Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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Having been brought up with ^ feeling of deep respect for the
dignity, importance, and responsibility of the Bench, the layman, looks
upon elevation to it as the most honourable position to which any of his
fellow subjects can attain. The idea, therefore, that one who has been
called to such a place of honour and usefulness, can bo willing to desert it
. for the sake of political advancement, or personal gain, at once creates
a feeling that after all the Bench is not entitled to the respect with which
it has hitherto been regarded and of which it will be no longer the object.



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iO The Criminal Law Journal. [Vol. HI

The legal profei^ion U no doubt able to take care of itself ; yet,
being a clow earporatioa and a strict monopoly, it may be ae well for it,
in tbeae ieonoclastie days, to take heed to it« ways, and be wise. It is
i^iberwke with the Bemch, In it the interest of the profession is seeondmry
to tiiat of the paWie whose welfare it so largely controls, and who, there-
Cofe, have the lar/^est concern in seeing that its dignity, its independenee,
w4 its integrity are maintained. — The Canada Law Journal.



FKOM BENCH TO BAR.

The Benchers of the Law Society e£ Upper Canada recently adoptoil
a report of their Discipline Committee, dated June 16th last, concerning
tlie retirement of judges to resume private practice. This, it may
be remarked in |»assiag, was long before Mr. Justice Nesbitt left the
Supreme Court Bench. That event, however, lias again called attention
to a subject which has on previous occasions come up for discussion in
legal circles. We also publish in another place a communication on the
same subject (see post, p. 17), from a layman, which probably represent^
iu a large measure the thought of the lay mind.

Several years ago we expressed our view on this question, and have
nothing much to add to what was then said, except this, that if the public
want the best men at the Bar as judges, and desire that they should stay
there until they retire on a pension they must provide such salaries as will
make the Bench a pria5e, even to the leaders of the Bar, and enable retir-
ing judges to live comfortably without having to add to their income by
again going into business. Such a proper and necessary provision is made
in England (though even there and in several of the colonies there are
instances of judges leaving the Bench and going back to practice), but is
not adequately made in this country. It is, therefore, idle to expect the
same results when the conditions are so entirely different, and it must be
remembered that that which was a reasonable salary half a century ago,
when the Bench occupied relatively a much higher position than it does
now, is ridiculously inadequate in these days. These are times when one's
social position is (grievous pity though it may be) largely dependent on
wealth ; and, if a judge of any Superior Court is to occupy the position of
honour he should, it is necessary he should, be paid a salary sufficient to
keep up the dignity of that position.

A« to the voluntary retirement of judges it is easy to imagine a
twiety of circumstances which would disarm criticism as to any individual
in that regard ; and so, whilst we regret the retirement of the learned
jwlge referred to (now plain Mr. Nesbitt, K.C.), both on account of the
principle invcJved as well as because it is a loss to the Bench, we have no
deobt there were good and sufficient reasons for his action. There have
Imw in the p^^ and will be in the future, occasional awkwardnesses and



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Vol. m] The Criminal Law Journal. it

unpleasantnesses, and possibly unkind comments by litigants, owing to the
change of position, but these cannot be avoided, and must be endared and
lived down.

The general principles covered by the resolution and the riews o£ oar
correspondent are doubtless sound, but they must be considered in tbe
light of attendant circumstances ; and, after all, we are glad to think the
discussion is academic rather than practical. — The Canada Lavs Joum^^



THE HUMAN INTEREST OP THE LAW.

Mr. T. R. Hughs, K. C, delivered the following address at the annual
meeting of the Liverpool Board of Studios :

It has been the custom of many persons, and in particular of play-
wrights and novelists, from very ancient times, to represent the practice of
the law as a dry and dreary occupation, and to look upon the lawyer as a
person devoid of human feelings and sympathies, with no concern but to
make a living out of the quarrels of his neighbours. This idea is, I trusty
dying out, but it is by no means dead. Possibly w^e lawyers ourselves are
partly responsible for its continuance. But I hope the younger genera*
tion will tlo much to de^^troy any such ignoble view. Remember this^ and
keep it firmly in mind, that if you regard the law as a mere means of
making a living, you will find it a mean and sordid occupation that will
never repay the expenditure of time and trouble that must bo spent upon it.
Rightly regarded, both the study and the practice of the law are of intense
interest. The lawyer may say — perhaps more truly than any other man— ^
yUtil humani a me alienumputo. No part of human aflFairs, indeed, is foreign
to him. The physician cares for men's bodies ; the minister of religion cares
for their souls ; but all the relations of man to man are the subject of the law-
yer's art, the material on which he has to exercise his skill and knowledge.

The family relations, husband and wife, parent and child, and all the
numerous relations in which persons stand to one another, either by blood
or marriage ; the relation of guardian and ward, trustee and cestui que
trustj solicitor and client, principal and agent, the relation of partners to
one another, that of neighbours occupying adjoining estates or houaes ;
even the doctrines of contending churches (as we have recently seen)
may come to be considered and adjudicated upon by a tribunal of lawyers.
All those relationships may, and indeed do, give rise to questions whidi
require the aid of the lawyer to adjust, and for such adjustment there is
required not merely a knowledge of law, such as can be acquired from
books, but a wide and sympathetic experience of human nature, and ol
the springs of human actions. Out of them arise many dramas,, some
tragic, some comic, some, it may l)e, almost farcical.

I am not speaking only of the cases which appear in the nowspapem
with startling headlines, and which form a nine day's wonder, but ti|9



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52 The Criminal Law Journal. [Vol. Ill

ordinary ca.Hos that como under one's notice in every-day practice. Take
a few examples. Think for a moment of what lies beneath an ordinary
probate suit, a contest perhaps over the will of some man who has lived
for years /with greedy relatives about him, each striving to ^et the lion's
share for himself or herself, such as Dickens pictured in " Martin Chuz-
zlewit ; " perhaf>s at last all of them defeated by a "' charitable " bequest,
which rouses anything but charitable feelings in disappointed breasts.
And this suggests to the careful observer that wills form a most interest-
ing and curious subject of study. I do not mean the construction of wills,
w hich, to say the truth, is generally rather dull, " Jarman on Wills " is
one of the dreariest of books. But wills throw a curious light on human
character. So juany i)eople are anxious to control their pro])erty after
they have left this world, and to manage the affairs of their children and
even their grandchildren. I have heard and experienced chancery practi-
tioner exj)ress the opinion that few men ought to be allowed to make
wills, and no women. This is an exaggerated view, but true it is that
persons re{)uted to be of ordinary sense frequently display extraordinary
eccentricity in their testamentary dispositions. Perhaps the testator feels
that before his folly is discovered he will be beyond the reach of criticism.
. I have for some time thought that it is somewhat of a defect in Eng-
lish law that no limit is set to the caprice of testators, and that a man may,
if he choose, in a fit of anger or from perverseness or mere whim, leave
any member of his family destitute. There is much to be said for the
system under which the j)ower of a man to leave his property away from
his family is limited. Some of you may, in due course, become legis-
lators, and may think it worth while to consider this subject from the
legislator's point of view. But this is by the way.

Probably most ])ersons, if asked whether any human interest or ro-
mance could be found in ( 'hancery, would without hesitation answer in the
negative. But they would be much mistaken. Cliancery practice offers
very much of human interest. As I said before, it may involve almost
all the relations in which human beings stand to one another. It begins,
indeed, at a very early age— with the guardianship of infants. A chancery
judge has to look after a very large family, both of sons and daughters,
and a great deal of trouble they give him sometimes. He has to select
guardians for them, to decide what schools they are to be sent to ; he has
to perform the delicate task of determining whether a proposed marriage
is suitable or not, and (what is perhaps even more troublesome) sometimes
to decide in what religion they are to be brought up. From the point of
view that we are considering, one of the most interesting branches of
chancery jurisprudence is that which embraces the cases which are classed
under the name of " undue influence.*" These cases often involve very
interesting psychological problems as to the influence or control that one



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Vol. Ill] Thb Criminal Law Journal, 23

mind has over another, and the court in dealing with snch cases acts rather
as a court of conscience than as a court of law.

The barrister does not come into the same intinuite connection D?ith
the human aspect of the law as the solicitor does. It is rather like the
difference between reading a novel and seeing the same story on the stage
in the form of a drama. It is the solicitor, of course, who has to interview
the client personally, who has to calm down his excitement and induce
him to take a reasonable view of his rights and duties ; and it is his funo*
tion to explain to the defeated client why it is that, though his case is so
obviously righteous, yet the judge has perversely taken the contrary view.
When the client is a lady the difficulty is, I apprehend, much increased.
It has always occurred to me that this is the most unpleasant part of a
solicitor's duty. The barrister (as I said) does not come into such intimate
contact with the personal element in a case ; when the facts are written
down by a law stationer on brief paper it requires rather more imagina-
tion to put oneself in the place of the client, the matter becomes to some
extent impersonal.

I suppose the majority of the students here intend to be solicitors,
and what I have been saying has more practical application to them than
to the bar. As a rule, counsel is not asked to advise clients what they
ought to do, but what their rights or duties are if taken according to the
strict letter of the law. Though, of course, the barrister finds cases where
he feels that he must tell a client plainly what he ought to do indepen-
dently of legal rights, this is comparatively rare ; as a general rule, by the
time a case comes into court, matters have got beyond that stage ; the
client will say to counsel, more or less politely, that his only business is
to fight the case and not to offer advice on moral obligations. The solici-
tor in this respect is under a more serious responsibility than counsel.
He generally comes into the matter at a stage where a word of judicious
counsel will have weight. The power of a solicitor in this respect can
hardly be exaggerated. On his conduct frequently depends the question
whether a client will act on a just and reasonable view of his rights or
adopt a hostile and unbending position which may cause endless trouble
and expense both to himself and his opponent. The character of the
solicitor is reflected in the client, and no doubt this is the reason why one
finds in practice that some solicitors generally have reasonable clients, who
take a fair view of their rights, and are willing to give and take, while
others almost invariably have the misfortune to have unreasonable and
obstinate clients.

The witnesses called in courts of justice form another most interesting
opportunity for the study of character. Coming as of course they do,
from every part, from every class in life, of both sexes and of almost
every age, they necessarily afford infinite variety. Perhaps one of the



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24 TnE Criminal Law Jouhkal. [Vol. lH

most picturesque incidents of tins kind occurred in a recent case (which
many of you may have heard of) where a Chinese mandarin of high rank
Appeared as a witness in an English court of justice. The contrast of
East an(t West was strikingly exemplified. One incident in the case I
might relate to you as throwing a vivid light on Oriental character. The
mandarin was asked whether he had had certain business interviews dur-
ing a particular period. He replied, " No." After further pressure ho
said he could not remember them at all, as he was then doing a hundred
days mourning for his mother. The interpreter, who was very familiar
with Chinese customs, said he wa^ quite sure the witness would never ad-
vMt that he remembers these interviews, because it was the etiq.uette in
China not to have the faintest recollection of anything that occurs during
the ])erioil of mourning. The mere lawyer is apt to regard all witnesses
simply as " witnesses," but, the man who really cares for his work will
st\idy their diflFerences, their strong points and their weak ]>oints, their
prejudices and their idiosyncrasies. The judicious solicitor will take the
trouble to find out these things, but it is curious how seldom it is thought
worth while to give any careful information to counsel on these points.

Judges and counsel, of course, have to form very rapid judgments as
to character, and on very scanty materials. Yet, how much may depend
on a prompt and accunite diagnosis of character. The most serious res-
ponsibility, of course, in this matter, rests upon the judges, and a sound
judgment of character is one of the most valuable qualities in a judge.
The resj)onsibility on counsel, though less obvious, is still serious enough.
He has gradually to feel his way to a true understanding of the witness'
character before finally deciding on his line of action, and has also to
endeavour to know how far the judge's view coincides with his own. For
example, no more fatal mistake can be made than treating a witness as
dishonest when the judge considers him straightforward and truthful.
This observation applies perhaps even more strongly when the tribunal is
a jury. The study of juries is one on which my very small experience
hardly entitles me to offer an opinion. This much, however, one may
safely say, that the study of the jury is not the least important study, and
is beset by this peculiar difficulty : that you have to judge entirely by
appearances, and have (generally speaking) no words or tones to help you.
A judge generally indicates his view in words, but with a jurjTnan you
have to ascertain his views by the expression of his countenance and some
slight (perhaps almost imperceptible) movements indicating approval or
disapproval.

My observations this evening have been rather discursive. I do not
apologize for it ; they were meant to l)e so. I wished to call the attention
of you gentlemen, the law students of Liverpool, to the wide and \'aried
opportunities that the law gives for the study of human character. The



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Vol. ill] The Criminal Law Journal. 25

proper study of mankind is man. It may be said that the phases of cha-
racter that one comes jlcross in this way are not the most pleasing or at-
tipketive. There is some truth in this, and for a very obvious reason.
Litigation iViostly- arises from the follies or \dces of mankind. If everyone
were perfectly wise and entirely honest there would be little litigation »
and the practice of the law would be reduced to conveyancing. Perhaps
the greatest number of law-suits arise from stupidity ; next to that, I daro
say, among the causes of law-suits comes misunderstanding ; and, thirdly,
perhaps aVarice.

But though one may in the practice of the law see somewhat ihore of
the bad or weak side of human character, one sees also a great deal of the
good and generous and unselfish ; and even follies and weaknesses, if
rightly viewed,, will excite kindliness and sympathy rather than cynicism.
In proof of this, many of the kindliest men are men who have had much
to do with crime— such as judges who have had long experience of Crown
courts, police magistrates, and so forth. Do not imagine that cynicism
and gefnei^l distrust ol men indicate a knowle<lge of ihe world ; they in-
dicate a vety shallow and partial experience, and unfit a man for taking a
just view of life almost more than undue credulity.

Whether you are intending to. practice at the Bar or as a solicitor, I
feel sure of this, that you will find it worth your while to cultivate what
I have called the " human interest of the law," and this for two reasons.
In the first place you will be better practitioners, and more successful in
youi- profession-; in the second place (and this is perhaps the more im-
portant)- it will make the dry bones to live, will make you men instead of
mere lawyers, and will make the study and practice of the law an occupa-
tion of surpassing interest.^ — Chicago Letjal Seics. •



CRIMINAL SPORT.

■ Crime and sport are so opposite in nature that it would seem a misno-
mer to speak of criminal sport. But a list of the crimes committed in
fun, or in the name of sport, every year, would be astonishing, not only
for its length, but for the wide variety of criminal offences included in it,
ranging from petty larcenies and heedless mischief up to serious, and even
heinous/feionies, like mayhem and homicide. The surprising and almost
incredible tolerance of the American public for crime of every sort, com-
mitted in sport or in the guise of sport, shows that the public needs to see
more cleariy where sport stops and crime begins, and to feel far more
keenly the dishonour to the nation from any toleration of injustice, especi-
ally when it is in the form of wanton aggressions on person or' property.
The unenviable position of the United States in respect of lawlessness has
, hitherto been exhibited at the worst in an annual record of violence and



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26 Thk Cbimikal Law Journal. [Vol. Ill

murder tliat shocks the civilized world. Much twaddle about our igiH
Grant foreign popnlation has been offered to excuse it ; but let us honestly
faoe the criminal records of our native Americans, and particularly of
those who have social, financial, or political prominence. The sickening
revelations of corruption in high political and financial positions make it
as futile as it is dishonest to charge the blame of our crimim^I record upon
our ignorant alien population.

The essence and spirit of all crime is a disregar4 <)f the rights o£
others. The first and greatest characteristic of a gentl^nian or good
citizen is a scrupulous regard for the rights of other peonlj^ ; yet among
the boys and young men who come from homes of resbfctability and
refinement there are r multitudes who, in a variety pf i^fiys, habitually,
wantonly, and criminally wrong other people ; and, although they usually
do it sneakingly, showing a consciousness of wrongdqfRg, ^hey seem to
have, nevertheless, a half-formed notion that they are exeroiaing a privi-
lege of which no one ought to complain. Moreover, th^rp || an easygoing
tolerance of their crimes by the community at large, or at bast, by the
officers of justice. By these practices and their toleramn these future
citizens are encouraged to despise and trample upon ihfi fundamental
principle of citizenship and social order. Some of these ^fiq^inal acts are
comparatively trivial. Others are more serious. But all of them breed
in those who practise them a disregard of justice and qI law. Is it
strange that the record of this country for lawlessness is wpi^gp than that
of any other civilized nation, when in their formative years hoodlumism,
vandalism, and theft are among the half-privileged sports pf the future
citizens ?

The instances of crinle committed in the guise of sport, or of fun, are
familiar to everybody. It is a rare city or town in which a home with
garden or fruit is at all secure in its enjoyment. Boys, often from res-
pectable families, not only steal all the fruit, but wantonly damage, and
very likely ruin, the trees. For bonfires on the Fourth of July, eleotion
day, or some other holiday, the same class of " respectable" hoodlums
steal every barrel, box, or wooden article of any nature that is portable,
with P^ ^^^ to discriminate between what is valuable and what is not.
Halloween parties going in fun to litter and bespatter porches and entr-
ances of dwellings with dirty and decayed vegetable sometime break
windows and mutilate woodwork. Students of various grades think it a
lark to carry off and sometimes to destroy front gates ; to bum down
fences or old buildings that do not please them ; to smash windows and
doors of a schoolhouse, academy, or college building ; to bedaub offen-
sively such buildings, or even private residences, with paint ; to mutilate
statues or other art treasures ; or in any one of a thousand similar ways
demonstrate their superior culture by ruining or injuring property which



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Vol. in] The Criminal Law JouRiiAt. 27

does not belong to them. It is in these ways that the education oE our
boys and young men is extended to include facetious crimes of various
kinds, such as theft, malicious mischief, and arson. The seeds are planted
arid the sprouts watered from which in later days comes a goodly crop of
those crimes by which men of education, good family, and business or
political prominence surprise the public.

Aggressions upon persons, also, are frequently carried to a criminal
point in the name of sport. In hazing, for example, when, without any
agreed contest or consent of the party attacked, a gang of fellows lie in
ambush or otherwise secretly catch their victim at a disadvantage and
maltreat him, sometimes seriously, they are guilty of criminal assault
as well as of contemptible cowardice and meanness. xKey have a pleasant
tlieory that it is done because the freshman needs it. But even if that
were true, and if he were benefited by it, it is more than offset by the
cultivation in themselves of an insolent disregard of the personal rights
of a fellowman as well as of a spirit of lawlessness and a tendency to take
a mean and cowardly advantage of an opponent. In the view of the law,
the attack not only constitutes a criminal assault, but in those extreme
cases in which the death of the victim results, the offenders are guilty of
homicide, varying in degree according to the circumstances of the killing.
Even without any intent to kill, it may become murder in the first degree,
(See note to New York r. Sullivan, 63 L. R. A. 353.) Yet it is all sport
in the complacent \new of those who perpetrate the crime. Causing the
death of a person by reckless treatment of him in the course of initiation
into a fraternity, which has happened in a considerable number of cases
in this country, is, of course, usually free from any malicious purpose,
but,* if reckless or grossly negligent, it is undeniably criminal, and consti-
tutes manslaughter under nearly all the authorites, (See note to Johnson
r. Ohio, 61 L. R. A. 277.) A far more infamous crime is committed
it the course of games, such as football, when one or more players secret-
ly, but deliberately, disable an opposing player. The mere suggestion
that such a thing as this could be done in a game among the gentlemen
who constitute the opposing college teams seems incredible. Yet that
it has been done repeatedly, until it has become almost customary, with
some teams at least, is well-nigh universally admitted, even by the most
enthusiastic supporters of the game, except when they are put on its de-
fence. Somethiilg very like an admission also appears in the annoupce-



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 4 of 91)