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and partial act of justice in remitting the remainder of the sentence passed on Neville Maskelyne Toomer for alleged rape on Miss Partridge. The reasons assigned are the nature of the evidence, the jury's recommendation to mercy, and the amount of punishment already endured. This evades the true objection which the press has been urging for months past, viz., that the conviction was wrong. The evidence showed that there was no rape, not merely that it was a rape of a mild and less heinous character. The redress should have been a free pardon.
"There is too great a tendency," says a contemporary, "alike with judges and juries to vicarious punishment. They think a defendant guilty of some offence which cannot be proved, and punish him for that under cover of a conviction for some other offence. There is none so open to this abuse as the crime with which Toomer was charged. Many a juryman, and we fear, also, some sentimental judges, do not very clearly observe the distinction between fornication and rape, between vice and crime, as we once heard the late Mr Justice Talfourd tell the jury that the rape of the mind was worse than the rape of the body. Many are yearly found guilty of rape who were really guilty only of fornication, because the average juryman says to himself, He went with her, and she swears she did not want him to-that's enough.' Every counsel experienced in criminal courts, knows how dangerous is the defence of consent, however strongly all the circumstances of the case, as they come out in cross-examination, showed that there was no real resistance. Toomer's trial, conviction, punishment, and pardon, affords another proof-if more were wanting-of the extreme care required in the sifting of evidence in charges of rape, of all others the easiest made, the most difficult to answer. Baron Platt once told the writer that his long experience at the criminal bar had taught him this-that he did not believe in rapes; they were possible, but improbable. We would not go quite so far as this; but where the liberty of a life depends upon the truthfulness of a single witness, usually under the strongest inducements to save her character by swearing it was against her will, the mere assertion that it was so should be treated as worthless, and the judgment should be formed by the conduct at and immediately after the time-whether there was proper resistance, if the earliest possible complaint was made, and if the conduct throughout was that of enraged virtue, and not of detected frailty."
Liability of Railway Companies for latent defects ia their Carriages. The decision of the Court of Queen's Bench in the late case of Redhead v. North Midland Ry. Co., May 15, 1867, has, so far as it merely decides a question of law, received a factitious importance in the discussions of the newspaper press, as well as in the opinions of the judges. It determines that railway companies are not liable in damages to passengers injured by accidents arising from latent defects in the vehicles by which they are conveyed, but only for those which may be discovered and guarded against. The view contended for by the Railway Company, and adopted by one of the judges (Blackburn, J.), was, that the company, though not as carriers of passengers insurers, yet undertakes, in providing a suitable
vehicle, something more than due care and diligence, viz., a warranty that the carriage is sound and free from all flaws, even those which are not discoverable by any care or skill. We had imagined that the doctrine which recommended itself to the majority of the Court was long ago quite settled law, and subject to no manner of doubt. In Scotland at least it is so. Mr Bell says (Com. i. 462, ed. Shaw, 153), "This responsibility (of the carrier of passengers) is according to the rule of the contract for the sufficiency of the carriage and ordinary care (culpa levis) of those employed. As to the sufficiency of the carriage, it is enough if it be sufficient as far as the eye can discover." The same doctrine is laid down in the Principles, sec. 170. The cases referred to all show that till this moment it has never been seriously questioned in Scotland since 1820, that the carrier of passengers by land discharges all the onus that lies on him by proving that his vehicle was "trustworthy," as Professor Bell and Lush, J., express it, or "landworthy," in the language of Lord Ellenborough. In that year an exception was disallowed to a direction that coach proprietors were not liable in damages for the breaking of an axletree which "was defective and faulty, but sound as far as human foresight could reach."-Anderson v. Pyper & Co., 2 Murr. 261; cf. Lyon v. Lamb, June 22, 1838, 16 S. 1188. In other words, the liability of the carrier is for negligence, but does not extend further. He does not take any risk beyond that. This doctrine was applied to Railway Companies in the adjustment of issues in MacGlashan v. Dundee & Perth Ry. Co., June 23, 1848, 10 D. 1397, s.c. 1401; and also more distinctly in Cargill v. Dundee & Perth Ry. Co., Dec. 7, 1848, 11 D. 216, and Sneddon v. Addie, June 16, 1849, 11 D. 1149. See J. G. Smith on Reparation, pp. 72, 410. Mr Justice Lush says that there is no English case reported in which the question has been argued and solemnly decided; but both he and Mellor, J., refer to numerous cases all pointing unmistakeably to the same result. It is remarkable that the first authority referred to in the passage above cited from Bell's Commentaries is the doctrine of Sir James Mansfield, C.J., in the English case of Christie v. Griggs, 2 Camp. 81: "If the axletree was sound as far as human eye could discover, the defendant was not liable." And we read in the last edition of Smith's Mercantile Law: "A stage coach owner... does not warrant the safety of the passengers, at all events; but only that so far as human care and foresight will go their safe conveyance will be provided for. Neither does a railway company which carries passengers." Regard being had to such authorities, which are numerous (for it is needless here to refer to Story on Bailments, and the cases cited in support of the judgment in Redhead v. N. Midland Ry. Co.), it is somewhat odd that the question should have been raised at all at this time of day, and still more so that a judge of high reputation should have differed from the majority. That newspaper writers should have regarded the judgment as a new and important light thrown upon the law is perhaps less sur
prising; but we think that when they were dealing with the subject they should have discovered that it really involves a very important principle, not of law but of public policy, which (though they have carefully abstained from touching upon it), it was peculiarly within their province to discuss, and which was the true reason why Blackburn J. in the face of all the authorities differed from his brethren. For certain reasons of expediency the common law holds carriers as insurers of goods committed to their care, and as answerable for every loss or damage happening to them while in their custody, from whatever cause, unless it be by the act of God or the King's enemies. Mr Justice Blackburn does not seek to carry the liability for injuries to passengers quite so high as that;—
"But," he says, "if there is an obligation to provide a vehicle of sufficient strength, then the failure to do so whether through his fault or notis a breach of that duty. It is admitted that there is such a liability as to the carriage of goods; and it would be strange if there were a less stringent liability as to passengers, where it involves the safety of their lives and limbs. The passenger is obliged to trust entirely to the carrier as to the safety of the vehicle, and has no means of examining into it himself. It has been well settled that one who contracts to supply an article for a particular purpose warrants that it is fit for that purpose; and the principle is that, as he undertakes to select it, he is liable if it is unfit for the purpose for which he supplies it. The principle appears to me to be equally ap plicable to the case of a carrier who supplies a vehicle for the carriage of his passengers. Upon the same principle a shipowner is deemed to warrant that his ship is seaworthy, and this warranty is said to be "implied from the nature of the contract." I think it is equally implied from the nature of the contract between the carrier and his passenger; and the case is surely stronger as regards passengers than as regards goods, seeing that it concerns the personal safety of the passengers."
Lawyers will nearly all admit that on established principles no other decision was possible than that which was given in this case. But it must also be granted that much may be said, more than we have space to say at present, in favour of legislative interference to extend the responsibility of railway companies in this respect.
Appointments. Sir George Home, Bart., Advocate, has been appointed Sheriff-Substitute of Argyleshire at Inverary, in place of Mr J. Cunningham Graham, resigned. Sir George Home was called to the Bar in 1855. His appointment is a satisfactory one, not only to those who have known him in the Parliament House, but also, we are informed, in the district over which he is to preside, where he has for some time officiated as interim Sheriff-Substitute.
H. M. Taylor, Esq., Procurator-Fiscal at Tain, has been appointed Sheriff-Substitute of Easter Ross in place of the late W. H. Murray, Esq. The Inverness Courier says that people in the district are satisfied with the appointment. It is however much to be regretted, on public grounds, that a Sheriff who deservedly enjoys so high a position and character as Mr A. S. Cook, should by such an appoint
ment appear to adopt the views lately expressed in a high quarter as to the qualities required in a Sheriff-Substitute, views which are still more to be deprecated in their application to the procurators of remote Highland districts than to the numerous highly-trained agents of Glasgow. The lesson of experience both in England and Scotland is that the proper course, in ordinary circumstances, is to select men to preside in the local courts from those who have spent their youth and their means in qualifying themselves for the highest branch of the legal profession, rather than from those who have been accustomed to the narrow field of an inferior tribunal. If procurators are chosen (and sometimes, though very rarely, a procurator will be the best possible man), we repeat what we have said before, that they should be sent to districts other than those in which they have practised, to prevent local jealousies, and remove them from local prejudices and associations. We know little of Mr Taylor or his qualifications, but the presumption against him is materially strengthened by the fact that his appointment as Procurator-Fiscal dates from 1832. We have only to add, that we impute no unworthy motives to Mr Cook; but we regret that those who are not aware of his high and honourable spirit should have any excuse for doing so. We regret also, for his own sake, that he should have by this act shown himself so entirely out of rapport with the universal feelings and opinions of the branch of the profession to which he belongs.
George Skene, Esq., Advocate (1830), since 1855 Professor of Scotch and Civil Law in the University of Glasgow, and previously Sheriff-Substitute of Lanarkshire at Glasgow, has been appointed Curator of the Historical Department of the General Register House, Edinburgh, in place of the late Dr. Joseph Robertson. We are not sufficiently acquainted with Professor Skene's qualifications for the office to be able to state what they are. Some justification of the appointment may perhaps be found in the manner in which he discharged the duties of his Chair in Glasgow.
Alexander Henderson Chalmers, Esq., W.S. (1854), has been appointed Commissary Clerk of Aberdeenshire in place of J. H. Chalmers, Esq., resigned, and since dead. The fees received by or due to the Commissary Clerk of Aberdeenshire were returned to Parliament as having been £964, 6s. in 1863.
The Scotch Law Chair at Glasgow.-The vacancy caused by Professor Skene's resignation has not yet been filled up. An entirely new course has been followed in the discharge of this piece of public duty. Academic appointments have hitherto been conferred on the persons whose claims seemed highest out of all those offering themselves for the place. This method does not approve itself to the present Government, at least so far as this professorship is concerned. Instead of being thrown open to the whole Bar for fair competition among those having academic aspirations or qualifications, it has been offered, one after another, to four or five gentlemen of the Con
servative party, who have shown their want of liking for the place by declining it. Where this singular and discreditable process may end it is impossible to say, as the list of gentlemen eligible on the single ground of allegiance to Lord Derby is of course far from being yet exhausted. We must protest against such a mode of proceeding as showing at once a flagrant contempt for public decency, and an entire disregard of the proper grounds on which the choice of academic teachers should be made.
We learn that at a recent meeting of the Faculty of Procurators at Glasgow, it was resolved to suggest in the proper quarter that the present Law Chair should be confined to the teaching of Civil Law, retaining the present salary. It was resolved that in the event of this being done, the Faculty should undertake to found and endow a professorship for the exclusive teaching of the law of Scotland; and should besides make it compulsory on their apprentices to attend the Civil Law Class. We commend the public spirit of the Faculty, to whom Scotland is already indebted for a new Law Chair. But we have some doubt as to the expediency of making two professorships of law where the emoluments of the one now existing are so small that the Lord Advocate can find no decent lawyer of his party to accept it. Would it not be better to require the new professor to teach two classes, one of civil and the other of Scotch law? That is not beyond the capacity of one man, and it might make the office worthy of the ambition of a thoroughly-competent professor.
Obituary-HENRY CRAIGIE, Esq., W.S., who died at his residence, Falcon Hall, Morningside, April 19, was a nephew of the late Lord Craigie. He practised in early life as a Writer to the Signet, having been admitted to that Society in 1829, but for many years he had given up all professional business, and devoted his time and ample means to works of benevolence and piety.
WILLIAM HUGH MURRAY, Esq., of Geanies, in the county of Ross, who died at his seat, near Tain, on the 25th April, was eldest son of the late William Murray, Esq., banker, of Tain, by Jane, daughter of Capt. Kenneth Mackay, of Torboll, Sutherland, and was born in the year 1824. He was educated at the High School and University of Edinburgh, and was called to the Scottish Bar in 1846.
a magistrate and deputy-lieutenant for Ross-shire, and sheriff-substitute of the eastern division of that county. Mr Murray succeeded to the estate of Geanies on the death of his cousin, Miss Janet Murray, in 1845.
JAMES HAY CHALMERS, Esq., advocate, Aberdeen, and Commissary Clerk of Aberdeenshire, died recently at Torquay. He was eldest son of Charles Chalmers, Esq. of Monkshill, Aberdeenshire, and grandson of James Chalmers, Esq., of Aberdeen (representative of Hugh Chalmers, last of Clunie, Banffshire, Minister of Marnoch, who died 1707), by Mary, daughter of Alexander Henderson, Esq.,