proposed that his client should be examined by one or two physicians, with the view of ascertaining his mental state:— "It is impossible," he said, "for the Court to refuse my motion. I am too well acquainted with their feelings of justice and impartiality to believe that they can refuse me the medical examination for which I pray." The tone of this appeal is very remarkable. The advocate does not demand the medical examination with the confidence of one asking for what belongs to him as a known legal right. On the contrary, he implicitly acknowledges that the Court has a discretionary power to refuse his motion, although he believes that their sense of justice will make it "impossible" for them to do so. In this, however, he is mistaken. The Court, after a consultation among themselves, refuse the motion, at least in the meantime, and order the trial to proceed (qu'il sera passé outre aux débats). After an examination of one of the witnesses, the following dialogue took place between the accused and the presiding Judge, as reported in the Journal des Débats of 29th July last: President." For what purpose did you go to the curé's house." President." Why did you kill him ?” Accused." To rob him." President." How long beforehand had you premeditated the deed ?" President." You had borrowed the hatchet some days before?" Accused." Yes, but not for the purpose of this murder." 66 President. Some days before, you expressed a desire to lay hold of the cure's money?" Accused." I did not say so: if I said so, I had no intention of executing the threat." President." Why did you take a hatchet with you to the cure's house ?" Accused." To kill him with it.” President." Were you sober?" Accused.- -"Yes." President." How could you commit such a crime?” Accused. "I was tempted by the devil." President." How many blows did you strike ?" President.- -"You afterwards confessed that the first blow killed him; why did you strike more than once?" Accused." Lest he should get up again." Several witnesses spoke to the previous good character of the accused. By virtue of his discretionary powers, the President allowed the Prefect of the Department to be introduced, for the purpose of making a statement to the jury. That functionary declared, that he had visited the accused in prison, and had not discovered in his conversation any ground for believing him insane. The juge d'instruction or magistrate entrusted with the preliminary inquiries, gave testimony to the same effect. But not a single medical witness was examined as to Dupuy's mental condition. The jury returned a verdict of guilty, with extenuating circum stances. By the French law, a verdict so qualified cannot be followed by a capital sentence. Jean Dupuy was condemned to hard labour for life. To any British lawyer, this case presents obvious matter for criticism. If Jean Dupuy was insane, there was no crime; for, by the common consent of all civilized legislation, a madman's deed cannot be accounted criminal. But if insanity were out of the case, what are the extenuating circumstances to be found in it? If it was the act of a sane man, it was a deliberate and brutal murder, for the purpose of gain. The Court being vested with discretionary powers, which seem to us an intolerable blemish on the French penal code, used these powers to exclude the only proper and reliable mode of trying the single issue raised by the defence. And the jury, doubtful probably whether the accused was insane or not, compromised the matter by so qualifying their verdict of guilty as to save his life. It was in the reign of the late King Louis Philippe, a monarch who had the strongest aversion to capital punishments, that French juries were, for the first time, allowed to annex this qualification to their verdicts. We can scarcely blame the intention which suggested this enactment. Two acts of homicide may each fulfil every sound legal definition of murder; and yet it may be right to punish the one capitally, and not the other; the difference between the two being just stated in this very phrase, that there are extenuating circumstances in the first and none in the second. Experience has not justified the anticipations of the French legislature. The power to veto a capital sentence commonly tempts the jury to convict of murder on imperfect evidence. There are many instances besides the case of Jean Dupuy, in which the qualification of extenuating circumstances is to be read as expressing nothing else than the doubts which the jury have, whether the accused was guilty at all. The case of Madame Laffarge will occur to every one as a notable instance. Recently in England also, we have had an illustration of this tendency of juries to be too easily satisfied with the evidence for the prosecution, when they know that the prisoner's life will be spared. At the Lincoln assizes in July last, Thomas Fuller Bacon was found guilty of administering poison to his own mother, with the intention of detroying her life. There was another count in the indictment, charging the prisoner, directly and simply, with murder; but this charge was abandoned, because, as the Times explains the matter: "There was a gap between the exhibition of the arsenical symptoms and the last throes of the deceased, which was not filled up by the medical testimony." It is to be noted, that the death, which was the subject of inquiry, occurred more than two years before the trial. We again quote the Times: "It appears that on the 12th of May 1855, Ann Bacon was in her usual state of health. On the following day, Sunday, she dined with the prisoner, and was, during the dinner, seized with vomitings and purgings. Who was present at this dinner? We do not find this stated. It would surely have been a proceeding of some risk to administer poison to one, out of several, at a common repast. The prisoner immediately ran for the medical gentleman, Mr Barber, who had attended his mother during an illness in the previous March. When she was removed from his house to her own, at about six P.M. on the Sunday evening, his sister-in-law was sent for, and found Thomas Bacon in attendance upon his mother. During the Monday and Tuesday, he came at intervals, sometimes with his wife, to see her. His wife, it will be remembered, is now in the madhouse, to which she has been consigned for the murder of her two children while under the promptings of insanity. . The case is one which admits of doubts in favour of the convict, for the circumstances which makes mainly against him, namely—the purchase of the arsenic,-was so publicly transacted as to inspire hesitation in the belief, that he would use the poison so openly obtained for the murder of his own mother, under the eyes of so many witnesses." The judge directed sentence of death to be recorded upon the verdict, every one knowing quite well, that it was not destined to receive execution. But for this anticipation, which has not been disappointed,' it is difficult to believe that there would have been a conviction at all. Capital punishment, in the narrowest view which can be taken of its expediency, has unquestionably a beneficial effect on our criminal jurisprudence. It strengthens and keeps alive the rule, that there must be no conviction except upon evidence excluding any reasonable doubt of guilt. Juries in capital cases are always earnestly reminded of this, and whether they acquit or condemn, they will scarcely ever fail to act upon the recommendation. The canon thus solemnly established, is necessarily extended to cases not capital; for the rules of evidence are not, and cannot be, flexible, according to the penalty which follows on conviction. But, in order that capital punishment should have this effect, juries should never be tempted to convict on insufficient grounds, as a compromise between their suspicions of the prisoner, and their doubts upon the conclusiveness of the evidence. In France, the law itself supplies that temptation in any capital case. In England, it arises in such cases as Fuller Bacon's, where the grounds of suspicion are too strong for a verdict of not guilty, and when the jury know that they can adopt the only other legal alternative, without sending the prisoner to the gallows. Our verdict of not proven seems to us the most logical and satisfactory solution of such difficulties. It may be, indeed, it generally is, a compromise between opposing doubts; but it is a compromise which sets the prisoner free. For the legal result of that verdict is the same as that of a verdict of not guilty. Upon both, the panel is simpliciter assoilzied and dismissed from the bar. Without re 1 The sentence has been commuted to transportation for life. peating what we said on this subject in the course of our observations on Miss Smith's trial (supra, p. 395), we notice the Dublin murder as an additional instance in support of our views. James Spollen has taken no benefit in public opinion from the verdict of not guilty recorded in his favour. Public opinion, and the conscience of his jurors, would, we doubt not, have been better satisfied by a verdict of not proven, had the law of Ireland allowed such an answer to the issue. Notice of an endeavour so to alter the law in the next Session of Parliament, has been announced in the newspapers. We wish it all success, regretting only, that it is not intended, at the same time, to propose the abolition of that absurd rule, which in England, Scotland, and Ireland, excludes in criminal causes, a wife's testimony for or against her husband.1 The cases of Jean Dupuy, of Thomas Fuller Bacon, of James Spollen, and of Madeleine Smith, belonging, as they do, to three different legal systems, may, we think, be profitably studied in contrast with one another, by all who believe that there is such a thing as a philosophy of criminal jurisprudence. We are humbly of opinion, with due submission to our readers, that such comparisons are neither uninteresting nor uninstructive. ON THE LAW OF FRAUD IN CONTRACTS. (Continued from p. 493.) FROM Our former statement of the conditions essential to fairness in a contract, it is plain that, where there is no question about the permanent, or temporary, or accidental incapacity of parties, fraud, if committed, must be effected either by misrepresentation or concealment. All cases of circumvention, however apparently complex, when the party deceived is sciens et prudens, are truly reducible under these two heads; and the usual division of all fraud into fraud by misrepresentation and fraud by concealment, founded as it is, not only on the obvious distinction between these two modes of fraud in their nature, but also on the difference in the rules of law applicable to either, seems both correct in principle and convenient in practice. If one of two parties have erroneous or inadequate views on a contract, and if the other party be either morally or legally to blame, it must be either because the latter has misrepresented the facts, or because he has not disclosed all the facts he knows. He may misrepresent, it is true, by misleading the other party in his inquiries about the facts, or in his inferences from them; or by devising that the in 1 The state of the law of Scotland on this point, is shown in the authorities quoted at the foot of p. 267, supra. formation he receives on inquiry shall be false, as well as by positive misstatement. He may conceal by silence merely, by diverting the attention, by actual devices for the purpose of concealment, or by destroying or removing the opportunities of information. But, in all these cases, the fraud is committed by misrepresentation, under some modification or another, or by concealment, with or without any active step on the part of the individual abstaining from disclosure; and it will be convenient to rank, under these two heads, the decisions of our Courts in regard to the manner in which fraud may be effected, when there is no question about the capacities of parties. Misrepresentation may regard the essence of the contract, or it may regard the subject matter of the contract, without being of the essence of it, as the advantage of a bargain or the quality, or value of anything sold; or it may regard external circumstances going to increase or diminish the market value of a thing; or it may regard the credit of a party. In all cases, the general rule undoubtedly is, that, where a disadvantageous contract is induced or damage occasioned by means of the positive misrepresentation of a party to the contract, the party injured will obtain redress; the general maxim applying, that no man shall be permitted to gain by his own fraud; yet a sale will be reduced more readily on a misrepresentation regarding the thing sold itself, than if it regard merely the quality of the thing; and the general rule suffers many exceptions. But, more particularly, the misrepresentation must in general be a misrepresentation as to positive matter of fact, unless the one party repose special confidence in the other party, and have right to do so, or do so within the other party's knowledge. Mere general inaccuracy of statement will not invalidate a contract. To the facts, and the facts alone, the parties are entitled to look; and on these they are bound to form their own judgments. Mere false assertion of value is no good ground for relief. "Simplex commendatio non obligat. Emptor emit quam minime potest, venditor vendit quam maxime potest."-Kent Com., vol. ii., p. 481.) Everybody is aware of these habits of exaggeration or depreciation in trade; they may, and to a certain extent must, take place without fraud either legal or moral, merely through the prejudice every man is subject to in favour of his own side of a bargain. In ordinary sales, parties transact emphatically at arm's length; nobody trusts to such representations, and no confidence is reposed or deceived. And this rule ought especially to hold, when the party alleging that he has been deceived by this kind of misrepresentation is in a better position for obtaining information than the party who, he alleges, deceived him. For this reason, a vendor will hardly reduce a sale on the ground of such misrepresentations; for he ought to know the value of the thing he sells better than the purchaser. So a landlord will have difficulty in making a relevant case for reduction of a lease, on the ground |