Solicitor-General of Scotland? We think it admits of no doubt that the evidence given by these witnesses, when fairly read, is favourable and that in no undecided way-to the continuance of capital punishment upon its present footing. There is certainly evidence on the other side, and evidence which is entitled to weight. But the Commissioners do not appear to have attempted to strike a balance between the opposing arguments; and from that it is not difficult to infer strong predisposition on the part of several of their number.

But the report is still more liable to objection, by reason of the surrender which has been voluntarily made by the Commissioners of the functions which were delegated to them, and from the discharge of which alone could be expected any practical issue to their labours. We are informed that they "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 ;" and for such forbearance we feel extremely grateful. A disquisition on the principles of eternal justice, by a Parliamentary Commission, might prove edifying, but could scarcely be expected to contain much lively reading. Nobody, however, ever dreamt of entrusting the Commissioners with any such useless duty. It would have been as much to the purpose to ask them to pronounce on the merits of original sin, What was remitted to them was, "to inquire into the provisions and operation of the laws now in force 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." By the terms of their appointment, accordingly, the Commissioners were called upon to deal with capital punishment as a fact, as part of the administration of the law rested upon principle, and sanctioned by practice; and they were asked to say whether, as appeared from the evidence, the people of this country had come to look upon it with disfavour, and it was necessary, in view of the change in public opinion, to change the law; not whether the law itself is in accordance with abstract principles of right and wrong, and with the rules and practice of either the Mosaic or Christian economy. Here, again, in the interpretation of their office, we observe a bias on the part of the Commissioners, and a very marked disinclination to grapple with the practical aspects of the question.

The main features of the report relate to the punishment of murder, and to the form which that punishment should take. The Commissioners are of opinion that it is expedient to alter the present law of murder, and leaving the definition of murder, and the distinction between murder and manslaughter untouched, they propose, in accordance with the plan which is acted upon in several of the United States of America, to divide the crime of murder into two classes or degrees, with the view of confining the punishment of death to the first or higher degree. Their views are embodied in the following propositions and recommendations. (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. The punishment of murder so retained, the Commissioners recommend should be carried out by private executions within the precincts of the prison.

Although professing themselves not called upon to deal, by the terms of their appointment, with the subject of infanticide, the Commissioners recommend 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, and that no proof that the child was completely born alive should be required. With respect to the offence of concealment of pregnancy, they are of opinion that no person should be liable to be convicted of said offence upon an indictment for murder, but should be tried upon a separate indictment. The Commissioners also recommend that a practice formerly prevailing in England, but having no application to Scotland, the power on the part of the Judge of recording sentence of death, should be revived. This is a provision intended to meet the case of a Judge who considers that the punishment of death should not be awarded, although the jury have found a verdict of guilty, and will exert himself to see that it is not carried out. It

is thought, and seemingly with great justice, that in dealing with the important issues of life and death, such a useless formality as pronouncing a sentence which is not to be executed, would be well dispensed with. Prefixed to the report of the Commissioners is a summary of the evidence, under different heads, which will be found useful for reference, and is carefully and skilfully prepared.

The most important subject, undoubtedly, for both countries, with which the commission deals, is the relation of capital punishment to the crime of murder. The proposed changes, however, would have a greater effect on the state of the law in Scotland than in England. For the distinction which is proposed by the Commissioners between murder with and murder without premeditation, has, in recent years been gaining ground, with our neighbours across the Tweed. It has, of course, always existed among ourselves, and any system of law would be barbarous without it. But our recognition of it is placed upon a different footing from that which has latterly prevailed in England, and is now proposed by the Commissioners. With us it has always been a question of fact with the jury, not a rule of law to be laid down by the judge. The underlying principle from which the law starts is of course the same in both countries-that is, that no person shall be found guilty of the crime of murder unless there is malice proved against him, or an intention to kill, or to do that which results in death. The difference lies in the manner in which the fact is ascertained. In Scotland, the definition of murder is general, and the malice express or implied,—-a necessary element in the crime of murder,-arises upon the facts that are laid before the jury. According to the scheme of the Commissioners, the definition is to be particular, and the jury are to be limited in their consideration of the facts to the effect of arriving at a finding that accords with the strictness and the exclusiveness of a legal principle. We must confess to a very decided preference for our own system. For it admits within the scope of the law the infinite variety of fact that lies on the debateable ground betwen murder properly so called, about which no person has any doubt, and those cases which, in England, fall under the category of manslaughter, and in Scotland, of culpable homicide. To determine by the application of an unbending principle of law, when homicide shall be visited by the punishment of death, and when the punishment shall be only arbitrary, is a prac

tical impossibility, or if practicable, is only so at the risk of introducing inequality of punishments, and therefore operating injustice. In the scheme of the Commissioners, malice aforethought constitutes an essential element of the crime of murder, and is to be ascertained as a fact by the jury. But it is quite obvious that malice may be in a culprit's mind, and yet there is no way in which it can be legally evidenced, or evidenced in any other way than as surmise. In that case the jury could not find the fact, or if they did, they would be applying to it a standard by which they did not judge of the other facts of the case. And yet, is there any doubt that, in a great number of cases, where malice cannot be directly proved, it is there, notwithstanding, in all its force and virulence, and that the common mind has no difficulty in inferring it? By resorting to a positive and unbending definition-and if any change is to be introduced, it must be made so the Commissioners incur the risk of withdrawing from its operation many cases that, according to their own view of the principle, clearly fall within the scope of it. For if malice aforethought is to be found as a fact necessarily precedent to a conviction for the crime of murder, is it not certain that juries will require proof of it by facts antecedent to the res gesta of the crime under investigation, or if they infer it, as we assume is consistent with the Commissioners' scheme, they will only do so when it stares them in the face and is unavoidable? The Commissioners do not deny that every murder dictated by malice should be punished by death, but the manner in which they propose to ascertain malice is so narrow and ineffective that we do not hesitate to say that, in nine out of ten cases it would not be detected, and in the tenth case it might exist in the least degree of all.

We do not, of course, as we have already said, suppose that the commissioners intend to limit the proof of malice aforethought to facts and circumstances antecedent to the act which grounds the charge of murder. Our object simply is to show that by adopting a peremptory definition they run the risk of including a number of cases which ex concessis are to be esteemed as murder, and which, as appears from the report, they are anxious to distinguish from another branch of crime. But to their proposal to suppress the distinction between express and implied malice and the latter term is here used in a different sense from that in which we have just considered it-we cannot assent, and we have no doubt whatever that it will be generally pronounced

o be at variance with at least the genius of the law of Scotland. Direct proof of malice, of course, is always the most satisfactory, and it is always, and most properly, anxiously looked for; but the law admits at the same time of malice being inferred from the character of the act done and from the circumstances which attend it. Accordingly, a prisoner who has voluntarily debauched and debased his moral character to such an extent that he is incapable of self-control, and, yielding to his evil passions, assaults another with such ferocity that death ensues, is, in the eye of the law worthy of capital punishment just as much as the man who has deliberately planned and compassed the life of his victim. That is undoubtedly the law of Scotland, and we have reason to believe that it has worked well and to the satisfaction of the people; and moreover, that a very general impression prevails that in the presence of other predispositions towards fierce and unruly passions it is not desirable to abate the rigour of the law. And according to abstract principle, of which the commissioners are so shy, we think there is no room for the distinction, because it is a very narrow view indeed of the doctrine of punishment to suppose that it is upon the act itself, or on its immediate accessories alone, that the vials of the law's wrath are poured. doubt the shock to the public mind is greater the elements of crime that are cognisable by the law bulk more largely in view in the case of a deliberate poisoner than of a besotted brutal ruffian. But is the law not to take account of the voluntary surrender which the latter has made of the hold which he once had upon his moral purpose? We see little difference in the cases beyond what might be produced by the lapse of time operating upon different degrees of coarseness and depravity. We are very far indeed from saying that there is not in many cases an appreciable difference between the two classes or gradations of crime that are now before us. But we believe that its recognition would be more safely left to the touchstone of facts operating on the minds of jurymen, who are naturally disposed towards merciful views where these are possible, and by whom the popular distinction between deliberate and involuntary crime is anything but ignored.

No

That the scheme of the commissioners wears a certain logical aspect may be conceded, and it may be conceded also that wherever the exposition of the law under fixed and determinate rules is practicable, logical methods should be resorted to; but the