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most useful of mercantile contrivances, pernicious, however, in one way, that being corporations, they suffer from ignorance and prejudice on the part of juries and others, who do not comprehend them entirely, and, by suffering injustice, however involuntarily, in some sort, lower the moral tone of the community.
The contract of the insurer is not a wager. It is his business* to take a share in the mercantile business of the country (it is only marine insurance that is now in question). The owners of vessel and cargo take certain risks, and others which they cannot afford to take are taken for them by the underwriter. Is there any thing iniquitous in their agreeing between themselves at the inception of the contract, that if the latter pays a total loss or full indemnity to the owner for the risk he has taken, the insurer shall stand in the place of the other? The underwriter is just as much a merchant engaged in the commercial enterprises of the country as the owner of vessel or cargo.
And he is indispensable to the enterprising young man who wishes to do a large business with large brains and small capital. But for him the young man must be the clerk of the rich and, perhaps, indolent old merchant who has acquired a capital. Is it democratic statesmanship or republican policy to discourage this class of merchants? Surely there can be no question on this point. And now is not the time to discourage the embarkation of capital in this department of trade, — now, when we have seen within a year every insurance company but two in the city of Boston, and a great many outside, rendered bankrupt in a single night by one disastrous conflagration.
The action of the United States on this question will be monumental. It will affect not only our repute abroad, but our integrity at home, —our integrity, political and moral.
It is indeed to be hoped that our action will be such as shall at least do us no discredit. If we can simply do what any honest man of business would do in our circumstances, we shall reap no glory beyond that which comes from the prompt performance of a plain duty; but that glory is worth reaping. "Righteousness exalteth a nation." If we display a want of the sense of justice, an inability to appreciate the requirements of duty, it will be for ever disastrous.
A republic must stand upon the principle of justice, or it must fall. The citizen, to love his country, must see in her an exemplar of the higher and nobler qualities of humanity. Mere power does not inspire love. The strength of the government lies in the confidence which each citizen has in the sense of duty and the love of justice entertained by his fellows.
Mr. Emerson's remark at the commencement of the Rebellion, *'We have been trying to do without justice," will not soon be forgotten. It dwells in the memory like the stern old Latin, "To COLE JUSTITIAM. TtBI ET ALUS MAXET ULTOK."
THE LAW OF HOMICIDE.
PRESUMPTION OF MALICE.
In a capital case of great legal importance, and, owing to the notoriety of all the parties concerned, of still greater popular interest, recently tried in New York, the presiding judge charged the jury as follows: "The fact of the killing in this case being substantially conceded, it becomes the duty of the prisoner here to satisfy you that it was not murder, which the law would imply from the fact of killing under the circumstances, in the absence of explanation that it was manslaughter in the third degree, or justifiable homicide; because, as I have said, the fact of the killing being conceded, and the law implying motive from the circumstances of the case, the prosecutor's case is fully and entirely made out; and therefore you can have no reasonable doubt as to that, unless the prisoner shall give evidence sufficient to satisfy you that it was justifiable under the circumstances of the case. . . . Ordinarily, naturally, and properly, in cases of this kind, juries are disposed and should give the prisoner the benefit of any reasonable doubt that may exist in the case, and I do not know that even this is an exception to that rule. If the evidence shall be doubtful upon that subject, if you shall entertain reasonable doubts, if the evidence is evenly balanced, so you do not know where the truth lies, the prisoner would be entitled to the benefit of that doubt." The jury returned the verdict, " Guilty of murder in the first degree," and to the first portion of the charge, as given above, the counsel for the prisoner excepted. This exception was unanimously sustained by the Court of Appeals,1 and the cause remanded for a new trial.2 The language of Grover, J., on this point is as follows: "We have examined this portion of the charge to determine whether the idea intended to be conveyed to the jury, and
1 The Supreme Court, to which the case was first taken, overruled the exception on the ground that the prisoner was not prejudiced by the portion of the charge excepted to.
1 Stokes v. The People, 51 or 52 N. Y., —. The decision was sent down June 10, which they would derive therefrom, was that the law implied that the act of killing was murder when perpetrated under the circumstances of the present case, or whether such was the legal implication from the proof of killing in the absence of proof of the circumstances of its perpetration, by which the case of the prosecution was fully and entirely made out, unless the prisoner had satisfied them that it was not murder, which the law would imply from the fact of killing. We think a careful examination of the entire portion of the charge excepted to will show that the latter was the idea intended to be conveyed, and that the jury must have so understood it. . . . The instruction in effect was . . . that the law implied motive, and consequently the crime of murder in the first degree from the proof of killing the deceased by the prisoner, and that upon this proof they should find him guilty of. that crime, unless he had given evidence satisfying tbem that it "was manslaughter or justifiable homicide. . . . But for the idea conveyed by this part of the charge excepted to, that the law implied the crime of murder in the first degree from the proof of the killing only, unless the prisoner satisfied them it was not murder, the benefit of the doubt to be given to the prisoner would not have been restricted to their finding the evidence evenly balanced, so that they did not know where the truth lay; on the contrary, the instruction would have been not to convict of that crime unless convinced by all the evidence in the case that he was guilty, and that if a careful examination of all the evidence left in their minds reasonable doubts of his guilt, they should give the prisoner the benefit of an acquittal. . . . This rule can be upheld by authority only, as it obviously is in contravention of principle and the analogies of the law. It is a maxim in the law that innocence is presumed until the contrary is proved. How is guilt established by proof only of one of the ingredients essential to constitute crime? To constitute crime there must not only be the act but also the criminal intention, and these must concur, the latter being equally essential with the former. Actus non reum facit, sed mem, is a maxim of the common law. The intention may be inferred from the act, but this in principle is an inference of fact to be drawn by the jury, and not an implication of law to be applied by the court." Rapallo, J., delivered a concurring opinion, in the course of which he said: "Argument seems unnecessary to demonstrate the error of this charge. It was a necessary part of the case of the prosecution to establish that, the homicide was perpetrated with a pre* meditated design to effect the death of the person killed, yet the court, assuming to determine what the circumstances of the killing were, solemnly instructed the jury that the fact of killing being conceded, the law implied malice from the circumstances of the case, and that the case, on the part of the prosecution, was fully made out, and that the jury could have no reasonable doubt as to that, unless the evidence on the part of the prisoner satisfied them that the killing was justifiable. . . . Their inquiry was thus reduced to whether they were satisfied of the truth of the allegations on the part of the defence. If they were in doubt whether these were true or not they were bound to convict." All the other judges concurred.
This case was tried under the New York statute,1 in which the definition of murder is somewhat changed from that of the common law, and felonious homicide is divided into several grades. The expression, "with malice aforethought," in the definition of murder at common law, is superseded in that section of the statute under which the prisoner was indicted by the words, "from a premeditated design to effect the death of the person killed or of any human being." It was therefore properly said by Grover, J., that the question was to be decided under the statute and not according to the common law; yet there is no magic in words, and it will be perceived that the expression in the statute, as well as that of the common law, refers to the intent which accompanies the act of killing. This charge raises the question involved in all similar cases of homicide, What is the relation which the act of killing bears to the moral state of the person perpetrating the act? In a prosecution for murder, as in all criminal prosecutions, there are two substantive facts to be established against the accused, — the overt act and the criminal intent, the physical fact and the psychological fact.2 In other words, the government is bound to prove not only that
1 Tit. 2, sec. 2, of the Statute of New York, under which the prisoner was tried, declares in what cases homicide shall be justifiable. Tit. 1, sec. 2, as amended by the Act of 1872, provides that such killing, unless it be manslaughter, or excusable or justifiable homicide, shall be murder in the first degree in the following cases: 1st, when perpetrated from a premeditated design to effect the death of the person killed or of any human being. Per Grovek, J.
2 Rossi, Traite de Code Penal, liv. ii. c. 24.