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practical operation of our own system has proved so beneficial that we should regret to see any change in the present law of murder, so far at least as Scotland is concerned. Experience has amply shewn that juries will take into their own hands to say, even against the ruling of judges, what degrees of murder shall receive the punishment of death ; and we have more confidence in the common sense, and in the sense of justice of a jury, than in the sufficiency of any definition or rule of law to determine a safe and consistent practice.
It does not seem necessary, in dealing with the report of the commissioners, to consider the arguments that are in common use for or against on the question of the expediency of retaining capital punishment. It is impossible to read the evidence annexed to the report without seeing that several members of the commission would very gladly have availed themselves of any pretext for recommending its total abolition. And one is surprised and must lament to see such names as Sir Fitzroy Kelly, Mr Justice Shee, and Mr Lawson, the Attorney-General of Ireland, cited in favour of this view. But the commissioners have not seen their way to ground any recommendation upon these exceptional opinions; and agreeing as we do with Mr Baron Bramwell that the question is withdrawn from argument, we shall not now pause over its discussion. The bulk of the evidence is clear to the effect that punishment by death is a greater deterrent to crime than any other, and in view of these materials for arriving at a safe and satisfactory judgment, it is useless to indulge in social theories or abstract considerations of the principles of right and wrong. Murder is the greatest crime that can be committed against society, and if it be the fact that the law has already ascertained the best means for its prevention or repression, it is needless to go a step further in the controversy. Nothing will permanently continue to promote the interests of the state that is not in itself morally and socially right; and accordingly, when we are told by Lord Cranworth, Mr. Baron Martin, Sir George Grey, and all the Justiciary. Judges of Scotland, that so far as their experience and observation go, punishment by death has more influence than any other in exciting a dread of crime, it is quite vain to talk platitudes about the inviolability and sacredness of human life. In the state of the evidence, as we have already said, we feel that there is no call
upon us to argue the question. But it is clear that there is one great fallacy underlying the views of those who preach the doctrine of abolition, and that is the erection of the measure or extent of punishment as the criterion which determines the criminal population towards crime, or its avoidance. A man commits theft, or robbery, or murder because his nature is depraved, and the transgression of the law is the natural result of his corruptness; and considerations of future punishment have very little weight except in the earlier stages of vice and crime. And accordingly, the true remedy for crime is to be found, not in the substitution of one form of punishment for another, but in the education and the enlightenment of the people.
It seems to have been desired by some of the commissioners that the opinion of some of the lower orders, of such classes as are generally found haunting the places of public execution should have been obtained in order to decide whether the deterring influence of capital punishment is appreciated by those to whose condition it is generally applied. We must confess ourselves somewhat amused by this fastidiousness. We are not Utopian enough to anticipate any form of human society where people shall not exist that are only moved by considerations of physical restraint, and we require no assurance that the gibbet and its hideous accessories is a solemn fact, teaching far more instructive lessons than any other example that civil policy has yet devised.
It does not appear that the report is liable to the same objections which we have stated against other parts of it, in so far as it recommends that executions should hereafter be carried out in private. There seems to be a considerable amount of evidence justifying this proposal. We are glad to see that in the opinion returned by the seven criminal judges of Scotland a very decided view is expressed in favour of the present system; and we observe, appended to the report of the commissioners, a declaration, moved by the Lord Advocate, and signed by four other members, refusing assent to the views of the commissioners. The simple question in dispute here is, whether more harm is caused by the degrading influences of a public execution, than good is done by the terror which it inspires in those who witness it. And we fear that the question does not admit of any other appeal than to one's own consciousness and conviction. It certainly never can be reduced into a simple question of evidence. The case presents a mere balance of probabilities, in deciding between which we
must be guided by our knowledge of human nature and our experience of life, and of the world. According to our thinking it is perfectly idle to talk of corrupting influences as applicable to classes and conditions of society that have already reached the lowest stage of degradation, who are at open war with all law and order, and must be taught submission to it in a manner which they can understand. And it seems to us equally clear that the mere reading or hearing from others that the vengeance of the law was satisfied would have little weight in comparison with the personal witnessing of the ghastly method of its execution. The former implies a certain amount of imagination, and a power of conception which it would be very unsafe for the law to give the British ruffian credit for.
It is to be regretted that the commissioners have not felt it to be their duty to deal with the subject of infanticide more comprehensively than they have done. In pointing and objecting to the requirement of the law, that there shall be positive proof that the child has been completely born alive before. the crime can be held to be established, they shew that they have reached the very heart of the question.
Our law has of late exhibited a very marked and wholesome tendency to abate the stringency of this very hazardous, if somewhat logical theory ; but it is quite obvious that unless the law is immediately and expressly placed upon a different footing, but little will be gained in the way of mitigating an evil which is beginning to wear a very grave social aspect. So far as the recommendations of the commissioners go, they appear to us to be entitled to approbation. No doubt it will always be a difficult problem to determine in the period of the progress of birth when injuries have been wilfully caused, and when they are due to natural causes ; but that is an evil incident to the situation, and is unavoidable. It would be a great matter to get rid of the theory that the law shall regard nothing as crime until the child has acquired the character of persona, by reason of its complete separation from the mother. Every person who is acquainted with the practice of our criminal courts is well aware that that is the great obstacle in the way of conviction for the crime of childmurder ; and it is an obstacle which is felt in nine out of ten cases to operate to the scandal of justice, and to the peril of the best interests of society. But our regret that the commissioners have not more fully investigated the subject does not arise from the feeling that much can be done in the way of finding remedies within the compass of the law itself. For the check to be devised for the growing prevalence of infanticide appears to us to be fully as much of a social as of a legal problem. The law has been administered, at different stages of its history, with stringency, and with laxness; and statistics have never at any time exhibited any appreciable decrease in the extent of the crime. The evil has struck its roots deep into the hollowness which surrounds many of our social and domestic relations, and much will require to be done in the way of clearing and paving the way by diffusing sound moral instruction before satisfactory results, or results of any other kind than we have already, can be expected.
THE LAW OF HYPOTHEC.
THE Report of the Royal Commission on the Law relating to the Landlord's Right of Hypothec has now been before the public for some months, and the Lord Advocate has announced in his place in parliament that a bill will be introduced for the amendment of the law, in conformity with the recommendations of the Commissioners. It may not be improper to lay before our readers at this time a few observations on a subject of considerable public importance and interest, without prejudice to our returning to it, should it seem necessary, when the bill has been introduced.
The history of the objections to the present law is not without interest. Lord Kames (Elucidations, Art. 10) finds fault with the principle according to which the hypothec on the crop “is sustained for the rent only of that precise year of which it is the product.” In the case of rents payable beforehand (by which he seems to mean rents payable six months before the legal terms, and not merely before a crop has been reaped), he complains that the landlord cannot use his hypothec for a year after his rent becomes due. The tenant however suffered in his view a far more serious inconvenience where the terms of payment were late. At Candlemas 1760, for instance, he must have as much of the crop on hand as to satisfy a year's rent, viz., the rent of 1759; and as much even at Lammas 1760, as to satisfy half a year's rent.
"A hardship more intolerable,” he proceeds, “cannot well be figured : it is by the sale of corn that the tenant procures money for paying his rent;
and get the hypothec so interpreted, instead of promoting payment, is the very thing that retards it. Consider the thing in a different view. Late terms of payment are intended to favour the tenant, that he may have full time to procure money for paying his rent; and yet, according to the effect given to the hypothec, he gets not a moment's delay; 'or, which comes to the same, he has no benefit by the delay. I would not, however, be understood to plead for a hypothec on corn, equally permanent with that on cattle.
With respect to any single crop, it is sufficient that it be hypothecated for the rent of a single year; a new crop will succeed, to be a security for the next year's rent. And if corn is to be hypothecated for a single year's rent only, it ought to be the half-year's rent that is current when the corns are reaped, and the half-year's rent immediately preceding. By that plan, the hypothec is as little oppressive as possible to the tenant; and no less beneficial to the landlord, than if
other year's rent were secured by it.
"The hypothec under consideration, whether affecting corn or cattle, is, in its nature, so singular, as to create a doubt, whether such a legal conception of it can be formed, as to account for all its avowed consequences. It is admitted, that a hypothec upon the cattle, bars not the tenant from aliening any particular horse, ox, or sheep, or even quantities of them; provided sufficiency be left for the hypothec. It follows clearly, that no individual is hypothecated; and yet, upon that supposition, it is difficult to conceive that the whole stock or herd can be hypothecated. To avoid that difficulty, one is led to think, that there is no hypothec here in a proper sense; but only a preference given to the landlord before the tenant's other creditors, not as having any real right, but upon equitable considerations; a preference inter chirographarios, as termed in the Roman law. But in avoiding Scylla, we are driven upon Charibdis. If the hypothec be reduced to a preference inter chirographarios, it cannot affect bona fide purchasers for a valuable consideration; which however it does by established practice. In short, this hypothec seems not easily reducible to just principles.”
The subject seems to have attracted little attention after this, until the case of Dalhousie v. Dunlop & Co. in 1828 and 1830 (6 S. 626, and 4 W. & S. 420), in which it was decided that a bona fide purchaser of grain, which has been delivered and paid for, is liable to the landlord in second payment of the price where the rent of that crop has not been paid, and that even when the purchase has been made in public market by sample. We have never been able to see that the Courts were tied down by previous decisions or authorities to this distinction between a sale by sample in public market, and a sale by bulk in public market. The old cases do not make such a distinction, and the only grounds for it seem to be that at the time when the privilege of public market was established in favour of commerce, all sales were in bulk; and that the English rule of market overt in respect to stolen goods applies only to sale by bulk. The law,