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ried man and the father of a family. No, I won't | On the other hand, I am sorry to add, that these hold my tongue. It's very well for you 10 same young English prisoners, who are thus disthreaten to get up. You're to go to Greenwichtinguished among us for superior education and Fair, and race up and down the hill, and play at educability, are not less remarkable for indifference kiss in the ring. 'Pah! it's disgusting, Mr. Cau- to their religious duties and careless reception of dle. Oh, I dare say you did play at it; if you religious instruction. In both particulars, it is did n't, you 'd have liked, and that's just as bad ; curious to say that they not unfrequently even give —and you can go into swings, and shows, and offence to the older hands. Whatever the cause, roundabouts. If I was you, I should hide my the older prisoners, without being always the belhead under the clothes, and be ashamed of my- ter men for it, are peculiarly accessible to religious self.
exhortation and impression, and show much re“And what is most selfish—most mean of you, spect to religious addresses. They thus come Caudle-you can go and enjoy yourself, and never readily to church ; they listen with extreme attenso much as bring home for the poor children a gin- tion to any sermon in the least suited to them; and gerbread-nut. Don't tell me that your pocket was they are frequently even deeply moved by one picked of a pound of nuts. Nice company you bearing on their individual circumstances. must have been in to have your pocket picked. But, as a class, the young English prisoners ex“But I dare say I shall hear all about it to-mor-hibit
' here appearances almost the reverse of these. I've no doubt, sir, you were dancing at the They come unwillingly to church ; they not unCrown-and-Anchor. I should like to have seen frequently misconduct themselves there. I have you. No: I'm not making myself ridiculous. had occasion to sentence many to sit for different It's you that's making yourself ridiculous; and periods on the front-benches, immediately in my everybody that knows you says so. Everybody own view : and several even have been brought knows what I have to put up with from you. before me by their better-minded companions for
Going to a fair, indeed! At your time- _” arguing that religion was a hoax, supported by the “Here,” says Caudle, “I dozed off, hearing better classes in order to control the lower.” confusedly the words--hill-gipsies-rattles- But both skeptics and devotees are equally unroundabout-swings-pink bonnet-nuts.”
reclaimed. They want only opportunity to resume their old practices. The one set take to in
tellectual pursuits, as an amusement : the other to From the Spectator.
religious, because while indulging in a devotional PUNISHMENT AND CORRECTIVE DISCIPLINE.
feeling they soothe themselves with the flattering
hope that they have become better men. But in The necessity of dealing with convicts en masse both, the real source of crime—the habitual prosis a a great obstacle to their reformation. Man is a tration of the will, the more or less reluctant subsocial animal—if company is within his reach he mission to habit-has not been reached. They will keep it: man is a partisan animal-he will lack vigor for self denial and steady industry: tolerate, defend, adopt, the views and habits of they have no power to originate a new line of conthose with whom he keeps company. If you could duct for themselves : they will do as they are diseparate a convict from all old associations—throw rected while prisoners, and as others do when libhim among people entirely new to him, industrious, erated. They will follow the example of their asand tolerably regular in their conduct-he mightsociates; and these, sifted and classified as men adopt their fashions. But so long as he is known are now-a-days by the police, must be criminals. to and within reach of the criminal class, his refor- To reclaim a man, it is not enough that you render mation is next to possible.
him intelligent and convince him of the folly of Captain Maconochie, some years at the head crime, or awaken his sense of religion and make of the doubly-penal settlement on Norfolk Island, him feel vaguely the evil of crime : his will remakes an observation that shows how far correct- quires to be braced ; and that, it would almost ive influences may in a manner refine and elevate appear, cannot be effected while he is undergoing the character of convicts, leaving their morals punishment. The following remark of Captain little if anything amended. The view he presents Maconochie bears on this point, and is perhaps is a curious counterpart to Burke's assertion that still more striking than the one we have already the moral delinquencies of French aristocracy, by quotedlosing all their grossness, lost half their evil. The “ In general, the men here die quietly and comconvicts of our day, like the noblesse of the ancient posedly; resigning themselves with little apparent régime, have been raised in the scale of humanity reluctance to their fate, and receiving and applywithout being lifted out of their class.
ing, even the worst of them, to their own cases " The degree of education among the younger the consolations of religion, with little apparent English prisoners is higher than among the old doubt or hesitation. There are exceptions—men
When they read or write at all, they do who die obdurate and impenitent, and men who both better than the others. Their minds are also show great uneasiness about their future prosgenerally more active and educable; they covet a pects : but the reverse is the rule ; and it is, better class of books, and more readily acquire think, to be lamented. A more painful death, in general though superficial information from them. the case of very wicked men, would be salutary to It would appear as though the spirit of advancing survivors, and probably more beneficial to themintelligence in the age has touched even where it selves. The circumstance proceeds, I think, from has not directly seized on particular individuals. two causes : first, the ties of a prisoner to life are I have never known a voluntary adult school so not strong, and his habits of enterprise reconcile generally, and at the same time for the most part him readily to any change; and secondly, the so profitably attended, as ours was at Longridge, moral guilt of their several offences is little felt by till the formation of the establishment at Cascade, the body at large. They have for such a length of and the distribution of the men holding tickets of time looked to them as their only sources of indulleave into farms, unavoidably broke it up.
gence and subsistence, that they have almost ceased
to consider them as involving moral guilt at all. from necessity, the law has no favor to show to it. The degree in which I can trace this even in the If in a storm another man throws overboard my minds of my best men is wonderful; and it pro- goods, he is protected, because the law sees a ceeds, in a great degree, from the system of meas- necessity, and favors it accordingly; though I uring sentences by time instead of conduct. Con- might see no necessity whatever for such a precipduct has thus no prominent value attached to it in itate proceeding. The idea of law favoring necestheir every-day life, and misconduct no directly in- sity, is at variance with the maxim that“ necessity jurious effect; while other circumstances also con- has no law,” which is very likely to be the truth, spire. Men long kept without personal property for necessity not being able to pay for law, is not have little sympathy with the moral reasoning which very likely to get any. would protect property; and where submissiveness is 26. The law favors a thing which is for the good the only virlue directly rewarded, the others speedily of the commonwealth.-In accordance with this lose value by comparison.”
maxim, a man in trade may not have his tools Self-defence requires that those who are inac- distrained upon, for he uses them for the good of cessible to other motives be deterred from crime by the commonwealth ; and a bailiff cannot come up the prospect of punishment. Humanity requires, and take my pen out of my hand, for it is the tool that instead of killing or coercing our fellow-beings I am working with ; nor could he seize my brains, like wild beasts when they are guilty, we should for they are what I have in use; though he might attempt to teach them better. Men like to save levy a distress on my mind, by greatly distressing themselves trouble: the attempt has therefore it. been made to punish and teach delinquents at the 27. Communis error facil jus. Common error same time and by the same process. But punish- becomes right. This is a very odd maxim, for it ment only deters from crime : it awakens all the means literally that rare correctness will be the angry feelings of a thwarted will. Prolonged result of constant blundering ; and it follows that a punishment renders this state of mind chronic, or man who is generally wrong, will be in the end superinduces hopelesness and entire prostration. particularly right. Thus, in the Irish courts, if These considerations would seem to suggest that there is a row, and every man strikes the wrong the best punishments are those which are sharp person, there can be no doubt that the right person but brief in their operation-which terrify without will get what he deserves; and thus the conimunis rendering the mind habitually savage or feeble. error, or general mistake, facit jus—that is to say, The process of reform, it would seem, must be be- is the cause of justice being done. gun after the punishment is over. But
28. The law favors things which are in the cusinsurmountable hindrance is interposed by the lody of the law.—The sort of favor shown by the modern habit of viewing all who have once been law to such as are in its custody, is of a very convicted as a degraded caste, which precludes the peculiar character. Cutting the hair in the very return of the criminal into unconvicted society, last style of fashion—the last that any one would and thrusts him back to associate exclusively with voluntarily adopt-and attending to the health by convicts like himself.
prescribing constant exercise on the wheel, together We are still in the rudiments of penal legisla- with a diet of the most moderate nature, are among tion and corrective discipline. To abolish death- the favors which the law shows to those who are punishment-if life-long bondage which kills the in its custody. soul, or a life spent alternately in prisons and the 29. The husband and wife are one person.pursuit of crime, are the only substitutes—would Though man and wife are one in law, they are be little advance the path of humanity. often two in fact, for there is anything but unity
between them. They cannot sue each other-at PUNCH'S NOY'S MAXIMS.
least after marriage-though before that event the
gentleman brings his suit, but when once wedded 23. Nothing shall be void which may by possibility they stand no longer in the relation of suitors. A be good.—This maxim is proved by taking the wife can never answer any action without her husnegative of the proposition. Thus, if JONES band, for it is wisely thought that if a woman were writes a tragedy, it cannot by any possibility be allowed to answer alone, or in other words, have good, and it is therefore void accordingly; but if all the talk to herself, there would be no end to it. Jones incurs a debt, the debt may by possibility If a married woman is guilty of slander, the husband be good ; and at all events it is not void, for the and wife must be sued for it, so that a man saddled liability will hang over him.
with a scurrilous helpmate ought to put a bridle on 24. Ex nudo pacto non oritur actio.-An action her tongue as speedily as possible. cannot arise from a naked agreement.-A naked 30. All that a woman has appertains to her husagreement is an agreement not clothed with a band.- Among the other things appertaining to a consideration ; and certainly it seems very incon-woman are sometimes debts and liabilities, which siderate to allow an agreement to go forward to her husband takes, whether he will or no; but the world in the state alluded to. Among some when the wife pays the debt of nature, the other of the jurists it is thought that the reason why no debts are discharged, as far as the husband is conaction arises from a naked agreement is, that such cerned, who thus obtains a release in a double an agreement being naked, must have been already sense. stripped of everything; and as there is nothing to 31. The will of the wife is subject to the will of be got from it, the lawyers will have nothing to do the husband. This is a maxim that our married with it.
readers will find it difficult to understand ; for it is 25. The law favors a thing which is of necessity.- a settled point, which has been decided over and This is the doctrine of “needs must when a cer- over again after much argument, that a wife has a tain old gentleman drives ;” and the law favors will of her own, which the will of a husband must anything which he happens to be concerned in. often be subject to. That the law favors necessity, is not, however, 32. The law favors works of charity, right, and wholly true; for if a man has stolen a penny-loaf | truth, and abhors fraud, covin, and uncertainties,
which obscure the truth; contrarieties, delays, un-|Though plunged in gailt, the tenant of a prison's necessary circumstances, and such like. - The
gloomy cell, law,” if we are to judge by this maxim, must have Yet twice invoked, my potent aid concludes the a very high opinion of itself; and it is only to be wizzard's spell : regreited that society at large does not consider I ride upon the wbirlwind-point the lightning the law such a paragon of perfection as it makes through the storm, itself out to be. The way in which the law favors And mine the power, with but a word, another works of charity, is by squabbling over the funds world to form. left for charitable purposes until they are pretty I too, alone can kindle fame, and what, indeed, is considerably diminished. If the law really loves odd, right and truth, it is strange that it should be so The veriest miser can prevent from making gold constantly at variance with those it professes to his God. have an affection for. The differences existing I usher in the morning light, yet shun the face of between law and right are, however, very unlike lovers' quarrels, inasmuch as the former, when
A stranger to the voice of mirth, yet join in every they once take place, are seldom made up again. On the whole, the maxim now under discussion
play. appears to smack of pleasantry; for it must surely
The fabled liquid I, with which poor Tantalus be a joke to say that the law abhors“ uncertainties
was curs'd, which obscure the truth.” Perhaps, however, it
For in the proffered goblet seen, I mock the
wretch's thirst. is an excess of magnanimity of the law, which induces it to patronize those things which it holds The rich secure me for their wealth, the cunning
for their wiles ! in the greatest detestation.
And reft of me, ah! changed how soon were 36. Every act shall be taken most strictly against him who made it. This is a very good maxim,
beauty's sweetest smiles. but it is not faithfully carried out; for if it were, I lurk within the brilliant glance that flashes-from the framers of the Poor Law Act would be occasionally subjected to its provisions. The individ- Rest on her ruby lip—and in her laughing dimples ual who made a brazen bull for the purpose of tor- lie turing others, and was himself the first victim to I breathe the first soft sound of love in the maiden's his new invention, had his act taken most strictly willing ear, against himself; and if acts of parliament were to And mingle in the rising blush which tells that be applied strictly to those who made them, it is love is dear. probable that there would be considerable improve- I lead the laugh, I swell the glee amid the festal ment in the quality of legislation. If I give A. B. hall, a gold snuff-box, saying, “ A. C., take this,” it is But a truant from the banquet, and a laggard in a good gift, though I call him by a wrong name ; the ball. but if I call him wrong names, and he, giving me a box on the ears, says, “B. D., take that, the First in the martial lists I rode, with mail, and gift is not so good as it might be.
lance, and shield; 37. He who cannot have the effect of the thing, And foremost of the line I charge upon the battle shall have the thing itself. Ut res magis valeat
field ; quam pereat. It is better a thing should have ef- And yet though ranked among the bold, I scarcely fect than be void. This maxim is somewhat am- join the fight, biguous, but it means simply that where there is When, foul disgrace to knighthood's race,
I torn no meaning in a sentence, the law will make one,
at once to flight. rather than refrain from interfering. Formerly, From greatness thus removed, I make companionhowever, the better mode of reading the maxiin
ship with evil; would have been by saying, “ he who cannot have And, in your ear a word, maintain alliance with the effects of the thing shall have the thing itself ;''
the devil. --for until arrest was abolished—and even still in some casesif a broker cannot have the effects he
I THINK OF THEE.
When all beside is still,
To sit on the distant hill,
And the breezes all like sigbs, I'm reckoned only fifty-yet for centuries have and there comes a voice from the far-off streams been
Like thy spirit's low replies.
I think of thee by day,
When the laughter of the young and gay
I hear thy low sad tone, The learned place me at their head, although un
And thy sweet young smile I see, known to fame,
My heart were all alone And eloquence itself delights to sound abroad my
But for its thoughts of thee.
T. K. Hervey.
From the Quarterly Review. purposes of the mission. 4. Extracts of Diaries Diaries and Correspondence of James Harris, First which Lord Malmesbury seems to have kept with
Earl of Malmesbury, containing an Account of great assiduity all through his life, and of which, his Missions to the Courts of Madrid, Frederick during the periods of his public employment, all the Greal, Catherine II., and the Hague; and the most essential portions relate to his ministerial of his special Missions to Berlin, Brunswick, duties, and are as it were a kind of log-book of his and the French Republic. Edited by his Grand- official and in some degree of his personal proceedson, the Third Earl. Vols. III. and IV. Lon- ings :the fourth volume is almost wholly comdon. 1844.
posed of extracts from the Diary from 1801 to
1808, when Lord Malmesbury was residing in Towards the conclusion of our recent notice of London in the centre of an extensive political the two first volumes of this series, we said,"we acquaintance, and keeping very copious notes suppose that a further publication is intended, which of the political news and occurrences of the perhaps has been postponed from considerations of day. delicacy towards persons still living."
Of these classes there can be little doubt, we however, that we were inistaken in supposing that think, that the three first may be considered as there was any delicacy in the case—the postpone- belonging to the same category, and as subject to ment seems to have been but another instance of whatever custom or rule of law may exist as to the practice which has of late grown up of bring the antagonist rights of the crown, and one of its ing out in livraisons works which might as well, official agents, over the documents connected with for aught we see, have been brought out at once. the agency. The question on the Diaries is rather We may hereafter have occasion to make some more complicated, from the difficulty of distinobservations on the effect of this system, but we guishing how far papers of such a mixed characnotice it on this occasion only because it led us ter can be classed as public or private. But the into expectations which have been disappointed, difficulty is more superficial than real : on the one and has obliged us to divide into two articles hand, no one can pretend that Lord Malmesbury's a subject which we should rather, on account representative had not a legal right over his private of some principles which it involves, have dis- diaries; those, for instance, kept when he was out cussed in one.
of office; but on the other it may, we think, be If these latter volumes of Lord Malmesbury's doubted whether such a right extends to a journal diaries and correspondence were to be published in like, for instance, that kept during his mission to our day, they must naturally have excited con- Brunswick, which is really a history of the mission siderable surprise in the public mind, and have --containing scarcely one word or fact that had raised-in addition to the suggestion which we not a direct relation to it, and which but for the made as to the respect due to private feelings the mission could have had no existence. more important question as to the right of a public Now, putting aside for the moment all question minister or his representative to publish, at his of discretion and delicacy, and regarding only the private pleasure and for his private objects, docu- strictness of law, we hold that it is clearly estabments or information obtained in his public charac- lished that a public minister can have, with regard ter and in the execution of his official duties. to his official papers, no private and independent This abstract question might have been raised in right of publication. the case of even the two first volumes, where Judge Story, in his “Commentaries on Equity there are many things which ought not, we think, Jurisprudence,'' has collected all the cases which to have been published as part of the official or constitute the law on this subject, and classed and even private correspondence of a British minister ; condensed them in his usual masterly style. He but as they related to days comparatively remote, states, on all the authorities, that “private letters, and to interests for the most part obsolete, and as even as literary compositions, belong to the writer we presumed (erroneously it seems) that a dis- and not to the receiver, who at most has a special creet pause was made for the purpose of pre- property in them which does not give him a right cluding any complaints either public or private, of io publish them,” ($ 944;) and again, that " by too near an approach to our own times, we forbore sending a letter the writer gives to the person to raising a question which might seem invidious, and whom it is addressed a property in it for the purwhich the good sense and delicacy of the noble poses of reading, and, in some cases, of keeping editor himself appeared to avoid ; but, as the appe- it; but the gift is so restrained that, beyond the tite of the public for these revelations, and the purposes for which the letter is sent, the property profit-prompted liberality of the possessors of such remains in the sender,”. (945.) These decisions documents, seem rapidly increasing, we feel it our were made on the principle involved in this and all duty to offer some observations on a subject of, such like cases, namely, the copyright in and the as it seems to us, some novelty and considerable pecuniary value of such papers. But the arguimportance.
ment goes still further, and protects letters, not We must begin by stating that these volumes merely as property, but as the sacred depositories. contain matters so various as to be at first sight of private confidence. “ It would, indeed,” says hardly reducible to any common rule as to the Dr. Story, " be a sad reproach to English andi right or propriety of their publication. We have, American jurisprudence if courts of equity could 1. The ordinary official despatches and communi- not interpose in cases where the very nature of the cations between the minister and his own court, letter imports--as matters of business, or friend-and that to which he was accredited. 2. The ship, or advice, or family or private confidencemore secret and confidential correspondence, which the implied or necessary intention and duty of under the form and style of private letters are privacy and secrecy,” ($ 947 ;) and thence the: essentially official, and affect in the highest degree cases lead to a still closer analogy to our point.. the public interests. 3. Memoranda, minutes of Courts of equity will restrain a party from mak-conferences, or conversations, and intelligence, ing a disclosure of secrets communicated to him in collected in the ministerial character, and for the the course of a confidential employment,” (9 952.) And he further shows that these rules apply not commonwealth, but that when the " Cabala" was merely to letters received, but equally so to letters republished after the restoration with some adwritten by a person-in short, “they have been ditional matter, it was with the express sanction applied in all cases where the publication would be a of the secretary of state. The second volume of violation of trust or confidence, founded in contract Sir William Temple's works, published by Swift, or implied from circumstances,” (§ 949.) And, which contained his diplomatic letters, was esif this doctrine be true in private cases, it is infi- pecially dedicated to King William-which the nitely stronger in that of a sworn servant of the first volume was not—and had no doubt his state, who is not merely what the law would call majesty's countenance and sanction. But we have an agent, but is invested with a still more confi- now before us a case of recent and decisive dential character, and a much higher, and much authority-Sir Robert Adair's publication, May, deeper responsibility. This is common sense, 1844, of “ An Historical Memoir of his Mission to common honesty, common equity, and common Vienna." This memoir is based on, and is aclaw.
companied by, a selection from the dispatches A case occurred a few years ago, in which we written and received by him during that period. had occasion to consider this question incidentally, Sir Robert Adair, taking the true legal and statesand our opinion then was in perfect accordance man-like view of the case, obtained from Lord with these principles. This was in our review of Palmerston, then the secretary of state, “an “ A Narrative of a Residence at the Court of Lon- official permission—not withdrawn by Lord Aberdon, by Richard Rush, Esq.,” envoy from the deen—to publish such parts of his dispatches as United States. Mr. Rush in this work chose to might not be prejudicial to the public service ;'' publish, without any authority from his govern- and he also, he tells us, obtained “Prince Melterment, and on his private responsibility, many of nich's consent ;' and he announces on his titlehis diplomatic communications with our ministers, page that these dispatches are “ published by perand gave some reasons-very bad ones as we mission of the proper authorities.' All this is thought and showed-for this deviation from the right and proper, and establishes, we think, the ordinary course of diplomacy. For our present true principles of the case. purpose we need only quote our general résumé of But though we suppose that in strictness no the question. The first part of our argument had state-papers can be printed without the consent of applied to the mere act of publishing what had the crown, yet in practice any formality of sancnever been intended for publication, and then we tion has been reasonably considered as unnecesproceeded to say with regard to the publication by sary in cases which, by long lapse of time and enMr. Rush
tire change of circumstances, can no longer affect “But Mr. Rush is in a still graver error as to either private feelings or public interests, and have the general principle. He seems to think that, if passed into the fair and undisputed domain of hissuch documents may be published, he has a right tory. It might be difficult to fix the precise bounto publish them. No such thing. The state has dary of this domain, in which every year makes a such a right, but not the servant of the state, with degree of change; but it is creditable to the disout the express permission of the head of the gov- cretion of the eminent men who have served in ernment. In all a minister's negotiations, whether public stations for the last century—of the heredverbal or documentary, he can acquire no personal itary possessors of their official papers—and of the right-no right to publish or otherwise employ the literary men who have had access to those papers papers he may have collected, or the information —that till within very late years little or nothing he may have obtained, for any purpose of his own. has been published to which any serious objection The whole belongs to the state, and he has no could be made. When Lord Kenyon and Dr. more right to make any use of them than a lawyer Phillpotts published, in 1827, the leiters between would have to turn something which he has found the king and Lord Chief Justice Kenyon on the amongst his client's title-deeds to his own advan- subject of the Coronation Oath, Lord Chancellor tage."'-(Q. R., xlix., p. 325.)
Eldon—with all his political and religious prediTo this general doctrine we have never heard lections for the views that publication was inany objection : we believe it to be indisputable, tended to serve—could not help expressing “conand we will therefore venture to repeat our mature siderable doubts” as to the proprieiy of the publijudgment—one not, as we have shown, formed on cation, (Twiss' “Life," vol. i., p. 360)—11ot from or for the present occasion—that the noble editor any disapprobation of the sentiments, nor doubting had no right whatsoever to publish the diplomatic that they did honor to both parties, but evidently papers of his grandfather. We have no doubt because it seemed to make public a privileged that such a publication might have been stopped communication too near our times to be altogether by an injunction ; and as the case now stands, considered, as in all other respects they certainly we suspect that the law of copyright would are, historical documents. Lord Eldon's own not protect a publication where there was no right biographer, who states this doubt, has gone much to publish.
farther, for he has printed not only private letters But this applies only to the absolute right- of recent date, but a number of the most secret and which is, we admit, susceptible of various modifi- confidential notes from King George III. to his cations in practice. In the first place the consent chancellor on the most delicate subjects. In our of the government for the time being, as represen- review of Mr. Twiss' work (Q. R., vol. Ixxiv., p. tative of the sovereign or the state, would hardly 71) we said that, taking for granted that Mr. 'be denied on a fit occasion, and would remove all Twiss had obtained permission from the parties or difficulty. Of the two earliest publications by pri- their representatives for the publication of these vate persons of diplomatic papers that we possess private communications, there were still some for _'The Cabala” and Diggs' “ Complete Am- which it was too early even to ask such permisbassador”—it is observable that both, and particu- sion—a sufficient intimation of the judgment which larly the latter, referred to transactions quite obso- we now more broadly state—that without such Jete, and were published during the license of the permission, those docuinents were, according to