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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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 7 of 91)
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that enables you to assume this burden with perfect ease, but also on the
enlightened policy whicli has led you to turn a deaf ear to all niggardly
counsels, and erect here a building that will stand for at least two hundred
years, to testify to your prosperity, your public spirit and your wisdom.

This court house, as I have said, belongs in a special sense to the people
of Logan county, but it is not entirely yours. In a wider and more general
sense, it belongs to every man, woman and child in the broad State of
Illinois. It belongs, indeed, to every person of whatever race, nationality,
colour or creed, that may come under the j)ower and jurisdiction of the
system of law which is to be here administered and enforced. A wanderer
from Patagonia or Hindostan would find here the ample and sure pro-
tection of all his rights, to the same extent as would the wealthiest citizen
of your county. This structure is in fact a temple erected by you to that
spirit of eternal justice and liberty, which has its best habitation in the
heart and brain of the great Anglo-Saxon and Teutonic peoples, that have
here commingled in a common citizenship — a spirit which has proven itself
the most secure protection of the sacred rights of mankind.



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Vol. ni] The Criminal Law Journal. 45

What does the dedication of a court house mean in our day and age ?
Let mo say, first, it means far more now than it would have meant in a
former and ruder period of civilization. It means a different thing hero
from what it would mean in a government absolute in form, if there now
be any such. If I mistake not, one reason of our assembling to-day is that
we may renew the attestation of our faith in the beneficence of that splen-
did system of law and order, which has long been at once the protection,
the pride and the boast of English-speaking peoples. In the ceremonies of
this dedication we pay an implied, if not an express, homage to that great
body of usages, precedents and statutes, w^orked out through the agonies of
a long and bitter racial experience, which, since the days of Magna Charta,
have been known to lawyers under that most comprehensive and significant
of legal terms — The Law of the Land. The words, jyer legem terrae — by the
few of the land— first used in the gre^t charter of English liberty — have,
under repeated interpretations of the courts, at length Ix^come transformed
in our law into that most salutary rule — absolutely fundamental under our
system, which guarantees that all men, whatever may bo thir several cal-
lings, and however humble may be their several st'itions in life, shall be
entitled to have all their rights, whether person or property, determined
by one and the same unbending rule of public law. That rule, fellow-
^^itizens, is the foundation stone of the structure of civil liberty. A people
whose laws do liot operate ui)on all equally can never be completely free.
A people whose laws operate equally upon all can never quite be slaves.

Tlie right of the humblest citizen to l>e judged only by the general law
of the land, first invoked against the wanton rapacity of the Plantagenet
kings, stands to-day as the shield of the citizen agaii>st arbitrary power
from whatever source it nny proceed. That rule is the most important
contribution of the English common law to the establishment and security
of the rights of the individual ; and this salutary rule, let mo say, was
not established by professional reformers. It was a fact long before it was
a theory. It came into the law of England by no proces-i of abstract reason-
ing ui)on human rights, but as the result of hard experiences and condi-
tions. It was not born in the closet of the philosopher, but in the death
struggle of our English forefathers against entrenched privilege and
bereditary arrogance. It to-day curbs courts, legislatures and executives ;
it is imbedded in our state constitutions, and is the unwritten law of our
country and of all the English race wherever found. It would be applied
by our judges even if it were not mentioned in the fundamental written
biw. That rule has been the breath of personal right and personal freedom,
since the day that King John, Lackland, capitulated to his armed and
determined subjects at Runnymede, and I might add that nowhere on earth
have the benefits of that wholesome rule been so fully realized as here in
free America.



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46 The Criminal Law Journal. [VVA.-lff

From the rcinoto days of Kintr John to tlio pr^^iit twur is a'fiif cry,
but this court house which wo dedicate to-day stands historically .cOiWrected
with all the past oF our race. It is a cnnisequence of happeilftVgs'' afrd
conditions which had their existence in a rcjuote past, and in ttirni«54r WA'y
itself become the cau^e of an enlarged frcHnlom, prosperity and liappinosji,^
lying far in the future. C;)nsidered only as ai pih» of iron,..niortitrMf'nn*
stone, this structure is not worth the troulde of a i)ublic cercmofijV ii6n^
sidered as the lust blossom u[)on the tree of a people's growth and develop-^
ment its advent here calls for the deepest interest and highest enthusiasm.'
Fellow-citizens of Logan county, this court house towers up hor^ 'los tkot*
last and most conclusive evidence of your civilization'. It is the enduring-
certificate to your progress, and your love of the beautiful. In it is epito-
mized the |)olitical and social progress of unnumbered centuries ;, it tells df-
your devotion to the cause of humanity ^ it speaks to all who gaze 'UjJbn it'
of your consecration to the cause of human rights, and it is a guarahtyr
that you intend to continue to be a free people. • -. ,, .,;

The American i)eoj)le are so absorbed in the struggle for wealth and
fame — so intent upon dazzling the world with their si)lendour and prowess
— that they have ceased to take much account of what many of their most
common institutions have cost, or of what they are worth to the human fhc6.
Few of us ever stoj) to reflect upon what is implied in the civic freedom*
which is to-day the lot of the humblest American citi>5'en. Few seem^ *ta'
know that our liberties are the result of institutions planted for us ift'tfeiVrot^-
historic ages.

There was a time when the common people had small voice or^ /A^r^^
in the building of court houses and still smaller part iti administerhig' tho
law in court houses after they were built. This is no longer ^he rule. Tift-
administration of the law, as well as the making of it, lias, in this count¥V*
at least, been popularized. The juiw, to which your rights of propertV'Mid-
liberty are submitted for determination, is selected froiu among youi^^M'l^l^
The judge upon the bench, whether ap]K)inted or elected, feels • constantly**
the enveloping and restraining force of puldic opinion. A stern senvse":oE^
responsibility to the peojde holds him firmly within its grasj), and happy i6\
that judge who knows the difference between that enlightened sentiment-
which is the prompting voice of the best civilization and that wild and?
lawless cry which is but the transient clamour of a diKtufbed populace. ^ "^

It is the theory of our system that judges mdie no law, lAit '^ judges, ■
without intending it, and, though constantly disclaiming the -right, ar^'
unconsciously making law every year of their judicial' livesJ The judge*
of the court of last resort gives a slightly different applii^iti^nl^a little'
different colouring — to the law almost every time he writes aii importaril'
opinion. A little of the leaven of modern thought, a little bit of the^
colouring of a progressive public opinion, works constantly intd the law, iu"



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Vol. Ill] The Criminal Law Journal. 47

spite of the fact that no new statute has been en.icted. This is not a bad
tendency, but a good one. Certainly, it would be a very bad thing for any
judge to hold himself unrestrained or unbound by the written law^ of the
land, but it is natural, and it is also wholesome, for the judge of the twen-
tieth century to see things from a different angle, from a different and better
point of view, than the judge of the seventeenth century was able to athiin.
(To he continued on page 49,)



BOOK RE^IEAVS.

Frauds on Creditors and Assignments for

the benefit of Creditors. By W. U. Percival Parker,
B.A., LL.B. Published by The Canada Law Book Company,
Toronto. 587 pp. Rs. 22.

Fraud on creditors is a universal complaint of the mercantile world.
The shrewd and dishonest debtor often transfers or assit/ns his moveable
and immoveable properties to save them from the clutches of his creditor.
But no civilized state can countenance this. Consequently, in every state
we have the written or unwritten laws for the protection of tlie credi-
tor against the frauds of the unscrupulous debtor. Statute, 13 Elizabeth,
Chapter 5, and some subsequent statutes contain the En;ylisli Law on
Fraudulent Transfers, Settlements and Preferences. Upon the provisions
of these statutes are modelled and based the Indian and C^donial Laws on
the subject. Their substance is the same in all English-speaking jurisdic-
tion:5; Section 53 of the Indian Transfer of Property Act (IV of 1882).
section 351 of the Indian Code of Civil Procedure (XIV of 1882), aild
several other enactments of general and special application embrace the
provisions of the Indian Law on this important branch of the law.

Mr. Parker's work, though it purports to h? a troati<o on tho Cana-
dian Lawof Fraudulent Transfers, &c., will bo found as usoful in India as
in Canada or elsewhere. The able author lias thorougldy sifted the vast
mass of the English and Canadian Case-Law which clustered round the
provisions of the English statutes and the enactments of very many other
countries. In the first Part of his work he has very al)ly stated and
discussed the law of "Transfers in Fraud of " Creditors." Part II is
devoted to " Fraudulent Preferences." Parts III to VI deal with the
" Remedial Proceedings," " Administration of the Insolvent's Estate,"
" Forms," and other useful topics connected with the subject. In Part VII
are collected the various statutes respecting Frauds on Oeditors, and As-
signments, for the benefit of Creditors in different Provinces of Canada.

While the English and Canadian authorities have been abundantly
cited, the American decisions have not been referred to except where tho



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is The Criminal Law Journal. [Vol. lit

torinor do not exist or fail to throw sufficient li^t on any jmrticular ]>oint.
Neither there are, nor we could expect, any citation.? from the Indian cases ;
but the substantive laws of all civilised countries being almost in pari
materia^ this does not detract materially from the general usefulness of the
book in India; It is a work of substantial worth and sound merit, and
equally useful for the students, })ractitioners and mercantile community* .



The Law of Negligence;' Rule:^ — Decisions —
Opinions. By Edward B. Thomas, United States Judge. Pub-
lished by Banks and Company, Albany^ N. Y. Second Edition,
1904. In two Vols. 2908 pp. Rs. 48.

In this bulky work of two large volume:^ are colleetc^d the American
Decisions and Opinions on the import uit subject of NogligeHCO* The
topics, under which tlie ease-law has been digested, are divided in
alphabetical order. Agency ; B.iilment> ; Bills, Note< and Negotiable
Instruments ; Common (Virrier of Good^; Coaumon Carrier of Passengers ;
Contracts ; (Contractors ; Contributory Negligence ; Crossings (Railway) ;
Damages ; Death from Negligence ; Domestic Animals ; Electrical
Appliances — Injuries from ; Elevators ; Estoi)pel ; Evidence ; Fires ; Fires
from Locomotive ; Fire-Aruis ; Fireworks ; Games and Sports ; In-
demnity ; Insurance ; Landlord and Tenant ; Limitation and Abatement
of Actions ; Manufacturers and Vendors ; Master and Servant ; Munici-
pality ; Parent and C-hild ; Parties ; Physifciil Examination of Plaintiff ;
Pleading ; Private Premises ; Professional Persons ; Kelease : State ;
Streets — Injuries Received On ; Sunday — Injuries Received On ; and
Telegraph Companies, are the various branches of law in connection with
which the Rules, Decisions and Opinions pertaining to Negligence have
been condensed in these two volumes of considerable magnitude.

The fundamental principles, very accurately deduced from the report-
ed decision i of the various (-ourts, are stated in black type in the begin-
ning of every topic. The leading authorities on which these principles
are mainly based are cited next. Then follow the numerous decisions bear-
ing on the topic. The i)ith of every pertinent decision is given even
where its force is only cumulative. Besides, here and there are given some
extracts from the " opinions " of eminent Judges. There is no Table of
Contents, but the General Index at the end of the Second Volume is suffi-
ciently compreliensive. Three hundred and fort} - six pages are covered by
the Nominal Index in the beginning of the First Volume. The CVoss-
references are copious. There is all this and more, but the work is not
a. scientific treatise on the subject of Negligence. It is an exhaustive
synopsis of the Case-Law,and well deserves, as such, to be entitled as
tbo ni<>st comprehensive and useful work for the busy lawyer and judge.



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THE

Criminal Laio Journal



OP



INDIA.
JOURNAL.



No. 4] TBS&VkKr 28, 1906. [VoL m

THE BELATION OF PUBLIC OPINION TO tAW.
(Continued from p, 47,)
•We idl know that laws can die and cease to be of any force what-
ever without being repealed, and it is equally true th^t rules of law
imperceptibly grow up without any formal enactment ; and all this happens
because we are fortunate enough to have among us a great body of enlighten-
ed public opinion, which, like the steam in the engine, presses constantly
upon the machinery that protects society. There is no such wholesome
opinion or public sentiment among an ignorant and degraded people. Fortu-
nate is that people who liave a great progressive moral force among them,
higher and better than anything that has ever yet been put into formal
enactments which constantly makes for righteousness in the hearts and lives
of men.

There was a time when law was an iron rule imposed upon the governed
by some governing person or governing class. Its source was arbitrary
and irresponsible. There was a time when the rule of property was as
stated in Wordsworth's couplet :

" That they should take who have the power,
AimI they should keep who can."

The agonies of discipline, the sore travail, the strife and the bloodshed
through which our race has passed since that dark and dismal time, forms
a fitting background to the pleasing ceremonies of this felicitous hour,
wherein you, fellow-citizens of Logan county, come together, this afternoon,
as a free and self-governing people, and hero take account of your good
fortune in being able to dedicate this magnificent court house to the equal



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50 The Criminal Law Journal. [Vol. Ill

protection of the property rights and personal liberty of all our people,
throughout all future time.

It sometimes requires great faith to believe the human race is going
forward and not backward. When we see pompous littleness and arrogant
vanity vaunting themselves in the seats of the mighty and turning the
orderly processes of government into a kind of hippodrome o£ self-glorifi-
cation, we can hardly wonder that some thoughtful men lose faith in the
sovereign rule of the people. But if we take a compressive view of the
history of the race to which we belong, we shall see that man is neither the
victim of fate nor the fool of chance. In spite of all the corruptions and the
petty strifes; in spite of the ignorance and dishonesty of many of those who
set themselves up to control our politics ; in spite of the distracting folsetto
of the self-righteous meddlers who falsely call themselves reformers — in
spite of all this, we know that the tide of human advancement in some way
rolls onward. Many blows seem to be struck in the dark; there is much
fighting of windmills; much senseless agitation; much reformation that is
not reform; many apparent deflections from the true line of human pro-
gress, and yei^ decade by decade, there comes a gradual alleviation of the
life of tjbii race, xi higher standard of civic virtue, and a more lively sense of
pity f^r %}1 forms of human suffering. I have no patience with the
pessimist who tells struggling men that conditions in our country are
growing harder. The fact is the other way. The world is growing
better.

" It IB weary watching wave by wave.
And yet the title heaves onwarti ;
We climb like corals, grave on grave,
And pave a pathway sunwanl ;
We are driven back for every fray
A newer strength to borrow,
But where the vanguartl camps today,
The rear shall rest to-morrow.

This court house typifies the struggles of a thousand years. It stands
as the eloquent and enduring answer of Logan county to the croaker who
denies human progress, or flouts the inherent virtue? of the people. This
temple is not put here for the protection or convenience of some favoured
class. It belongs not to the rich or to the great or to the wise or to the
learned; it belongs to all the people, and the humblest man or woman in all
the land may come to this shrine with confidence and receive equal and
exact justice without money and without price.

The making of laws and their enforcement forms perhaps the largest
part in the thought and in the discussions of the American people, and vet
there is much misapprehension concerning the function that positive written
laws perform in the life and progress of a free people like ours. Many
men who think themselves reformers have in every age been dreaming of ft



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Vol. Ill] The Criminal Law Journal. 51

time not far distant, when every man would bo made good and happy and
rich by an act of the legislature. But a broader view must convince, us
that people cannot be made either happy or virtuous or wise by statute. •
All that is an individual matter and must be worked out by the individual.
Legislatures and congresses are not omnipotent. Their function is to formu-
late and put the seal of state authority upon certain acts and regulations,
which their constituents have already substantially agreed upon. For the
most part they are the instruments of a power higher and better than
themselves.

There are other men among us who have no faith whatever in legal
enactments. Seeing about them many ills and hardships which the law
does not rectify, they declare that there is no virtue whatever in statutes.
These impatient men want the millenium to come this year, and* because
they cannot get it by some act of assembly or some decree of i^n' omniscient
court, they are ready to say that all legal systems are false and all govern-
mental regulations a pestiferous interference. These men fall into anarchy
and decr}^ all human government, because they take a very narrow view
of social questions.

The truth is, fellow-citizens, laws can never be much b*t^r or much
worse, under a free government, than the people themselves and they
ought not to be any better. That was a true saying of a celebrated French
)vriter, that under the freest constitution an Ignorant people will still be
slaves. Pope says :

" For forms of government let fools contest ;
That which is best administered is best."

and this is, in a sense, true. A bad government, administered by an enligh-
tened ruler or people, will be better than a good government administered by
political bosses and boodlers. But, after all, there is something in govern-
mental forms which men who are not "fools" may well contest, in spite of
Mr. Pope's brilliant epigram. A quickened civic conscience among the
people is far the best thing a nation can possess. Given a high standard of
civic intelligence and virtue among any people, and the enactment of statutes
and the enforcement of statutes will take care of themselves. Laws enacted
against public sentiment, are, in the end, mere waste paper. So a statute
that comes into the books as the result of a local or temporary craze, is
never the true law of the land, and such a law will fall into disuse and :be
forgotten.

Sdrae of our forefathers believed that if only a republican form of
government were once set up, all else would follow, but we now know better.
We know it requires a people of high character to work a good govern-
ment. Public sentiment produces the law and enforces the law, and to insure
good laws, well enforced, the sentiment back of it must be ah enlightened
and earnest sentiment. This public sentiment is at once the soil out of



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J



5f The CannKAL Law JoreNAL. [Vol, III

which all effeotivo legielaHon grows, and it i* likewise the medinm in
wfaicb aU the iMebinerf of foovemmeot, execoHve, logii^lative, ^nd judj^l.
opemtes. It iRvades every departmeot of the govonmieot; it i« present in
the baU^ of legi^littiop; it mt* with the judge u{)oa tlie bench, and wkh
ihe 03cecati%e in Ae ehair of state; it pertn6«te« and regnhites everything.
The law is but its instrnmenf, and government agencies are only it«
machinery.

The highest po«*es«on of a state i^ fonnd in the cliaracter of its people.
The aggregate wisdom and moral stamina of those who have bonded thein-
eelves together Hnder one government to enforce social order will be the test
of their laws and of their moral and social progress and when puUic opinion
among a people like ours becomes a passion it is absolutely irresistible, It.
will bring every neCorm for wliich the peojde are prepared. I like this
view, because it pnts upon every man in the community his full share i^t the
re»ponisibility for good government. It makes every man feel that the,
government i» bis government, and that if it goes wrong or fails, at least a
part of the responsibility is his own.. If the laws ^re broken with impunity ;
if mobs des^liwy life and property; if corrupt political bosses control polities ;
if bpodlers sit In high pbcesand sell public franchises for filthy lucre, rest
assured the fault is either in the corruption or the indifference of the voters
themselves, The law prohibits all such things, but, law or no la>v, a people
\yho are content to be trampled upon, will always find a cloven foot r^^dy
to crush them down, and they ought to be crushed. I once heard Fred
Douglass say that the n)an who is whipped the easiest is sure to be whipped
the oftenest.

When the soul of a great people gets on fire, it will consume every*!
thing that comes in itfi way. Napoleon Bonaparte, before ho was thirty
years of age, took an army of Frenclmien, whose minds and hearts were on
fire with enthusiasm for liberty and equality, and upset more than holf the
thrones of Europe, on which sat moribund potentates who had sought to
rule by arbitrary fiat, and had not taken the people into their just relation
to tlie government. The }X)wer of democracy, and the utter weakness of
autocracy were forever demonstrated by the little Corsican, and for twenty
years Franco seemed invincible under a consuming democratic enthusiasm,
The French armies struck terror into the heart of despotism all over
the world, and it was only when they, themselves, were brought under an
arbitrary government that they were at length conquered.

Do not, I pray you, understand me to niean that we could do without
written constitutions and written laws. Positive written laws organising
and defining the powers of the government, prescribing rules of
^tion for the citisBcn, and providing the machinery for enforcing the
l)eople's will, ^ve an absolute necessity. The government must be strong,
if it would be effective. But laws are not an end, thev are but the means



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VoL II f| The Criminal Law ^JourkaL. SA

to an end, that end being justice and order. IjHwh will not estaWish
justice or insnre order, or protect personal property rightj^, miiess there be
behind them an alert, enlightened and setf-goreming people.

In this country if the people want railroads regulated, and are deeply
in earnest about it, the railroads wiW be regufetted. 1( the people want the
power of plutocrats curbed, if they want mottopofies overthrown, and
have real heart in the crusade, the plutocrats will be humbled, and the
monopolies will fall. But if in any or all of these things the people have



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 7 of 91)