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criminality for which different penalties should be imposed, but which are now regarded alike as murder in law.

First may be mentioned those cases where a person's death ensues in consequence of a felonious act. A, shooting at B's hens, intending to steal them, happens to hit B and kill him. According to many authorities A is guilty of murder. In recent years there has been a reluctance to apply this principle logically; but at best it must be admitted that the law is uncertain and that it needs amendment. A serious and perhaps the most common example of this class is where death is caused by procuring abortion. The offence of procuring abortion, especially for gain, is a very serious one; but whether death ensues or not is a matter beyond the control of the culprit. He does not desire, aim at, or intend the death of the woman. His desire and aim may be to save her from shame and trouble; he may yield to her entreaties out of kindliness of heart and with no hope of gain. Even in the worst cases where the main motive of the crime is pecuniary gain there is no murderous intent. The death of the woman is not desired; if the accused had thought that death would occur, it is in most cases certain that he would not have undertaken to commit the crime. The crime he commits is the crime of procuring abortion, and it is for that, and that alone, that he ought to be punished. Yet persons have been sentenced to death before now for even advising a woman in trouble to consult a person who afterwards performed an illegal operation resulting in death.

An analogous injustice occurs when a number of persons are jointly engaged in a criminal act, such as the forcible release of a prisoner, and one of them, perhaps the only one armed, shoots a constable in charge. He may have been the only one who intended to kill or even injure anybody, yet all the party are equally liable. To hang a score of men on such a ground would excite sympathy with the criminals even among law-abiding citizens, with the result that the serious nature of their lesser offence and the necessity for punishing it severely may be overlooked.

In the second category are cases of serious provocation. Public attention has been specially directed recently to this class, and more such cases are likely to arise in the immediate

future. It is better to refrain from comment on any particular case, but there is a risk that where the act of vengeance is felt to have some justification, a jury will strain the facts in order to avoid a verdict which may lead to capital punishment. If a husband catches his wife in flagrante delicto with an adulterer and kills either, the crime is manslaughter not murder. But there is authority for saying that in all other cases, though the provocation may be at least as great, the crime is murder, and if the accused is found guilty he must be sentenced to be hanged. To avoid this excessive penalty for a partially excusable act of private vengeance the jury acquits the criminal and he escapes all punishment, though some punishment is due. The nature of the crime of killing may indeed vary to any extent, and the punishment properly to be awarded should be adjusted according to the circumstances of each case, except in the case of murder in the first degree as above defined. The death penalty should not be at the discretion of the judge.

Thirdly, we have cases where the person who has killed another is labouring under fear, distress, or anxiety, causing mental disturbance which though not amounting to insanity may greatly affect the judgment. In these cases there is some excuse-not justification. They vary widely in their character and degree of criminality, but differ all of them from those which ought to be treated as murder of the first degree and worthy of death.

Infanticide by mothers shortly after childbirth is the commonest form of case falling within this class. It is true that the death penalty in this case is rarely if ever inflicted; but what is at best a solemn and cruel farce-the passing of the death sentence-should be abolished. The court, with all the facts before it, should decide at the time what sentence other than death is proper to meet the case, and not leave it almost to chance or to those who have not heard the evidence or seen the parties to determine at some future time what should be done. The cold-blooded severity which would demand the death deliberately inflicted by hanging of a girl in the position of Hetty Sorrel is utterly repugnant to human feeling. Cases of this class arise from time to time in real life-they are not simply the theme of imaginative fiction. No one would accuse the late Mr. Justice Hawkins

of sentimentality or excess of sympathy with the feelings of those whose cases he had to deal with, but there is one act recorded of him which ought to be remembered when the Penge case and other unhappy instances of his procedure are forgotten. His own account of the case should be read:

'A woman with a baby a week old, unable to sustain the load of shame which oppressed her, ran one night into a river, holding the baby in her arms. She had got into the water deep enough to drown the baby, while her own life was saved by a boatman. I asked the jury whether, without being insane in the ordinary sense, the woman might not have been at the time of committing the deed in so excited a state as not to know what she was doing.'

The verdict was 'Guilty,' and in finding it the jury were doing their duty, and the judge had no discretion but to pronounce sentence of death. He refused to put on the black cap, and said to the sheriff, 'I do not intend the poor 'creature to be hanged, and I am not going to frighten her 'to death.' Addressing the prisoner by name he said:

"Don't pay any attention to what I am going to read. No harm will be done to you. I am sure you did not know in your great trouble and sorrow what you were doing, and I will take care to represent your case so that nothing will harm you in the way of punishment." I then mumbled over the words of the sentence of death, taking care that the poor creature did not hear them.'

It is surely better to alter the law than thus to bring it into deserved contempt.

Beccaria, than whom no one has ever given more careful or more detached thought to the study of crime and its punishment, writing more than a century ago, says:

The murder of bastard children is in like manner the effect of a cruel dilemma in which a woman finds herself who has been seduced through weakness or overcome by force. The alternative is either her own infamy or the death of a being who is incapable of feeling the loss of life. How can she avoid preferring the last to the inevitable misery of herself and her unhappy infant? The best method of preventing this crime would be effectually to protect the weak woman from that tryanny which exaggerates all vices that cannot be concealed under the cloak of virtue.'

There is a foolish maxim hard cases make bad law.' The proper form of the maxim would be bad law makes hard

cases, but good law prevents them.' It is true that if we have a law it ought to be obeyed, even if the case is hard, but the law of the land ought not to be so framed as to make its execution an infamy. If it is so framed, in practice it will not be executed. A hundred years ago Sir William Grant declared that as a consequence of the death penalty being legally imposed in a great number of cases where its infliction was revolting to the moral sense, there was a general 'confederacy of prosecution, witnesses, counsel, juries, 'judges, and advisers of the Crown, to prevent the execution ' of the criminal law.' As a deterrent to crime the certainty of a proper and suitable punishment is far more effective than unduly severe penalties which are not carried out or are uncertain.

The fact is that the whole criminal law, at least as to indictable offences, ought now to be codified. Drafts of a criminal code have been prepared at different times and consolidation acts dealing with certain subjects have been passed. More than a quarter of a century ago Sir John Holker directed. his attention to the subject, but was prevented from completing his work. One reason, no doubt, why the criminal law has not been completely codified is that the existing law as to murder and manslaughter is in such an unsatisfactory state that it will not bear clear statement, and in some respects is so vague that precise and accurate statement is very difficult. Apparently there is no one to-day whose duty it is to consider and propose in definite form the amendments which ought to be made, still less to undertake the general codification of our criminal law. Yet it is significant that the Code Napoléon, the greatest piece of codification ever carried out, was undertaken and completed at a time when France was engaged in a great European struggle.



1. Final Report of the Committee on Commercial and Industrial Policy after the War.


2. Report of Reconstruction Sub-Committee on Electric Power Supply. Cd. 8880.

3. Report of the Dominions Royal Commission. Cd. 8462. 1917. 4. Report of the Royal Commission on Canals. Cd. 4979. 1909. 5. Report of Special Board of Scientific Societies on Water Power. 1918.

6. Report of Committee of Board of Trade on Shipping and Shipbuilding. 1918.


HERE used to be windmills: why have they gone? Those who watched their gradual disappearance probably looked upon it as a sign that the age of steam had superseded the age of wind. But the explanation is inadequate. There were a great many factors involved in the decay of the old windmills. They were, in the first place. costly to build, involving the erection of a lofty tower standing on a considerable area of land; then they were difficult to manage, the process of reefing in bad weather being attended with many accidents and not seldom with loss of life; again, they were uneconomical in working, utilizing but a small fraction of the available wind energy; they were seldom erected in the most favourable positions, and were most numerous in those parts of the country in which our wind power is least exhibited. But the most potent cause of the decay was a growing preference on the part of the public for a white loaf made of blended flour; this it was which finally gave an overwhelming advantage to the steam mills situate near the ports of entry for foreign grain.

Still, the windmill never quite ceased to exist; it continued to do pumping work in the Cornish mines and in the Lincolnshire fens; and its great utility as a pumping agent led to its revival in an altered form for this particular purpose. Small mills on steel frames, of what is known as the American type, began to appear in our nursery gardens, in private

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