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tences, like the reported decisions upon the common law, would stand in the place of statutes.-It must, however, be adínitted, that it would be still more desirable, that instead of having recourse to such substitutes, the law should be embo: died in written statutes.

Another consequence of the present system is, that it deprives juries of the most important of their functions; that of deciding upon facts on which the lives of their fellow-subjects are to depend.—The circumstance of aggravation, whatever it be, for which the judge inflicts the punishment of death, in reality constitutes the crime for which he suffers. If, for example, the judges made it an invariable rule to leave for execution every man convicted of highway-robbery, who had struck or done any injury to the person of the party robbed; and to inflict only the punishment of transportation, for robbery unattended with such violence; the effect would be the same as if the crimes of mere robbery, and of robbery with violence offered to the person, (so distinct in themselves,) were distinguished by written laws; and were made punishable, the one with death, and the other with transportation.The effect would be the same with respect to the punishments; but by no means the same with respect to the mode of trial. Because if the law had considered them as distinct offences, it would be the province of the jury to decide whethér the circumstance of aggravation, which altered the nature and description of the crime, did or did not exist; whereas in the present system, it is the judge alone on whom that important office is devolved. The fact of violence may in his opinion be established; though the jury may have with held all credit from the witness who swore it. That fact has probably not been investigated with the same accuracy as the other parts of the case; because it is to constitute no part of the finding of the jury. It is in truth altogether immaterial to the verdict which they have to pronounce ; which is merely whether the prisoner be guilty or not guilty of the robbery. The same observation may be made upon every other circumstance of aggravation which decides the fate of convicted criminals; the judge necessarily acts upon his own opinion of the evidence by which these circumstances are supported ; and he sometimes proceeds upon evidence not given in open court, or under the sanction of an oath.

(To be continuesl.

ORIGINAL POETRY.

THE AMATEURS.

AN ODE.
When Festin*, heavenly swain, was young,
When first attuned his viol rung,
And the soft oböe's melting trill
Confess'd the magick master's skill ;
Beneath his opening windows round
The admiring rabble caught the sound, .
And oft at early morn, the throng
Besieg'd the house to hear his song.
Till once, 'tis said, when all 'were fired,
Fill'd with fury, rapt, inspired,
With one consent they brought around
Dire instruments of hellish sound,
And each, for madness rul'd the hour,
Would try his own sky-rending power.

First in the ranks his skill to try
A stout and sturdy clown was there ;

A deafʼning hautboy, crack'd and dry,
Brayed harsh discordance on the air.
With breath retained, and laboured grin,
Rapt by his own tremendous din,
With blood suspended in his face,
And paws that could not find their place ;
The champion played : while every peal confess'd,
How strong the throes that heaved his massy chest.

Next came a brawny nurse, but six feet high,
With leathern lungs and throat of brass supplied ;

Striving with “ Chevy Chase,” and “Lullaby,"
To drown the screeching infant at her side.
And ever and anon the babe she seized,
And squeezed and sung, and sung and squeezed,
Although sometimes, each dreary pause between,
The strangled infants' piercing shrieks,
And writhing limbs, and black’ning cheeks,
Full well confest the secret pin,
That keenly goaded him within-

Yet closer squeezed the nurse, and louder was her din. ** Mr. John Festin, a musiek master, was the intended hero in Flogarth's celebrated piece, ** The Enraged Musician.”

A wheezing sawyer, standing by, Industriously was sawing wood;

Though dull his saw, his throat though dry, Awhile he used them as he could. At length, grown tired of toil in vain, The wretch resolved to change his strain ; With fell intent defying nature's law, He paused, and held his breath-to whet his saw.. With eyes half closed, and rolled to heaven ; And starting teeth from sockets driven, , And clenching jaws convulsed in ghastly smile, Across the wiry edge he drew the shrieking file.

A boy came next, loud whooping to the gale, And on his truant shoulders bore a pole ;

Two furious cats, suspended by the tail, Were swinging cheek by jole: 0, dulcet cats, thus hung at leisure, What was your delighted measure ! Entangled in no faint embrace, With claws deep buried in each other's face, How did ye hiss, and spit your venom round, With murderous yell of more than earthly sound. O, dulcet cats, could one more pair like you Assist the fight, and pour the strain anew ; Not earth could bear, nor hell itself contain, Your fiendish catterwaul of rage and pain.

A fish cart next came rattling by ;
Its lusty driver perched on high,
Recruited by his recent bowl,
Poured through the deafening horn his greedy soul.
Such notes he blew as erst threw down
Old Jericho's substantial town ;*
While scarce was heard, so loud he wound his peal,
The mangled cur that yelped beneath his wheel.

Then came a child, eloped from home,
Pleased, in the streets at large to roam;
His cart behind him dragged. Before
A huge tin coffee-pot he bore,
Which ever and anon he beat
With sticks and stones in furious heat.
Nor heeded he that at his heels
The crier rung his frequent peals.
With brazen throat, and hideous yell,
That distanced all the hounds of hell;

• Vide Mr. John Ireland.

In air his stunning bell he tossed,
And swelled and shouted “ lost, lost, lost."

'Emblem of justice, high above,
A ponderous pair of steelyards hung;

Hooked by the nose, his weight to prove, A living hog beneath was swung.

Dire was the squeal that rent the sky With sounds too dread for earthly throat,

While not a butcher lingered nigh To stop the howling monster's note. Fast to escape the hated strain With ears comprest some fled amain, While others paused, all hopeless of relief, And curst the stars that had not made them deaf.

Thus long ago, E'er * * drew his fiddle bow, While saw-mills yet were mute ; The jarring, howling, deafening choir, : With notes combined in concert dire, Could shake the sky, the solid earth could move, While milder thunders burst unheard above.

PHE

BOSTON REVIEW,

FOR

JANUARY, 1811.

Librum tuum legi, et quam diligentissime potui annotavi quae cominutanda, quae eximenda

arbitrarer. Nam ego dicere verum assuevi. Neque ulli patientius reprehenduntur, quam qui maxime laudari merentur.

Plin.

ARTICLE 17.

A Treatise on the Law of War, translated from the original

Latin of Cornelius Van Bynkershoek, with Notes, by Peter Stephen Du Ponceau, Counsellor at Law. Philadelphia, published by Farrand and Nicholas : Fry and Kammerer, printers, 1810. 8vo. pp. 284.

BYNKERSHOEK, considered as a jurist, has uncommon claims on our attention. He was endowed by nature with a strong and discriminating mind, and during the course of a long and laborious life, he concentrated all his energies on the study of the law. The volume, which is now published under the appropiate title of a Treatise on the Law of War, is a translation of the first book of his “ Quaestiones Juris Publici.” This work has several advantages over almost every other, which has been written on the same subject. Most essays on the laws of nations have been called forth by the pressure of extraordinary circumstances, and took their hue from the contests which gave them birth. They generally betray an absurd attachment to some particular doctrines, which were embraced through want of reflection or from interest. But, Bynkershoek wrote at a period, when his country was in a state of profound peace, and it has been alleged as a proof of his independence and impartiality, that he had the hardihood to oppose some of the most favourite opinions of his native government. His treatise, therefore, comes to us with all the authority of learning and integrity. Besides these accidental

VOL. X.

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