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which my friend did, I have determined, after some deliberation, to insert the substance of my answer in this place.
"If the public service of our church should ever be directly employed in giving effect to the the sanctions of our Penal Code, the office of drawing up such a discourse as I have ventured to recommend would, I suppose, be assigned to more than one person. 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 Llandaff, Lincoln, St. David's, Cloyne, and Norwich, the Dean of Christchurch, 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 understanding of a Watson, the sound judgment of a Tomline, the extensive erudition of a Burgess, the exquisite taste and good nature of a Bennet, the calm and enlightened benevolence of a Bathurst, the various and valuable attainments of a Cyril Jackson, or the learning, wisdom, integrity, and piety of a Martin Routh.”-(Pp. 524, 525.)
In the name of common modesty, what could it have signified whether this author had given a list of ecclesiastics whom he thought qualified to preach about human laws? what is his opinion worth? who called for it? who wanted it? how many millions will be influenced by it?-and who, oh gracious Heaven! who are a Burgess-a Tomline-a Bennet-a Cyril Jackson-a Martin Routh ?-a Tom—a Jack-a Harry—a Peter?-All good men enough in their generation doubtless they are. But what have they done for the broad a? what has any one of them perpetrated which will make him to be remembered, out of the sphere of his private virtues, six months after his decease? Surely, scholars and gentlemen can drink tea with each other, and eat bread and butter, without all this laudatory cackling.
Philopatris has employed a great deal of time upon the subject of capital punishments, and has evinced a great deal of very laudable tenderness and humanity in discussing it. We are scarcely, however, converts to that system which would totally abolish the punishment of death. That it is much too frequently inflicted in this country, we readily admit; but we suspect it will be always necessary to reserve it for the most pernicious crimes. *Death is the most terrible punishment to the common people, and therefore the most preventive. It does not perpetually outrage the feelings of those wio are innocent, and likely to remain innocent, as would be the case from the spectacle of convicts working in the highroads and public places. Death is the most economical punishment, and it is of course the most irrevocable punishment, which is in some sense a good; for, however necessary it might be to inflict labour and imprisonment for life, it would never be done. Kings and Legislatures would take pity after a great lapse of years; the punishment would be remitted, and its preventive efficacy, therefore, destroyed. We agree with Philopatris, that the executions should be more solemn; but still the English are not of a very dramatic turn, and the thing must not be got up too finely. Philopatris, and Mr. Jeremy Bentham before him, lay a vast stress upon the promulgation of laws, and treat the inattention of the English Government to this point as a serious evil. It may be so—but we do not happen to remember any man punished for an offence which he did not know to be an offence; though he might not know exactly the degree in which it was punishable. Who are to read the laws to the people ? who would listen to them if they were read? who would comprehend them if they listened? In a science like law there must be technical phrases known only to professional men; business could not be carried on without them; and of what avail would it be to repeat such phrases to the people? Again, what laws are to be repeated, and in what places ? Is a law respecting the number of threads on the shuttle of a Spitalields weaver to be read to the corn growers of the Isle of Thanet? If not, who is to make the selection? If the law cannot be comprehended by listening to the vivå voce repetition, is the reader to explain it, and are there
to be law lectures all over the kingdom? The fact is that the evil does not exist. Those who are likely to commit the offence soon scent out the newlydevised punishments, and have been long thoroughly acquainted with the old ones. Of the nice applications of the law they are indeed ignorant; but they purchase the requisite skill of some man whose business it is to acquire it, and so they get into less mischief by trusting to others than they would do if they pretended to inform themselves. The people, it is true, are ignorant of the laws; but they are ignorant only of the laws which do not concern them. A poacher knows nothing of the penalties to which he exposes himself by stealing ten thousand pounds from the public. Commissioners of public boards are unacquainted with all the decretals of our ancestors respecting the wiring of hares; but the one pockets his extra percentage, and the other his leveret, with a perfect knowledge of the laws—the particular laws which it is his business to elude. Philopatris will excuse us for differing from him upon a subject where he seems to entertain such strong opinions. We have a real respect for all his opinions :-no man could form them who had not a good heart and a sound understanding. If we have been severe upon his style of writing, it is because we know his weight in the commonwealth : and we wish that the many young persons who justly admire and imitate him should be turned to the difficult task of imitating his many excellences rather than the useless and easy one of copying his few defects.
ROSE'S OBSERVATIONS ON FOX. (E. REVIEW, July, 1809.) Observations on the Historical Work of the Right Honourable Charles James Fox. By the
Right Honourable GEORGE ROSE. Pp. 215. With a Narrative of the Events which occurred in the Enterprise of the Earl of Argyle in 1685. By Sir PATRICK HUME. 4to,
pp. 67. London: 7809. This is an extraordinary performance in itself;—but the reasons assigned for its publication are still more extraordinary. A person of Mr. Rose's consequence—incessantly occupied, as he assures us, “with official duties, which take equally,” according to his elegant expression, “from the disembarrassment of the mind and the leisure of time, thinks it absolutely necessary to explain to his country the motives which have led him to do so idle a thing as to write a book. He would not have it supposed, however, that he could be tempted to so questionable an act by any light or ordinary consideration. Mr. Fox and other literary loungers may write from a love of fame, or a 'relish for literature; but the official labours of Mr. Rose can only be suspended by higher calls. All his former publications, he informs us, originated in "a sense of public duty ;' and the present, in “an impulse of private friend. ship." An ordinary reader may perhaps find some difficulty in comprehending, how Mr. Rose could be “impelled by private friendship" to publish a heavy quarto of political observations on Mr. Fox's History :—and for our own part, we must confess that after the most diligent perusal of his long explanation we do not in the least comprehend it yet. The explanation, however, which is very curious, it is our duty to lay before our readers.
Mr. Rose was much patronised by the late Earl of Marchmont, who left him his family papers with an injunction to make use of them, “if it should ever become necessary.” Among these papers was a narrative by Sir Patrick Hume, the Earl's grandfather, of the occurrences which befell him and his associates in the unfortunate expedition undertaken by the Earl of Argyle in 1685. Mr. Fox, in detailing the history of that expedition, has passed a censure, as Mr. Rose thinks, on the character of Sir Patrick; and to obviate
the effects of that censure he now finds it “necc:ssary" to publish this volume.
All this sounds very chivalrous and affectionate ; but we have three little remarks to make. In the first place, Mr. Fox passes no censure on Sir Patrick Hume. In the second place, this publication does by no means obviate the censure of which Mr. Rose complains. And thirdly, it is utterly absurd to ascribe Mr. Rose's part of the volume, in which Sir Patrick Hume is scarcely ever mentioned, to any anxiety about his reputation.
In the first place, it is quite certain that Mr. Fox passes no censure on Sir Patrick Hume. On the contrary, he says of him, that “he had early distinguished himself in the cause of liberty ;” and afterwards rates him so very highly as to think it a sufficient reason for construing some doubtful points in Sir John Cochrane's conduct favourably, that "he had always acted in conjunction with Sir Patrick Hume, who is proved by the subsequent events, and indeed by the whole tenor of his life and conduct to have been uniformly sincere and zealous in the cause of his country." Such is the deliberate and unequivocal testimony which Mr. Fox has borne to the character of this gen. tleman; and such the historian, whose unjust censures have compelled the Right Honourable George Rose to indite 250 quarto pages, out of pure regard to the injured memory of this ancestor of his deceased patron.
Such is Mr. Fox's opinion, then, of Sir Patrick Hume; and the only opinion he anywhere gives of his character. With regard to his conduct he observes, indeed, in one place that he and the other gentlemen engaged in the enterprise appear to have paid too little deference to the opinion of their noble leader; and narrates in another that at the breaking up of their little army they did not even stay to reason with him, but crossed the Clyde with such as would follow them. Now, Sir Patrick's own narrative, so far from contradicting either of these statements, confirms them both in the most remarkable manner. There is scarcely a page of it that does not show the jealous and controlling spirit which was exercised towards their leader; and with regard to the concluding scene, Sir Patrick's own account makes infinitely more strongly against himself and Sir John Cochrane than the general statement of Mr. Fox. So far from staying to argue with their general before parting with him, it appears that Sir Patrick did not so much as see him ; and that Cochrane, at whose suggestion he deserted him, had in a manner ordered that unfortunate nobleman to leave their company. The material words of the narrative are these :
“On coming down to Kilpatrick, I met Sir John (Cochrane), with others accompanieing him; who takeing mee by the hand, turned mee, saying, My heart goe you with mee? Whither goe you said I. Over Clide by boate, said he.-I: Wher is Argyle? I must see him.-He: He is gone away to his owne countrey, you cannot see him.-I: How comes this change of resolution, and that wee went not together to Glasgow 1-He: It is no time to answer questions, but I shall satisfy you afterward. To the boates wee came, filled 2, and rowed over, &c.-An honest gentleman who was present told mee afterward the manner of his parting with the Erle. Argyle being in the room with Sir John, the gentleman coming in, found confusion in the Erle's countenance and speach. In the end he said, Sir John, I pray advise mee what shall I doe ; shall I goe over Clide with you, or shall I goe to my owne countrey ? Sir John answered, "My Lord, I have told you my opinion ; you have some Highlanders here about you; it is best you goe to your own countrey with them, for it is to no purpose for you to goe over Clide. My Lord, faire you well. Then call'd the gentleman, Come away, Sir; who followed him when I met with him."-Sir P. Hume's Narrative, Pp. 63, 64.
Such are all the censures which Mr. Fox passes upon this departed worthy; and such the contradiction which Mr. Rose now thinks it necessary to exhibit. It is very true that Mr. Fox, in the course of his narrative, is under the necessity of mentioning, on the credit of all the historians who have treated of the subject, that Argyle, after his capture, did express himself in terms of strong disapprobation both of Sir Patrick Hume and of Sir John Cochrane ; and said that their ignorance and misconduct was, though not designedly, the chief cause of his failure. Mr. Fox neither adopts nor rejects this sentiment. He gives his own opinion, as we have already seen, in terms of the highest encomium, on the character of Sir Patrick Hume, and merely repeats the expressions of Argyle as he found them in Woodrow and the other historians, and as he was under the necessity of repeating them, if he was to give any account of the last words of that unfortunate nobleman. It is this censure of Argyle, then, perhaps, and not any censure of Mr. Fox's, that Mr. Rose intended to obviate by the publication before us. But, upon this supposition, how did the appearance of Mr. Fox's book constitute that necessity which compelled the tender conscience of Lord Marchmont's executor to give to the world this long-lost justification of his ancestor? The censure did not appear for the first time in Mr. Fox's book. It was repeated, during Sir Patrick's own life, in all the papers of the time, and in all the historians since. Sir Patrick lived nearly forty good years after this accusation of Argyle was made public; and thirty-six of those years in great credit, honour, and publicity. If he had thought that the existence of such an accusation constituted a kind of moral necessity for the publication of his narrative, it is evident that he would himself have published it; and if it was not necessary, then, while he was alive to suffer by the censure of his leader, or to profit by its refutation, it is not easy to understand how it should be necessary now, when 130 years have elapsed from the date of it, and the bones of its author have reposed for nearly a century in their peaceful and honoured monument.
That the narrative never was published before, though the censure, to which it is supposed to be an antidote, had been published for more than a century, is a pretty satisfactory proof that those who were most interested and best qualified to judge, either did not consider the censure as very deadly, or the antidote as very effectual. We are very well contented to leave it doubtful which of these was the case; and we are convinced that all the readers of Mr. Rose's book will agree that it is still very doubtful. Sir Patrick, in his narrative, no doubt, says that Argyle was extremely arrogant, self-willed, and obstinate ; but it is equally certain that the Earl said of him that he was jealous, disobedient, and untractable. Both were men of honour and veracity; and, we doubt not, believed what they said. It is even possible that both may have said truly ; but, at this distance of time, and with no new evidence but the averment of one of the parties, it would be altogether ridiculous to pretend to decide which may have come nearest to an impartial statement. Before the publication of the present narrative, it is plain, from Woodrow, , Burnet, and other writers, that considerable blame was generally laid on : Argyle for his peremptoriness and obstinacy; and, now that the narrative is published, it is still more apparent than ever that he had some ground for the charges he made against his officers. The whole tenor of it shows that they were constantly in the habit of checking and thwarting him; and we have already seen that it gives a very lame and unsatisfactory account of their strange desertion of him, when their fortunes appeared to be desperate.
It is perfectly plain, therefore, we conceive, that the publication of Mr. Fox's book constituted neither a necessity nor an intelligible inducement for the publication of this narrative ; and that the narrative, now that it is published, has no tendency to reinove any slight shade of censure that history may have thrown over the temper or prudence of Sir Patrick Hume. But, even if all this had been otherwise,-if Mr. Fox had, for the first time, insinuated a censure on this defunct Whig, and if the narrative had contained the most
complete refutation of such a censure—this might indeed have accounted for the publication of Sir Patrick's narrative ; but it could not have accounted at all for the publication of Mr. Rose's book-the only thing to be accounted for. The narrative is given as an appendix of 65 pages to a volume of upwards of 300. In publishing the narrative, Mr. Rose did not assume the character of
an author,” and was not called upon, by the responsibility of that character, to explain to the world his reasons for “submitting himself to their judgment.” It is only for his book, then, exclusive of the narrative, that Mr. Rose can be understood to be offering any apology; and the apology he offers is that it sprung from the impulse of private friendship. When the matter is looked into, however, it turns out, that though private friendship may, by a great stretch, be supposed to have dictated the publication of the appendix, it can by no possibility account, or help to account, for the composition of the book. Nay, the tendency and tenor of the book is such as this ardent and romantic friendship must necessarily condemn. It contains nothing whatever in praise or in defence of Sir Patrick Hume; but it contains a very keen, and not a very candid, attack upon his party and his principles. Professing to be published from anxiety to vindicate and exalt the memory of an insurgent revolution Whig, it consists almost entirely of an attempt to depreciate Whig principles, and openly to decry and vilify such of Mr. Fox's opinions as Sir Patrick Hume constantly exemplified in his actions. There never was an effect, we believe, imputed to so improbable a cause.
Finally, we may ask, if Mr. Rose's view, in this publication, was merely to vindicate the memory of Sir Patrick Hume, why he did not put into Mr. Fox's hands the information which would have rendered all vindication unnecessary? It was known to all the world, for several years, that Mr. Fox was engaged in the history of that period; and if Mr. Rose really thought that the papers in his custody gave a different view of Sir Patrick's conduct from that exhibited in the printed authorities, was it not his duty to put Mr. Fox upon his guard against being misled by them, and to communicate to him those invaluable documents to which he could have access in no other way? Did he doubt that Mr. Fox would have the candour to state the truth, or that he would have stated with pleasure anything that could exalt the character of a revolution Whig? Did he imagine that any statement of his could ever attain equal notoriety and effect with a statement in Mr. Fox's history? Or did he poorly withhold this information, that he might detract from the value of that history, and have to boast to the public that there was one point upon which he was better informed than that illustrious statesman ? As to the preposterous apology which seems to be hinted at in the book itself, viz., that it was Mr. Fox's business to have asked for these papers, and not Mr. Rose's to have offered them, we shall only observe, that it stands on a point of etiquette which would scarcely be permitted to govern the civilities of trades. men's wives; and that it seems not a little unreasonable to lay Mr. Fox under the necessity of asking for papers, the very existence of which he could have no reason to expect. This narrative of Sir Patrick Hume has now lain in the archives of his family for 130 years, unknown and unsuspected to all but its immediate proprietor; and, distinguished as Sir Patrick was in his day in Scotland, it certainly does not imply any extraordinary stupidity in Mr. Fox not to know, by intuition, that there were papers of his in existence which might afford him some light on the subject of his history.
We may appear to have dwelt too long on these preliminary considerations, since the intrinsic value of Mr. Rose's observations certainly will not be affected by the truth or the fallacy of the motives he has assigned for publish, ing them. It is impossible, however, not to see that, when a writer assigns a