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.

THE JURIST."

66 TO THE EDITOR OF 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,

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

G. L.

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

I could not discover any person who now takes in The Jurist, I first saw the "misrepresentation"-I cannot call it the "review"-alluded to on Friday last.

I am, Sir,

Your obedient servant, GEORGE HARRIS.

Court of Bankruptcy, Manchester,
Jan. 8, 1866.

[The above letter, and one still more bloodthirsty, in which Mr. Harris demands "our" name, and threatens the extremest penalties of the law in default of an ample and satisfactory apology, have compelled us to revise our notice of the "Principia," and the result has been the discovery of three misprints, viz. in line 10 of the 2nd column of our page 467,-" high rank among those means which have occupied the study of the learned," where (as the next line shews) "means" should be "sciences;" in line 30 of the same column,"and [by] which alone reason is acknowledged," where "by" is omitted; and in line 54 of the same column, "In most instances references are made to authorities. 'When an authority is [not] quoted, the author is of course himself responsible for the correctness of the principle enunciated,'" where, as Mr. Harris complains, not" is omitted. We regret these misprints for our own sake, but in each case the error is obvious from the context, and the effect is in no degree to aggravate the case against the book.

The "pretended extract of a passage nowhere to be found in the book," is given, with the reference, at p. 466 of our review, in the very words and letters in which it appears at p. 193 of the "Principia," being the first paragraph of that page, and is a gem, with which we crave leave again to adorn our columns:

"1. Executors and administrators are persons who are by law authorised and empowered to stand in the place of, and to represent, so far as the management and disposal of their property is concerned, certain deceased persons, who have either by will delegated to them this trust, or on whom it has been imposed by the authority of the law."

If we had been noticing a book designed for the use of mature lawyers, we might have been content to allow the samples we had culled to speak for themselves; but in dealing with a book addressed to inexperienced students, which is only fitted to waste their time, and disgust them with the study, it is necessary to add a word of warning. If we needed any confirmation of our opinion, that the book is ridiculous, it is afforded by the author's ridiculous letter.]

THE INTENDED REPORT OF THE COMMISSION ON CAPITAL PUNISHMENT.

To the Queen's Most Excellent Majesty. WE, your Majesty's commissioners appointed "to inquire into the provisions and operations of the laws now in force in the United Kingdom, under and by virtue of which the punishment of death may be inflicted upon persons convicted of certain crimes, and also into the manner in which capital sentences are carried into execution, and to certify to your Majesty, under our hands and seals, or under the seals of any five or more of us, our several proceedings in the premises, and at the same time to report to your Majesty our opinion whether any and what alteration is desirable in such laws, or any of them, or in the manner in which such sentences are carried into execution," humbly report as follows:

1. We have been occupied a considerable time in taking evidence upon the questions referred to us.

Many witnesses have been examined, and a careful summary of their evidence precedes this Report.

In addition to this oral testimony, certain questions have been addressed to, and answers received from, nearly all the nations of Europe, and some of the States of the United States of America, with regard to the laws relating to the punishment of death existing in those countries respectively.

The opinions of all her Majesty's judges in England, Ireland, and Scotland, as well as of other eminent criminal lawyers, have been requested upon the expediency of making any alteration in the laws under which the punishment of death may now be inflicted upon persons convicted of certain crimes.

In answer to this request, some of the judges have sent in statements of their views, while others have attended before the commission, and verbally stated their opinions. The whole of the evidence, both oral and documentary, will be found in the Appendix. 2. The commissioners forbear to enter into the abstract question of the expediency of abolishing or maintaining capital punishment, on which subject differences of opinion exist among them; but they are all of opinion that certain alterations ought to be made in the existing law.

3. The only crimes now practically punishable with death in the United Kingdom are treason and murder; we say practically, because in Scotland there remain many other offences which are still, in point of law, liable to be so punished, though in fact such a case never occurs. We strongly recommend that this anomaly be no longer allowed to exist, and that all such obsolete laws be repealed.

A list of these offences will be found in the Appendix.

4. We have then, first, to consider whether, assuming capital punishment to be retained, we should recommend any change in its present application to the crime of treason; and upon this point we have come to the conclusion that no alteration is required. The statute of the 11 & 12 Vict. c. 12, commonly called the Treason Felony Act, without in any way abrogating the ancient law upon the subject, has introduced a new and more merciful law, which, in all but cases of extreme gravity, will probably supersede the former. The maximum punishment under this act is penal servitude for life, which seems sufficiently severe in cases of constructive treason, unaccompanied by violence. With respect to treason of the latter character, we are of opinion that the extreme penalty

must remain.

5. We now arrive at the consideration of the crime of murder, and its punishment, and in treating this difficult question we think it convenient briefly to refer, in the first instance, to the existing state of the law.

6. By the law, murder is the unlawfully killing another with malice aforethought, and this definition appears to us to be correct in principle.

Unfortunately these words have not been confined to express malice aforethought, or, as it is sometimes called, malice in fact, but have received a less natural construction, which has long been adopted as the settled law of the land. It has been held that malice, in its legal sense, imports nothing more than a wicked intention to do injury to the person of another, without any just cause or excuse, and that where a man is killed in consequence of any such wicked intention the law will infer malice aforethought, though no express enmity or preconceived design can be shewn; not, indeed, a particular, but a general, malice aforethought, arising from the extreme depravity of disposition shewn by the act. This doctrine of implied malice aforethought goes even beyond this, and is car

1866.

ried to such an extent that the law always infers it when a person in the act of committing a felony, even of a trifling nature, kills another, though there may be, in fact, no premeditation, and no intention to kill, or do serious injury.

When homicide is committed in the perpetration of crimes of great enormity, such as those enumerated in clause 12, this inference may be not improperly drawn.

7. The extreme severity of this construction has been somewhat mitigated by the law of manslaughter, which is defined to be the unlawful killing of another without malice express or implied. In order to reduce the crime from murder to manslaughter, the law allows evidence of provocation to be given to rebut the inference of malice, which would otherwise be drawn from the act of killing. Here, however, again certain arbitrary rules have been introduced into the law, which most materially restrict its beneficial operations. It has been established by the decisions of our Courts, that no provocation by words, looks, or gestures, however contemptuous and insulting, nor by any trespass merely against lands or goods, is sufficient to free the party killing from the guilt of murder, if he kills with a deadly weapon, or in any manner shewing an intention to kill, or do grievous bodily harm. In these cases, though the suddenness of the provocation may rebut in point of fact the express malice aforethought, it is not allowed, on account of its supposed insignificance, to overcome the general malice aforethought, which is implied by the law, from the wickedness and cruelty of the deed. Without entering into the many nice and subtle distinctions which prevail upon this subject, it is enough to say that the practical result of this state of things is most unsatisfactory. A man who, in a sudden fit of passion, aroused by insult to himself or his wife, kills the person who offers the insult, is by law guilty of the same crime, and liable to the same punishment, as the assassin who has long meditated and brooded over his crime. A great majority of the witnesses whom we have examined have expressed a strong opinion that this branch of our criminal law requires revision and amendment, at least so far as the punishment is concerned; and we have unanimously arrived at the same conclusion.

8. We proceed, therefore, to offer such recommendations as we think expedient for altering the present law of murder. It appears to us that there are two modes in which the change may be effected.

9. The first plan is to abrogate altogether the existing law of murder, and to substitute a new definition of that crime, confining it to felonious homicides of great enormity, and leaving all those which are of a less heinous description in the category of manslaughter.

10. The other plan is one which has been extensively acted upon in the United States of America, where the common law of England is in force; this leaves the definition of murder and the distinction between that crime and manslaughter untouched, but divides the crime of murder into two classes or degrees, solely with the view of confining the punishment of death to the first or higher degree.

11. We have given both these plans our serious consideration, and we are of opinion that the required change may be best effected by the latter, which involves no disturbance of the present distinction between murder and manslaughter, which does not make it necessary to remodel the statutes relating to attempt to murder, and does not interfere with the operation of those treaties with foreign powers which provide for the extradition of fugitives accused of that crime. The object proposed can be attained by a short and simple enactment, providing that no murder shall be

punished with death, except such as are particularly therein mentioned.

These should be called murders of the first degree; all other murders should be called murders of the second degree, and punished as hereinafter recommended.

12. We recommend, therefore,

(1). That the punishment of death be retained for all murders deliberately committed with express malice aforethought, such malice to be found as a fact by the jury.

(2). That the punishment of death be also retained for all murders committed in, or with a view to, the perpetration, or escape after the perpetration, or attempt at perpetration, of any of the following felonies: -murder, arson, rape, burglary, robbery, or piracy.

(3). That in all other cases of murder the punishment be penal servitude for life, or for any

period not less than seven years, at the discretion of the Court.

13. Our attention has been called to the frequent failures of justice in cases of infanticide.

The crime of infanticide, as distinguished from murder in general, is not known to the English law. The moment a child is born alive it is as much under the protection of the law as an adult.

14. We have considered whether the failure of justice, which, undoubtedly, often occurs in such cases, may now be obviated by some change in the law which shall add to the protection of new-born children. The principal obstacle which now prevents the due enforcement of the law is the extreme difficulty of giving positive proof that the child alleged to have been murdered was completely born alive.

15. We have given this important and difficult subject our serious attention, and we have arrived at the opinion that an act should be passed making it an offence, punishable with penal servitude, or imprisonment at the discretion of the Court, unlawfully and maliciously to inflict grievous bodily harm or serious injury upon a child during its birth, or within seven days afterwards, in case such child has subsequently died. No proof that the child was completely born alive should be required. With respect to the offence of concealment of birth, we think that no person should be liable to be convicted of such offence upon an indictment for murder, but should be tried upon a separate indictment. The accused should not be entitled to be acquitted in either of the above cases if it should be proved on the trial that the offence amounted to murder or manslaughter.

16. There is one point upon which the witnesses whom we have examined are almost unanimous, viz. that the power of directing sentence of death to be recorded, should be restored to the judges. We think this change desirable.

17. Upon another important point there is also a great preponderance of opinion against the present state of the law. The witnesses whom we have examined are, with very few exceptions, in favour of the abolition of the present system of public executions, and it seems impossible to resist such a weight of authority. We, therefore, recommend that an act be passed putting an end to public executions, and directing that sentence of death shall be carried out within the precincts of the prison, under such regulations as may be considered necessary to prevent abuse, and satisfy the public that the law has been complied with.

18. There are other questions of great importance upon which we have taken evidence, viz.(1). The propriety of allowing appeal on matters of fact to a court of law in criminal cases.