knowlegement in this refpect: and the Historical Tracts now before us, are equally intitled to the encomiums of the candid and-judicious.

The learned Author is, indeed, a Lawyer, in the moft honourable acceptation of the word. He has traced the Laws from their first fource, in the rude ftate of favage policy, and marked their progrefs and amendment to the prefent period of improvement.

The two volumes under prefent confideration, contain fourteen Tracts; viz. Hiftory of the Criminal Law.-Hiftory of Promifes and Covenants-Hiftory of Property-Hiftory of Security upon Land, for Payment of Debt-Hiftory of the Privilege which an Heir apparent in a feudal Holding has to continus the Poffeffion of his Anceftor-Hiftory of Regalities, and of the Privilege of Repledging-Hiftory of Courts-Hiftory of Brieves -Hiftory of Process in AbfenceHiftory of Execution against Moveables and Land, for Payment of Debt-Hiftory of perfonal Execution for Payment of Debt-Hiftory of Execution for obtaining Payment after the Death of the Debtor-Hiftory of the limited and univerfal Reprefentation of Heirs-Old and New Extent.

*

In difcuffing thefe fubjects, the Author difcovers a thorough knowlege of human nature, and a very intimate and extenfive acquaintance with History and Jurifprudence. He fhews by what flow, yet natural, advances, the Magiftrate became vefted with civil and criminal Jurifdiction. He explains the nature and changes of Property, from the first fimple and naked title of Poffeffion, to the more refined and complicated Rights which have fince taken place: and he traces the regular progrefs by which private injuries to individuals, became at length to be confidered as crimes against the public.

Thefe Difcourfes, as the Author obferves in his Preface, each of them relate to fubjects common to the Law of England, and of Scotland; and, in tracing the Hiftory of both, tend to introduce both into the Reader's acquaintance. They have fuch refemblance, as to bear a comparison almost in every branch; and they fo differ, as to illuftrate each other by their oppofition. Our Law, (meaning that of Scotland) will admit of many improvements from that of England; and, he adds, we are rich enough to repay with interest, all we have occafion to borrow.

We readily concur with our Author in his favourable fentiments of the Scotch Law. In criminal matters especially,

we

we are perfuaded that their Laws are more agreeable to the principles of Religion, and the dictates of Morality, than our own. It is obfervable, for inftance, that in their divifion of crimes, that of Blafphemy very properly holds the foremoft rank; whereas, according to our arrangement, it only takes place after a multitude of inferior offences, and, by fome, is even postponed to the imaginary fin of Witchcraft.

As the Writer, however, profeffes to fhew the analogy between the two Laws, it is to be wifhed, that he had treated his fubject in terms lefs technical; especially as his Difcourfes on the heads above enumerated, relate moftly to the Scotch Law, which very few, even Lawyers, among us, are acquainted with. It is but juft to acknowlege, nevertheless, that where our Author fpeaks as a Philofopher, and a Legiflátor, his ftile is nervous, clear, and copious.

Did our limits allow us to give an abstract of fuch various matters, we are perfuaded that most of them would be too dry and uninteresting to the generality of our Readers. We fhall therefore confine ourfelves to the firft head, viz. The Hiftory of the Criminal Law—a subject of general import, and of the highest concern to every member of a free state; as the preservation of Liberty depends chiefly on the perfection of the laws in criminal cafes.

Our Author-very judiciously opens this fubject, by confidering the feelings impreffed on delinquents by a fenfe of wrong, and the dread of punishment: proceeding in the next place, to analyze the nature of refentment in the party injured. Upon certain actions, he obferves, hurtful to others, the ftamp of impropriety and wrong is impressed in legible characters, vifible to all, not excepting even the delinquent. Paffing from the Action to its Author, we feel that he is guilty; and we alfo feel that he ought to be punished for his guilt. He himself, having the fame feeling, is filled with remorse; and his remorfe is accompanied with an anxious dread that the punishment will be inflicted.

Correfponding to the dread of punishment, is our indignation at grofs crimes, even when we do not suffer by them; and next Refentment in the perfon injured, even for the flighteft crime; by which fufficient provifion is made for inflicting the punishment that is dreaded. Refentment, when confined within due bounds, is authorized by Confcience. The de

*See Mackenzie's Criminal Laws of Scotland.

linquent

linquent is fenfible that he may be juftly punished; and the perfon injured is entitled to inflict the punishment. Revenge, therefore, when provoked by injury, or voluntary wrong, is a privilege belonging to every one by the Law of Nature: and thus, he concludes, the firft Law of Nature, regarding Society, that of abstaining from doing injury to others, is enforced by the moft efficacious fanctions.

These reflections are certainly ingenious, and, moft of them, juft. We are afraid, however, that the Author attributes feelings to Man in a ftate of Nature, of which he is only fufceptible in confequence of refined ideas, acquired from civilized fociety. That Savages are affected by dread of punishment, we make no doubt; but that they feel Remorse, or entertain a fenfe of Impropriety and Wrong, whenever they commit actions hurtful to others, we find no room to conclude. Nothing, according to notions generally received; is more hurtful to others, than to deprive the innocent of life. Yet what fhall we fay of human facrifices, which, in many parts of the world were formerly, and are ftill, in effect, authorized by cuftom? What shall we fay of those Savages, who kill their parents, when they are paft their labour, instead of labouring themselves for their fupport? Paff ing from thefe actions to their authors, we, who are civilized, find that they are guilty-guilty of murder and parricide: but they, lefs refined, do not feel the remorse of guilt; neither have they any fense of impropriety and wrong in these actions.

Our Author having eftablished the privilege of Revenge, from principles of Nature, proceeds to specify the different degrees in the paffion of Refentment; which, as he observes, is quiefcent, and quickly vanishes when the injury is done to a ftranger; but is active and keen, when the injury is offered to ourselves and so in proportion, according to the degree of connection.

In the next place, he confiders fome irregularities attending this paffion, which is often excited by involuntary wrongs. Sudden pain is fometimes fufficient to raise this paffion, where no injury is intended. By accidentally ftriking one's foot against a stone, a smart pain enfues, Refentment discovers itfelf at once, and prompts us to break the ftone to pieces : and yet, fays he, fuch indulgence was by the Athenians given to this irrational emotion, that if a man was killed by the fall of a stone, or other accident, the inftrument of death was destroyed.

Here we must obferve, that fomething analogous to this, is the Law of England; by which, when any moveable thing inanimate, or beaft animate, occafions the death of any man by mifchance, that thing, and every thing moving with it, is forfeited to the King, or Grantee of the Crown.

The Author continues to fpecify other irregularities attending the paffion of Refentment: fuch as not diftinguifhing the innocent from the guilty, by exerting it against the Relations of the criminal, and even against the brute creatures belonging to him. We wifh, however, that he had extended his reflections on this fubject. Certainly nothing can be more favage or irrational, than the confounding the innocent in the punishment of the guilty---A practice, in fome degree, ftill authorized by the policy of most modern states.

Having difcourfed of the Nature of Punishment, and of the irregular notions entertained concerning it, he proceeds to attend its progrefs through the different stages of focial life. Mutual defence,' fays he, against a more powerful neighbour, being, in early times, the chief or fole motive for joining in fociety, individuals never thought of furrendering to the public, any of their natural rights, that could be retained confiftently with their great aim of mutual defence. In particular, the privileges of maintaining their • own property, and of avenging their own wrongs, were referved to individuals full and entire. In the dawn of Society, accordingly, we find no traces of a Judge, properly fo called, who hath power to interpofe in differences, and to force perfons at variance, to fubmit to his opinion. If a difpute about property, or about any civil right, could not be adjusted by the parties themselves, there was no other method, but to appeal to fome indifferent perfon, whofe opinion fhould be the rule. This method of deter-. mining civil differences was imperfect; for what if the parties did not agree upon an arbiter? Or what if one of them proved refractory, after the chofen arbiter had given his opinion? To remedy these inconveniencies, it was found expedient to establish Judges, who, at firft, differed in one circumftance only from Arbiters, that they could not be declined. They had no magifterial authority, not even that of compelling parties to appear before them. This is evident from the Roman Law, which subsisted many centuries before the notion obtained of a power in a Judge to force a party into Court. To bring a difputable matter to an iflue, no other means occurred, but the making it lawful for the complainer to drag his party before the

Judge,

Judge, ottorto collo, as expreffed by the writers on that law: and the fame regulation appears in the laws of the Vifi રે goths. But Jurifdiction, at firft merely voluntary, came gradually to be improved to its preferit ftate of being compulfory, involving fo much of the magifterial authority as is neceflary for explicating Jurifdiction, viz. Power of calling a party into Court, and power of making a fentence effectual. And in this manner civil Jurifdiction, in progrefs of time, was brought to perfection.

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

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

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

Y 2

was