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vidual does not materially interfere with the natural rights of his fellow-men, he should be free to follow his own will, and not be interfered with by the universal will, through the medium of criminal law. I have no doubt, however, that Hegel's actual opinions on law make full provision for the liberty of the subject. If I have to any considerable extent misunderstood Dr. Smith's remarks above quoted, 1 am sorry for it, but, with all due deference to him, I cannot take all the blame on my own shoulders. Who can understand such a sentence as this?"To negate the universal will is to do something that is in itself null." On page 177, Dr. Sterling expresses himself somewhat more intelligibly and more decidedly, as follows: "Beccaria, for example, even denies the State any right of capital punishment, and he assigns for reason that it is not to be presumed that the social contract contains the consent of individuals to their own death. But the State is not a contract; and as the established universal, it possesses a right to claim the sacrifice of the individual for its interests. To others, again, it appears absurd, because of one evil to will another. Accordingly they either reject punishment altogether, or admit it only because of its tendency to intimidate, deter, prevent, etc. Such views as Hegel points out, however, resemble the lifting of a stick to a dog; they do not really respect man, they do not really respect him as a free being, but treat him as a dangerous animal that must be kept under. But punishment is an idea on its own account, and has its foundation in the very nature of the will, in the very nature of reason. The true, even to realize itself, must destroy the false; so the false will of the criminal must realize the true universal will, and it lies in the very notion of the relation that the false will should contradict itself, negate itself, and how can that be done but by submitting it to its own law?"

V Hegel's opinion, then, of the view of criminal law I have been advocating, is, that "such views resemble the lifting of a stick to a dog; they do not really respect man, they do not really respect him as a free being, but treat him as a dangerous animal that must be kept under. Punishment is an idea on its own account, and has its foundation in the very nature of the will, in the very nature of reason."

Before admitting that criminal law, as I view it, resembles the lifting of a stick to a dog, I must be allowed to inquire, whether the lifting of the stick is supposed to be done in self-defense, or with the view of compelling the animal to obey its owner's behest. If for the latter purpose, I can perceive no analogy between it and criminal law. If, however, the stick be lifted in self-defense, or in the defense of others from the dog's attack, and for the sake of intimidating it from future outrages of the same kind, then I am willing to admit some similarity between it and my view of criminal law. But there is, at least, one important distinction. In the first place, the transaction between the dog and its master is one

between superior and inferior-I may almost say between a man and his property; but society, through the medium of the law courts, threatens or chastises the criminal in the calm contemplation of the fact that the criminal, as a man, is on a level with his fellow-men, and occupies the same grade in the universe with the worthiest member of society. Those who reject the idea of punishment do not, therefore, hold (as Hegel avers they do) that it is as a dangerous animal that a criminal is confined, but they would have him confined as a dangerous man.

But Hegel further objects that "such views of law do not really respect man as a free being," and claims for his theory of criminal law, that it honors the criminal. In Dr. Stirling's words (p. 178), "it is precisely in punishment that the criminal himself is honored, and it is precisely by this, that such punishment lies in his own act, that he is specially honored."

It is not very easy to perceive any meaning in these sentences that at all consists with common sense. Criminals, at least, will require, I fear, a good deal of "compulsory education" before they will be brought either to understand or assent to them.

I really cannot conceive how or in what sense criminal law honors the criminal; especially I fail to see how it is "precisely in punishment that the criminal himself is honored." I know that before a man is proved guilty he is entitled to respect, and even after conviction, for he is still a man as well as a criminal, he has still much that is good about him, as well as something that is evil; above all, I believe that he possesses, or rather as Hegel says, “is” that free-will which may yet reduce his actions to order and make him a worthy member of society, and on this account the law respects him, sets a limit to his confinement or whatever else may be inflicted upon him, and will not cut him off from a chance of

reformation. Nevertheless, inasmuch as he has grossly interfered with the natural rights of his fellowmen, inasmuch as he is a criminal, the law must lay upon him that which will tend to deter him and others from committing the offense in time to come. It is possible that Dr. Stirling may mean that, as criminal law punishes the criminal, and punishment, in the strict signification of the word, can only be applied to free, rational and responsible beings, therefore the law, in treating the criminal as a free being, honors him.

But I think I have succeeded in showing that the so-called "punishment" which the law inflicts is not based upon the free-will of the criminal, nor proportioned to his guilt. It is, therefore, not punishment at all in the true sense of the word, but simply the infliction of something disagreeable on the criminal as a deterrent from future crimes. It may be asked, if the punishment be not proportioned to the criminal's guilt, why is it limited at all in amount; and if the criminal be not regarded as a free being, possessing the power of self-recuperation, how is it that he

is allowed, after a certain time, to mingle again with society?

ence.

I hold that criminal law would, or at least ought to, remain unaltered, although the metaphysical subtlety termed free-will were proved to have no existThose who have denied its existence (and they are not a few) have never, so far as I am aware, insisted upon any alteration in criminal jurisprudence or procedure. Criminal law is not based upon the assumed existence of human free-will, but on the evident propriety (1) of confining the criminal in order to prevent an immediate repetition of the offense; and (2) of letting him free after a certain time, because experience has shown that, whether criminals have free-will or not, they have frequently changed their course of conduct, and become respectable members of society.

The fact of their thus reforming their conduct does not necessarily prove them to have what is called "free-will." A dog or a bear may be taught by the infliction of pain to alter many of its habits, and to perform actions far from natural to it. Yet no one asserts that it possesses free-will. An externa refor mation of conduct, then, from a dread of consequences formerly experienced, is no proof of free-will. I question whether even the truer, purer, and more thorough reformation which is the effect of God's grace in the heart is any proof of human free-will.

But suppose it were granted for the sake of argument that law regards the criminal as a free being, I still fail to perceive how it is "precisely in punishment that the criminal himself is honored." Dr. Stirling cannot mean that the law imprisons the criminal because he is a free being. That is rather the reason why the imprisonment is limited in duration, so that an opportunity for the exercise of his free-will in the reformation of his conduct may be afforded him. Lunatics are confined as long as they are lunatics, and only liberated when they can once more be called free men. It is not in "imprisonment with hard labor," then, that the criminal is honored. If he is honored at all, it can only be by the fact of his confinement being limited in duration,- his chastisement restricted in severity; and in the case of the last sentence of the law, viz., "to be hanged by the neck until dead," it is surely a somewhat novel proposition to say that it "honors the criminal."

On the subject of capital punishment I will here say no more than that it is quite defensible on the protective theory of criminal law. The murderer has proved himself so dangerous to society, and so little likely to reform, that the deterrent in his case should perhaps be absolute.

JI now come to the only other remark of Hegel's, bearing on our subject, to which I shall advert. Dr. Stirling says, page 177, Punishment is an idea on its own account, and has its foundations in the very nature of the will, in the very nature of reason; and on page 178, "The kind of punishment depends

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on the particular crime, and on the particular condition of society, and that is an affair of understanding, but punishment itself depends on the notion, depends on reason, and is an inevitable and rational result." "An act of justice," says Hegel, "cannot be degraded into any mere means; justice is not exercised in order that any thing but itself may be attained and realized. The fulfillment and self-manifestation of justice is an absolute end, an end unto its own self." As I have already stated, I believe punishment to be an idea on its own account, and to have its foundation in the very nature of the will. But I contend that man is not accountable to man, that to administer punishment is the prerogative of God alone, and that He has not commissioned any man or body of men to exercise this prerogative for Him on earth.

The sentences next above quoted are worthy of some attention. "An act of justice cannot be degraded into any mere means the fulfillment and selfmanifestation of justice is an absolute end."

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There are few words oftener used by moralists and jurists than that of justice. One very often hears it said that criminal law exists for the purpose of preserving "justice." Now I object to the word "justice" when so applied, simply because it is the word commonly used by those whose ideas on the subject are vague. When forced to give definite shape to them some explain "justice" to mean one thing and some another. When the word "justice" is used to signify that order, suitability, and system in the actions of men, the attainment of which in perfection is the end of the Divine moral law, the approximate attainment of which is the true end of jurisprudence as a whole, and the rough or rudimental attainment of which is the purpose of criminal law, then undoubtedly the proposition, that the object of criminal law is to preserve "justice," is quite correct.

But if, on the other hand, "justice" is understood, as it very frequently is, to signify the punishment and expiation of guilt, and the reward of merit, I hold that criminal law does not exist for such a purpose.

Understanding the word "justice," then, in the former sense, viz., as that systematic arrangement of human conduct, the attainment of which, in its broad features, is the object of all jurisprudence, I agree with Hegel, when he says, that the preservation of justice (he speaks of an act of justice) cannot be degraded into any mere means, but is an absolute end.

If, however, Hegel uses the term "justice" in the latter of the two senses above explained, viz., as signifying the punishment and expiation of guilt, then I contend that criminal jurisprudence has nothing to do with it.

Perhaps it is proper before concluding, to take a passing glance at the utilitarian views of law held by so many jurists, politicians, and philosophers, among others the English jurists, Bentham and Austin.

These men take a somewhat different view of law

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Now, while I am convinced that there is little actual difference between the ideas of Hegel and those of the utilitarians as to the necessity for law, and the practical shape which law ought to assume, I am humbly of opinion that the preferable phraseology is that of the Hegelians, who contended for justice as the ultimate end of law, more particularly criminal law; the public good, or worse still, the "enjoyments" of the public, are expressions so easily misunderstood or misinterpreted so easily construed to mean the passing pleasures of sense or wantonness, that they are a dangerous banner for legislators and judges to keep before their eyes, and still more dangerous when instilled into the minds of that great class of society which has now obtained so much political power, viz., the working men. If the public, as a body, were indoctrinated with these views (and the lower orders of it are only too prone to adopt them), it is not too much to say that the ties which bind together the social system would soon be cut by men ignorant of what the true and lasting happiness of a community consists in. Of course such men as Bentham believe and know that the well-being of a State greatly depends on its reverence for law, but how dangerous is it to tell the tolerably intelligent, but intensely selfish average man of the present day, that the laws exist only to promote his pleasure, to say nothing of the iguorant, discontented and wanton members of society, many of whom it must be confessed have already some sway in the affairs of the nation.

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I fully appreciate the force of this argument, but feel that to go fully into this celebrated controversy would require too much time and space, besides leading us away from our subject. So far as criminal law is concerned I object to the word "utility even more than to that of "justice." "Justice" is too unbending, but ". utility" is by far too flexible. Both, from frequent and indiscriminate use, are now indefinite, and apt to mislead any one who rests satisfied with the word without examining its meaning; and in particular the term "utility" is capable of contortion to any extent, and has a singular facility in adapting itself to any innovation, however false or dangerous. J. R. BLAIR.

CURRENT TOPICS.

Not long since, the public mind was entertained (if not shocked) by recitals of lawlessness in Alaska, the far-off country, which is only nominally and territorially a part of the American republic. But when law is defied, and a condition of anarchy and lawlessness prevails in one of the actual United States, such as is depicted by a daily contemporary in the following language, the friends of law and order may well be appalled: "The war in Pope county, Arkansas, is the theme of everybody, and is, at the same time, a new theme and an old one, for some new occurrence happens daily to swell the bloody account of that most demoralized neighborhood, where now the commander of the State militia holds the county seat, with a part of the governor's guard. The region of Illinois Bayou, the chief stream of the county, is commanded by the shifting encampments of the outlawed Sheriff Dodson and his two hundred and forty militia. The young men of Dover haunt the mountain spurs and the dens and bottoms of the north and west of the county, armed to the teeth, and sworn to kill Dodson, the sheriff, and Stuart, the superintendent of public instruction; and, finally, all the old and stable people of the community are hungry and apprehensive; little business of any sort is done; the mails still go and come, but people go and do not return; it is martial law without the name, and outlawry in fact. Such is the condition of an old and well-known county of Arkansas, whose county seat is less than eighty miles from Little Rock, the State capital."

Our contemporary may well call it "the law of the trigger and the ethics of the bowie knife," where two sheriffs, one deputy and two county clerks are murdered in a short interval, and assassinations are of every day occurrence.

It is again reported that the Lord Chancellor of England, Lord Hatherly, has resigned, and that his place will be filled by Sir Roundell Palmer, who presented the "English case at Geneva, and is regarded by many as the greatest English lawyer of his time. If the report of the resignation of Lord Hatherly is true, the elevation of Sir Palmer to the woolsack is a very logical conclusion; for the eminence and ability of this lawyer, and his connection with the Geneva arbitration, will be sufficient guarantee of his fitness for the high and noble duties of the chancellorship, especially since Lord Chief Justice Cockburn is not a candidate for the supreme judicial office. Whether or not the recent report of the resignation of Lord Chancellor Hatherly is true, it is undoubtedly only a question of time; and if the public and the profession are again to be imposed upon by over-enterprising newspapers, they may rest assured that delay is no cause for the modification of the final result.

The "trials," if not the tribulations, of Laura Fair are at last over, and she and the rest of the world breathe freer. A verdict of "not guilty" was reached by the jury after having been out nearly sixty hours, and the accused woman fainted for joy. In view of the present condition of criminal law, and considering the defective degrees of crime and the proverbial sympathy of jurors for those who, under the influence of great mental excitement super-induced by real or fancied wrongs, commit homicide, the termination of this celebrated criminal cause is not surprising. And when to these elements, favorable to the accused, are added the modification of opinion and the pacification of the spirit of vengeance occasioned by the lapse of time (two years in this case), there is formed a moral influence which operates with great power upon a jury and gives the prisoner the benefit of every doubt. In this manner only can the verdict in the Fair case be explained.

did not support the plan, because they had no fault to find with the education of solicitors or barristers. Before the English people support a sweeping change, they must be convinced that the existing system is not only bad in theory but also evil in result." The gravity and complexity of the law necessitate a thorough understanding of it in order to initiate any enduring law reform. Then, too, the change must be gradually effected, else the remedy will be worse than the disease.

COMMISSION OF APPEALS ABSTRACT.

ADMINISTRATOR.

Action to recover for rents claimed to be due, on premises leased by plaintiff to defendants' intestate. Defendants, as administrators, took possession of said premises and received and collected the rents and profits thereof. They charged themselves with the amounts so received in their accounts. On their final accounting, plaintiff appeared and filed objections to their account. Among others that the rents collected should have been paid him and not included in the account as assets. The surrogate referred the matter to an auditor, and ordered that plaintiff should present his claim duly verified. This he did not do. Upon the

The changes in the stamp law, made at the last session of congress, were very extensive. Under the decision of the acting commissioner of internal revenue, on and after October 1, 1872, no stamps will be required upon checks, drafts and orders, report of the auditor, the surrogate decreed the distriexcept such as are drawn at sight, or on demand, upon banks, bankers or trust companies. No stamps will be necessary upon foreign bills of exchange.

The Pittsburg Legal Journal says, that in the Massachusetts supreme court recently an appeal was heard in a suit, brought by a lady against a horse-car company, to recover damages for an injury received while riding in the defendant's cars. The company pleaded that the plaintiff was traveling on Sunday, which is illegal according to the State law, and they were, therefore, not liable for damage. The court held ̧ however, that the plaintiff, who was returning home from a Spiritualist meeting, was engaged in a legitimate purpose, and decided in her favor.

We

The London Law Journal has the following pertinent remarks on the subject of law reform, which are applicable to this country as well as England: "Our aim has been amendment, not fundamental change, and, when we have accomplished fundamental changes, it has been through a series of amendments. arrived at household suffrage after previous extensions of the franchise. But in law reform there is in some quarters a manifest longing to try the revolutionary plan, and, instead of redressing grievances, to set up an entirely new system. Take the comparatively unimportant question of legal education. We are far from saying that the present system is perfect; but on the contrary we admit that it may be, and therefore ought to be, improved. But instead of reforming and utilizing existing agencies, it was proposed to ignore them, and to establish an entirely novel plan. The public

bution of the assets, in which the rents received were included. Plaintiff was omitted in the distribution.

Held, that defendants were personally liable for the rent, to the extent of the rents and profits received by them which, prima facie, were sufficient to pay the whole, and as there was no allegation in the answer and no attempt to prove upon the trial, that the rents collected were less than those received, they were

liable for the full amount thereof. Miller v. Knox et al. Opinions by Gray and Earl, CC.

APPEAL BOND.

Action to recover back money alleged to have been paid upon an appeal bond. Defendant was the nominal owner of a steam tug, A. being the real owner exercising entire control over the vessel and receiving her entire earnings. She was libeled in the district court of the United States and seized by the United States marshal, at Buffalo, for a penalty incurred by carrying passengers without inspection. A. induced plaintiff to become bail in such proceedings for the discharge of the tug. A decree was rendered for the penalty and plaintiff became bail on appeal therefrom. The bond on appeal was conditioned that defendant should pay "all such costs and expenses" as should be awarded against him on the appeal. The decree of the district court was affirmed and plaintiff paid the amount of the execution thereon. All this was done without communication or consultation with defendant who resided in New York. Plaintiff bases his right of recovery wholly upon the appeal bond.

Held, 1. That plaintiff made the payment, not as surety upon the appeal bond, but as defendant in the decree appealed from, which was in personam against him as surety upon the first bond; also that as the

bond on appeal was not conditioned to pay the damages, there could be no liability under it to pay the amount of the decree. 2. That as the vessel was in a home port and defendant near enough to be consulted, there being no pressing emergency, the master of the vessel

could not bind him. Yager v. Babcock. Opinions by Earl & Leonard, CC.

ASSESSMENT.

Appeals by relator from judgments of the general term affirming the assessment made against the relator by the respondents, as assessors in the towns of Evans and Hamburgh, in the county of Erie. The original proceeding was upon returns made to a certiorari issued in each action.

The relator is a body corporate and politic, organized and doing business in this State, under the general railroad act of this State. The track is located and built through the towns of Evans and Hamburgh. The assessors of each of these towns placed the lands belonging to the relator on the assessment rolls of their respective towns for the year 1866, with a valuation, for the purpose of taxation. The amount of land belonging to the relator, in the town of Hamburgh, is stated on the assessment roll of that town to be 78 82 acres, and the valuation is put at $265,000. On the 21st day of August, 1866, the relator appeared before the assessors, by its vice-president, who was examined by the assessors as to the value of the real estate thus entered on their roll, including the superstructure and fixtures thereon, consisting of ties, chairs, rails, spikes, frogs and switches." This estimate included nothing for grading the road, laying the rails, for cattle-guards, culverts, bridges, or the materials included in them; nor was any estimate given of the value of the fences thereon. The testimony thus taken stated the entire value of the land and superstructure and fixtures as not exceeding $68,667.70. The assessors reduced the valuation $40,000, leaving it to stand on the rolls at $225,000.

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The same proceedings were had substantially in regard to relator's property in the town of Evans. By the return it appeared that the assessors imposed the tax upon the relator as for resident lands, and not as for non-resident lands. The general term dismissed the writs as to the assessors, on the ground that their duty was ended before the writs were served, but retained it as to the supervisors, and affirmed the proceedings of the assessors.

Held, that, since the act of 1851 (Laws of 1851, ch. 176), assessors are not bound by the affidavits of an owner of property taxed, presented upon complaint in relation to the assessment thereof. The affidavit is no longer conclusive but is evidence before them, and to be considered by them with the other means of information in their power, and, upon the whole, their own judgment was to be formed of the value.

In assessing the real estate of a railroad corporation, assessors are not required to assess it as an isolated piece of land, but each piece of property is to be estimated in connection with its position, its incidents, and the business and profits to be derived therefrom. The real estate of railroad corporations, used by them for railroad purposes, cannot properly be assessed as non-resident lands.

The provisions of the Revised Statutes for the assessment of tax upon incorporated companies (1 R. S. 414 et seq.) furnish a sufficient basis for assessment and taxation of the lands of a railroad company in those towns and counties remote from its principal place of business. By 1 R. S. 415 (sub. 182, § 6) the assessors in those towns are not required to make the entries upon their roll required, for the purpose of fixing a basis of a tax upon the capital of the corporation.

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Action against a common carrier to recover the value of a quantity of wheat defendant contracted to transport from Oswego to Albany, to the consignees, who had an office upon the pier at the latter place. Upon the arrival of the boat at Albany the master reported to the consignees, who directed him to cross the river to a railroad elevator at East Albany, within the port of Albany. The directions were followed by the master, and while waiting to discharge the cargo, it was nearly destroyed by a fire originating in the elevator. The consignees, directed by the defendant, sold the damaged cargo, and passed the avails over to plaintiff. Defendant claimed that the master in crossing the river was not acting under his employment or authority, and his liability as common carrier had ceased when the fire occurred.

Held, that defendant, retaining control of the property after the fire, with other facts, afford a legitimate inference that the parties in contracting had reference to the port, and not to the city of Albany alone, and that defendant is liable. Gibbs et al. v. Van Buren. Opinion by Gray, C.

CONSIGNOR AND CONSIGNEE.

Action to recover the value of a cargo of corn shipped from Chicago to Buffalo, and thence to New York, by V., consigned to defendants. At Chicago, V. made his bill of exchange for $3,500 at sight, directed to defendants at New York. Plaintiff discounted the bill for V., upon his transferring and delivering, as security therefor, a bill of lading of the corn. Defendants received the corn, but refused to pay the bill, although notified of the transfer to plaintiff before receiving the corn. Defendants claimed to hold the corn for a balance due them from V., and that a draft for $1,220, paid by them for V., should be deducted from the amount of recovery as money advanced to purchase the corn.

Held, that the transfer of the bill of lading to plaintiff, under the circumstances, transferred also the title to the corn therein described, conditioned upon the acceptance of the draft; upon such acceptance, the title would pass to the acceptor, but upon refusal to accept, plaintiff's title continued unimpaired, and defendant was liable to plaintiff for the money advanced upon the security of the bill of lading. Where the consignor is indebted to the consignee for advances, and has agreed to give him a prior security upon the property, the lien of the latter is good as against the former; but the consignee does not thereby obtain any right to the property, as against a bona fide pledge for value of the bill of lading made prior to the delivery of the property to the consignee. Marine Bank of Chicago v. Wright et al. Opinions by Hunt and Leonard, CC.

CONVERSION.

1 Action to recover damages for the alleged conversion of 100 barrels of flour deposited with defendant, a ware

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