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 to same young English prisoners, who are thus disthreaten to get up. You're to go to Greenwich tinguished 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 bethead under the clothes, and be ashamed of my- ter men for it, are peculiarly accessible to religious self. exhortation and impression, and show much respect to religious addresses. They thus come readily to church; they listen with extreme attention to any sermon in the least suited to them; and they are frequently even deeply moved by one bearing on their individual circumstances. But, as a class, the young English prisoners exhibit here appearances almost the reverse of these. They come unwillingly to church; they not unfrequently misconduct themselves there. I have had occasion to sentence many to sit for different periods on the front-benches, immediately in my own view and several even have been brought before me by their better-minded companions for -"arguing that religion was a hoax, supported by the better classes in order to control the lower."

"And what is most selfish-most mean of you, Caudle-you can go and enjoy yourself, and never so much as bring home for the poor children a gingerbread-nut. Don't tell me that your pocket was picked of a pound of nuts. Nice company you must have been in to have your pocket picked. "But I dare say I shall hear all about it to-morrow. I've no doubt, sir, you were dancing at the Crown-and-Anchor. I should like to have seen you. No: I'm not making myself ridiculous. It's you that's making yourself ridiculous; and everybody that knows you says so. Everybody knows what I have to put up with from you.

66

Going to a fair, indeed! At your time"Here," says Caudle, "I dozed off, hearing confusedly the words-hill-gipsies-rattlesroundabout-swings-pink bonnet-nuts."

From the Spectator.

PUNISHMENT AND CORRECTIVE DISCIPLINE. THE necessity of dealing with convicts en masse is a great obstacle to their reformation. Man is a social animal-if company is within his reach he will keep it man is a partisan animal-he will tolerate, defend, adopt, the views and habits of those with whom he keeps company. If you could separate a convict from all old associations-throw him among people entirely new to him, industrious, and tolerably regular in their conduct-he might adopt their fashions. But so long as he is known to and within reach of the criminal class, his reformation is next to impossible.

Captain Maconochie, some years at the head of the doubly-penal settlement on Norfolk Island, makes an observation that shows how far corrective influences may in a manner refine and elevate the character of convicts, leaving their morals little if anything amended. The view he presents is a curious counterpart to Burke's assertion that the moral delinquencies of French aristocracy, by losing all their grossness, lost half their evil. The convicts of our day, like the noblesse of the ancient régime, have been raised in the scale of humanity without being lifted out of their class.

"The degree of education among the younger English prisoners is higher than among the old ones. When they read or write at all, they do both better than the others. Their minds are also generally more active and educable; they covet a better class of books, and more readily acquire general though superficial information from them. It would appear as though the spirit of advancing intelligence in the age has touched even where it has not directly seized on particular individuals. I have never known a voluntary adult school so generally, and at the same time for the most part so profitably attended, as ours was at Longridge, till the formation of the establishment at Cascade, and the distribution of the men holding tickets of leave into farms, unavoidably broke it up.

*

But both skeptics and devotees are equally unreclaimed. They want only opportunity to resume their old practices. The one set take to intellectual pursuits, as an amusement: the other to religious, because while indulging in a devotional feeling they soothe themselves with the flattering hope that they have become better men. But in both, the real source of crime-the habitual prostration of the will, the more or less reluctant submission to habit-has not been reached. They lack vigor for self denial and steady industry: they have no power to originate a new line of conduct for themselves: they will do as they are directed while prisoners, and as others do when liberated. They will follow the example of their associates; and these, sifted and classified as men are now-a-days by the police, must be criminals. To reclaim a man, it is not enough that you render him intelligent and convince him of the folly of crime, or awaken his sense of religion and make him feel vaguely the evil of crime: his will requires to be braced; and that, it would almost appear, cannot be effected while he is undergoing punishment. The following remark of Captain Maconochie bears on this point, and is perhaps still more striking than the one we have already quoted

"In general, the men here die quietly and composedly; resigning themselves with little apparent reluctance to their fate, and receiving and applying, even the worst of them, to their own cases the consolations of religion, with little apparent doubt or hesitation. There are exceptions-men who die obdurate and impenitent, and men who show great uneasiness about their future prospects: but the reverse is the rule; and it is, think, to be lamented. A more painful death, in the case of very wicked men, would be salutary to survivors, and probably more beneficial to themselves. The circumstance proceeds, I think, from two causes: first, the ties of a prisoner to life are not strong, and his habits of enterprise reconcile him readily to any change; and secondly, the moral guilt of their several offences is little felt by the body at large. They have for such a length of time looked to them as their only sources of indul 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 the only virtue directly rewarded, the others speedily lose value by comparison.”

25. The law favors a thing which is of necessity.This is the doctrine of "needs must when a certain old gentleman drives ;" and the law favors anything which he happens to be concerned in. 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 guilt, 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: regretted that society at large does not consider I ride upon the whirlwind-point the lightning

through the storm,

mine the power, with but a word, another world to form.

the law such a paragon of perfection as it makes itself out to be. The way in which the law favors And works of charity, is by squabbling over the funds 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,

day;

A stranger to the voice of mirth, yet join in every play.

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 they once take place, are seldom made up again. On the whole, the maxim now under discussion appears to smack of pleasantry; for it must surely be a joke to say that the law abhors" uncertainties which obscure the truth." Perhaps, however, it is an excess of magnanimity of the law, which The induces it to patronize those things which it holds in the greatest detestation.

The

For

And

fabled liquid I, with which poor Tantalus in the proffered goblet seen, I mock the was curs'd,

wretch's thirst.

rich secure me for their wealth, the cunning

for their wiles!

reft of me, ah! changed how soon were beauty's sweetest smiles.

her eye

Rest on her ruby lip-and in her laughing dimples lie

36. Every act shall be taken most strictly against him who made it.-This is a very good maxim, 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 individual who made a brazen bull for the purpose of torturing others, and was himself the first victim to his new invention, had his act taken most strictly against himself; and if acts of parliament were to be applied strictly to those who made them, it is 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.

I breathe the first soft sound of love in the maiden's willing ear,

And

mingle in the rising blush which tells that love is dear.

hall,

in the martial lists I rode, with mail, and lance, and shield;

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 gift is not so good as it might be. 37. He who cannot have the effect of the thing, shall have the thing itself. Ut res magis valeat quam pereat. It is better a thing should have effect than be void.-This maxim is somewhat am

biguous, but it means simply that where there is no meaning in a sentence, the law will make one, rather than refrain from interfering. Formerly, however, the better mode of reading the maxim would have been by saying, "he who cannot have the effects of the thing shall have the thing itself;" -for until arrest was abolished-and even still in some cases-if a broker cannot have the effects he will have the person, and if he returns nulla bona -which means literally nothing to bone-he could formerly bone the body.

And

foremost of the line I charge upon the battle field;

And yet though ranked among the bold, I scarcely join the fight,

When, foul disgrace to knighthood's race, I turn at once to flight.

From greatness thus removed, I make companionship with evil;

And, in your ear a word, maintain alliance with

the devil.

purposes of the mission. 4. Extracts of Diaries which Lord Malmesbury seems to have kept with great assiduity all through his life, and of which, during the periods of his public employment, all the most essential portions relate to his ministerial duties, and are as it were a kind of log-book of his official and in some degree of his personal proceedings:-the fourth volume is almost wholly composed of extracts from the Diary from 1801 to 1808, when Lord Malmesbury was residing in London in the centre of an extensive political acquaintance, and keeping very copious notes of the political news and occurrences of the day.

TOWARDS the conclusion of our recent notice of the two first volumes of this series, we said "we suppose that a further publication is intended, which perhaps has been postponed from considerations of delicacy towards persons still living." We find, Of these classes there can be little doubt, we however, that we were mistaken 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, for aught we see, have been brought out at once. We may hereafter have occasion to make some observations on the effect of this system, but we notice it on this occasion only because it led us into expectations which have been disappointed, and has obliged us to divide into two articles a subject which we should rather, on account of some principles which it involves, have dis-diaries; those, for instance, kept when he was out cussed in one.

official agents, over the documents connected with the agency. The question on the Diaries is rather more complicated, from the difficulty of distinguishing how far papers of such a mixed character can be classed as public or private. But the difficulty is more superficial than real on the one hand, no one can pretend that Lord Malmesbury's representative had not a legal right over his private

not a direct relation to it, and which but for the mission could have had no existence.

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 made as to the respect due to private feelings-the 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 estab ments 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 there are many things which ought not, we think, to have been published as part of the official or even private correspondence of a British minister; but as they related to days comparatively remote, and to interests for the most part obsolete, and as we presumed (erroneously it seems) that a discreet pause was made for the purpose of precluding any complaints either public or private, of too near an approach to our own times, we forbore raising a question which might seem invidious, and which the good sense and delicacy of the noble editor himself appeared to avoid; but, as the appetite of the public for these revelations, and the profit-prompted liberality of the possessors of such documents, seem rapidly increasing, we feel it our duty to offer some observations on a subject of, as it seems to us, some novelty and considerable importance.

We must begin by stating that these volumes contain matters so various as to be at first sight hardly reducible to any common rule as to the right or propriety of their publication. We have, 1. The ordinary official despatches and communications between the minister and his own court, and that to which he was accredited. 2. The more secret and confidential correspondence, which under the form and style of private letters are essentially official, and affect in the highest degree the public interests. 3. Memoranda, minutes of conferences, or conversations, and intelligence, collected in the ministerial character, and for the

Judge Story, in his "Commentaries on Equity Jurisprudence," has collected all the cases which constitute the law on this subject, and classed and condensed them in his usual masterly style. He states, on all the authorities, that "private letters, even as literary compositions, belong to the writer and not to the receiver, who at most has a special property in them which does not give him a right to publish them," (§ 944;) and again, that "by sending a letter the writer gives to the person to whom it is addressed a property in it for the purposes of reading, and, in some cases, of keeping it; but the gift is so restrained that, beyond the purposes for which the letter is sent, the property remains in the sender," (§ 945.) These decisions were made on the principle involved in this and all such like cases, namely, the copyright in and the pecuniary value of such papers. But the argument goes still further, and protects letters, not merely as property, but as the sacred depositories of private confidence. "It would, indeed," says Dr. Story, "be a sad reproach to English and American jurisprudence if courts of equity could not interpose in cases where the very nature of the letter imports-as matters of business, or friend-ship, or advice, or family or private confidencethe implied or necessary intention and duty of privacy and secrecy," ( 947;) and thence the cases lead to a still closer analogy to our point..

Courts of equity will restrain a party from mak-ing a disclosure of secrets communicated to him in the course of a confidential employment," (§ 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 the question. The first part of our argument had applied to the mere act of publishing what had never been intended for publication, and then we proceeded to say with regard to the publication by Mr. Rush

66

But though we suppose that in strictness no state-papers can be printed without the consent of the crown, yet in practice any formality of sanction has been reasonably considered as unnecessary in cases which, by long lapse of time and entire change of circumstances, can no longer affect either private feelings or public interests, and have passed into the fair and undisputed domain of history. It might be difficult to fix the precise boundary of this domain, in which every year makes a degree of change; but it is creditable to the dis

public stations for the last century—of the hereditary possessors of their official papers-and of the literary men who have had access to those papers

"But Mr. Rush is in a still graver error as to the general principle. He seems to think that, if such documents may be published, he has a right to publish them. No such thing. The state has such a right, but not the servant of the state, without 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 verbal or documentary, he can acquire no personal right-no right to publish or otherwise employ the papers he may have collected, or the information he may have obtained, for any purpose of his own. The whole belongs to the state, and he has no more right to make any use of them than a lawyer would have to turn something which he has found amongst his client's title-deeds to his own advantage." (Q. R., xlix., p. 325.)

To this general doctrine we have never heard any objection: we believe it to be indisputable, and we will therefore venture to repeat our mature judgment-one not, as we have shown, formed on or for the present occasion-that the noble editor had no right whatsoever to publish the diplomatic papers of his grandfather. We have no doubt that such a publication might have been stopped by an injunction; and as the case now stands, we suspect that the law of copyright would not protect a publication where there was no right to publish.

But this applies only to the absolute rightwhich is, we admit, susceptible of various modifications in practice. In the first place the consent of the government for the time being, as representative of the sovereign or the state, would hardly 'be denied on a fit occasion, and would remove all difficulty. Of the two earliest publications by private persons of diplomatic papers that we possess -"The Cabala" and Diggs' " Complete Ambassador"—it is observable that both, and particularly the latter, referred to transactions quite obsolete, and were published during the license of the

that till within very late years little or nothing has been published to which any serious objection could be made. When Lord Kenyon and Dr. Phillpotts published, in 1827, the letters between the king and Lord Chief Justice Kenyon on the subject of the Coronation Oath, Lord Chancellor Eldon-with all his political and religious predilections for the views that publication was intended to serve-could not help expressing considerable doubts" as to the propriety of the publication, (Twiss' "Life," vol. i., p. 360)—not from any disapprobation of the sentiments, nor doubting that they did honor to both parties, but evidently because it seemed to make public a privileged communication too near our times to be altogether considered, as in all other respects they certainly are, historical documents. Lord Eldon's own biographer, who states this doubt, has gone much farther, for he has printed not only private letters of recent date, but a number of the most secret and confidential notes from King George III. to his chancellor on the most delicate subjects. In our review of Mr. Twiss' work (Q. R., vol. Ixxiv., p. 71) we said that, taking for granted that Mr. Twiss had obtained permission from the parties or their representatives for the publication of these private communications, there were still some for which it was too early even to ask such permission—a sufficient intimation of the judgment which we now more broadly state-that without such permission, those documents were, according to