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under fo plaufible a title, and with fuch fpecious pretenfions, by a number of proofs fufficient tò eftablish the juftice of the fentence which we have paffed upon it. We have accordingly, on this occafion, rather chofen to run the hazard of being thought too diffufe, or even tedious, than that of appearing dogmatical, capricious, or unjust. At the fame time, we must own that, on other occafions, the narrow limits of our work, and our apprehenfions of tiring the patience of our Readers, frequently deter us from fupporting, fo fully as we have now done, the juft cenfures which truth obliges us to pafs, by the numerous and folid proofs on which they are founded. We are accordingly, for thefe very reafons, frequently obliged to throw ourfelves on their favourable opinion of our impartiality in hopes that they will not haftily believe (to use nearly our own words on a former occafion) that when we do not give all the reafons which determine us, we have no more reafons to give.
With regard to the Author, we honeftly affure him that we have not been unmindful of his request above quoted from the introduction, and that, accordingly, we have not, in any part of this article, been actuated by pride, prejudice, or envy. We entertain not an overweening opinion of our own talents; nor do we envy thofe of the Author; ftill lefs can we entertain any prejudice against him: as we are perfect ftrangers to his perfon and connections. We fat down to this account in perfect charity with him, and, fevere as it may feem to him, have drawn it up, not in the fpirit of cankered criticifm, but as favourably as is confiftent with that critical integrity which we profefs and mean to practise, and with that duty which we owe to the public, and which we hold fuperior to all private or perfonal confiderations. If we have been more than ufually ludicrous in our strictures on fome parts of this work, we profefs, and our Readers cannot but be fenfible, that there is fomething in the Doctor's manner which rendered it impoffible for us to refift the numerous and provoking temptations to rifibility which he laid before us. In fhort, both the feverities and the pleafantries of the preceding account have been extorted from us by the unfair title, the unexampled plagiarisms, and ftrange contents of this work, which would juftify a greater afperity of cenfure, and a more pointed ridicule than what we have beftowed upon it.
Having premited this much in juftice to ourselves, our good nature at the fame time induces us to exprefs our wishes that the Readers of this account, who may be more nearly connected with the Author, would make a diftinction between Dr. Smith, viewed only in the light of an author, and the fame gentleman confidered as a practitioner; as it is very far from our with or intention that what we have faid of him, in the former of thefe characters, fhould be unfairly extended to his prejudice, in the latter
latter. We have indeed fully, and without ceremony, convicted him of being the author of a very bad, and, which aggravates the offence, a voluminous work; at the fame time, we do not, nor would we have others from thence hastily, perhaps inconfequentially, infer that the private practice of the Doctor is infected with the errors, puerilities or abfurdities contained in this injudicious, perhaps hafty, compilation. Though we may appear to have thewn no great degree of tenderness towards the Author, we are tempted to fay thus much in favour of the physician, and of the man; while our perfect ignorance of his perfon and practice does not enable us, with justice, to say more.-And, to give the best proof in our power that we bear no ill-will towards him, nor wifh for a fresh occasion of criticifing or ridiculing his productions, we heartily and fincerely advife the Doctor to fupprefs, or at leaft to poftpone the publication of, his intended treatife on poifons, and of that which he is meditating for the inftruction of furgeons; unless they fhould be of a very different ftamp either from the present or his former performance. The Author may poffibly confider this advice as an additional piece of severity, or even infult: but in fo doing he will do very great injuftice to the friendly intentions with which it is given, and in which we confult his credit as much at least, as we do our own future ease.
Commentaries on the Laws of England. Book IV. By William Blackftone, Efq; Solicitor General to her Majefty. 4to. 18 s. in Sheets. Oxford, printed at the Clarendon Prefs. 1769.
HE reputation of this work is fo well established, and we have had fuch frequent opportunities of acknowledging its great merit and ufefulnefs, that it is altogether unneceflary, at prefent, to add any thing to the praifes already bestowed upon it.
Our Author is now arrived at the fourth and laft branch of his Commentaries; which treats of public wrongs, or crimes and mifdemefnors. Having confidered private wrongs, or civil injuries, in his third book, he now proceeds to the fubject of public wrongs, with the means of their prevention and punishment. In the purfuit of this fubject he fhews, in the firft place, the general nature of crimes and punishments; fecondly, the perfons capable of committing crimes; thirdly, their feveral degrees of guilt, as principals or acceffories; fourthly, the feveral fpecies of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their perpetration; and, laftly, the method of inflicting
those punishments, which the law has annexed to each several crime and mifdemesnor.
The judicious Reader will be highly pleafed with many of his remarks upon our criminal law, and the obfervations wherewith he introduces this part of his fubject:
The knowledge of this branch of jurisprudence, fays he, which teaches the nature, extent, and degrees of every crime, and adjufts to it its adequate and neceffary penalty, is of the utmost importance to every individual in the ftate. For (as a very great master of the crown law has obferved upon a fimilar occafion) no rank or elevation in life, no uprightnefs of heart, no prudence or circumfpection of conduct, fhould tempt a man to conclude, that he may not at fome time or other be deeply interested in these refearches. The infirmities of the best among us, the vices and ungovernable paffions of others, the inftability of all human affairs, and the numberlefs unforeseen events, which the compass of a day may bring forth, will teach us (upon a moment's reflection) that to know with precifion what the laws of our country have forbidden, and the deplorable confequences to which a willful disobedience may expofe us, is a matter of univerfal concern.
In proportion to the importance of the criminal law, ought alfo to be the care and attention of the legislature in properly forming and enforcing it. It fhould be founded upon principles that are permanent, uniform, and univerfal; and always conformable to the dictates of truth and juftice, the feelings of humanity, and the indelible rights of mankind: though it fometimes (provided there be no tranfgreffion of these eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occafional neceffities of the ftate which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their ftead the impetuous dictates of avarice, ambition, and revenge; from retaining the difcordant political regulations, which fucceffive conquerors or factions have established, in the various revolutions of government; from giving a lafting efficacy. to sanctions that were intended to be temporary, and made (as Lord Bacon expreffes it) merely upon the fpur of the occafion; or from, laftly, too haftily employing fuch means as are greatly difproportionate to their end, in order to check the progrefs of fome very prevalent offence; from fome, or from all, of these caufes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil. I fhall not here enter into any minute enquiries concerning the local conftitutions of other nations; the inhumanity and miftaken
Sir Michael Fofter. pref. to Rep.
policy of which have been fufficiently pointed out by ingenious writers of their own §. But even with us in England, where our crown-law is with juftice fuppofed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties lefs uncertain and arbitrary; where all our accufations are public, and our trials in the face of the world; where torture is unknown, and every delinquent is judged by. fuch of his equals, against whom he can form no exception nor even a perfonal diflike ;--even here we fhall occasionally find room to remark fome particulars, that feem to want revifion and amendment. These have chiefly arifen from too fcrupulous an adherence to fome rules of the ancient common law, when the reafons have ceafed upon which thofe rules were founded; from not repealing fuch of the old penal laws as are either obfolete or abfurd; and from too little care and attention in framing and paffing new ones. The enacting of penalties, to which a whole nation fhall be fubject, ought not to be left as a matter of indifference to the paffions or interefts of a few, who upon temporary motives may prefer or fupport fuch a bill; but be calmly and maturely confidered by perfons, who know what provifions the law has already made to remedy the mifchief complained of, who can from experience forefee the probable confequences of those which are now propofed, and who will judge without paffion or prejudice how adequate they are to the evil. It is never ufual in the houfe of peers even to read a private bill, which may affect the property of an individual, without first referring it to fome of the learned judges, and hearing their report thereon. And furely equal precaution is neceflary, when laws are to be eftablifhed, which may affect the property, the liberty, and perhaps even the lives, of thoufands. Had fuch a reference taken place, it is impoffible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fifhpond, whereby any fish fhall efcape; or to cut down a cherry-tree in an orchard*. Were even a committee appointed but once in an hundred years to revife the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be feen for one month in the company of perfons who call themselves, or are called, Egyptians t.
It is true, that the fe outrageous penalties, being feldom or never inflicted, are hardly known to be law by the public: but that rather aggravates the mifchief, by laying a fnare for the unwary. Yet they cannot but occur to the obfervation of any
Baron Montefquieu, Marquis Beccaria, &c. Vol. II. p. 345. Stat. 9 Geo. 1. c. 22. 31 Geo. II. c. 42.
Stat. 5 Eliz. c. 20.
one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles and it is the duty of fuch a one to hint them with decency to those, whofe abilities and stations enable them to apply the remedy. Having therefore premifed this apology for fome of the enfuing remarks, which might otherwife feem to favour of arrogance, I proceed now to confider (in the first place) the general nature of crimes.
In treating of offences against God and religion, and in other parts of his truly admirable work, we are forry to fay, that our Author fhews a narrow and fomewhat illiberal turn of mind in regard to Proteflant Diffenters, and of course a strong attachment to what are called High-Church principles. Juftice to our Readers, and to ourselves, obliges us to take notice of this, though we are really concerned to fee fo able and judicious a Writer betray a littleness and peevishness of fpirit, which he might eafily have concealed without any injuftice to his fubject.Hear what he fays:
Another fpecies of offences against religion are those which affect the established church. And thefe are either positive, or negative. Pofitive, as by reviling its ordinances: or negative, by non-conformity to its worship. Of both thefe in their order.
1. And, firft, of the offence of reviling the ordinances of the church. This is a crime of a much groffer nature than the other of mere non-conformity: fince it carries with it the utmoft indecency, arrogance, and ingratitude: indecency, by fetting up private judgment in oppofition to public; arrogance, by treating with contempt and rudenefs what has at leaft a better chance to be right, than the fingular notions of any particu lar man; and ingratitude, by denying that indulgence and liberty of conscience to the members of the national church, which the retainers to every petty conventicle enjoy. However it is provided by ftatutes i Edw. VI. c. I. and I Eliz. c. I. that whoever reviles the facrament of the Lord's fupper, fhall be punished by fine and imprisonment: and by the ftatute 1 Eliz. c. 2. if any minifter fhall speak any thing in derogation of the Book of Common Prayer, he fhall be imprifoned fix months, and forfeit a year's value of his benefice; and for the fecond offence he shall be deprived. And if any perfon whatsoever shall, in plays, fongs, or other open words, fpeak any thing in derogation, depraving, or defpifing of the faid book, he shall for feit for the firft offence an hundred marks, for the fecond four hundred; and for the third fhall forfeit all his goods and chattels, and fuffer imprisonment for life. Thefe penalties were framed in the infancy of our prefent eftablishment; when the difciples of Rome and of Geneva united in inveighing with the U 4