retaliation and attonement, but likewife by the most antient of all laws, that of the Jews [c], blood was to be fhed for blood. ·

In the Homerical times, murder was punished by a wergild, or banishment.

that the mur

There are likewife paffages in the Odyffey, which fhew, derer was not looked upon with horror, as Minerva (under disguise, and pretending to be an old friend of Ulyffes) speaks highly in his praife, when he went to procure fome poifon for arrows-which were never used in those times against an enemy in battle.

Φάρμακον ανδροφόνον διζήμενος, ὄφρά οἱ εἴη 21. Τὰς χρίεθαι χαλκήρεας

Odyff. A. 261.

And the fuitors of Penelope afterwards fuppofe, that Telemachus, with whom they live upon tolerable terms, is gone to a neighbouring island, ὀφρ ̓ ἐνθὲν θυμόφθορα φάρμακ' ἐνείκη,

Ἐν δὲ βάλῃ κρητήρι, καὶ ἡμέας πάνας ὀλέπη

Minerva likewise advises to destroy the fuitors:

Odyff.

- dórw, ĥ aupado Which is very extraordinary advice to be given by a deity; efpecially as the whole crime in the fuitors was the trefpaffing, perhaps, too long upon Telemachus's hofpitality.

By the laws of the twelve tables, murder was a capital offence amongst the Romans; but by the Lex Portia, all capital punishments might be remitted for that of banishment, as appears by the famous speeches of Cæfar, and Cato in Saluft-Horace claffes an affaffin only with an adulterer: Si machus foret, aut ficarius, aut alioqui Famofus.

And if we may credit the accounts of modern travellers, this most base and atrocious crime is ftill practifed in Italy with a degree of impunity, and

[c] The Jewish city of refuge, however, amounted nearly to the benefit of clergy, and ftill more fo to the privilege of fanctuary-Both Herodotus and Briffonius inform us, that the antient kings of Perfia never permitted a criminal to be punished for the firft offence, which likewife amounted to the fame thing with our benefit of clergy.

often

often in the face of the fun-Affaffination is faid, likewife, to be still not uncommon in Spain, and Portugal; and amongst the defences, which a perfon accused of murder may infist upon, the first mentioned is, that the perfon flain was fu enemigo conocido [d].

It is well known that the wergild [e], or fatisfaction to the relations of the perfon murdered, was thought fufficient atonement; and there is in the laws of Athelstan, collected by Joannes Brompton, a general head thus collected:" cujus ætatis, et pro quo pretio, aliquis fit occidendus [f]"-Thus likewife by the laws of Ina, " qui puerum genuerit et celaverit, non habeat interfecti Weram, fed Rex et Dominus [g]" It appears by the 26th of Henry VIII. ch. 6. that compofitions for murder were then paid in Wales, as it does alfo by Krebs (in his treatise de ligno et lapide [b]) that they still continue to be paid in Saxony.

Tacitus gives us the reafon of this very fingular cuftom's prevailing amongst the Germans, "Luitur homicidium certo pecudum vel armento- ! "rum numero, recipitque fatisfactionem univerfa domus, utiliter in "publicum, quia periculofiores funt inimicitiæ juxta libertatem"And, indeed, all barbarians are particularly addicted to revenge [i].

Boulainvilliers, in his Hiftoire abregé de France [k], informs us, that if the criminal himself could not pay the Wergild, his relations were liable. And in another place he fays, "Le Franc ne couroit jamais rifque de fa vie, dans les combats."

que

I have before mentioned, that the Mexicans punished murder by a wergild; it fhould feem likewife, that this cuftom is fpread over most parts of Afia, though the Koran hath, in part, adopted the Mofaical law [1] Modern travellers, and lady Mary Wortley in particular, mention, that little enquiry is made about a murder at this day in Turkey,

[d] Fuer. Real de Efp. 245.

[e] It appears by Herrera, that the Mexicans likewife punish by a wergild for murder. [f] Decem Script. p. 821.

[g] The moft fingular wergild is by the laws of Canute. If murder be committed in a church, the fatisfaction fhall be paid to Jefus Chrift, the king, and the relation. Wilkins, xli.

[b] P. 297.

[i] It appears, however, by Lindenbrogue and Baluxius, that this cuftom did not prevail in all parts of Germany.

[*] P. 200.

[O! true believers, the law of retaliation is ordained you for the flain-The free shall die for the free, the servant for the servant, and a woman for a woman-But he whom his brother fhall forgive, may make fatisfaction according to what is juft. This is indulgence from your Lord, and mercy. Sale's Koran.

"It is the business of the next relation to profecute, and if they like "better to compound the matter (as they generally do) there is no more "faid of it," vol. iii. p. 39- Gemelli likewife informs us, that in the Mogul's territories a weregild is due to the relations, but that it is reckoned difhonourable to claim it.

I should apologize for the length of these observations, and the many -authorities, I have; cited, to fhew that murder, by moft laws, hath not been attended with its proper punishment of death (and which, indeed, is not a fufficient atonement for the crime) did it not tend to make every Englishman happy to be born in the prefent times, when a juft horror is conceived of this moft atrocious of offences, and that, whilft he enjoys the bleffings of a free government, his life, and his continuing to enjoy them, is infured by every poffible human precaution; and, what is perhaps still more valuable, he is fecured even from the apprehenfion of receiving his death from the hands of his neighbour-Life is fcarcely worth a thought whilft the mind can harbour fuch a fufpicion [m].

This is the last ftatute of Henry the Seventh which I fhall have occafion to make any observations upon—It is well known, that this king hath had an express panegyrift in the great lord Bacon, who, however, is obliged to admit, that towards the latter end of his reign he was too much inclined to the left-hand, in order to reap forfeitures; and if this had not been admitted by his principal historians, the known punishments of Empson and Dudley [n] in the next reign for their illegal extortions, in order to fill the king's coffers, have put this blemish in his character past all cavil or dif pute-I have before observed, that the statute of alienations (as it is stiled by lord Bolingbroke and others, and with fuch profufion of commendations) was by no means fo extenfive in its confequences as they have apprehended, nor could poffibly have been, if they had read this ftatute with any degree of attention - Henry had, however, the merit, either from. reasons of policy, or perhaps more humane motives, to render the lower class of people more independent and free from the oppreffion of the rich and powerful, of which a ftatute of the 11th year of his reign [o], entitled, A mean

[m] Having faid fo much with regard to the Wergild, or Weregild, I fhall here hazard an etymology of the word, though it does not agree with the Gloffaries--The word war is rendered by Bullet, doux, clement, benin - And the word gild (amongst other fignifications) by a tax or fine: Wergild, therefore, fignifies the mild fine or punishment; and fo it certainly is, for fo horrid a crime as murder.

[n] Henry VII. at first compounded for fmall penalties on penal profecutions; but growing more avaricious, he appointed Empfon and Dudley to be masters and furveyors of them. Graft. p. 57-Reftitution was made by the exccutors of this king of feveral of thefe penalties. Ibid. [] Bafilikon dugor.

to

to help and speed poor perfons in their fuits, and commonly known by the name of the Pauper act [p], is a very fufficient proof-He therefore deferves the honourable title which James the First [q] fays his grandfather had obtained, viz. The poor man's king; a title which deferves to laft to the remotest ages, when his elegant and expenfive monument in Westminster abbey is not to be found in its place.

This protection of the lower claffes of his fubjects, produced, as a natural confequence, a greater freedom and independency in the lower house of parliament-Sir Thomas More oppofed a fubfidy, with fuccefs, in the laft year of this king's reign; which is, perhaps, the first instance of oppofition to a measure of a crown, by a member of the house of commons.

[2] Notwithstanding the humanity of this act, by the 23d of Henry VIII. ch. 15. the pauper may be punished at the direction of the judges, which accounts for what is fometimes heard of, though seldom practised, of a pauper plaintiff's being whipped-The Jewish law, on the contrary, forbids the countenancing a poor man in his caufe, Exod. xxiii. 3.-Which is to be confidered, however, as one of our statutes against maintenance. The acts which have introduced the neceffity of ftamps, in law proceedings, make the contest between the rich, and poor, still more unequal, than it was in the time of Henry VII.

[q] Bafilikon dugor, ch. xii.

STATUTES

STATUTES MADE AT WESTMINSTER.

3

Hen. VIII. A. D. 1511.

HE 11th chapter of this ftatute opens with a very remarkable preamble in favour of the regular physicians and furgeons: "For "as much as the fcience and cunning of phyfick and furgery is daily with

in this realm exercised by a great multitude of ignorant perfons, of "whom the greater part have no infight in the fame, nor in any other kind "of learning: fome also can [r] no letters on the book, fo far forth, "that common artificers, as fmiths and weavers, and women, boldly, "and accuftomably, take upon them great cures, in which they partly "ufe forcery and witchcraft, partly apply such medicines to the disease "as be very noious, and nothing meet, to the high displeasure of God, great infamy to the faculty, and the grievous damage and destruction "of diverfe of the king's people."

From this preamble it fhould feem, that phyfick was more liberally profeffed in England at this time, than in any other part of Europe; and I should conjecture, that this preamble was drawn by the famous Linacer, as we find by the 14th of Hen. VIII. ch. 15, that his name is the second mentioned in the first charter to the college of phyficians, after Ferdinandus de Victoria.

Lord Ch. J. Hale fays, that this ftatute is a good caution to empiricks, who are certainly fubject to the penalties, if they tranfgrefs it; but combats much an opinion, which it seems prevailed in his time, that if a patient of fuch an empirick died through his ignorance, he might be indicted for murder. Vol. i. p. 240.

There are among the laws of Bearn (in Du Moulin's Collection of the Customs of the different provinces of France) fome seemingly wife regulations with regard to the improvement of medicine, and which are at least of equal antiquity with the prefent law-And by the laws of Provence, the acting as both phyfician and apothecary is forbid, under no less penalty than banishment" Los medecin no deben haber part en los droguas deus Ipotecaires, fans pena de perdere talas droguas, et eftar forabanditz deu Pais." Du Moulin, vol. ii. p. 1143.