him; but under the proposed system, even a thriceconvicted thief on his return to liberty would have been for seven years out of practice. If he again commence crime it must be as a bungler, and without the aid of a gang; and he would probably be soon caught and made safe for life.

Many objections are made to this system. The principal objection (as it appears to Mr. Baker) is to the existence of such a thing as twelve months' imprisonment in a gaol; as the fact of shutting a man up in a square cell under any known system of prison discipline, in a state of the most absolute dependence, and without hard labour (for real earnest hard labour is incompatible with anything we have known as prison discipline), especially when such detention is followed up by carelessly turning him out on the world when least fitted to cope with its trials, appears to him to be a treatment at once unphilosophical and unpractical; though he thinks, that if adult reformatories should be given a fair trial, the sending a man on his second conviction to a gaol, where he shall be severely punished for from three to six months (or longer, if his behaviour render it necessary), and then removing him to a reformatory, where he may be kept to real hard earnest out-door work for the remainder of his sentence, especially if we should hereafter obtain the power to make the sentence two years, and to allow him by good conduct to obtain a ticket-of-leave enabling him to work under surveillance for the latter half of his sentence, would give us as reformatory, as deterrent, and as practical a system as could be well hoped for.

Other objections are made, which he thinks will not bear close consideration. It is said, that the ten days' sentences on first convictions will be too short to deter beginners; but those who have had opportunities of watching prisoners through their confinement, know well that a man feels his first ten days far more acutely than the later portion of his sentence. Like a wild bird in a cage, he suffers severely at first; but after a time he becomes used to it, and will never again think of it with the same aversion.

Some say any system except one of retaliation would be morally unjust. But we are nowhere told that retaliation is justice; and if you tell a man clearly what will be the punishment of a crime before he commits it, there can be no injustice in inflicting it; and there is great injustice in the present system, when, the giving a man hope that he will escape with a light sentence, induces him to commit a crime, and then gives him a heavy one.

It is commonly said, that the experience we have had with boys in reformatories is of no avail in dealing with men, because "Boys can be reformed, and men can't." A very moderate study of statistics-a very moderate acquaintance with criminals-would shew that adults not only can be reformed, but that they do reform themselves in great numbers, under our most careless and unpractical system. But reforming has had little to do with the following very extraordinary decrease of crime, and for this simple reason, that the decrease took place before the boys were reformed.

In 1856 reformatories generally came into action in England, and the practice was adopted of sending to them, and, therefore, to a long detention, nearly every boy who was a second time convicted. In that year 13,981 boys and girls were committed to prison; but in the four following years the numbers were, 12,501, 10,329, 8913, 8029. Now this decrease could not have depended on the reformation of the boys, because those committed in 1856 had hardly left the reformatories in 1859, when the number had sunk to 8913, or less than two-thirds. The decrease had depended solely on the certainty of a long sentence on a second conviction, irrespective of the magnitude of the particular offence, and of the removal for long periods of all the old offenders who excited the envy of beginners by their skill and success, trained them to follow their steps, and shewed by their very presence that the old system was powerless to prevent theft.

And this view is also supported by the statistics of Liverpool, Manchester, and Middlesex, where exactly, as it became the practice to send the offender on every second conviction to a reformatory, did the crime diminish.

For these reasons, Mr. Baker lays down the following principles :

"First, that to prevent the honest man from being robbed, and then heavily taxed to punish the thief who robbed him, is our duty as citizens. To save our fellow creatures from crime and temptation is our duty as Christians; but that retaliation (except for the sake of prevention) is neither a Christian, a moral, nor a political duty.

"Secondly, that the adopting retaliation as the rule or measure for punishment greatly lessens the preventive effect, which is the only real use of punishment: first, because the uncertainty weakens the deterrent power; and, secondly, because it affords no safeguard against men repeating their crimes time after time, till they become skilful, hardened, and dangerous.

"Thirdly, that a general, not universal rule, might be adopted by magistrates, which, while leaving room for a few extraordinary exceptions, might be used with good result in eighteen or nineteen cases out of twenty, and that such uniformity of practice would be intelligible to all-deterrent to future thieves-and would afford to the public a better guarantee of justice than they have at present.

'Fourthly, that it is desirable that on a first conviction, with rare exceptions, a short sentence should be passed-first, in order to increase the terror of the gaol; secondly, to encourage prosecutions before crime becomes habitual. An additional result will be, that the shortening of every first conviction will leave room in our gaols for a lengthening of the second.

"Fifthly, that if a short imprisonment, accompanied by the almost certainty of a long sentence on relapse, fail to prevent a second crime, it is desirable for the public safety that the criminal should be removed from society till such time as any habit or skill he may have acquired be lost, and until his associates will probably be dispersed.

"Sixthly, that if this treatment be followed up by greatly increased sentences on each relapse, it cannot

13

GUM" AND "THE JURIST."

It seems to us that the advisability of adopting these principles depends on the correctness of the statistics; and a very good work would be done if these were collected on a larger scale. But further, it would be well, at all events, in a greater number of places, to adopt these principles, and compare the results with those in places not adopting them. Till something of this kind is done, and our knowledge thus extended, it seems to us impossible to judge properly as to the soundness of Mr. Baker's scheme; but we think that he has made out a sufficient case for giving it a more extended trial than it has had hitherto.

Correspondence.

66 TO THE EDITOR OF THE JURIST." SIR,-The case of Dowling v. Dowling (11 Jur., N. S., part 1, p. 1033), before Sir J. Stuart, ought not to be passed over without comment. It must be admitted that the learned Vice-Chancellor has, to use his own expression, decided in the face of a strong current of authority, if his decision is to rest on the fact of the implication of an estate in the issue. Lord Thurlow's decision in Harman v. Dickenson (1 Bro. C. C. 90), albeit most briefly reported, was only an instance of the word "surviving" being read "other," and was a case of direct limitation to the issue. In Ex parte Rogers (2 Mad. 449), whoever chooses to examine that case will find that Sir T'. Plumer's remarks, so far as they referred to the implication of an estate in the issue, were unnecessary to the decision-mere dicta, and may be taken for what they are worth-nothing; for letters of administration of the estate and effects of both female legatee and husband deceased had been obtained by their children, the petitioners, before the petition was presented; and Sir T. Plumer himself says (p. 454), "The 1000l. on the death of M. D. Rogers must belong either-first, to her personal representatives, which these petitioners, her children, are; or, secondly, to the children as such; or, thirdly, it must fall in as part of the residue. The question, therefore, is between the children and the residuary legatees." The cases cited by Sir T. Plumer have not the slightest bearing upon the point, which he unnecessarily argues, and I can only regret that Sir J. Stuart should have added the weight of his decision to dicta which have been long since clearly and unequivocally condemned by the highest authority. In the case in question, whether it was absolutely necessary to construe the words "or their child or children" as the child or children" of the remainder then living," is, perhaps, open to doubt; but it is, in my opinion, unarguable, if there be not contained in the sentence in the will a direct limitation to the children of all the sons respectively, on their respective deceases leaving issue, that any estate can be implied in any such children in the manner suggested.

Your obedient servant,
G. L.

Rolls-chambers, Chancery-lane, Jan. 6, 1866.

TO THE EDITOR OF THE JURIST." SIR,-I should not have thought it worth while noticing the strictures of The Jurist on the above work, had it not been for the extreme unfairness, to use the and the frequency of this conduct on your part tomildest term, with which you have treated my book, wards other writers. I am fully sensible, that the work in question has its faults; and the peculiar difficulties of the undertaking, inviting captious criticism in certain quarters, I pointed out in the Preface. With a fair and just review, however severe, I should not find fault. But the article in question consists simply of misrepresentation and abuse, without even aiming at criticism, in a style peculiarly characteristic of The Jurist.

Upon comparing the book itself with the pretended extracts from it in The Jurist, I find that passages are misquoted, and rendered nonsensical. The pretended summary of the author's meaning is used to distort it. In one important passage, by the trifling omission of the word "not," he is made to state directly contrary to what he really says; and by a pretended extract of a passage nowhere to be found in the book, he is actually made to assert that the law occasionally compels dead men to act as trustees! You then proceed to pronounce the book "ridiculous" and worthless, asserting that you have drawn your conclusions from the premises stated. Conduct such as this surely needs no comment.

That the book is not of the "ridiculous" nature, and utterly useless kind, asserted by The Jurist, even I may venture to contend, not only from the ample notices of, and the decisive opinion expressed upon, it by the Law Magazine and Law Times, but from the numerous letters respecting it which I have received from several of the most distinguished lawyers of the present day, including most of the law Lords, as also from judges and leading advocates, who speak in high terms of its value to the profession, especially to students, and express themselves in a manner very satisfactory to me as regards the execution of the work, evincing, moreover, a great desire for its completion. I

cannot suppose that all these distinguished men have united in a band to deceive me, or that they would voluntarily express sentiments which were the reverse of what they really entertained. The book itself can never be profitable to me in a pecuniary sense, and its completion will entail an immensity of labour, added to the discharge of official duties. I have undertaken it solely from a belief that it will be beneficial to the profession-an opinion strongly expressed by those distinguished men who have assisted me during the completion of the first part, by the revision of their judgments, by contributing certain portions, and by their advice generally as to the mode of carrying it out.

I should have thought that any liberal and highminded editor of a legal periodical would have been disposed to aid in a work of this description, rather than to endeavour to do all in his power to defeat and disparage the attempt. But such is not the spirit which animates The Jurist, as its treatment of other writers more deserving than myself abundantly proves. In the present instance, however, I do believe that The Jurist has fairly eclipsed all its former achievements of this kind.

I only heard of your strictures through a portion of them being extracted in a letter to The Solicitors' Journal. And as after repeated and anxious inquiries

him; but under the proposed system, even a thriceconvicted thief on his return to liberty would have been for seven years out of practice. If he again commence crime it must be as a bungler, and without the aid of a gang; and he would probably be soon caught and made safe for life.

Many objections are made to this system. The principal objection (as it appears to Mr. Baker) is to the existence of such a thing as twelve months' imprisonment in a gaol; as the fact of shutting a man up in a square cell under any known system of prison discipline, in a state of the most absolute dependence, and without hard labour (for real earnest hard labour is incompatible with anything we have known as prison discipline), especially when such detention is followed up by carelessly turning him out on the world when least fitted to cope with its trials, appears to him to be a treatment at once unphilosophical and unpractical; though he thinks, that if adult reformatories should be given a fair trial, the sending a man on his second conviction to a gaol, where he shall be severely punished for from three to six months (or longer, if his behaviour render it necessary), and then removing him to a reformatory, where he may be kept to real hard earnest out-door work for the remainder of his sentence, especially if we should hereafter obtain the power to make the sentence two years, and to allow him by good conduct to obtain a ticket-of-leave enabling him to work under surveillance for the latter half of his sentence, would give us as reformatory, as deterrent, and as practical a system as could be well hoped for.

Other objections are made, which he thinks will not bear close consideration. It is said, that the ten days' sentences on first convictions will be too short to deter beginners; but those who have had opportunities of watching prisoners through their confinement, know well that a man feels his first ten days far more acutely than the later portion of his sentence. Like a wild bird in a cage, he suffers severely at first; but after a time he becomes used to it, and will never again think of it with the same aversion.

Some say any system except one of retaliation would be morally unjust. But we are nowhere told that retaliation is justice; and if you tell a man clearly what will be the punishment of a crime before he commits it, there can be no injustice in inflicting it; and there is great injustice in the present system, when, the giving a man hope that he will escape with a light sentence, induces him to commit a crime, and then gives him a heavy one.

It is commonly said, that the experience we have had with boys in reformatories is of no avail in dealing with men, because "Boys can be reformed, and men can't." A very moderate study of statistics—a very moderate acquaintance with criminals-would shew that adults not only can be reformed, but that they do reform themselves in great numbers, under our most careless and unpractical system. But reforming has had little to do with the following very extraordinary decrease of crime, and for this simple reason, that the decrease took place before the boys were reformed.

13

In 1856 reformatories generally came into action in England, and the practice was adopted of sending to them, and, therefore, to a long detention, nearly every boy who was a second time convicted. In that year 13,981 boys and girls were committed to prison; but in the four following years the numbers were, 12,501, 10,329, 8913, 8029. Now this decrease could not have depended on the reformation of the boys, because those committed in 1856 had hardly left the reformatories in 1859, when the number had sunk to 8913, or less than two-thirds. The decrease had depended solely on the certainty of a long sentence on a second conviction, irrespective of the magnitude of the particular offence, and of the removal for long periods of all the old offenders who excited the envy of beginners by their skill and success, trained them to follow their steps, and shewed by their very presence that the old system was powerless to prevent theft.

And this view is also supported by the statistics of Liverpool, Manchester, and Middlesex, where exactly, as it became the practice to send the offender on every second conviction to a reformatory, did the crime diminish.

For these reasons, Mr. Baker lays down the following principles :

'First, that to prevent the honest man from being robbed, and then heavily taxed to punish the thief who robbed him, is our duty as citizens. To save our fellow creatures from crime and temptation is our duty as Christians; but that retaliation (except for the sake of prevention) is neither a Christian, a moral, nor a political duty.

"Secondly, that the adopting retaliation as the rule or measure for punishment greatly lessens the preventive effect, which is the only real use of punishment: first, because the uncertainty weakens the deterrent power; and, secondly, because it affords no safeguard against men repeating their crimes time after time, till they become skilful, hardened, and dangerous.

"Thirdly, that a general, not universal rule, might be adopted by magistrates, which, while leaving room for a few extraordinary exceptions, might be used with good result in eighteen or nineteen cases out of twenty, and that such uniformity of practice would be intelligible to all-deterrent to future thieves—and would afford to the public a better guarantee of justice than they have at present.

"Fourthly, that it is desirable that on a first conviction, with rare exceptions, a short sentence should be passed-first, in order to increase the terror of the gaol; secondly, to encourage prosecutions before crime becomes habitual. An additional result will be, that the shortening of every first conviction will leave room in our gaols for a lengthening of the second.

"Fifthly, that if a short imprisonment, accompanied by the almost certainty of a long sentence on relapse, fail to prevent a second crime, it is desirable for the public safety that the criminal should be removed from society till such time as any habit or skill he may have acquired be lost, and until his associates will probably be dispersed.

"Sixthly, that if this treatment be followed up by greatly increased sentences on each relapse, it cannot