expressions grow with them. To express ideas that are not our own, in a way peculiar to ourselves, is almost folely the work of art, and this art is the more estimable in proportion as it is concealed. But however much it may be concealed, we are always sensible of its existence, and it is on this account that we are fond of works of imitation. However, while we allow to original authors the first rank, it would feem that a good translator deferves to be placed immediately after, above those authors who have written as well as it is possible to write without genius. But there is among us a kind of fatality annexed to all the arts which makes us fond of what is foreign. There are some arts which we have debased by the most unjust prejudices, there are some to which we have not paid sufficient respect, and the trade of a tranflator is in the namber. It is not this injustice only which makes his labours so ungrateful, and the number of good tranflators so fmall. Although they find in the practice of their art enough of fetters which they cannot shake off, we have taken pleasure to draw those fetters still clofer, in prejudice, it would feem, of their fuccess and of our own intereft. The first yoke that is imposed on them, or rather which they impose on themselves, is that of fubmitting to be the copyists rather than the rivals of those authors they translate. Superftitiously attached to their original, they would think themselves guilty of facrilege, were they to em bellish a fentiment, even in the places that need it; they permit themselves only to fall short of their author, and in this they easily succeed. It is just as if an engraver, who copies the picture of a great master, should deny himself a few flight and gentle touches, in order to improve its beauties or to shade its defects. Since the tranf lator is so often forced to remain infe rior to his author, ought he not to rife above him when he can? If it be objected that such a liberty would degenerate into licentiousness, I reply, that when the original is well chosen, the opportunities of correcting or embellishing it will be very rare, and if they are frequent, the work is not worth the pains of tranflating. Another obstacle in the way of tranflators is the timidity that restrains them, when, with a little courage, they might equal their model. This courrage consists in hazarding new expressions, in order to render properly certain lively and nervous expreffions of the original; this is indeed a liberty which must be used with difcretion, and only when it is neceffary; and when will it be fo? or will it only be so when the difficulty arifes from the genius of the two languages? Each has its laws which it is not permitted to trangrefs; but when there is reason to suppose that the author has bazarded an ingenious expreffion, it is then we may endeavour to do the fame. Now an ingenious expression is not a new word suggested by fingularity or negligence, but the necefsary and dexterous union of fome known terms, in order to give a new idea fufficient energy. This is almost the only way of making innovations, which the laws of good writing permit. The most indispensable condition in these new expressions is, that they bear no marks of constraint, although they have been occafioned by difficulty. We are sometimes in company with ingenious foreigners who speak our language easily and boldly; these, in conversation, think in their own language, and translate into ours; and we often regret that the energetic and singular terms which they employ, are not authorized by custom. The conversation of such foreigners (fuppofing it correct) is the image of a good tranflation. The original ought to fpeak speak our language, not with that ful in Virgil, but so vapid in all tranf superstitious and scrupulous accuracy which we observe in our mother tongue; but with that noble freedom which is able to borrow from one language, expressions that may embellish another. The tranflation will then have all the qualities that make it valuable, an easy and natural air, the stamp of the genius that characterises the original, and at the same time that taste of the foil which the foreign seasoning will naturally give it. Thus, good tranflations will be the furest and most ready means to enrich a language. They will multiply good models, they will assist us in judging of the characters of writers, of ages and nations; they will shew us the manners that diftinguish universal and absolute taste from that which is national and particular. The third arbitrary law to which tranflators submit is the ridiculous obligation they think themselves under to tranflate their author from beginning to end. Hence the translator, jaded and disgusted in the weak places, languishes afterwards in the happier passages. And indeed, why should one torment himself to express a false thought elegantly, or a known idea with taste? It is not to make known the faults of the ancients that they are translated, but to enrich the literature of our country with their beauties. To translate them by piecemeal, is not to mutilate them, it is to paint them in profile and to advantage. What pleasure can we receive from a translation of that part of the Eneid where the harpies are represented running away with the dinner of the Trojans; from that of the filly and sometimes gross pleasantries of Cicero; or from those passages of an historian that present nothing interesting, either in matter or stile? Why transplant into one language what has no charms but in another, such as the precepts of agriculture, and the descriptions of paftoral life, so delight tions? The wife precept of Horace, to abandon what we cannot treat with success, is as applicable to tranflation as to the other kinds of writing. Our learned men would find a considerable advantage in thus tranflating, in detached parcels, certain works which contain sufficient beauties to make the fortune of many a translator who is possessed of taste and genius. For instance, how agreeable would it be to have Seneca and Lucan thus compressed and abridged by an able tranflator? Seneca is excellent to quote, but tedious to read through; he winds incessantly and with a brilliant rapidity round the same object; differing in this from Cicero, who advances steadily but flowly to his purpose. Lucan is the Seneca of poets; he is full of manly and real beauties, but he is too declamatory, too monotonous, too full of maxims, and too devoid of images. The writers who deferve to be tranflated entire, are those who please by their very negligence, such as Plutarch in his Lives, where quitting his subject, and taking it up again at every instant, he converses with his reader, but never tires him. What I have just propofed leads me to a reflection which indeed is but remotely connected with the matter in hand, but which may be useful. Afmall number of authors is put into the hands of children at school, and a very small part of these is taught them. Their memories are loaded with the good, bad, and indifferent of that small part, and, thanks to the taste of the preceptors, the true beauties are those which are least pointed out to them. Would it not be infinitely more profitable to choose, in the different works of each author, the most excellent passages, and to teach children only those parts that deserve to be retained? by this means they would make their own, not all the thoughts of the antients, but all their E2 their best thoughts. They would know the character and stile of a great many authors, and they would have the advantage of adorning their minds while they were forming their taste. Such a collection, if judicioufly made, would perhaps not be very great, and the ordinary time allotted for education would be sufficient to render it familiar. I cannot fufficiently exhort fome able man to undertake it, but fuch a perfon ought to possess two qualities which are not often found united, a profound acquaintance with the works of the antients, and a total exemption from any fuperftitious reverence for them. He ought not to resemble that ridiculous admirer of Homer, who, having resolved to underline every thing he thought excellent in the works of that great poet, found at the end that he had underlined the whole book. Could fuch a man flatter himself with feeling the true beauties of Homer, or would Homer have been flattered with the praise of such an admirer ? D Of Duelling. From Dr Boyd's Justice of Peace. 1 UELLING, as a gross breach of the peace, as well as an of fence against religion and morality, falls under the jurisdiction of the justices of peace. The origin of this practice, and the different aspects it has assumed, according to the warying features of our public law, will be briefly noticed in the sequel. We shall begin here with the statutes en acted for preventing or punishing it. The first statute which properly regards the punishment of duelling, is the Act Parl. 1600, cap. 12. which prohibits any person in time-coming from fighting any fingle combat with out the King's licence, under the pain of death, and confiscation of move ables: The provoker is to be punished by a more ignominious death than the defender, at the pleasure of his majesty. The preamble of the statute sets forth, that great inconveniencies had been engendred with in the realm, by the great liberty which fundry persons took in provoking others to fingle combat, upon sudden and frivolous quarrels. This act, if executed, was certainly fufficient of itself to restrain these destructive practices, though, perhaps, nothing less than a capital punish ment could effect it. But it was a strange idea of the legislature to suppose, that the king could give a licence to some of his subjects to murder each other with impunity, while others of them might be hanged for the fame offence; and it was still stranger to suffer themselves to be betrayed into the foolish imagination, that the punishment could have any durable or extensive effect, while duelling was made a crime, not from its nature, but from the mere accident of its being permitted, or not permitted by the sovereign. This was degrading a moral duty, of which the obligation was eternal, into a mere creature of law, and making that to depend upon the positive and mutual enactments of the legislature, which was founded on the nature of things, and the invariable principles of right. The genius of the age, however, as will be noticed afterwards, affords some excuse for this otherwise unjust and arbitrary exception; and the statute in every other respect, as it was demanded by the violence of the times, so was it also agreeable to the principles of justice; it was, indeed, just at the same time, and necessary. The fecond, and the only other Scottish At Parl. 1696, Cap. 35. which enacts, "That whoever, principal or second, or other interposed person, gives a challenge to fight a duel, or fingle combat, or whosoever accepts the fame, or whosoever, either principal or second, on either side, engages therein, albeit no fighting ensue, shall be punished by the pain of banishment and escheat of moveables, without prejudice to the act already made against the fighting of duels, which his majesty, with confent forefaid, hereby ratifies and confirms." 1 Scottish statute on the subject, is the revolting in the idea of preventing, Befides these express laws, which, from many circumstances, have been greatly relaxed, the prevention of duetling falls particularly under the power of the Justices, as they are in a particular manner empowered to prevent and punish all breaches of the peace, or any thing tending to a breach of it. And these general powers of the Justices of Peace ought now to be the more carefully exercifed, as the manners and characters of the age have left almost no other remedy. The method in which breaches of the peace are to be prevented, has been treated of at large in the beginning of this work, and it is needless here to refume the fubject. Only let it be observed, that the utility of this magistracy can in nothing be more fully urfplayed, than while it thus comes into the assist ance of expiring laws, and prevents that which these laws are become too feeble to punish. Nothing can be more honourable to the magiftracy than such a diftinction; and nothing more disgraceful to the magiftrate, than a neglect of those powers with which he is legally vested, and of which, even the manners of the times have not in the smallest degree deprived him. For, though our minds may recoil from the idea of inflicting capital punishments upon those who, in these times, may have fought a duel, yet there is nothing by legal precautions, what may be productive of such fatal effects, as duelling may produce, and too frequently produces. The law of England is much the same upon the subject with the law of Scotland. For, in all duelling in cold blood, not only the principal who actually kills the other, but also his seconds, are guilty of murder, whether they fought or not. And the seconds of the parties flain are likewife guilty, as accessories, ist Hawk. 82. The mere fighting, tho' none of the parties be killed, at least iu a public place, is punishable by fine and imprisonment : And the fame punishment may be inflicted upon the fender and bearer of a challenge, Blackstone, Book 4. And, though the law of England, does not hold it be malice prepense, which constitutes murder, when two parties fuddenly fall out, bring their weapons, and fight in such a field, and one killeth the other, becausethe fetching of the weapons is construed by the law to be only a continuance of the fudden falling out; yet, as is exprefsly laid down by Lord Coke and Lord Hale, if there was any deliberation, fuch as an agreement to meet the next day, or even the fame day, if there were fuch a competent distance of time that deliberation may be presumed from it, such fighting is then to be held as murder. 3d Inft. 51. ist Hale's Hift. 453. Notwithstanding, however, that this offence of duelling is esteemed fo heinous by the law of England, the manners there also have triumphed oyer the law; and duelling, according ly, is either never prosecuted at all, or the jury mitigates the severity of the law, by bringing it in manslaughter, or frequently acquits entirely the perfon accused. In England, therefore, as well as in Scotland, fince the punishment has grown almost obsolete, we have to look for the prevention of duelling chiefly in the exertions of the magistracy established for preferving the peace. Their efforts, and their efforts almost solely, can stop the progress of this rampant mifchief, by binding parties over to the peace, under severe penalties, whether pecuniary or corporal. This part of their duty requires, indeed, great exertion, and great attention and care; but their labours must be fully recompenfed by the honour which at tends such signal services to the community. 'Duels,' fays Sir George M'Kenzie, in the following elegant passage, ' are but illustrious and honourable murders. This is that imperious crime which triumphs over both pubic revenge and private virtue, and tramples proudly both upon the law of the nation, and the life of our enemy. Courage thinks law here to be but pedantry, and honour perfuades men that obedience here is cowardLiness. 'We find, continues he, 'no such crime as this among the Romans, because that wife nation employed their lives against their enemies, and not against their fellow-citizens; and the true trial of courage among them was fighring against the enemies of Rome." Mackenzie's Crimin. part I. Tit. 12. It becomes, thus, a matter of very confiderable importance, and it is al; so much connected with the subject of this work, to trace the practice of duelling up to its origin, and to examine whether it be founded upon any just principle. This we shall endeavour to perform as briefly as is confiftent with accuracy. Duelling owes its birth to the judicial combat; and the judicial combat can be traced to a very high antiquity among the northern nations. This appears from the following paffage in Tacitus, who, after having given an account of the other aufpices practifed among the Germans, proceeds to observe, that they had a nother method in use upon very folemn occafions. Eft et alia,' says he, ' obfervatio aufpiciorum, qua gravium Bellorum eventus explorant; ejus gentis cum qua bellum eft, captivum quoque modo interceptum, electo popularium fuorum, patriis quemque armis committant; victoria hujus vel illius pro præjudicio accipitur.' Tacit. de Mor. Germ. From this superstitious source all the various modes of trial, by fingle combat, the ordeal, and such like, seem evidently to have flowed; while the imagination was fondly nourished, that the Deity would not fail to interpose, in an extraordinary manner, for the purpose of bestowing victory upon the side of justice. It was not, however, till the more complete establishment of the feudal fystem in Europe, that the practice of duelling was authorised by the public fanction of law. The laws of the Lombards first regulated it by twenty feveral determinations, which were adopted either in form or in substance, by the other nations of Europe. Philip the Fair King of France, also, in the year 1 360, made many regulations with regard to duelling, which he ordained to be allowed under the four following heads: 1. That it should be allowed only in criminal and capital cases: 2. And in crimes treacherousfly committed, where the truth could not otherwise be discovered: 3. Where strong presumptions lay against the perfon provoked: 4. Where it was certain fuch a crime was committed against the provoker. Our old law, too, has many regulations on this head, which it behoves us shortly to notice. The determination of civil as well as criminal cafes, was, in Scotland, anciently entrusted to the sword. Thus, by Reg. Maj. lib. 2. cap. 16. verse 47. which is entitled 'Of Dowrie, or an reasonable Terce, it is ordained, that gif the heire denyes all the wife's right and clame, and alledges |