« PreviousContinue »
ing to their degrees, beginning at the lowest degree, and ending at the highest. This would be an instructive monitor, exhibiting, at one view, the whole field of interdicted action, and the dangers which, at every part of that field, the infringement of the interdiction brings along with it.
To enter into any detail of particulars so numerous as these which enter into a criminal code, with a view to show its perfections on the one hand, or its defects on the other, would, it is manifest, be an undertaking too extensive by far, for any such defign as that which at present engages us. A few very general reflections is all that we can now offer. The author's general notions of punishment are more nearly correct than those which he has expressed on any other branch of the subject. The beneficent ideas which the belt authors have diffeminated, are those which, for the most part, he has endeavoured to apply; and he has, at least, approximated towards a good application. From unqualified praise, however, even on this point, there are large deductions to be made. The pain of death, for example, is distributed with rather an unsparing hand. An instrument of punishment, fo liable to do evil rather than good, so incapable to any good which might not be better accomplithed by other means, as the pillory, that characteristic invention of a barbarous age, he carefully retains, and puts to extensive use. He decides for the power of pardoning, that is, the power of weakening the efficacy of the law; though, in a former work, he had violently condemned it. at that time, he tells us, France had no sovereign!-Such is the apology which, upon taking notice as he does, of his own inconfiftency, he thinks it fufficient to make for it.
The vagueness of his notions leads him to mix with his penal enactments a variety of such as necessarily belong to the non-penal branch of law, and even a variety of such as belong to procedure merely. Nay, which is more heterogeneous ftill, mere elucidations, instead of being exhibited as elucidations, in notes, or according to any other convenient arrangement distinct from the text of the law, are engrossed into the code as part of that text, and are not easily distinguished from the penal mandates with which they are incorporated.
Of all qualities in a legislator, the faculty of defining with clearness and accuracy, of marking strongly in words the boundary of the legal prescription, so that all men may, as certainly as possible, distinguith the actions which it includes, and the actions which it does not include, is one of the greatest importance. A vague law, as far as its vagueness extends, is not merely equivalent to the absence of law, but is a great deal worse. It leaves the power of the judge arbitrary, and covers the arbitrary exercise of that power with the semblance of law. Were the judge called upon to decide without à law, his decision would be watched, and tried at the formidable bar of public opinion. When he can hold up a law, by the vague words of which he can show that his decision is in some sense allowed, at whatever expense to justice he may thereby have gratified any of his finifter designs, the blame is immediately supposed to be altogether, or nearly, removed from his shoulders. In this respect, the extent to which vagueness prevails among the mental habits of M. Bexon, disqualified him, to a lamentable degree, for the task he has undertaken. Happily, of the cases composing the object of penal law, by far the greater number are distinguished by lines fo broad and strong, that almost any hand suffices to point them out. But in all these, in which the work of definition was a work of difficulty and skill, the performance of M. Bexon has little claim to applause. Among the instances of greatest importance, we may specify his laws relating to the liberty of conscience in matters of religion, to the liberty of the press, the respect due to the sovereign, &c. On these laws all security for liberty ultimately depends. Yet M. Bexon fo words his proposed enactinents, on those important heads, as to place, by mere vagueness, at the power of the governing men, almost every thing over which they would wish to domineer.
• Quiconque blâme l'autorité publiquement, ou repand le ridicule sur les lois et les réglemens établis dans l'etat, de maniere à affaiblir ou à faire mépriser le pouvoir, commet un delit.' (Code de Sureté, &c. liv. iv. tit 1. art. 14.)
Under these loose and flexible phrases of publicly blaming authority '---of throwing ridicule on the regulations of the state' of weakening power, or of exposing it to contempt,'-it is abundantly evident, that every species of criticism on public men and public measures may be punished ; and all the security for good government, which depends on the controul of public censure, cut off as effectually as it might be in England, by a law which should inflict punishment, if such a thing could be supposed, for publishing an opinion, that any high character, in a high situation, is unfit for his place,' or for publishing any thing by which the feelings of another might be hurt.' Again,
• Quiconque, par discours tenus publiquement, ou par des écrits, affichés ou distribués, imprimés ou non, ou par exposition, vente, debit, ou distribution de chansons, figures ou images, aura attaqué ou violé les principes de la sureté générale, de la paix publique ou de la morale universelle, ou aura provoqué au delit ou au crime, est coupable d'un delit.' (Ibid. art. 92.)
Here, again, under the vague phrases of violating the principles of general security, '-or of public peace,'-or of 'univer
fal morality,'- privilege is given to men in power to prosecute every writing which is disagreeable to them; and complete license is extended to the judge to give the colour of law to any decision by which men in power may be gratified; just as in England, the same privilege, and the same license, might be secured by a law, punishing any writing tending to ' disturb the public peace'-' contrary to good order'-or good morals '-or contrary to religion.'
Far, however, as this specimen of a penal code is from perfection - from that perfection which there is now light enough in Europe to bestow,- yet compare it with the old fystems-compare it, for example, with the Lois Penales of old France, or of any other continental country, and its excellence can hardly receive praises too strong. The utility of the whole community, not that of any particular classes, is the object constantly held in view, and to a considerable, though still imperfect degree, attained. Imaginary crimes are excluded. Punishment is not awarded according to the dictates of caprice, or of a blind antipathy, or a finifter interest, but of reason; calculating, with more or less exactness, but still fincerely, the greatest pollible prevention of evil.
The greateft advantage, however, of all, and an advantage which-had the execution been many times more imperfect than it is-would have been beyond all price, is--the poflellion of the penal laws in an express, and (till altered by legislative authority) an exclusive fet of words. Uncertainty, obscurity, and the range of arbiirary power in the hands of the judge-arbitrary power, in its very worst thape--masked with the vizard of the law,-are thus narrowed, how vague soever the definitions, to a compass which is as nothing, when compared with the almost boundleis dominion they usurp, while the law is unwritten, or common; while it is yet, as in the most barbarous states of society, fixed by no express form of words; and by consequence is, in many of the most important respects, whatever the judge chuses, by inference, from a vaft and varying mass of decifions or cases, to say that former judges have made it.
Art. VII. The Remains of Hesiod the Ascraan, translated from
the Greek into English Verse ; with a Preliminary Dissertation and Noies. By Charles Abraham Elton. 1809.
He reputation of Hesiod has in all ages rested more upon ano
ther's merit than his own. Like that steed of mortal birth, who was matched with coursers of divine pedigree in the chariot of Achilles Ος και θνηθος ων, επιθ' ίππους αθαναοιαι-
he has run his race to posterity in the best company. Homer and Hesiod have been familiarly named together for more than two thousand years as the twin parents of Grecian poetry. Yet this celebrity of his name has not altogether extended to his writings, which, in general, are not much noticed even by classical scholars. The
poems attributed to Hesiod are three : the Works and Days, the Theogony, and the Shield of Hercules. Of the poet himself scarcely any thing is known. When the Greeks, about the fixth century before our era, awaked to science and letters, they were attracted by the excellence of some of their traditionary poetry. What bore the name of Homer shone unrivalled : but, after Homer, they held in respect certain antient lays of a Boeotian, named Hefiod. But several ages of darkness had intervened; and as Greece had neither any history, nor even any public amufements so early as A. C. 600, there was nothing but the faint and vague light of tradition to direct their curiosity. How little this has availed to determine the character and age of Homer, is well known; and as much less solicitude was felt about Hefiod, it is natural that, with respect to him, at least equal ignorance should have prevailed. All that can be conjectured is from the evidence of his own writings. He lived, it seems, at Ascra near Helicon, which may perhaps have been the occasion of his devoting himself to serve the ladies of the manor. It may be inferred that his era was much later than that of the Trojan and Theban wars, since he ranks the heroes concerned in those exploits as a sort of demigods, who preceded the iron age of man's degeneracy. If, therefore, our common chronology can be trusted as to those obscure fragments of past times, we cannot place Hesiod earlier than 900 or 1000 years before Christ. On the other hand, there are in the whole poem
of the Works and Days, obvious traces of an imperfect stage of society. The government of his country seems to have been a semi-patriarchal monarchy, in which the office of judge was the most prominent part of the kingly character. No allusion is found to any art, except those necessary to agriculture and clothing ; while the moral precepts are partly uncouth and unintelligible superstitions, partly those simple rules of prudence and decency, which could hardly have been required beyond the infancy of civilized life. Compared with Homer, our Baotian poet is indisputably more rude in these respects, as well as in his language and prosody: yet we cannot perhaps infer from hence his greater antiquity, since the same defects may have proceeded from the comparative barbarism of that part of Greece wherein he dwelt. Of the sea, though he gives some directions for shipbuilding, Hesiod professes himself ignorant: but we cannot doubt that Homer was acquainted with various regions, and master of
whatever knowledge and politeness that age of the world afforded. This exceeding fimplicity, indeed, is perhaps the chief recommendation of the Works and Days. It feems a relic of remote times and primitive manners, which strike us perhaps more in a philofophical view, thus nakedly displayed, than when Mhadowed out in the splendid fictions of the Odyssey.
As a poet, Hesiod is remarkably unequal. Nothing can be more stupid than his georgical precepts in the Works and Days, or his catalogue of divinities in the Theogony. Yet the Prosopopæia of Justice in the former, and the combat of Gods and Titans in the latter, rise to considerable fublimity. It must be confefled, that before the artifices of a poet's trade were discovered, the just dimensions of a plough, or even the fifty daughters of Nereus, were most impracticable themes. But his brother Bæotians took all in good part : bad verses, like black bread, will easily go down where the taste is unpalled by satiety of what is better; and indeed the early Greeks were so far from lighting Heliod, that they coined a filly story of a poetical contest in which he carried the prize from Homer.
The present translator has had two predecessors in his task. Chapman, the first who made Homer English, produced a version also of the Works and Days. This, like his Homer, is executed with much fire, and strength of language; but is obscure and uncouth, and not always faithful to the sense. It is now an exceedingly
scarce book. Some extracts are given in the Appendix to Mr Elton's translation. Another was made by Cooke about the middle of the last century. This is well known; and has been republished in Anderson's Collection of Poets. Cooke, however, was a hero of the Dunciad; and his translation of Hefiod will not remove him from that bad eminence.' Mr Elton pelts him unmercifully throughout his notes, and seems a little too solicitous to prove a superiority which no one is likely to question. It is a very poor triumph to exeel a graduated Dunce like Cooke ; and would not, we fear, of itself place the present translation on a respectable footing. It has, however, considerable intrinsic merit. What inducement a man of Mr Elton's apparent talents and power of verlification can have had to so ungrateful a talk, we do not divine ; nor do we dare to fatter him with the hope, that Hefiod, who has long been neglected in Greek, will now become popular in English. But a few extracts, which we shall make, will evince, that Mr Elton is competent to more interesting works of translation.
No passage in the Theogony has been so justly celebrated as the battle of the Titans, in which it is not uninteresting to observe * th' access of that celestial thief' Milton, who had obviously fill