE - ΠΟΔΙΤΕΥΤΕΟΝ « STATVERIT
POTIVS " OVAM : PERICVLOSE - ET " SIMVLATE
ET + CVPIDE : INTER - MALOS
LIBRVM ᾿ HVNCCE
EA‘ QVA: PAR - EST : OBSERVANTIA
Ὁ: Ὁ.

ΑΓΕ: Α’0.

QVOD - VERAM : ILLAM : ET + ABSOLVTAM : ELOQVENTIAM

ww

NON : MODO : COLVERIT : SED : CVLTAM - QVA * POTVIT

‘Ss <3 ᾿ς

655

HONORATISSIMO - VIRO
- FREDERICO - DOMINO - NORTH
OVI
IN - AEQVABILI - ET - TEMPERATO - DICENDI - GENERE
FACILE : PRIMAS - TENET
QVEM - SCIVNT : OMNES
TVM - IN: SERMONE - TVM - MORIBVS
GRAVITATEM : SERVARE
NON - TRISTEM - ILLAM : AC - TETRICAM
SED “ COMITATE « OVADAM - ET - LEPORE
SVAVISSIME : CONDITAM
QVI - OPTIMORVM - ET - CIVIVM : ET - VIRORVM
AMICITIA - DIGNISSIMVS
NOVIT - SIMPLICITER " ET - CANDIDE: PONERE - INIMICITIAS
CVIVS - NVNOVAM ΙΝ - CLIENTIVM
TVRBAM ’ INFIDELEM - INGRATAM: OVE
IVSTA - EXARSIT - IRA
NVNOVAM ΙΝ - LEGIBVS
INSTITVTIS - OVE - MAIORVM - DEFENDENDIS
INDVSTRIA - ELANGVIT
NVNQVAM : PERTVRBATIS - TEMPORIBVS
SVA - CVM: RES - AGERETVR
FIDES - VIRTVS : OVE - CONTREMVIT
LIBRVM - HVNCCE
IN - SVMMAE - OBSERVANTIAE - ADMIRATIONIS
ET - PIETATIS - TESTIMONIVM
D-DD.
A-E-A-O,

656

THIS MONUMENT WAS ERECTED,
BY THREE SURVIVING BROTHERS AND A SISTER,
TO THE MEMORY OF
THE AMIABLE AND ACCOMPLISHED
SUSANNAH LOWNDES,
ELDEST DAUGHTER OF THE LATE
RICHARD AND SUSANNAH LOWNDES
OF LIVERPOOL.
SHE WAS BORN IN THAT TOWN 12th AUGUST, 1794,
DIED AT WARWICK, ON THE 19th FEBRUARY, 1813,
AND ON THE 26th WAS BURIED AT THE ENTRANCE
OF THIS CHANCEL.

HONORATISSIMO + VIRO
FREDERICO - DOMINO - NORTH
OVI
IN - AEQVABILI - ET - TEMPERATO ’ DICENDI - GENERE
| FACILE + PRIMAS - TENET
QVEM ᾿ SCIVNT - OMNES
TVM - IN - SERMONE ’ TVM - MORIBVS
GRAVITATEM - SERVARE
NON -: TRISTEM - ILLAM - ET - TETRICAM
SED - COMITATE - QVADAM - ET - LEPORE
SVAVISSIME ᾿ CONDITAM
QVI - OPTIMORVM - ET: CIVIVM: ET: VIRORVM
AMICITIA - DIGNISSIMVS
NOVIT « SIMPLICITER " ET - CANDIDE - PONERE: INIMICITIAS
CVIVS - NVNOVAM ΙΝ’ CLIENTIVM
TVRBAM - INFIDELEM : INGRATAM : OVE
JVSTA « EXARSIT - IRA
NVNOVAM ΙΝ - LEGIBVS
INSTITVTIS * OVE ᾿ MAIORVM - DEFENDENDIS
INDVSTRIA - ELANGVIT
NVNOVAM ’ PERTVRBATIS ᾿ TEMPORIBVS
SVA ‘ CVM : RES - AGERETVR
FIDES - VIRTVS: QVE - CONTREMVIT
LIBRVM - HVNCCE
IN - SVMMAE - OBSERVANTIAE - ADMIRATIONIS
ET - PIETATIS - TESTIMONIVM
D: D:D.
ΑΕ’ Α:0.

VOL. Iv. ὧν

656

NEAR THIS PLACE
ARE INTERRED THE REMAINS
OF
JAMES DRAKE AND ELIZABETH HIS WIFE,
INHABITANTS OF THIS TOWN.
JAMES DIED JUNE 24th, 1761,
AGED 75; ὁ
ELIZABETH DIED JUNE loth, 1775,
AGED 79. |
THEIR HARMONY IN THE CONJUGAL CHARACTER
AND THEIR TENDERNESS IN THE PARENTAL
WERE TRULY AMIABLE ;
THEIR INDUSTRY IN BUSINESS
AND THEIR INTEGRITY IN EVERY RELATION OF LIFE
TRULY RESPECTABLE ;

THEIR CHARITY EXTENSIVE WITHOUT OSTENTATION,
AND THEIR DEVOTION FERVENT WITHOUT SUPERSTITION.
TO THE JUSTNESS OF THIS REPRESENTATION,
THE ESTEEM OF THEIR FRIENDS,

AND THE DUTIFUL AFFECTION OF THEIR CHILDREN
BEAR AN HONOURABLE TESTIMONY.

SOLID MERIT DISDAINS THE AID OF FLATTERY,
BUT IF GRATITUDE BE PERMITTED
TO COMMEND THE VIRTUES OF THE LIVING,
LET NOT FILIAL PIETY BE CONDEMNED

or)
or
be |

FOR PAYING THIS TRIBUTE OF SINCERE VENERATION
TO THE MEMORY OF THE DEAD.

IN THE SAME VAULT
ARE BURIED JAMES AND JOHN DRAKE,
ELDEST SONS OF
THE AFORESAID JAMES AND ELIZABETH.
JAMES DIED MARCH, 1737,
AGED 18;
JOHN DIED SEPT. 28th, 1773,
AGED 49.

THREE OF THE CHILDREN ARE NOW LIVING,
RICHARD, LAURENCE, AND THOMAS.
THIS MONUMENT
WAS ERECTED AT THE JOINT EXPENCE
OF RICHARD AND THOMAS,

A. D. 1776.

2u2

658

TO THE MEMORY OF
CHARLES CHAPMAN,
WHO WAS BORN IN NORWICH, AUGUST 8th, 1725,
AND DiED THERE FEBRUARY 3rd, 1802,
THIS MONUMENT [5 ERECTED
BY HIS WIDOW, TWO SONS, AND THREE DAUGHTERS,
IN TESTIMONY
OF THEIR GRATITUDE FOR HIS KINDNESS,

AND THEIR RESPECT FOR HIS VIRTUES.
AMIDST THE CONFIDENCE OF HIS EMPLOYERS,
AND THE ESTEEM OF HIS FRIENDS,

HE CARRIED ON
THE TRADE OF AN UPHOLSTERER FOR 34 YEARS
IN HIS NATIVE CITY.

BY UNWEARIED DILIGENCE,

BY SOUND ECONOMY,

AND BY THE MOST INFLEXIBLE INTEGRITY,

HE ACCUMULATED A FORTUNE
WHICH ENABLED HIM TO RETIRE
FROM THE TOILS AND CARES OF BUSINESS IN 1790.
HE WAS SUPPORTED UNDER THE INFIRMITIES OF AGE
BY THE ADVANTAGES OF A WELL-EARNED COMPETENCY,
AND HE WAS PREPARED FOR THE APPROACH OF DEATH
BY THE REMEMBRANCE OF A WELL-SPENT LIFE.

659

THIS TABLET
IS CONSECRATED TO THE MEMORY
OF THE REV. JOSEPH PRIESTLEY, LL. Ὁ.
BY HIS AFFECTIONATE CONGREGATION,
IN TESTIMONY
OF THEIR GRATITUDE FOR HIS FAITHFUL ATTENTION
TO THEIR SPIRITUAL IMPROVEMENT,
AND FOR HIS PECULIAR DILIGENCE
IN TRAINING UP THEIR YOUTH
TO RATIONAL PIETY AN) GENUINE VIRTUE;

OF THEIR RESPECT FOR H!S GREAT AND VARIOUS TALENTS,
WHICH WERE UNIFORMLY DIRECTED TO THE NOBLEST PURPOSES ;
AND OF THEIR VENERATION
FOR THE PURE, BENEVOLENT, AND HOLY PRINCIPLES,
WHICH, THROUGH THE TRYING VICISSITUDES OF LIFE,
AND IN THE AWFUL HOUR OF DEATH,

ANIMATED HIM WITH THE HOPE
OF A BLESSED IMMORTALITY.

HIS DISCOVERIES AS A PHILOSOPHER
WILL NEVER CEASE TO BE REMEMBERED AND ADMIRED
BY THE ABLEST IMPROVERS OF SCIENCE,

HIS FIRMNESS AS AN ADVOCATE OF LIBERTY,

AND HIS SINCERITY AS AN EXPOUNDER OF THE SCRIPTURES,
ENDEARED HIM TO MANY
OF HIS ENLIGHTENED AND UNPREJUDICED CONTEMPORARIES.
HIS EXAMPLE AS A CHRISTIAN
WILL BE INSTRUCTIVE TO THE WISE, AND INTERESTING TO THE GOOD
OF EVERY COUNTRY AND EVERY AGE.

HE WAS BORN AT FPIELDHEAD, NEAR LEEDS, IN YORKSHIRE,
MARCH 13:tb, A. ἢ. 1733,

WAS CHOSEN A MINISTER OF THIS CHAPEL, DEC. 31st, 1780,
CONTINUED IN THAT OFFICE TEN YEARS AND SIX MONTHS,
EMBARKED FOR AMERICA APRIL 7th, 1794.

DIED AT NORTHUMBERLAND TOWN IN PENSYLVANIA,
FEBRUARY οὐ, 1804.

660

SACRED TO THE MEMORY
OF GEORGE LLOYD, ESQ. LATE OF MANCHESTER,
BARRISTER,
WHO DIED AT BATH OCTOBER THE 12th, 1804,
IN THE 55th YEAR OF HIS AGE.
THIS EXCELLENT MAN WAS LONG AND JUSTLY ENDEARED
TO HIS FAMILY,
BY TENDERNESS AS A HUSBAND,
AND KINDNESS AS A FATHER ;
TO HIS ACQUAINTANCE,
BY THE GENTLENESS OF HIS TEMPER,
AND THE SUAVITY OF HIS MANNERS;
AND TO HIS NUMEROUS AND RESPECTABLE FRIENDS,
BY THE ARDOUR, THE SINCERITY,
AND THE STEADINESS OF HIS ATTACHMENTS.

IN THE APPLICATION OF HIS GENERAL KNOWLEDGE
TO THE CHARACTERS OF MEN AND THE EVENTS OF LIFE,
HE PRESERVED THAT RARE AND BAPPY UNION
OF CORRECTNESS AND LIBERALITY,

WHICH IS THE SUREST CRITERION OF A MIND
VIGOROUS FROM NATURE,
COMPREHENSIVE FROM REFLECTION,

AND VIRTUOUS FROM PRINCIPLE.

IN THE DISCHARGE OF HIS PROFESSIONAL DUTIES
HE WAS DESERVEDLY CELEBRATED
FOR THE SOUNDEST JUDGMENT,

AND THE STRICTEST INTEGRITY.

00]

HIS CONVERSATION
WAS AT ONCE AGREEABLE AND INSTRUCTIVE,

FROM THE QUICKNESS AND VARIETY OF HIS CONCEPTIONS,
THE ACUTENESS AND ACCURACY OF HIS REASONING,
AND THE PERSPICUITY,

EXACTNESS, AND ELEGANCE OF HIS DICTION.

HIS PATRIOTISM WAS NEITHER WARPED BY PREJUDICE,
NOR TAINTED BY FACTION,

NOR STAGGERED BY REAL OR IMAGINARY DANGER.
HIS BENEVOLENCE WAS ENLARGED WITHOUT SINGULARITY,
AND ACTIVE WITHOUT OSTENTATION.

HIS FORTITUDE WAS ALIKE UNSHAKEN
BY THE PRESSURE
OF A LINGERING AND COMPLICATED DISEASE,

THE CONSCIOUSNESS
OF PROGRESSIVE AND INCURABLE BLINDNESS,

AND THE EXPECTATION OF APPROACHING DEATH.

662

CATHERINE JANE PARR,
YOUNGEST DAUGHTER OF SAMUEL AND JANE PARR,
WAS BORN AT NORWICH, JUNE 13th, 1782,

DIED AT EAST TEIGNMOUTH, DEVON, NOV. 22nd, 1805,
AND ON DECEMBER 9th WAS BURIED IN THIS CHANCEL,
WHERE THE REMAINS OF HER AFFLICTED PARENTS
WILL HEREAFTER BE DEPOSITED,

AT THE REQUEST OF A MOST BELOVED CHILD,
WHOM THEY HOPE TO MEET AGAIN
AT THE RESURRECTION OF THE JUST
TO LIFE EVERLASTING.

QUAE . TEMPLO. CATHERINA . IN. HOC. SEPULTA. EST
‘* PRUDENS . CASTA . DECENS . SEVERA . DULCIS
DISCORDANTIA . QUAE . SOLENT . PUTARI

MORUM . COMMODITATE . COPULAVIT

NAM . VITAE. COMITES . BONAE . FUERUNT

LIBERTAS . GRAVIS . ET. PUDOR. FACETUS”

HIS . EST . JUNCTUS « AMOR. PIUS . SUORUM

ET. CURA. EX .ANIMO. DEUM. COLENDI,

Mrs. SARAH ANNE WYNNE,
THE INGENIOUS AND BELOVED DAUGHTER
OF SAMUEL AND JANE PARR,
WAS BORN AT STANMORE IN MIDDLESEX,
DEC. ΘΙ 1772,
DIED AT HATTON, JULY 8th, 1810,

AND WAS INTERRED ON THE 18th IN THIS CHANCEL,
BETWEEN THE REMAINS OF HER SISTER
CATHARINE JANE PARR
AND HER THIRD DAUGHTER MADALINA WYNNE,
WHO DEPARTED THIS LIFE, MAY 6th, 1810,
AGED TWO YEARS, EIGHT MONTHS, AND NINE DAYS.

663

WITHIN THESE WALLS
ARE DEPOSITED
THE REMAINS OF THE REV. EDWARD BOLTON,
RECTOR OF THIS PARISH,
AND CHAPLAIN IN ORDINARY TO HIS MAJESTY.
THROUGH A LONG AND VIRTUOUS LIFE
HE MAINTAINED WITH FIRMNESS BUT WITH MILDNESS
THE PURE CHARACTER OF A CHRISTIAN MINISTER ;
WITH UNBOUNDED TENDERNESS
THE TIES OF CONJUGAL AND PARENTAL AFFECTION ;
WITH IMPARTIAL JUSTICE THE DIGNITY OF A MAGISTRATE;
AND WITH UNSHAKEN CONSTANCY
THE WARMTH OF SINCERE FRIENDSHIP.
ON THE DAY OF DECEMBER,
IN THE YEAR OF OUR LORD 1810,
AND 8tst OF HIS AGE,
HE CALMLY RESIGNED HIS SOUL
TO HIS MERCIFUL CREATOR.

664

RICHARD INGRAM, ESQ.,

A NATIVE OF ST. PAUL’S PARISH, COVENT GARDEN, LONDON,
FORMERLY A MEMBER OF PEMBROKE COLLEGE, OXFORD,
AFTERWARDS A STUDENT AT LINCOLN’S INN,

AND FOR MORE THAN FORTY YEARS
AN INHABITANT OF WHITE LADIES, NEAR WORCESTER,
DIED OCTOBER 20th, 1811,

AGED 63,

AND WAS INTERRED IN THE BURYING-GROUND
OF THIS CHAPEL.

INDEPENDENT IN SPIRIT AS WELL AS FORTUNE,

AND UNAMBITIOUS ALIKE OF STATION AND OF FAME,
HE PREFERRED
THE PURE AND CALM PLEASURES OF A STUDIOUS LIFE,
TO THE BRIGHTEST PROSPECT OF SUCCESS IN THE LAW,
FOR THE PRACTICE OF WHICH
HE HAD BEEN CALLED TO THE BAR IN 1771.

HE WAS A PROFOUND SCHOLAR WITHOUT PEDANTRY,

AN ACUTE CRITIC WITHOUT ACRIMONY,
UNWEARIED IN HIS RESEARCHES
UPON THE MOST INTERESTING SUBJECTS OF THEOLOGY AND ETHICS,
UNSHAKEN IN HIS ATTACHMENT
TO THE NOBLEST PRINCIPLES OF CIVIL AND RELIGIOUS LIBERTY,
EXEMPLARY IN UNITING THE DUTIES OF JUSTICE
WITH THE DELICACIES OF HONOUR,

AND ALL THE AMIABLE GRACES OF NATIVE BENEVOLENCE.
SINCERE WITHOUT BIGOTRY
IN THE BELIEF OF A REDEEMER,

AND SERIOUS WITHOUT SUPERSTITION
IN THE WORSHIP OF HIS CREATOR.

ON THE TWENTY-EIGHTH DAY OF AUGUST, A.D. 1312,
DIED AT BRADENHAM, NEAR HIGH-WYCOMBE, BUCKINGHAMSHIRE,
IN THE 25th YEAR OF HER AGE,
ELIZABETH DEALTRY,
ELDEST DAUGHTER OF RICHARD LANGLEY, ESQ.
OF WYKEHAM ABBEY IN YORKSHIRE,
AND RELICT OF JOHN DEALTRY,
ONCE THE HIGHLY-FAVOURED PUPIL
OF THE CELEBRATED DR. BOERHAAVE,

AND AFTERWARDS AN EMINENT PHYSICIAN IN THE CITY OF YORK.
THE MEMORY OF THIS EXCELLENT WOMAN WAS RETENTIVE,
HER JUDGMENT WAS EXACT,

AND THE KNOWLEDGE WHICH SHE HAD ACQUIRED FROM BOOKS
WAS BOTH ORNAMENTAL AND USEFUL,

DIFFUSING ITSELF WITHOUT OSTENTATION
OVER THE GAYEST AND MOST SERIOUS SUBJECTS,

AND ADAPTING ITSELF WITHOUT EFFORT
TO THE LIGHTER AND MORE IMPORTANT CONCERNS OF SOCIAL LIFE.
HER PENETRATION
INTO THE CHARACTERS OF THOSE WITH WHOM SHE CONVERSED
WAS ACUTE, NOT PRECIPITATE :
HER REMARKS
UPON ALL THEIR PROMINENT AND ALL THEIR LATENT VARIETIES
WERE LUMINOUS FROM GOOD SENSE,
NOT DAZZLING FROM REFINEMENT :
IN THE DISTINCTIONS WHICH SHE MADE
BETWEEN MERIT AND DEMERIT,
HER UNDERSTANDING
WAS NEITHER MISLED BY PREJUDICE NOR WARPED BY ENVY:
HER PRAISE WAS APPROPRIATE WITHOUT EXAGGERATION,

666

AND HER CENSURE WAS SIGNIFICANT WITHOUT ASPERITY.
FORMED BY THAT PLAN OF FEMALE EDUCATION
WHICH PREVAILED IN THE REIGN OF GEORGE IL,
HER MANNERS WERE AGREEABLE AND EVEN IMPRESSIVE
FROM DIGNIFIED EASE AND UNIFORM PROPRIETY.
SHE UNITED THE MOST UNRUFFLED TEMPER
WITH THE MOST DELICATE SENSIBILITY.
BY PROMOTING IN HER FAMILY AND HER NEIGHBOURHOOD
THOSE INNOCENT RECREATIONS,
WHICH ARE SUITED TO THE VIVACITY OF YOUTH,
AND THE CHEERFULNESS OF MANHOOD,
SHE THREW AROUND OLD AGE
AN ASPECT AT ONCE AMIABLE AND VENERABLE.
HER MORALS WERE NOT ONLY BLAMELESS BUT EXEMPLARY ;
AND, AS HER PRINCIPLES IN RELIGION WERE THE RESULT
OF JUDICIOUS INQUIRY AND FREQUENT MEDITATION,
THEY WERE EXEMPT ALIKE FOM THE WEAKNESS OF SUPERSTITION
AND THE REVERIES OF FANATICISM :
THEY SOFTENED THE HEART, WHILE THEY ENLIGHTENED THE HEAD ;
THEY REGULATED HER ACTIONS IN THIS WORLD,
AND THEY ELEVATED HER HOPES TO A FUTURE AND BETTER STATE.
FOR MORE THAN THE SPACE OF 20 YEARS
SHE WAS AFFLICTED WITH BLINDNESS,
AND FOR 3 YEARS WITH PALSY.

BUT THESE EVILS, WHICH, AMONG THE GENERALITY OF MANKIND,
MIGHT HAVE CLOUDED THE BRIGHTNESS OF EVERY JOY,
AND DEEPENED THE GLOOM OF EVERY SORROW,

WERE BORNE BY HER
WITH THE STEADY FORTITUDE OF A HEROINE,

AND THE HUMBLE PATIENCE OF A CHRISTIAN,

SHE RETAINED HER WONTED RELISH
FOR THE PLEASURES OF SOCIAL INTERCOURSE:

067

SHE PRESERVED THE UNIMPAIRED AND READY USE
OF HER INTELLECTUAL FACULTIES,
AND WITH THE ASSISTANCE OF HER CHILDREN, AS READERS TO HER,
SHE OBTAINED FOR HER CURIOSITY
THE CHOICEST GRATIFICATIONS WHICH BOOKS COULD SUPPLY :
SHE WAS RESCUED FROM THE ALTERNATE VICISSITUDES
OF MELANCHOLY AND INQUIETUDE,
WHICH OFTEN ACCOMPANY THE LOSS OF SIGHT
AND DEBILITY OF LIMBS ;
AND TO HER HABITS OF OBSERVATION
UPON THE EVENTS OF EARLIER AND HAPPIER TIMES,
SHE DAILY ADDED FRESH STORES OF INFORMATION,
AND FOUND IN THEM FRESH MATERIALS
FOR CALM AND SOLID REFLECTION.
SURROUNDED BY THE RESPECT OF HER ACQUAINTANCE,
BY THE GRATITUDE OF HER DOMESTICS,
BY THE CONFIDENCE OF HER FRIENDS,

AND BY THE MOST TENDER AFFECTION, AND DUTIFUL ATTENTIONS
OF AN ELDEST SON, (THE ONLY SURVIVOR OF TWO INFANT BROTHERS)
AND ALSO OF TWO DAUGHTERS,

ALL OF WHOM HAD RESIDED WITH HER FROM THEIR YOUTH,
AND WHO FELT THEIR OWN HAPPINESS INSEPARABLY CONNECTED
WITH THE COMFORTS AND ENJOYMENTS
OF A MOST DESERVING PARENT,

SHE SUNK WITHOUT A STRUGGLE
UNDER THE INSTANTANEOUS AND SILENT STROKE OF THAT DEATH,
THE APPROACH OF WHICH SHE HAD LONG CONTEMPLATED
WITH UNFEIGNED AND UNSHAKEN RESIGNATION
TO THE WILL OF HER CREATOR.

668

IN THIS CHANCEL LIE THE REMAINS
OF THE REV. ROBERT PARR, A. M.

FORMERLY FELLOW OF MAGDALEN COLLEGE, OXFORD,
AND VICAR OF MODBURY, DEVONSHIRE,
AFTERWARDS RECTOR OF ST. LAWRENCE, NORWICH,

FOR TWENTY-SEVEN YEARS WITHIN NINETEEN DAYS,
AND OF HEIGHAM FOR THIRTY-ONE YEARS WITHIN SIX DAYS,
WHO DIED JUNE 3rd, A. D. 1812, AGED 71.

HIS CONVERSATION WAS CHEERFUL WITHOUT LEVITY,
HIS MANNERS WERE AGREEABLE WITHOUT ART,
HIS INTEGRITY WAS INFLEXIBLE,

HIS PIETY WAS SINCERE.

HIS MEMORY WILL LONG BE REVERED
BY HIS PARISHIONERS, FRIENDS, AND RELATIONS,
AND DEEPLY WILL HIS LOSS BE DEPLORED
BY THE UNFORTUNATE,

WHOM HE WAS ACCUSTOMED TO CONSOLE,
AND BY THE INDIGENT,

WHOM HE WAS EVER READY TO RELIEVE.
ELIZABETH, FIRST WIFE OF THE REV. ROBERT PARR,
AND ONLY DAUGHTER
OF HENRY SMITH, ESQ. OF COLTISHALL, NORFOLK,
DIED JULY 2nd, A. D. 1797,

AGED 54,

AND 1S BURIED
IN THE SAME VAULT WITH HER HUSBAND.

009

THIS MONUMENT WAS ERECTED,
BY THREE SURVIVING BROTHERS AND A SISTER,
TO THE MEMORY OF
THE AMIABLE AND ACCOMPLISHED
SUSANNAH LOWNDES,
ELDEST DAUGHTER OF THE LATE
RICHARD AND SUSANNAH LOWNDES
OF LIVERPOOL,
SHE WAS BORN IN THAT TOWN, 12th AUGUST, 1794,
DIED AT WARWICK, ON THE 19th FEBRUARY, 1813,
AND ON THE 26th WAS BURIED AT THE ENTRANCE
OF THIS CHANCEL.

670

WITH WATER DRAWN FROM THIS WELL,
RICHARD THE THIRD, KING OF ENGLAND,
ALLAYED HIS THIRST,

WHILE FIERCELY AND WITH DEADLY HATRED
HE WAS WAGING BATTLE WITH
HENRY EARL OF RICHMOND,

AND WHEN HE WAS DOOMED BEFORE NIGHT
TO LOSE HIS SCEPTRE AND HIS LIFE.
AUGUST 22, 1485.

671

TO THE MEMORY
OF AN AFFECTIONATE MOTHER, AN EXEMPLARY CHRISTIAN,
MRS. ELIZABETH THACKERAY,
WHO WAS RELICT OF THE LATE FREDERICK THACKERAY, M.D.
OF WINDSOR, BUCKS ;
DIED AT LEAMINGTON, OCT. lith, A. Ὁ. 1816, TAT. so,
AND WAS BURIED IN HATTON CHURCH
ON THE FOLLOWING SUNDAY.
THIS MONUMENT IS ERECTED
BY HER GRATEFUL, DUTIFUL, AND AFFECTIONATE CHILDREN,
LOUISA THACKERAY,
AND THE REV. GEORGE THACKERAY, Ὁ. Ὁ. PROVOST OF
| KING'S COLL, CAMBRIDGE.

<
°
EP
=
Lo
“A

672

I GIVE THIS BOOK
TO MY FRIEND DUGALD STEWART,

AS A MARK OF MY REGARD AND VENERATION
FOR A WRITER, WHO STANDS NEXT TO LORD BACON,
IN THE RARE AND EXQUISITE TALENT
OF UNITING ELEGANCE WITH PHILOSOPHY.

DEC. 3, 1819, HATTON. SAMUEL PARR.

SACRED TO THE MEMORY
OF
MATTHEW BOLTON, F.R.S.

BLESSED BY THE KINDNESS OF PROVIDENCE
WITH PROSPERITY, HEALTH, AND LENGTH OF DAYS,
HE WAS REGARDED BY THE POOR AS THEIR PROTECTOR,
BY THE INDUSTRIOUS AS THEIR EMPLOYER,

AND BY THE SKILFUL AS THEIR PATRON ;

HE WAS BELOVED BY HIS FRIENDS
FOR THE BENEVOLENCE OF HIS DISPOSITION ;

HE WAS RESPECTED BY ALL HIS NUMEROUS CONNECTIONS
FOR THE RECTITUDE OF HIS MORAL CONDUCT ;
AND IN HIS OWN AND FOREIGN COUNTRIES
HE WAS JUSTLY CELEBRATED
FOR THE ELEGANCE OF HIS TASTE
AND THE INGENUITY OF HIS INVENTIONS.

674

WITH FEELINGS OF SINCERE AND JUST RESPECT
FOR THE CULTIVATED UNDERSTANDING
AND THE EXALTED RANK
OF
THE DUKE OF SUSSEX,

DR. PARR REQUESTS”

THAT HIS ROYAL HIGHNESS
WOULD BE PLEASED TO ACCEPT THIS LITTLE BOOK,
AS A TRIBUTE OF DUTIFUL ATTACHMENT,
AND OF GRATITUDE UNFEIGNED,

FOR THE NUMEROUS ATTENTIONS
WITH WHICH HIS ROYAL HIGHNESS
HAS CONDESCENDED TO HONOUR DR. PARR.

. 675

TO THE MEMORY
OF ROBERT BARTLAM, GENT.,
WHO DIED AT ALCESTER, THE ist,
_ AND WAS BURIED 25th JULY, 1821, AGED 52.
HE WAS INFLEXIBLY UPRIGHT AS A SOLICITOR,
HOSPITABLE AS A NEIGHBOUR,
FAITHFUL AS A FRIEND,
AFFECTIONATE AS A RELATIVE:
HE RECONCILED THE ANGRY,
RELIEVED THE NEEDY,
PROTECTED THE OPPRESSED,
AND WALKED HUMBLY WITH HIS GOD.

ALSO OF THE REV. JOHN BARTLAM, M. A.
FORMERLY FELLOW OF MERTON COLL, OXFORD,
VICAR OF BEOLY, IN THE COUNTY OF WORCESTER,
AND OF PONTELAND,

IN THE COUNTY OF NORTHUMBERLAND.

HE DIED IN LONDON, FEB. 27th, ©
AND WAS BURIED HERE, MARCH 7th, 1823, AGED 52.
HE WAS AN ELEGANT SCHOLAR,

AN AMIABLE COMPANION,

A SINCERE AND ARDENT FRIEND,

AND A TRULY UPRIGHT AND BENEVOLENT MAN,
THIS TABLET WAS ERECTED
BY THEIR AFFECTIONATE BROTHER
THE REV THOMAS BARTLAM, M. A. PRECENTOR OF EXETER,

676

ON THE NORTH SIDE OF THIS CHANCEL LIETH THE BODY
OF MRS. JANE PARR,
WHO DIED AT TEIGNMOUTH, DEVON,
APRIL 9th, IN THE YEAR 1810,
AGED 63 ;
AND NEXT ARE DEPOSITED THE REMAINS OF HER HUSBAND
THE REV, SAMUEL PARR, LL. Ὁ.
WHO FOR 39 YEARS
WAS RESIDENT AND OFFICIATING MINISTER OF THIS PARISH
AND WHO DIED ON THE 6th OF MARCH, IN THE YEAR 1825,
AGED 78..
CHRISTIAN READERS!
WHAT DOTH THE LORD REQUIRE OF YOU,
BUT TO DO JUSTICE, TO LOVE MERCY,
TO BE IN CHARITY WITH YOUR NEIGHBOURS,
TO REVERENCE YOUR HOLY REDEEMER,
AND TO WALK HUMBLY WITH YOUR GOD?

ILLUSTRATIONS

OF THE

PRECEDING INSCRIPTIONS ;

To which are added the names of places where they were set up,
as correctly noted as could be obtained,—still, it is feared,
imperfectly.

Pace 559.

Tue inscription for Dr. Thackeray was solicited by his
learned descendant the present Dr. Thackeray of Chester. It
was never, we believe, inscribed on his tomb,

Pace 560.

Written on the fly-leaf of the Aristarchus of Vossius. It is
probably the earliest specimen of Dr Parr’s composition in this
style of writing now to be found; having been written while
he was an under-graduate at Emanuel college. A learned friend
of the Editor suggests, that the word TantTuM, in line 5, must
be an error of the transcriber.

Pace 561.
In the chancel of Hatton Church, to the memory of Dr.
Parr's immediate predecessor in that Cure.
Pace 562.

On a mural tablet in the Church of Harrow on the Hill.

678 ILLUSTRATIONS OF THE

Pace 563.

In a volume entitled, ‘* Sententiz Phil. Melancthonis, Martini
Buceri, Casp. Hedionis, et aliorum in Germania Theologorum
de pace Ecclesiae; ad virum nobilissimum Gulielmum Bellaium
Langeum, ἃς, 1534.”

Pace 564.
On a tablet of white marble in Worcester Cathedral.

Pace 565.
At Norwich.

Pace 566.

Dr. Jounson’s Monument, ἵν St. Paut’s.

DEAR PARR, Maddox Street, January 15th, 1790.
Should you like to undertake an Edition of Dr. Johnson's
Works, with his Life, and a Critique on his Writings? The
first Edition of them is nearly sold, and Mr. Cadell would be
glad to nave them edited by a scholar, and an admirer of poor
Johnson.
Let me know as soon as possible what you think of my pro-
posal.
I wish, too, you would turn your thoughts upon an Epitaph
for Johnson’s intended Monument.
Yours, W. SEWARD.

DEAR PARR, May 25,1791.
You say nothing about Johnson's Epitaph. Sir Joshua Rey-
nolds desires me to iterate his request to you to write it. Boswell
and myself add our solicitations. Why will you not do it?
Compliments to Mrs. Parr.
Yours very truly, W. Sewarp.

eee

Dr. Parr, to Sir Joshua Reynolds.
DEAR SIR,
This is a strictly confidential letter, and I entreat you to
communicate the contents of it to no man living, except Mr.

PRECEDING INSCRIPTIONS. 679

Windham ; in the soundness of whose judgment, and the delicacy
of whose honour I can implicitly and entirely confide. Seward,
enforcing his own request by the names of yourselfand Mr.
Boswell, has urged me to write Johnson’s Epitaph. Fairly and
fully I have stated to him the difficulty of the task; and
because it is difficult I have prudently, and I hope politely,
declined it.

Believe me, however, when 1 tell you that Iam not without
a most awful and most painful sense of the situation in which I
stand.

To the memory of Johnson I, as a scholar and as a man, owe
every thing ; and to the wishes of Sir Joshua Reynolds there is
scarcely anything which I can with propriety refuse. Permit
me, then, to lay before you the reasons which dissuade, and
even deter me from undertaking to do at all, what I despair of
doing well.

Johnson was a great writer, an accurate scholar, and a good
man. Upon his correct and profound knowledge of the Latin
language, I have always spoken with unusual zeal and unusual
confidence, in opposition to the cavils of Monboddo, and to the
insinuations of Joseph Warton. Whatever may have been the
success of his efforts in Latin epitaphs, he had most just notions
of the art itself; and my opinion is, that beyond all other men
in the world, he has a right to such an inscription as_ perfectly
corresponds with his ideas of the art, and his skill in Latinity.

Now the question is, from whom such an inscription is to be
obtained? In regard to myself, I distrust my own abilities to
perform what is excellent, in proportion as I understand in
what excellence consists.

Already have I told Seward of my objections to the lapidary
style ; and yet this, unfortunately, is the style in which almost
all modern epitaphs are composed. Novelty itself, therefore,
will wear the appearance of singularity, and singularity will be
imputed to pedantry, or to ignorance. What is simple, may be
generally unintelligible and unpleasing ; and what is not simple,
will in my judgment be grossly improper. Besides, the pecu-
liarity and the amplitude of Johnson's character cannot, I fear,
be luminously described in that diction which I should think

680 ILLUSTRATIONS OF THE.

myself authorised to employ. Even the most marked and
splendid phraseology which usually appears upon epitaphs,
would be offensive to my taste, and, among real scholars, would
be degrading to my reputation. Terence, Cesar, Livy, Tacitus,
and even Cicero, whose writings are the common storehouse of
modern Latinity, are according to my apprehensions, merely a
plebs superim upon such an occasion. Simple must be the form
of the whole epitaph, simple must be every phrase. But that
which is simple will appear neither striking nor proper to the
numerous class of readers, especially where every reader will think
himself a critic.

The inscription itself may be written according to the best
Latin models; but the man upon whom it is written is an Eng-
lish writer, and every enlightened English reader will therefore
expect to find something which he has found before, in the
trite and popular language of modern epitaphs. Yet they
cannot find it, if the sentiments, or if the words, or if the con-
struction be suited to that charming simplicity, whjch alone I
see in the epitaphs of antiquity, and which alone I can persuade
myself to adopt upon a modern subject. If Latin is to be the
language, the whole spirit and the whole phraseology ought to
be such as a Latin writer would use.

To a man of your most elegant taste and most deep judg-
ment, this statement of my opinions will, I am sure, not appear
unimportant ; and such too is your candour, that you will
readily acquit me of all affectation in explaining what ought to
be attempted, and of all hypocrisy in confessing my inability to
attempt it successfully. However, if your general sentiments
upon the business coincide with my own, I will hazard the
attempt. At the same time, I beseech you not to say one word
of my conditional compliance, ;

At present I am busy in a different way ; bat in the course of
next month I will think upon the subject, and throw myself into
a right train of reading. If I should, in any moderate degree,
satisfy myself, | will send you what occurs to me; and if other-
wise, I shall confess to you the plain truth. In the mean time,
I desire you to inform me of the very day upon which Johnson
was born, and how old he was when he died. You will also be
so good as to inform me, in a general way, by whom the money

PRECEDING INSCRIPTIONS. 681

was subscribed for his monument; because all these circum-
stances may influence my mind when I write his epitaph, and I
shall not even begin to write it till I know them.

I hope that you will, under a strict charge of secrecy, lay the
contents of this letter before Mr. Windham, and ask his opinion
about them. Should you aad he approve of what I may here-
after send, I take it for granted that you will both of you
employ your high authority in explaining the principles upon
which the epitaph may be written. On the other hand, should
you disapprove of it, I conjure you to deal upenly with me. In
the world I shall not suffer, because the world has no right to
know of my miscarriage ; neither can I suffer in your estima-
tion, or in Mr. Windham’s, because with this proof of my wil-
lingness to do what is right, you will connect the remembrance
of the diffidence I feel in my own capacity for doing it.

[ have the honour to be, dear Sir, with the greatest respect
your faithful and obedient servant, S. Parr.

Sir Joshua Reynolds, to Dr. Parr.

DEAR SIR, London, May 31st, 1791.

I felt myself much flattered in receiving a letter from Dr.
Parr, and still more by its being a leng one, and more still by
the confidence which you have been pleased to repose in me: 1
may add, likewise, that a man is most successfully flattered by
being supposed to possess virtues to which he has the least
pretensions.

My critical skill, alas! Iam afraid is entirely confined to my
own profession. It would be in me the highest degree of im-
pertinence to speak of your superior qualifications for this
business as from my own judgment: it is my learned friends
who have universally pointed you out as the only man qualified
in all points for this task, That it is an arduous task I am well
aware, and that you are alarmed at the difficulty is a presump-
tion in favour of what may be expected from your head.

A blind horse starts at no precipice. I have heard you speak
of Dr. Johnson, and am therefore confident that you have
nothing to seek in regard to sentiment ; and in regard to your
ability of expressing those sentiments in Latin, nobody has any

682 ILLUSTRATIONS OF THE

doubt. You have, therefore, nothing to do but “ skrew your
courage to the sticking place, and we'll not fail.” Since I have
stumbled by accident on this passage in Macbeth, I cannot quit
it without observing that this metaphor is taken from a wheel
engine, which, when wound up, receives a check that prevents
it from running back. The only check that I can imagine to
prevent you from retreating from what I wish to consider as a
private half-promise, would be its being publicly known that you
had undertaken it. And then, as Dr. Johnson used to say,
*‘ what must be done, will be done.”

I do not at all wonder at your being terrified at the difficulty :
I am inclined to think that it is the most difficult of all compo-
sitions. Perhaps it is impossible to write an epitaph that shall
be universally approved; or that shall not be open to some
objection on one side or the other: even men of the best and
most refined taste, are often unreasonable in their demands, and
require (as I have seen connoisseurs do) an union of excellencies
incompatible with each other.

The simplicity which you intend to adopt, and which is per-
fectly congenial to my own taste, will be criticised that it is not
the lapidary style, that it wants dignity and stateliness, and so
vice versd.

Though I have great abhorrence of pertness or quaintness,
either in the style or sentiment, yet perhaps an epitaph will
admit of something of the epigrammatic turn. I remember once
having made this observation to Edmund Burke, that it would
be no bad definition of one sort of epitaphs, to call them grave
epigrams. He repeated the words “ grave epigrams,” and gave
me the credit of a pun, which I never intended.

I have no doubt but that you are surprised to receive a letter in
this form. The truth is, this was intended only as a rough
draft, but the weakness of my eyes must prove my excuse in not
writing it over fair.

I shall enclose, if it will not make too large a packet for the
post, the list of subscribers.

I am, with the greatest respect,

Dr. Johnson, Your most humble and most
born Sept. 18, 1709, obedient servant,
died Dec, 13, 1784, Josnua ReynoipDs.

PRECEDING INSCRIPTIONS. 683

Dr. Parr, to Sir Joshua Reynolds.

DEAR SIR, May, 1791.

Necessity, in the strict and metaphysical sense of the word,
governs perhaps the actions and fortunes of us all. But there
is a more Jax and popular signification, under which Johnson
was content to know it experimentally. When he told you that
what must be done will be done, he spoke not only from
general observation, but from his own particular feelings: thus,
I am told that he never would engage to write without pay
from a bookseller; but I have always written from very dif-
ferent motives: he was lazy, and therefore seldom wrote from
choice ; but I am whimsical, and never will write through com-
pulsion: he was a Tory, and perhaps found some music in the
sound ; but I am a Whig, and shrink from it as a harsh and ill-
omened word. Feeling then, and perhaps cherishing, this anti-
pathy to force, I shall not surprise you by chopping down my
supposed half promise to no promise at all, or by requesting
that what hitherto has been private between you and me, may
not hereafter be made public, till we understand each other
more clearly, and agree with each other more closely, upon the
sort of style that is to be adopted for Johnson's epitaph. I may
perhaps find myself obliged to explain again and again before I
convince, and therefore I entreat you not to charge to a spirit
of self-importance that caution which in reality, dear Sir, I
employ only for purposes of self-defence. Different men, it is
true, have different powers and different tastes; but, surely,
among all the wild caprices of criticism, there is something like
rule to be found, and to certain species of writing there are
certain forms of composition; a tragedy must be elevated above
common discourse, a comedy must descend a little nearer to it ;
an epic poem must always be grand, and a descriptive brilliant.
To my mind, there is no less certainty about the diction which
should be employed in a Latin epitaph: for custom in this, as
in all other respects, must fix the opinions of men who are
judges of the art. In modern languages the greatest latitude
may be given to the choice of the writer, but in the use of the
ancient languages, prescription holds an indisputable and unli-
mited sway. ‘The difficulty at present arises from the small

684 ILLUSTRATIONS OF THE

number of those who know what prescription requires, and
from the great number of those who will take upon themselves
to judge without knowing it. In the kind of epitaph which
alone would please me, the words would be so plain that every
sciolist might understand them ; the construction so plain that
every school-boy might hope to imitate it; the topics so plain
that every garreteer would give himself credit for selecting them
without effort; and the whole so plain that he who runs might
read, he who reads will think that he understands, and he that
understands will be disposed to condemn. For the adoption of
this style I have not yet received the sanction of your approba-
tion. 1 readily agree with you that for epitaphs, unless they are
written in the language of antiquity, there are many kinds of
style, and equally good. I would include in them what you
with great felicity call a grave epigram; and if you got credit
with Gurke for a pun which you did not intend, you have the
lot of many other writers, where the comment is wide of the
text; and your observation resembles the prophecies and oracles
of old, about which we have often been gravely informed, that
the words had often a profound and mysterious meaning, quite
unsuspected by those who uttered tnem. Permit me, however,
to say that I have no talent for these grave epigrams, and that
to the lapidary style, which most of the readers would like, and
which I should find it far easier to write, my objections are in-
numerable and insurmountable.

In epitaphs, as well as other kinds of composition, dignity is
compatible with simplicity, and whether they are united or not
depends upon the abilities of the person who composes them.
The real fact, in this case, is that every body will see what is
simple, and that few will feel what is dignified; and hence
arises the difficulty which scares my mind, and holds me in a
state of painful and mortifying suspense. It is very disagreeable
for me io give you the trouble of reading my letters, and to hold
back, as I yet continue to do, from a positive engagement :
however, I will absolve you from all unnecessary delicacy with
me, by leaving you and the friends of Johnson at perfect liberty
to apply to any other scholar, whose apprehensions may be less,
and his talents greater, In the meantime, I could wish you to
consult some of your learned friends upon the propriety of ex-

PRECEDING INSCRIPTIONS. 685

cluding the lapidary style; and if the subject should be started
at the next meeting of the club, something may occur which, if
communicated to me, may enable me to come to some decision,
and either attempt what I wish to do, or leave it undone. I
thank you for sending me a list of subscribers ; and if I should
hereafter prevail upon myself to undertake what you request, I
should wish to know the size and form of the stone upon which
the inscription is to be engraved.
S. Parr.

DEAR SIR, June 23, 1791.

Without the formality of waiting for your answer, I have at-
tempted what you wished me to do; and the execution, I should
hope, is such as will disgrace neither the memory of Johnson
nor the choice of his friends. The epitaph is written, I think,
with more than ordinary conformity to the best models of
antiquity, for it is plain, concise, full enough, and, in my
opinion, not less than enough dignified. I have read nearly two
thousand inscriptions, not for the petty drudgery of gleaning
scattered phrases, but for the nobler purpose of familiarizing my
ear, my eye, and my mind, to the general structure of the com-
position, and to the proper selection of topics.

I consider myself as disengaged from all obligation to use it,
till you, and those whom you consult, agree with me in my
favourite principle of avoiding what is reprobated by real
scholars under the name of the lapidary style. Nor will I shew
the inscription to any human being, till I know your and their
determination. You will give me leave to observe, that much
will depend upon the taste, and more upon the fidelity and
docility of the engraver. Circumstances of this kind will not
appear wholly uninteresting to a man, who, like yourself, must
be acquainted with the coarse indignity which has been offered
to the monument of Raphael.

I have the honour to be, with the greatest respect, dear Sir,
your most obedient, faithful servant, S, Parr.

680 ILLUSTRATIONS OF THE

From Sir Joshua Reynolds.

DEAR SIR, London, July 11, 1791.

You may depend on having all your injunctions, relative to the
inscription, punctually obeyed. We have great time before us.
The statue is hardly yet begun, so that the inscription will not
be wanted for at least these twelve months: in the meantime,
you will probably have an opportunity of seeing the monument
itself, and the place which it is to occupy in St. Paul’s.

There would be, I think, a propriety in having on the scroll
a Greek sentence, as it would imply at first sight that it is the
monument of ascholar. Dr. Johnson was Professor of Ancient
Literature to the Royal Academy. I could wish that this title
might be on the monument: it was on this pretext that I per-
suaded the Academicians to subscribe a hundred guineas. But I
do not want to encroach on your department: you must ulti-
mately determine its propriety.

I do not think that in any of my letters I have mentioned Mr.
Windham’s name, which looks as if we did not see each other
as often as we used to do, but this is not the case; I have
shewn him all your letters, but as he expressed only general
approbation, and the propriety of the whole being left to your
judgment, I neglected telling you as much, which still I ought
to have done.

I sent to Bacon the sculptor, to desire he would send me a
sketch of the monument, which, if it comes in time, 1 will
enclose it in this letter; if not, I will take the first opportunity
of sending it to you.

I confess I am rather impatient to see the inscription; but
still, not so much so as to wish in the Jeast to break in upon
any determination of yours. I must wait, likewise, for your
orders respecting Mr. Seward; as he has been active in this
business, one would wish not to mortify him by neglect.

I am, with the greatest respect, yours sincerely,
J. REYNOLDS.

PRECEDING INSCRIPTIONS. 687

From Edmond Malone, Esq.

DEAR SIR, Queen Anne St. East, March 25, 1795.

I have understood that you, some years ago, were so good as
to promise our late most excellent friend, Sir Joshua Reynolds,
an inscription for Dr. Johnson’s monument. The monument
being now nearly finished and ready to be put up, the gen-
tlemen who have had the conduct of it, have requested me to
apply to you fer the epitaph, if you should have written one for
this very extraordinary man.

Believe me, dear Sir, with sincere regard, your most faithful
obedient servant, EpmonpD Matone.

DEAR SIR, Queen Anne St. East, April 3, 1795.

I am sure it is unnecessary to tell you that it was not from any
want of attention or respect that I did not immediately answer
your letter. The truth is, I wished to consult some of the gen-
tlemen to whom the management of Dr. Johnson’s monument
has been assigned, and had not an opportunity of doing so till
yesterday. The epitaph which you have written will, I have no
doubt, be every thing that they could wish; but as they and the
surviving executor (Sir Wm. Scott) cannot properly adopt any
inscription without seeing and approving it, and as you might
possibly not chuse to submit it at all to their inepection, unless
upon a certain assurance of its being adopted, I thought it right
to state this circumstance to you before you transmitted the
epitaph. The persons 1 allude to, are Mr. Burke, Mr. Wind-
ham, Sir Joseph Banks, Mr. Metcalfe, and Mr. Boswell, who,
together with myself, were nominated as Curators of the monu-
ment, and who are all extremely indebted to you for your
exertions on the present occasion.

Just as 1 am writing, I am favoured with your second letter,
and am very glad to find that you are so soon to be in town;
when we can enter more particularly into this business. In the
meantime, believe me, dear Sir, with sincere regard and respect,
your most humble and obedient servant, Epmonp MaLone.

VOL. IV. ῶν

688 ILLUSTRATIONS OF THE

To Edmond Malone, Esq.

DEAR SIR, Saturday evening, April 4, 1795.

I entreat you to accept my best thanks for the frankness and
candour of the letter which I this day had the honour of re-
ceiving from you ; and at the same time I must take the liberty
of saying that some of its contents have produced in my mind
most unexpected and unpleasant embarrassment.

That the Epitaph which a scholar has prepared for general
perusal cannot be wholly unfit to abide the test of private exa-
mination seems to be on the one hand no very extravagant pre-
sumption. The Curators on the other hand may contend that
it is their duty not to let Dr. Johnson's memory be disgraced by
an inscription inadequate to Dr. Johnson’s merit, that they
owe much to his great fame, and to public opinion, and that, in
discharging what they owe, they must not yield to probabilities,
but insist upon proofs, The weight of this reasoning so far as
it is opposed to the mere presumption above stated I readily al-
low, and I add as readily that the force of it would be very much
increased if I had started as a competitor, if I had been employed
as a hireling, or if I had come forward officiously and ostenta-
tiously with an offer of my labours. But the situation in which I
stand is widely different from any of the cases I have just now
supposed, and indeed the circumstances of that situation are so
peculiar in themselves as to justify me in throwing off all
dastardly reserve, and in supporting what I conceive to be my
own rights with a high degree of delicacy, vigilance, and firm-
ness. My services upun this occasion were not obtruded by my-
self, but solicited by others. At the opening of my correspond-
ence with Sir Joshua Reynolds, I felt reluctance which I did not
dissemble, and in the course of it, I did not yield to Sir Joshua's
request, till the subject had undergone a discussion so fair and
so full as seemed in my opinion to leave no room for the possi-
bility of distrust in the topics 1 should select, or in the style I
should adopt. Resigning to statesmen the unenvied and in-
glorious privilege of heaping explanation upon explanation, and
wrangle upon wrangle, scholars are accustomed to tread ina
safer and a surer path of negotiation. With politeness and sa-
gacity, such as I should naturally expect from Mr, Malone, you

PRECEDING INSCRIPTIONS. 689

suppose “ that I should not chuse to submit the Epitaph at all
to the inspection of the Curators, unless upon a certain assurance
of its being adopted.” In this passage, dear Sir, you exactly de-
scribe the feeling which I have experienced. I could not
imagine that Sir Joshua would apply to me without the know-
ledge and concurrence of Dr. Johnson’s other executors, and
surely in the very act of that application it wasimplied, that the
person to whom it was made was qualified for the task which he
was so earnestly and repeatedly urged to undertake. The Ex-
ecutors filled up the measure of their duty when they chose the
writer, when they asked for his services, overcame his reluctance,
and assented to his opinions. The approbation given to the
man, was, in fact, given to that which the man was able and
likely to write, and after such an expression of confidence, I am
at a loss to see the necessity, or even the propriety, of those con-
ditions which are virtually prescribed in your letter. The Cura-
tors, I must observe, were appointed before Sir Joshua Reynolds
wrote tome. Ican make no distinction between Curators and
Executors so wide as to admit the exercise of a distinct authority.
And, most unquestionably, I should not have complied with
the request of Sir Joshua, if, in the spirit of that request, I had
not fancied a certain assurance, that what I granted after much
discussion to the one, would, without further discussion, have
been accepted by the other.

Be assured, dear Sir, that I have no disposition to speak
slightingly of any one Curator whom you have mentioned, and,
that I hold the language of sincere and habitual conviction,
when I profess for some of them the highest respect that can
be due to learning, taste, and genius. It is impossible for me
to read the names of Mr, Malone, Mr. Windham, Sir Wm. Scott,
and Mr. Burke, without an unfeigned and anxious desire to
satisfy their expectations, Ihave an equal confidence in their
judgment, and in their candour. To that judgment, and that
candour, I should appeal without hesitation, if, in sending the
Epitaph, I were allowed to consider them as private friends, or
literary auxiliaries. But the character with which your letter
invests them is of another sort, and, therefore, I must suspend
my final answer till 1 have the pleasure of conversing with you
next week. S. Parr.

>

090 ILLUSTRATIONS OF THE

From Edmond Malone, Esq.

55, Queen Anne St. East, Monday, April 13.
DEAR SIR,

I received the inclosed letter from Sir W. Scott this morning,
and shall be very happy to learn that you agree to the proposal
which he makes, which, appears to me, an extremely reasonable
one.

I beg the favour of you to return Sir William’s letter, and

am, dear Sir, Your most faithful servant,
EpmMonpD MALONE.

Sir William Scott, to Edmond Malone, Esq.

DEAR SIR, April 12, 1795.

I was in hopes that your conversation with Dr. Parr would
have removed the difficulty which stood in the way ofa reception
of his Epitaph. I regret that it has not. As the matter now
stands, I can have no objection to obeying your call for my sen-
timents upon it, more especially as you call upon me in the
particular character of Dr. Johnson’s surviving Executor.

I was ignorant that Sir J. Reynolds had applied to Dr. Parr in
the name of the Executors to write an Epitaph. Ipresume that Sir
John Hawkins was so too, as the communication between him
and Sir Joshua was much less than between Sir Joshua and
myself. What part Sir John would have taken about it, if he
had been informed, I do not know. I should certainly have
concurred in it very sincerely, thinking, as I do, that Dr. Parr
was a most proper person to be applied to upon the occasion.
But 1 must add that I should have concurred upon it, upon the
certain expectation that the Dr. would have been entirely dis-
posed to communicate the inscription to us, before it was fixed
upon the marble. Certainly not for the purpose of being sub-
jected to hostile and captious criticism, and still less for that
of the writer's receiving from us the law with respect to the
style and manner in which it ought to have been written ; but
merely for the purpose of its being considered by us, in con-
junction with him, how far it substantially answered the com-

PRECEDING INSCRIPTIONS. 691

mon ideas under which we solicited him, and he engaged, to
write it. It never would have occurred to me as a departure
from that respect which prompted the application to Dr. Parr,
for us to have expected that we should have had the opportunity,
I will not absolutely say of approving the Inscription, for that
might be deemed too strong a word, but of giving it the con-
currence of our opinion with his. As Executors, we were, per-
haps, the persons who were, in the first instance at least, re-
sponsible for its general propriety. And I can by no means
think it a sufficient discharge of the duties of that responsibility,
for us to have conceived our discretion to be limited to the mere
choice of a gentleman to write it; and to be absolutely excluded
from every thing else relating toit. Dr. Parr will not, Iam
sure, think that I mean to put either an extravagant or an in-
jurious supposition, when I merely suppose the possibility that
in any man’s composition, however accurately formed, there
may be an expression, or a sentiment, which, to other judg-
ments, equally interested in the same subject, may appear to re-
quire a little re-consideration on the part of the writer; or
which may at least be the subject of our amicable discussion
with him, whether it were not fit that it should be so re-con-
sidered, before it is irrevocably fixed. Independently of all this,
there is another consideration which weighs powerfully with me.
It would have been incumbent upon us to have applied to the
Dean and Chapter for leave to put up the Inscription, which, of
course, must be submitted to them; for, by undoubted law
and practice, the right entirely resides with them of determining
what Inscriptions are to be put up within their Church. And
I can by no means think that we should have gone to the Dean
and Chapter upon a becoming errand, as the bearers of an ap-
plication in favour of an Inscription which none of us had ever
seen, and consequently, could not have had any opportunity of
approving.

The committee, chosen, as I recollect, by the majority of the
subscribers who appeared at a public meeting, eased the Exe-
cutors of the business. They were not bound by the choice of
the Executors, further than as they adopted it, which they did ;
and 1 conceive them to be now standing upon the same footing
as the Executors did, with the same claims upon Dr. Parr—the

692 ILLUSTRATIONS OF THE

same responsibility to the public--and the same obligation with
respect to the propriety of the application, which they must
necessarily make to the Dean and Chapter. Having said this, I
must add that, upon one view of the matter, I can by no means
think Dr. Parr’s present objection to be destitute of rea-
sonable foundation. ‘The Curators are much more numerous
than the Executors were. Some of us are strangers to Dr. Parr,
and he may fairly enough entertain an apprehension, that the
epitaph may possibly be subjected to a freedom of observation,
improper to be submitted to on his part. I own I cannot but
think that it would be a reasonable accommodation to his feelings,
to commit the business of considering the epitaph to any three
gentlemen of our number,—any three of them named by himself,
for the purpose of discussing it with him. This mode promises
to secure both objects, the proper independence of Dr. Parr on
the one hand, and the fair responsibility of the Curators on the
other. J, for one, shall be disposed to act with entire con-
fidence in the concurrent judgments of those gentlemen with
Dr. Parr; and I presume that the other Curators will feel the
same disposition. It would give me great pleasure to hear, that
this suggestion was adopted by Dr. Parr, or was modified by
himself in some other form more consistent with his own appre-
hensions and feelings: so that, at any rate, Dr. Johnson's
memory may not be deprived of that honour which the wishes
of every friend has been anxious to provide for it. But if this,
or something like it, cannot conquer the Doctor’s scruples, I
fear I must decline joining in an application on behalf of a
public inscription, the contents of which have never been seen,
and therefore cannot have been adopted by any one gentleman
who is to make the application. lam, dear Sir, yours faith-
fully, W. Scort.

From Sir William Scott.
MY DEAR SIR, April 30, 1795.
Don’t think me guilty either of affectation, or of disrespect to
you, when I tell you that the term being come in, attended
with an uncommon load of business both professional and
official, I_really am not able to reply to your obliging letters

PRECEDING INSCRIPTIONS. 693

otherwise than by thanking you for them, and by saying that
I have transferred to our common friend Mr. Malone the plea-
sure of answering them according to his own judgment; in
which, having entire confidence, I shall be thoroughly disposed
to concur. You will, Iam sure, thank me for the choice of
correspondent, and 1 beg you to believe me to be, with real re-
spect, your very humble servant, W. Scorr.

From Edmond Malone, Esq.

DEAR SIR, London, May 21, 1795.

Some very pressing business of my own has prevented mea
long time from obeying Sir William Scott’s desire ; who, being
entirely occupied by the business of the term, requested me to
convey to you our joint sentiments on the subject of the two
letters with which you favoured us. I may add that I felt my-
self very unequal to the task, as, indeed, 1 have nothing more
to say respecting the epitaph than that I have said already.
However, as in a question of this sort authority may be of some
weight in a matter where the appeal must finally be to the
public, I may mention to you that, as Dr. Johnson had founded
what is called the Literary Club, I thought they had a kind of
peculiar interest in any inscription to his memory; and there-
fore took an opportunity, when there happened to be some of
our most eminent members present, to repeat your epitaph ;
and Mr. Fox, Mr. Windham, Mr. Stevens, Sir W. Scott, as well
as all the other members present, were decidedly of opinion,
that probabilis was an utterly inadequate epithet, as descriptive
of Dr. Johnson’s character as a poet; and they were equally
clear that some eulogium on him as a poet, was absolutely ne-
cessary to the integrity of his character. I do, therefore, most
earnestly request, that you will give us some other epithet ; for
the total omission is what none of his friends are willing to
agree to. Permit me to add one other consideration, which,
perhaps, when you turn it in your mind, as I am sure your can-
dour will lead you todo, may have some lite weight.

The world, in general, consider Johnson as a great writer,
both in prose and verse. Now under the words, “ preceptori

694 ILLUSTRATIONS OF THE

recte vivendi gravissimo,” his admirable powers as a writer of
prose, are not necessarily included, though I know they are
large enough to comprehend them: but that his great excellence
in this respect is not necessarily included in these words, appears
from hence,—that Bp. Butler and Bp. Ceneybeare may be both
described very truly as “ preceptores recte vivendi gravissimi,”
and yet neither of them was eminent for purity, elegance, or
strength of language. If, therefore, no character at all is given
of Johnson as a poet, (which I think seems rather to be
your wish,) and the other words do not necessarily imply an
eulogium on him as a prose writer, will not his admirers, which
are all the judicious part of mankind, have some reason to con-
sider the inscription, however masterly in every other respect,
as an imperfect delineation of him? I may add also, that the
universality of his knowledge, the promptness of his mind in
producing it on all occasions in conversation, and the vivid elo-
quence with which he clothed his thoughts, however suddenly
called upon, formed in my apprehension (as I formerly took
the liberty of mentioning to you), a very distinguished part of
the character of his genius, and place him on higher ground
than, perhaps, any other quality that can be named. This has
been wholly omitted, on grounds, which I by no means wish to
controvert; but, at the same time, it surely may be properly
urged as acircumstance that entitles us, his ardent admirers, to
hope that his character as a Poet may not also be omitted; and I
therefore only mention it as an auxiliary argument to induce you
to be a little more liberal to us in that part of the inscription
concerning which we differ.

Thus, dear Sir, I have, as shortly as I could, though I fear
very imperfectly, stated our sentiments on this subject; an
amicable discussion of this kind does not stand in need of any
apology, and, therefore, I shall not take up your time with
making any.

Poor Mr. Boswell died on Tuesday morning, after an illness
of five weeks. Just before he fell ill, he had prepared a very
civil answer to your letter in the last Gentleman’s Magazine.

Believe me, dear Sir, with sincere regard and esteem, your
faithful and most obedient servant, EpMoND MALONE.

*

PRECEDING INSCRIPTIONS. 695

To E. Malone, Esq.
DEAR SIR,

No discussion conducted by you and myself can be otherwise
than amicable in any of its stages, and as we have an equal
desire to do justice to the memory of Johnson, we ought, I am
sure, with equal good-humour to insist upon our respective
rights of investigating the manner in which that justice is to be
done most effectually. From the beginning I have entered my
firm protest against all minute discrimination, all rhetorical
phraseology, and all exaggerated praise. Indeed, were I re-
duced to the alternative of saying too little or too much, my
choice would be on the side of defect rather than excess. [
would not lavish upon an uncommon man, the trite, pompous
panegyric which is every day bestowed, with little propriety and
little effect, by common writers upon common characters.
Having made a reader assent to what I state, I would at once
lead and leave him to supply what I have omitted. I would
calmly awaken his sympathy rather than force it rudely, and
after preserving the simplicity and the purity of truth, I should
disclaim those artifices which are usually employed to produce
dignity from littleness, and splendour from embellishment :—
such are the rules I would prescribe to myself in writing a Latin
epitaph for a Christian church. There may have been occasions
upon which men of letters have been pleased to say that my
Latin style is not very deficient in copiousness, in energy, and
perhaps now and then in elegance ; but I look upon an epitaph
as a composition sui generis, and my taste, gendered as it is by
my observation of the uniform practice of antiquity in matters
of this kind, places me above the reach of those allurements
which vanity might hold out to a writer less acquainted than
myself with the best models that have come down to us in Latin
inscriptions.

Where I have not the good fortune to agree with you upon
any point of criticism, I hope ever to have so much good sense
as neither to disregard your arguments, nor to slight your au-
thority. You cannot value more highly than I do the extent of
Johnson's knowledge, the readiness of his mind in producing it,
and the vivid eloquence with which he clothed his thoughts.

696 ILLUSTRATIONS OF THE

Now, if these powers had been exerted by him in any public
capacity, as a librarian, or as a professor, or as a religious in-
structor, or as a parliamentary speaker, then doubtless their
unusual magnitude, combined with the two important circum-
stances of their extensive notoriety and their lasting use, would have
entitled them to direct and specific commendation upon his monu-
ment; but as they were confined to private conversation, they
are much fitter subjects for biography than for an inscription,
and a biographer, give me leave to add, would be compelled to
notice some particulars which an epitaph writer would be justi-
fied in omitting. You have anticipated my confession, by sup-
posing that I allude to his roughness in contradiction, to his
positiveness in assertion, to his wantonness in misrepresentation,
to his insatiable thirst of victory, together with the cavils,
sophisms, and invectives, by which he used to seize it, upon all
occasions, from all antagonists. These peculiarities, these in-
firmities, for I would not give them a harsher name, were,
among his contemporaries, almost equally famous with the
excellencies which accompanied them. They are associated, I
am sure, in the memory of all to whom Johnson was known.
They jointly enter into the conversation of those to whom he
was unknown: and I fairly own to you, that, thinking myself
authorised to speak the truth, I should have found some diffi-
culty in extenuating, and some reluctance to attempt extenua-
tion, upon topics where it is more decorous for a Christian
teacher writing for a Christian church, to be wholly silent.

You tell me, dear Sir, that when I call Johnson preceptorem
recte vivendi gravissimum, the expression does not necessarily
imply that he was a prose writer. Very true; but it does imply
that he was a moralist in his writings, and, as morality is a dis-
tinguishing feature of those writings, I have said what will be
easily understood and readily acknowledged by all who have
read them. You say, further, that Bishop Butler and Bishop
Coneybeare may deserve the same praise in the same terms.
This also may be very true. But it is not true that they were
grammarians and critics like Johnson, and therefore Johnson,
whom I have described as a grammarian and a critic, is so far
superior to Coneybeare and Butler. Human language, however
sufficient it may be for the representation of intellectual qua-

PRECEDING INSCRIPTIONS. 697

lities, is very scanty indeed in supplying determinate expressions
for the proportion of their quantity. What is said of one man
in one respect, may with equal truth be said of some other man.
Johnson was eminently, but not exclusively, a great teacher of
morals, and a great master of style. But it is the province of a
critic, not of an epitaph-writer, to descend from strong gene-
ralities to pointed distinctions. The conciseness, the simplicity,
and the solemnity which are indispensibly necessary to a Latin
epitaph, and peculiarly characteristic of it, leave no room, as I
have again and again maintained, for the ornaments which are
so profusely scattered by modern writers. Amplification would
here disgust, and enumeration would fatigue.

The objections, and even the scruples, of our friend Mr. Fox,
upon a point of taste, will always make me pause. So far,
however, as the two questions in dispute between us depend
upon authority, my judgment is divided between contrary evi-
dence, which I have no hesitation in pronouncing to be of equal
weight. The responsibility I am to incur is a most fearful one,
and I have all along proceeded with a deep and anxious sense
both of my duty and of my danger. I can make no surrender
of my own opinion to one set of men, without incurring some
degree of disapprobation from another set of men, whom I am,
and whom I ought to be, equally solicitous to please. My
situation, therefore, imposes upon me the unwelcome necessity
of consulting my own judgment, and it happens very unfortu-
nately, that, at every appeal I have made to that judgment, I find
the result to be at variance with your opinion. How then shall
I proceed ?

My wishes,—yes, good Sir, my most sincere and earnest wishes,
would lead me to many sacrifices for the comfortable and
honourable purpose of satisfying yourself and the very respect-
able persons whom you mention; but you must forgive me for
reminding you that some members of the Literary Club may not
be wholly exempt from the partialities of private friends, and the
enthusiasm of literary partizans. I blame not those partialities
nor that enthusiasm; I blame them not in their excesses ; but
from their weakness I ought to be entirely free, when [am ex-
pressing my own sober and solid judgment, when I am com-
mitting it toa hallowed place, when I am recording it for the

698 ILLUSTRATIONS OF THE

perusal of hostile as well as friendly contemporaries, of foreign
intelligent and inquisitive scholars, of generations yet unborn,
of readers qui sine odio et sine amore judicabunt. With sucha
host arrayed before the imagination, prejudice stands mute, the
pride of exertion is humbled and dismayed, and even the con-
sciousness of right intention is hardly able to sustain the human
conflict amidst the unceasing agitation of hope and fear. Often
have I wished that the office had been undertaken by those
whose prepossessions in Johnson’s favour I suspect to be some-
what stronger than my own, and whose opinions about the
structure of an epitaph I know to be widely different from
those which I entertain. In truth, when the request was first
made to me, I took the liberty of pointing out Sir William Scott
and Bishop Horsley as the proper persons to write the inscrip-
tion; and by myself most assuredly it would never have been
written at all, if I had foreseen what has lately happened. How
to go onI at this moment know not. On Friday last I re-
ceived your letter: on the next morning I altered the passage
with which you were dissatisfied, and as the alteration will in all
probability be more pleasing to you than it is to myself, I am
at this instant determined to communicate it; but Iam con-
scious of no petty captiousness, no churlish perverseness, no
literary haughtiness, when I tell you—first, that I persist in
thinking it better to omit than to notice the poetical character
of Johnson, and secondly, that the manner in which it has been
already noticed, is preferable to that which I shall presently
suggest. You must excuse me, dear Sir, for believing that you
and others listen to the word probabilis with an English ear, and
you will not be angry with me for confiding so far in your
sagacity as well as your candour, as to presume that, after the
perusal of the paper which accompanies this letter, you will
form a more just, and I add a more favourable, opinion of
its import. I chose that word after much deliberation. I shall
defend it when chosen, with unremitted firmness and even
jealousy. I have never reflected upon it without a complete
conviction of its propriety, and even with a triumphant feeling
of its felicity. You and others, whom in common with yourself
Iam accustomed to esteem, think differently. It remains for
me tu respect their opinion without abandoning my own.

PRECEDING INSCRIPTIONS. 699

Now I will tell you of the alteration; — Poete sententiarum
et verborum ponderibus admirabili.

These words are energetic, sonorous, and in point of Latinity
unexceptionable. They express my real opinion, they compre-
hend, I suppose, or nearly comprehend yours. But with all
these advantages, they fill one with a secret and invincible
loathing ; because they tend to introduce into the Epitaph a
character of magnificence, which J have been most anxious to
avoid. Icannot, for the present, prevail upon myself to say
that they shall be used. But if, in the course of a few days, my
scruples shall completely give way to your wishes, I will get
our parish clerk to write them in his best manner; and at the
same time I shall, for the sake of relieving the rhythm introduce
another alteration. Instead of scriptori recte vivendi gra-
vissimo, which will then load the ear, I shall shorten but not
weaken the epitaph by saying, magistro virtutis gravissimo.

Of Johnson’s poetry, I, in the original inscription, had not
taken any notice ; and before the inauspicious moment in which
I did notice it, the line ran,—Magistro vere virtutis, which is
plain and dignified; but, as epithets are used in all the other
parts, I must, for the sake of regularity, affix one to magistro.

S. Parr.

To the Right Hon. Ὁ. J. Fox.

DEAR SIR, May 23, 1795.

As our good friend Mr. Malone tells me that you object to
the word probabilis as describing imperfectly what you conceive
to be the merits of Johnson's poetical character, I must desire
you, when you have a little leisure from greater things, to cast
your eye over the inclosed paper. On subjects of taste, as well
as politics, your authority is, indeed, most weighty with me;
and therefore I cannot slight any objection, to which you have
fora moment given your assent. But you will excuse me for
saying, that opinions given even by able men, in mixed com-
pany, and suddenly, may not always be exact on topics of Latin
criticism ; and I am a little inclined to suspect, that you listened
to the word rather with an English ear, and that you will form
amore clear and favourable opinion of its import, when you

700 ILLUSTRATIONS OF THE

have read what I herewith send for your perusal. I chose the
word after much deliberation, and I never reflected upon it
without an entire affiance in its propriety ; and, I will venture
to add, almost a triumphant feeling in its felicity.

From the beginning of the business I was unwilling to write
Dr. Johnson’s Epitaph, because I knew that his friends had the
enthusiasm of literary sectaries ; and because I had reasons for
supposing that some of them, however distinguished by their
taste and knowledge in modern languages, were not very deeply
skilled in subjects, which it became an epitaph writer to under-
stand thoroughly. I hinted my scruples, delicately enough, but
intelligibly, to Sir Joshua Reynolds ; and with great earnestness
I proclaimed my rooted disapprobation of the pompous and acu-
leated styles which I had seen in almost all the modern in-
scriptions that are found in our cathedrals and our universities.
I know when the lapidary style began, and how it was dissemi-
nated ; and from my frequent perusal of the very best inscriptions
which are come down tous from antiquity, I further know
where alone such models were to be found as it became me to
imitate. With you I will use no disguise, and to you I can
give no offence, by saying, that Johnson did not follow those
models, because he was not acquainted with them. I will not
enter into the objections which have been made to particular ex-
pressions in the epitaphs which Johnson wrote; but I contend
that their whole character is not what it ought to be, though I
admit that they have many excellencies. I begin with pro-
testing against all minute discrimination, all rhetorical em-
bellishment, and all exaggerated praise. The indispensible and
characteristic excellence of a Latin epitaph is that ἀφέλεια
which neither you nor I can translate ; but which we both of us
understand, and feel, and approve, and love. I conceived that
after my correspondence with Sir Joshua, and after the express
permission he gave me to go my own way, 1 should not be
drawn into any controversy, with any other persons whatsoever.
My responsibility, dear Sir, is indeed a fearful one; and I
wrote under a full and serious impression both of my duty and
my danger. For reasons, which will instantaneously occur (0
your sagacity, 1 wrote what I had to say upon a scholar, with a
view to the approbation of real scholars; and though a variety

PRECEDING INSCRIPTIONS. 701

of circumstances made it necessary for me to pay some regard to
popular judgment, even here I passed by those contemporaries
whose love and whose hatred of Johnson were excessive ; and I
made my appeal to the sympathy of those who are now unborn ;
and who “sine odio et sine amore judicabunt.”

I persist in my opinion, that Johnson’s poetical character
might without injustice, and without impropriety, have been
wholly omitted in his epitaph; and so far as authority can go,
I find that the judgment of those who wish me to be silent
about it, is in point of respectability, not inferior to the judg-
ment of those who would have it noticed. Be assured that it
had no place whatsoever in the original inscription ; that I ad-
mitted it, purely and solely, from the deference I felt to the wishes
of Dr. Johnson's personal friends. Having made this concession,
I must firmly assert my own right in the ultimate choice of ex-
pressions for which my own character will be answerable,
when all prejudices in favour of Johnson, and against him, shall
have past away; when all disputes between his Curators and
myself will be forgotten ; and when his writings will be the
only measure for the decision of impartial and learned men upon
the merit of his epitaph. I have the honour to be, dear Sir,
with the greatest respect, your most sincere well-wisher and
obedient faithful servant, S. Parr.

I cannot help being anxious about your tried judgment on
the word probabilis, and, therefore, when you have time to write
half a dozen lines, pray favour me with it. I have not quite
made up my mind about recalling the epitaph. But 1 am much
disposed to recall it; and even if I should fix upon some other
word, my preference will be to probabilis. You will say, and I
shall agree with you in saying, that what is written upon an
epitaph should be clear as well as accurate ; granted,—but clear
to whom? To scholars, surely. Or why is the inscription
upon an English writer not itself written in the English language,
for English readers? If 1am employed asa scholar to write in
Latin, I must use the best words which the Latin language
supplies for my meaning; and if that meaning, so conveyed,
leaves some diflerence of opinion between Johnson's friends and
myself on the score of justice to him, there is but one remedy,

702 ILLUSTRATIONS OF THE

and to that remedy I must in all probability have recourse from
motives of justice to myself.
What say you to this,—
Poete sententiarum et verborum ponderibus admirabili.
It is just, it is sonorous, and yet I have written it, ἑκὼν
ἀέκοντί ye θυμῷ.

Το E. Malone, Esq.

"Epis περαίνει μῦθον ὑστάτη θεῶν. ‘These, dear Sir, are the
words of a writer of whom, as compared with your Deus in dra-
matic writing, William Shakspeare, I have often said, what
Quintilian with equal wisdom and felicity says of Virgil com-
pared with Homer, that he is second indeed, but ita secundus,
ut primo sit propior, quam tertio. If Dr. Joe Warton were at
your elbow, he would be complaining that AZschylus has con-
founded a little the mythological and the physical properties of
contention, and I should produce twenty instances from the best
classical writers who have done the same. But, criticism apart,
I mean to say that, as we dispute to little purpose, it is high
time for me receptui canere. I wish, indeed, on this and every
other occasion, to retreat like Ajax, ἐντροπαλιθόμενος. But,
after the concessions I have made to your wishes, I think that
you will allow me in discussing matters with such men as your-
self and Sir W. Scott not to be μάχης ἀκόρητον. My judgment
in favour of probabilis is unmoved, and, I believe, immoveable.
But, as I cannot persuade you and some other valuable men to
think with me, I have altered the passage finally ; and, so far as
good Latin or just description may be concerned, I have altered
it satisfactorily to myself. Here it stands,—

Poet luminibus sententiarum
et ponderibus verborum admirabili.

This I hope is honeyed enough for your taste, and solid
enough for your appetite. Sir W. Scott was scared at the
possible objections of Reverend and Right Reverend hyper-
critics. Well, as 1 amin a yielding humour, I will pay some
attention to the squeamishness of weak brethren. As they may
think, or fear lest others should think, that there is some lurk-
ing taint of Heathenism in αὐτῶν ἐκ μακάρων, and as they may

PRECEDING INSCRIPTIONS. 703

not suppose the expression sufficiently purified by Johnson’s
crucible, I altered the first part by substituting ἐν μακάρεσσι.
πόνων. And now, dear Sir, they must allow that μακάρεσσι is
a very sound orthodox word for the blessed in Heaven, among
whom Johnson is represented as wishing for the merited reward
of his labours.

Since you have obligingly taken so much trouble about the
contents of the inscription, I must beg the favour of you to
take a great deal more in having it well executed as to the form
and position of the words, letters, stops, &c. For my part I
have but little confidence either in the statuaries, or the auxili-
aries of statuaries, where Greek and Latin are concerned. But,
Iam myself a very fastidious and a very anxious man upon
these matters, and 1 feel my credit interested in having a Latin
epitaph engraved according to due classical form. Besides, we
have known a Greek line, and Greek words, were sometimes
formidable, even to Greek engravers. Monsieur Le Roy has
made a pleasant mistake by following Wheler and Spon, who
followed the engraver, who did not follow the writer. In a
Greek inscription found in a temple at Athens, Le Roy prints
Ἄθηναι ἀρχηγέται, and, like a true Frenchman under the old
government, he supposes the words to mean the Athenian No-
blesse, who had dedicated the inscription to Augustus. Alas, the
Athenians were pure democrats when this inscription was made,
and the Frenchman's blunder arose from the original mistake of
the engraver, who, in the penultimate letter, put an alpha for
a delta. If my unrelenting detestation of the present war, in its
principles, conduct, &c., should ever bring me to the Old
Bailey to be tried for high treason, 1 beg of you not to produce
this letter as a proof of my aversion to aristocracy ; for, before
such a judge as Baron Eyre, I should plead in vain that I told
the tale as a warning, and that this warning was given out of
my zeal for having all things done well for the memory of Dr.
Johnson, who, if living, would have been the prince of aristo-
crats, ΤῸ speak seriously,—engravers must be watched, Scrip-
tori rect® vivendi gravissimo, I have altered into,—Magistro vir-
tutis gravissimo, for the purpose, as I told you, of shortening and
lightening the inscription, In all these things I give way ἑκὼν
ἀεκοντί ye θυμῶ. And must I blush for having done what even

VOL. Iv. 22

704 ILLUSTRATIONS OF

the νεφεληγερέτα Ζεὺς is represented as doing in old Homer ?’
You will expunge probabili poete, and preceptori recté vivendi
gravissimo, and bid the engraver follow the paper which you
will receive on the same day this comes to you. I have enclosed
it to our friend Mr. Courtenay. Iam, dear Sir, your very re~
spectful, obedient servant, S. Parr.

To Dr. Parr.

MY DEAR SIR, June 2, 1795,

I am still, as I at first was, an advocate for probabilis, nor do I
much fancy the luminibus et ponderibus. The Literary Club may
decide as they choose; but Ernesti explains the word, qui
placet, probatur, which might satisfy even daintier ears. I told
you that a commentary would be necessary.

But you have never favoured me with a copy of the whole.
Pray let me have it ὅπως τάχιστα.

At Sir William Scott I am surprised. As to dilettanti
scholars, they seldom have my wonder. I met Seward a few
days ago, and gave my most decided opinion in favour of proba-
bilis, which had staggered him.

The purpose of writing, te be sure, is to be understood ; but
a Latin inscription in St. Paul’s is not meant to be addressed to
every day readers. I stick to probabilis; but pray let me see the
whole.

As you have a Placcius in view, whenever a book in return for
Priscian strikes you, let me hear, and I will thankfully make
good my moiety of the exchange, Adieu, my dear Sir,

Ever affectionately and truly yours, C. Burney.

P. 5, I write in great haste.

—<—<—

DEAR SIR, London, July 13, 1795.

I did not trouble you with a letter merely to say that Sir
William Scott and I were much pleased with your alteration of
the epitaph, and neither of us thought the new words at all too
honied: the Greek line is most happily changed, and may set
all cavil at defiance.

PRECEDING INSCRIPTIONS. 705

The inscription has been in Mr. Bacon’s hands these some
weeks past, and I did-not think you would have had any more
trouble with it: but in that part which relates particularly to
himself, he wishes not to be shorn of his academical honours,
and that posterity should know that he was entitled to annex
R. A. to his name. You will be so good, therefore, as to La-
tinize this for him, and to say how it shall stand. The words
are at present,—Faciebat ‘ lohannes " Bacon " Sculptor * Ann °
Christ * M.DCC.LXxxxv.

In your directions you say the form of the letters is to be im-
plicitly followed; by which I conceive was only meant, that
where V was written instead of U, the sculptor should attend to
his archetype: not that the common letters, where, from the
unskilfuiness of the penman they are not truly formed, should
be followed in this respect. Several of the letters are illegiti-
mate in shape, and therefore I have directed him to follow the
instructions implicitly, except in the irregularity of the letters,
where they are irregular. I take it for granted you would wish
them to be made after Caslon’s best specimens of printed capi-
tals, of the size you have adopted.

I am, dear Sir, with sincere regard, your most faithful and
obedient servant, EpMOND MALONE.

DEAR SIR, London, July 25, 1795.

I have called on Mr. Bacon, and he very reluctantly has
agreed to omit any notice of his being a Royal Academician.
With respect to the inscription, your copy has been rigidly fol-
lowed, AE’s, V's, and all. Be not at all alarmed at what I said
about legitimate letters. An instance will at once explain what
I mean. If it be a rule in the printed letter, A for example,
that the first stroke should be of a certain thinness, and the
second of a certain thickness, you would surely wish the letter
should be made according to the best pattern. It has been so
made ; and so of the rest: that is the whole.

Iam this moment going to the country, and can only add
that I am, dear Sir, your very faithful and obedient servant,

Epmonp Matonr.

9223

706 ILLUSTRATIONS. OF THE

To E. Malone, Esq.
DEAR SIR,

I have this day done myself the pleasure of writing my final
opinion to Sir W. Scott, and though I am well aware that he
will shew you the letter, I should think myself deficient in that
respect wnich is due to you from every scholar, and which my
Judgment and my feelings will ever induce me to pay to Mr. Ma-
lone, if { were not to tell you that the contents of that letter are
equally intended for your own perusal and Sir William’s. I have
again and again looked out for some adjunct to supply the place
of probabilis, and my efforts have not been successful enough to
satisfy my own taste. The plain truth is, that the whole passage
about Johnson’s poetry should be omitted. I do not presume to
determine how far we are agreed upon the fundamental princi-
ples and the characteristic properties of a Latin Epitaph. But I
know very well the defects of many popular compositions in that
way, and J also know that the respect which is due to Johnson,
and the solicitude I must feel for myself, have made me very
diligent and wary in chusing both the style and the topics. I
have the satisfaction of finding that several of my learned friends
concur in opinion with me, and if [I have not the good fortune
of hearing that the very learned Curators finally agree with me,
surely, dear Sir, we shall neither give nor take offence by having
the office transferred to some other person. I have the honour
to be, with great respect, your very faithful well-wisher, and
obedient servant, S. Parr.

To Sir W. Scott.
DEAR SIR,

With sentiments of the greatest and most sincere respect for
yourself and Mr. Malone, I have carefully revolved the passage
on which we had not the good fortune to come to any final agree-
ment, when [ had the honour of conversing with you lately in
London. Be assured, Sir, that I am disposed to make very
Jarge concessions indeed to your wishes as Dr. Johnson’s Cura-
tors, and to your authority as men of letters. But my mind is

PRECEDING INSCRIPTIONS. 707

filled with uneasy apprehensions, when I reflect on the close and
lasting responsibility which I am myself to incur, not merely to
those who knew and who loved Dr. Johnson, but to those who
from accident knew him not, to those who from prejudice loved
him not, and to posterity, who will decide upon his moral and
literary merits with calmness and impartiality. That the epitaph
was written by such or such a man, will, from the publicity of
the situation, and the popularity of the subject, be long re-
membered, That the curators, in opposition to that man, con-
tended for the introduction of such or such a topic, in such or
such a form, may be soon forgotten. The approbation you give
to that form, and the reasons I allege against it are circum-
stances, which not appearing upon the monument, can, in our
own days be known only to few; while,“for the words which do
appear, and are known to all, the writer must be ultimately,
and almost exclusively responsible. Surely, then, if you admit
what is well founded in point of fact, and if you exclude what is
improper in style or in’sentiment, you fill up the measure of
your duty as curators. Far be it from me to enter into any for-
mal contest with you or Mr. Malone, upon the degree of Dr.
Johnson’s excellence as a poet. The difference between us is,
I suspect, rather nominal than real, and were I to undertake
the office of a Biographer to Dr. Johnson I should probably
speak of his verses with no less ardour of commendation than
you feel. But, upon the mention of his poetical character in an
epitaph I have serious doubts, because his poetical writings,
however excellent, are few. Not choosing, however, to confide
in my own opinion upon a matter of such delicacy, I have con-
sulted some literary friends whose reluctance seems stronger
even than my own is, and whose names, if they were communi-
cated to you and Mr. Malone, would not appear wholly unworthy
of attention. Let me specify among others, or rather let me
select from them, the venerable President of Magdalen College.
And where is the critic to whom Johnson can be more dear than
he is to Dr. Routh, as a man of learning, a man of genius, a
fine writer, a profound moralist, a Loyalist in his politics, and
a distinguished champion of orthodoxy in his faith ?

The President had written to me, while 1 was absent from
Hatton, with his usual acuteness, and when I called upon him

708 ILLUSTRATIONS OF THE

at Oxford in returning hither, he, with more than his usual
earnestness, entreated me to omit the words in question. The
Same opinion was given, and the same request was made to me
on the day before I saw you, by another person, who in eru-
dition, indeed, is somewhat inferior to yourself and Dr. Routh,
but who, in penetration and taste, will recognize no more than
an equal in any scholar of the present age.

Again and again I have balanced the weight of the matter
contained in the different sentences, and to my ear, disciplined
as it is by the perusal of the best ancient inscriptions, I have
again and again appealed for the proportion of the rhythm. The
result is, that the epitaph must be injured by any mention what-
scever of Dr. Johnson as a poet. And as to the particular man-
ner in which he is now mentioned, I think with you that un-
learned readers will mistake my meaning, while several of my
learned friends think with me, that it could not have been ex-
pressed with greater precision.

On considering and re-considering what passed between us,
I must now anxiously beg your permission to have the disputed
passage entirely expunged; and if you and Mr. Malone should
not be pleased to comply with this request, 1 must take the li-
berty of respectfully withdrawing the whole of what I have
written ; because I am convinced that the effect of the whole
will be marred by the continuance of a part which, to Mr. Ma-
lone, appears very cold, to you somewhat equivacal, to myself
inharmonious, though not inaccurate ; and to others, as well as
myself, superfluous, though not unjust.

As to the word μακάρων, it must stand, I believe, on no other
foundation than the circumstance of having been used, and I
think consecrated by that use, at the close of the Rambler,
Dionysius, though he lived soon after the commencement of the
Christian Aira, cannot be considered as a Christian writer. But
who will think of Dionysius at all, or who will not be content
with thinking of Dr. Johnson only? It is seldom possible for
human art, working upon human materials, to be at all points
prepared against the scruples of the weak, and the cavils of the
captious. But, in my opinion, the general solemnity of the sen-
tence more than expiates the particular form of the phraseo
logy. It cannot; I think, be inconsistent with good taste to re-

PRECEDING INSCRIPTIONS. 709

present Johnson as saying on the scroll, what, in truth, he has
deliberately and emphatically said in the Rambler, It cannot
be offensive to good morals for me to place in a Christian church
those words which Johnson has placed at the conclusion of a
work in which the noblest truths of Christianity are ably de-
fended, and its soundest precepts are powerfully inculcated.
Homer, it is true, uses μάκαρες Θεοὶ ; and μάκαρες without Θεοὶ
also is applied by heathen poets to their Deities. Yet μακάριος
Θεὸς is used in the Epistle to Timothy; and I find the same
word often written by the ancient Fathers when they speak of
the Supreme Being. It is also applied by them to good men,
and yet who will say that the blessedness of God and of Man is
the same? Μάκαρ is applied by Gregory Nazianzen to Christ,
ἐκ σέθεν eis σὲ μάκαρ λεύσσω. In the verses subjoined to his
discourse τῇ δευτέρᾳ pera τὸ πάσχα, and in the next poem, called
παρθενίης ἔπος, he uses μάκαρ of blessed spirits.
ὕσον βιότοιο ρέοντος
ἑστηκὼς μακάρεσσιν.

The objection, if any be made, will be pointed against the plu-
ral as polytheistic, and for the plural I tell you fairly that I find
no direct authority in writers professedly Christian, I must
therefore have recourse to the circumstance which solely and
peculiarly gives propriety to the line. As an epitaph writer I
could not, perhaps, in my own person be justified in putting such
a line upon the inscription itself. But the scroll isa distinct
consideration, and upon the scroll, Johnson, as I have already
observed, may not improperly be described as saying what he
had before said in a book. I believe that the Dean and Chapter
will not be scrupulous, and if they are we must have recourse to
the line which I intended to use before I heard of Mr. Seward’s
judicious suggestion, It contains a favourite maxim of John-
son's; it describes very well the moral character of his works, and
though written by a Heathen has no marked features of heathenish
phraseology. I persist, however, in giving upon the whole the
preference to the verse from Dionysius.

In regard to Mr. Bacon we may venture I think in retaining
the word Sculptor, though I find in Coelius Rhodiginus lib. 29.
cap. 24. that the art of Statuary is divided into five sorts, among
which, that which relates to marble and stones is called coAar-

710 ILLUSTRATIONS OF THE

τικὴ, and that which belongs to metals is styled γλυφική. In
Cap. 4. lib. 86. of Pliny, we read, “‘ Jam fuerat in Chio insula
Malas Sculptor : dein. filius ejus Micciades, ἃς, ;’—again, ‘‘ Ab
oriente coelavit Scopas.’’ We must, by all means, let Mr. Bacon
find a corner for his name, for you and I are no strangers to the
revenge which artists have taken when this favour has been re-
fused tothem. Ido not suspect Bacon of intending to imitate
Phidias, who, when the Athenians would not let him put his
name on the Statue of Minerva, made a better statue of Jupiter
for the Eleans. But there is something in Bacon’s name which
sounds to me ominous, and recals to my memory the trick which
Saurus and Batrachus played, when Octavia would not give them
leave to set their names on the Temples they had built in Rome.

In allusion to their respective names, one of them scattered
σαῦραι, and the other βάτραχοι on the bases and capitals of the
columns, The Curators then, I think, would be mortified if
Bacon were slily to put the figure οὗ a hog on Johnson’s monu-
ment, after not being allowed expressly to perpetuate his name
as the artist.

I beg the favour of you to present my best compliments to
Mr. Malone, and I have the honour to be, with great respect,
dear Sir, your most obedient, faithful servant,

S. Parr.
P. S. As my paper is not full I will venture to insert two

Jines, which I long ago read and marked in the AnecdotaGreca,
by Muratorius, and which may be acceptable to our friend Mr.
Malone, as descriptive of Johnson’s benevolence, of his ready
powers in conversation, and of the instruction it conveyed to
his hearers.

ἾΩ μάκαρ, ὦ ξυνὸν mevins ἄκος, ὦ πτερόεντες

Μῦθοι, καὶ πηγὴ πᾶσιν ἀρυομένη,

Ασθματι πάντα λίπες πυμάτῳ.

These lines were written by Gregory Nazienzen upon Amphi-
Jochius, and however untractable they may be in the hands of an
epitaph writer, they might be managed with success by such a
biographer as Johnson deserves, and perhaps has hitherto not
had.

PRECEDING INSCRIPTIONS. 711

To Dr. Parr.
DEAR SIR,

My triend Shaw is gone to London with the commission you
charged me with. I write to teil you I do not like the Epitaph
half so well in its altered as in its original state. You are more
secure, perhaps, from the attacks of critics like yourself, as to
particular expressions; but, unless I am greatly deceived, much
of its former simplicity and energy is departed. TI think it my
duty to write to you thus honestly on a subject of some im-
portance, and remain, dear Sir, your sincere friend,

M. J. Rouru.

Secure the former Epitaph against all attack, but preserve its
form and essence. If this cannot be done, you had better dis-
miss it from your mind and write another.

Dear NEp,
Now I will send you Dr. Johnson's Inscription in its several
stages. First, it stood thus:

Samueli Johnson,
Grammatico Anglicano,
magistro vere virtulis,
homini optimo et singularis exempli,
qui vixit Ann, txxv. Mens, τι. Dieb. xiv.
Decessit Idib. Decembr. Anni Christ. MmpccLxxx1v.
Sepult. in Ad, Sanct. Petr. Westmonasteriens.
xii. Kal. Januar. Ann, Christ. ΜΌΘΟΙΧΧΧΥ.
Amici Sodalesque Litterarii
pecunia conlata
H. M. faciund. curaver.

Now, Ned, from Gallia is formed Gallicanus, a word of
most unexceptionable authority, as well as Gallicus, Classical
writers, however, do not use Anglicanus, and there are ob-
jections to it, though it is found as well as Anglicus. Among
my very learned codgers, a distinction is made between Gram-
marians and Crities ; for the latter particularly takes in the Bio-
graphy of Poets. So 1 altered thus,—

712 ILLUSTRATIONS OF THE

Samueli Johnson,
Grammatico et Critico
Scriptorum Anglicorum litterate perito.

You see I meant to confine his characteristic erudition to
writers in the vernacular; and more just, appropriate terms
cannot be found.

Then it occurred to me, that of his poetry some notice should
be taken. Like an owl I took it,-—-but I took it meo more et
modo, i. e.in conformity to therule I had laid down for avoid-
ing all rhetorical phraseology, and all exaggerated praise. I
therefore said, Probabili Poéte. In arms were all the Johnso-
nians: Malone, Stephens,* Sir W. Scott, Windham, and even
Fox, all in arms, The epithet was cold. They do not under-
stand it, and I am a Scholar, not a Belles-Lettres-man; an
epitaph writer, not a panegyrist; a critic, not a partisan.
However, to shew that I have many arrows in my quiver,t this
I have altered thus,—and it is well done, boy.

Poétz Juminibus sententiarum
et ponderibus verborum admirabili.

You see he was not a poet in the high class of imagination.
Had I praised Johnson as you would praise Pindar, it would
have delighted the Johnsonian school.

Well, Ned, having some secret though faint doubts about
Magister, as applied to one who had founded .no sect, and
headed no disciples, and framed no system, I altered Magistro
vere Virtutis, into

Preceptori recte vivendi gravissimo.

But as Poetze luminibus, &c. is a long, ponderous. member, I
have returned to Magistro, and written thus forcibly ;
Magistro virtutis gravissimo.
The whole then is,
Samueli Johnson,
Grammatico et Critico
Scriptorum Anglicorum litterate perito,

* He means of course, Steevens, It is not a little singular,
that, with his marvellous and minute accuracy in so many other
points, Dr. Parr continually mis-spelt proper names,

+ An allusion to Pindar, Olymp. ii, 150,

PRECEDING INSCRIPTIONS. 713

Poéte luminibus sententiarum
et ponderibus verborum admirabili,
Magistro virtutis gravissimo,
Homini optimo et singularis exempli, &c.

Now for the close. Master Ned, que couples closer than et ;
and ac more loosely than either. Thus,—Senatus populusque
Romanus. You see Romanus applies ἀπὸ κοινοῦ toboth. Sol
have put,—Amici et Sodales litterarii, &c.

The execution in form of letters and pointing, &c. is done ac-
cording to the best models, Ned. I am confoundedly out of
humour, and so you may tell Dr. Pretyman.

I wished to be short, and to preserve the agéAera ; these fine
go folks in alia omnia,

After I had written the Epitaph, Sir Joshua Reynolds told
me there was aScroll. I wasinarage. A Scroll! Why, Ned,
this is vile modern contrivance. I wanted one train of Ideas.
What could I do with the Scroll? Johnson held it, and John-
son must speak in it. I thought of this, his favourite maxim,
in the Life of Milton,

"Ore τοὶ ἐν μεγάροισι κακόν 7 ἀγαθόν τε τέτυκται"
In Homer* you know,—and shewing the excellence of Moral
Philosophy. ‘There Johnson and Socrates agree.

Mr. Seward hearing of my difficulty, and no_ scholar,
suggested the closing line in the Rambler; and had I looked
there, I should have anticipated the suggestion. It is the closing
line in Dionysius’s Periegesis, mind,

Αὐτῶν ἐκ μακάρων ἀντάξιος εἴη ἀμοιβή.

This you see is religious, and better for ἃ church. I adopted
it, and gave Seward the praise. Oh! quoth Sir W. Scott, μα-
κάρων is Heathenish, and the Dean and Chapter will hesitate,
The more fools they, said 1. But to prevent disputes I have
altered it.

Ἔν μακάρεσσι πόνων ἀντάξιος εἴη ἀμοιβή.

And so much for their Rev. and Rt, Rev. scruples. Ned, I
will cut your throat, or have you downright guillotined, if you
say one word to any lady till you hear from me. To be serious,
I shall be angry if you saya word. ‘Tis a good Epitaph after

* Odyss. ὃ, 392.

714 ILLUSTRATIONS OF THE

all. 111 send you Smitheman’s, in a much better taste, Ned ;
for there I had my own way, and none of these litteratores and
Grammaticastri to deal with. Oh! Ned, it is charming, and
melts my very sou) when I stand by it at the Communion Table,
Farewell. My compliments and good wishes to Mrs. M.

Your’s truly, 5. Parr.

Master Ned, I could write three pages on probabili, as a Latin
word to be approved by Latin ears anda Latinscull. But these
Enghishists

Pace 569.—At Long Whatton, Leicestershire, to a pupil,

Pace 571.—Aston Church, near Birmingham.

Pace 573.—Oswestry, Salop.

Pace 575.—Geneva.

Pace 576.—Hatton Chancel.

Pace 577.—Choulesbury, Bucks.

Pace 579.—Kensington.

PAGE 581.—Budbroke, Warwickshire,

Pace 582.—In the Chapel of Emanuel Coll. Cambridge.

Pace 583.—St. Clement Danes, London.

Pace 584.—After the line coniver. B. M. the Christian name
of the lady of Mr. Barretti being unknown to Dr. Parr, was
omitted. A space was left for it in the original, which should
have been also marked in the printed copy.

Pace 585.---ἰ The poets often, and sometimes the prose wri-
ters, use parentum: but I prefer parentium. Horace says,

Dos est magna parentium
Virtus.

The grammarian Charisius says that Cicero generally wrote pa-
rentium. Again, parentium is found in many inscriptions, and
the learned Fabretti defends and illustrates this genitive plural as
more adapted to inscriptions than parentum.” S. PARR.

Pace 587.—A draft of an inscription to Dr. Warton; the
approved one, in Winchester Cathedral, follows in page 588,

Pace 589.—Archdeacon Wrangham did not make use of this
inscription, but adopted one written by himself,

PRECEDING INSCRIPTIONS. 715

Pace 590.—Worcester Cathedral.
Pace 591.—Rotten Park, near Birmingham.

Pace 592.—For Beauchamps Chapel; and the following for
the statue of Guy, at Guy’s Cliff near Warwick, the seat of the
late Bertie Greatheed, Esq.

Pace 594.—On a piece of plate presented by Thomas William
Coke, Esq. of Holkham.

Pace 595.—These windows adorn the cathedral of Lichfield,
and the inscription is in the east window of the south aisle.

Pace 596.—On a piece of plate presented by T. W. Coke, Esq.
Pace 597.—Colchester.

Pace 598.—In the garden of Ealing Rectory, Hants.

Pace 599—Wotton, Warwickshire.

Pace 600.—Intended for a monument to Mr. Pitt.

Pace 602.—Intended for the statue of that minister in the
senate house of Cambridge.

Pace 603.—Warrington, Cheshire. 1. 8. for prectpitTi read
PRAECIPITI.

Pace 604.—At Manchester.

Pace 605.—1. 4. for A saAcRIS read A SECRETIS,

Pace 606.—Inscribed on the Temple of Liberty erected in the
grounds of Woburn Abbey by the late Duke of Bedford.

Pace 607.—This inscription in honour of Mr. Fox is incom-
plete, wanting dates with which Dr. Parr was not furnished.

Pace 610.—“ Mr. Chamberlayne was eager to have a Latin
inscription. He liked that which I sent to him, and he never
put it up. S. Parr.”

Pace 611.—Overbury, Gloucestershire.
Pace 612.—The Charter House,

Pace 613.—On a mural monument at Eartham, a village
about two miles from Norwich. 1. 6 from bottom, for scr-
ENTIA read sciENTER. 1.5 from bottom, for gerrecrus read
AFFECTUS.

716 ILLUSTRATIONS OF THE |

Pace 616,—At Corunna, Spain.
Pace 619.—On a salver at Worcester College, Oxford.
Pace 621.—In the chapel of Caius Coll. Cambridge.
Pace 623.—These inscriptions to Mr. Barker are on fly-leaves
of M. Nizolius Lexicon Ciceronianum, Patavi, 1734.
And in Th. Reinesius Epistole ad Ch. Daumium, Jene,
1670, 4to.
Pace 625.—For Merton College, Oxford.
Pace 626.—For a painted window at Merton College.

Pace 627.—In Grabe’s Spicilegium SS. Patrum, ut et Hereti-
corum, seculi post Christum natum i. ii. iii. ἄς.

Pace 62S.—West Bromwich.

Pace 629.—On a blank leaf ina copy of Graffe’s Lexicon
Prosodiarum, Gottingen, 1811, and of Draco’s Liber de Metris
Poeticis, Lips. 1812.

Pace 631.—Harrow on the Hill.

Pace 632.—The original and intended inscription for the vase
presented by the late Emperor of Russia to the Warden and Fel-
lows of Merton College, Oxford.

Pace 633.—This is inscribed on the same vase, and the va-
riations from the preceding inscription were made without Dr.
Parr’s knowledge and consent.

Pace 634.—On a pyramidal building erected over King Rich-
ard’s Well in Bosworth Field.

Pace 635.—This cup has been generously given back by Dr,
John Johnstone to be preserved, with Dr. Parr’s plate, in the
family.

Pace 636,—In Poleni Supplementa, 5 vols. folio, printed at
Venice.

Pace 637.— Leicester.

Pace 638.—Dr. Parr presented this cup to his friend the Arch-
deacon Butler, by whom it has been generously returned to Dr.
Parr’s representatives,

PRECEDING INSCRIPTIONS. 717
Pace 640.—In the south aisle of Westminster Abbey, be-
tween the monuments of Doctors Knipe and Stepney.
Pacr 644.—Rejected draft of an Inscription to Bp. Bennet.
Pace 645.—This is the revised and adopted inscription.

- Pace 646.—On a silver basin in the possession of the Mar-
quis of Cholmondeley.

_ Pace 648.—This inscription, being found among Dr. Parr’s
papers, has been inserted hy mistake. It was written by his
friend and learned pupil Dr. Maltby.

Pace 649.—In a book presented to Thomas Denman, Esq.

Pace 650.

““ Bibliotheca mea, uti nuper comperi, novies mille et octin-
genta volumina continet. Per id gratum mihi perque honori-
ficum est, quod multi eorum dono mihi dati sunt a viris, quos
ob ingenium aut doctrinam aut virtutem caros semper habui.
At neutiquam me impetrare possum, ut dissimulem et tot libris
ne unum quidem esse, qui equeé estimari debeat, ac prima hec
Aristophanis editio, quam Samuelis Romilly benevolentie pia
et grata mente acceptam refero. S. Parr.”

This book is deposited by Dr. Parr’s orders in the library of
Emanuel College, Cambridge.

Pace 651.—for assERVANDUM read ASSERVANDAM.
Pace 652.—In a book presented to Henry Brougham, Esq.

Paces 653—654— 655.—Dedicatory inscriptions in Bellenden
de Statu, to Burke, Fox, and Lord North.

Pace 658.—At Norwich.

Pace 659.—Birmingham, on a tablet of white marble, in the
chapel of which Dr. Priestley was minister.

Pace 660.—At Manchester.

Pace 662.—In the chancel of Hatton Church.

Pace 663.—Dr. Parr was not supplied with the date omitted.
Pace 664.—At Worcester.

Pace 668.—At Norwich,

VOL. IV. 228

718 ILLUSTRATIONS OF INSCRIPTIONS.

Pace 669.—In Hatton Chancel.

Pace 670.—-Dr. Parr's translation of his inscription over King
Richard’s well.
Pace 671.—North side of Hatton Chancel.

. Pace 672.—In “ Caroli Leonhardi Reinholdi Periculum, No-
ve Theorie Facultatis Representative Humane,” &c., Leip. 1797,

Pace 673.—Intended to commemorate the virtues of the late
Matthew Boulton, Esq. of Birmingham. For sBotron read
BOULTON. |

Face 674.—In a volume of Latin poems, containing,—

‘« Muse Regnantes,” and
““ Rex Platonicus.”

Pace 675.—Alcester Church, Warwickshire.

Pace 676.—North side of Hatton Chancel.

INDEX TO THE INSCRIPTIONS.

The references to Volume VIII. have relation to the
Illustrative Correspondence.

Andrews, Dr. 507

Arnold, Dr. 637, 716

Baldwin, Joseph, 577, 714. viii. 571

Barrett, [misprinted Baretti,] Edw.
584, 714. viii. 577

Barker, Ἐ, H. (in books) 623, 715

Bartlam, Rev. John, 675, 718

Robert, ibid.

Rev. Thos. 619, 716

Baynes, John, 567. viii. 559

Beauchamp Chapel, 592, 715

Bennet, Bp. 644, 645, 717. viii.646

Bolton, Rev. Edw. 663, 717

Bosworth-field, 634, 670, 716. viii.
632

Boulton, Matthew, F.R.S. 673, 718

Brougham, Henry, Esq. (in a book)
652, 717

Browne, Edw., Esq. 573, 714

Bruce, Mrs. 624

Burke, Edmund, 580. viii. 572

—— (in Bellendenus) 653

Burney, Dr.640, 717. viii. 635

Chapman, Charles, 658, 717

Clayton, Nathaniel, 642

Courtenay, John, Esq. 607, 715

Commere]], Fred. 79, 568. viii. 561

Davy, Mrs. 621, 716

Dawson, Henry, 569,714

Dealtry, Mrs. 665, viii. 653

Denman, T. Esq. (in a book) 649

Dog, Mr. Phillips’s,598,7 15. viii. 585

Dormer, Lady, 581, 714

Douglas, Hon. Dunbar and Hon.
Alexander, 586, viii, 577

Drake family, 656

Farmer, Dr. 582, 714. viii. 574

Fox, Rt. Hon. C. J. 608. viii. 592

(for Mr. Chamberlayne,) 610,

715. viii. 597 ape

(in Bellendenus) 654

Freeman, Rev. J. 618

Gabell, Dr. (in a book) 636,716

Gaches, D. 599, 715. viii. 587 _

Gibbon, Edward, 574. viii. 561

Greene, Mrs. 578

Guy’s Cliffe, 593,715

Howell, Rev James, 622. viii. 627

Hunmanby Church, 589, 714

Ingram, Rich. Esq. 664, 717.viii.651

Jesse, Rev. Wm. 628, 716

Johnson, Dr. 566, G78—714

Johnstone, Dr. James, 590, 715

Johnstone, late Dr. John, 635, 716

Dr. John, (portrait of Eras-
mus) 591, 715

Johnstone, John, jun. Esq. 564. 677

Legge, Hon. Wm, 575

Lichfield Cathedral, windows in,
595, 715

Lloyd, Chas. Esq., 660, 717. viii. 650

Lowndes, Miss, 669, 717

Lubbock, Rich. 613, 715. viii. 598

Lyon, John, 631, 716. viii. 628

Macartney, Earl, 605, 715

Mackintosh, Mrs. 583, 714. viii. 575

Martin, James, M. P. 611, 715

Mathias, T. J. (in a book) 629,
716

Melancthon’s Sententiw, 563, 677

720

Merton College, (Emperor of Rus-
sia’s visit) 625, 716

(window) 626,716

(cup) 632, 633, 716. viii. 629

Moises, Hugh, 642

Moore, Sir John, 616, 716. viii. 608

Nelson, Rev. Thos. 561, 677

North, Lord, (in Bellendenus) 665

_ Parr, Catharine Jane, 662, 717

— Mrs. Jane, 676, 718

Rey. Robt. 668, 717. viii.654

Percival, Dr. at Warrington, 603,
715

—— at Manchester, 604, 715

Pitt, Rt. Hon. Wm. (for a monu-
ment) 600. viii. 587

statue at Cambridge, 602, 715.
vili. 590

Plumptre, Robt. 594, 715

Priestley, Dr. 659, 717, viii. 648

Porson, Richard, 614

Raine, Dr. 612,715

Richard I[1.’s well, 634, 670, 716.

viii. 632. .
Rocksavage, Earl, (basin) 646, 717
Romilly, Sir Samuel (in a book)
650, 717

INDEX TO INSCRIPTIONS.

, ‘*

Roscoe, Wm. (in a book) 630 5

Routh, Dr. (in a book) 627, 716

Smith, Rev. Robt. 620

Smitheman, John, 576. viii. 561

Stewart, Dug. (in a book) 672, 718

Sumner, Dr. 562, 677. viii. 556

Sussex, Duke of, (Catalogue of
Library) 647

(in a book) 674, 713

Taylor, Dr. 565, 678

Thackeray, Dr. 559, 677. viii. 555

(Cup) 638, 716. viii. 638

Mrs. 671, 718

Townshend, Chas. Fox, 639

Tweddell family, 585, 714. viii. 578

Twining, Rev. T. 597, 715. vill. 584

Unthank, Wm. 596,715

Vaughan, Felix, 572

Warren, Dr. 579, 714

Warton, Dr. 587, 588, 714

Warwick, see Beauchamp Chapel

Wearden, Miss, 571, 714

Williams, Charles 560, 677

Williamson, G. H. Esq. 643

Woburn, Temple of Liberty, 606,
715

Wynne, Thos. 662, 717.

END OF VOLUME IV.

J. B. Nichols and Son, 25, Parliament Street,

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GAYLORD PRINTED IN U.S.A

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