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on demurrage, he will enter a protest and return to the port from which he was chartered.
The charterer will pay the whole freight, deducting what would have been paid on account of the goods in the outward and homeward voyages, if shipped on account of third parties.
The same rule will be observed when a ship chartered for an outward and homeward voyage is not supplied with a homeward cargo.
S. 568, 572, I. 568, Sw. 87.
676. The captain loses his freight and indemnifies the shippers when they prove, even against a report of survey made in the port of departure, that the vessel was not seaworthy or in a fit condition to receive the cargo.
677. The contract of affreightment remains in force if, whilst the captain is without instructions from the shipper, a declaration of war or of blockade should be made during the voyage. In such a case the captain must make for the nearest neutral and safe port, and await orders from the shipper, and the expenses and wages earned during the detention will be settled as General Average.
If the shipper decides to have the cargo discharged in the port of refuge, the voyage freight is earned in full.
678. If, according to the decision of a judge or Court, the time that is necessary for receiving orders from the shipper has elapsed, and the captain is still without instructions, he may warehouse his cargo, making the payment of freight and expenses during the delay a charge upon it, which will be satisfied out of the proceeds of the
first portion that is sold. F. W. RAIKES.
IN the present Article, I propose to enunciate and prove
some of the fundamental principles in regard to Crimes and Punishments. Considering how vital these are in regard to morality, and the protection of life and property, and considering the diverse opinions held, and the punishments inflicted by English judges, Supreme as well as Inferior, concerning the same classes of crimes, I submit that this subject is not unworthy of the serious consideration of the readers of the Law Magazine and Review. But, first of all, I wish to make some general observations on this great and important subject ; and its foundations.
Natural and Penal Laws.—The Law of Nature has its origin in the nature of man, and is the law applicable to the whole human race. It is inherent in the nature of man, and its essential characteristic is the idea of the just and the good. It draws its origin and life from a first immutable and perfect cause, God, who wishes man, feeble, finite and imperfect as he is, to be happy by good conduct, reflection, and obedience to the law of justice and virtue. It is often obscured by human passion; but it is never altogether effaced in man. It tells the greatest criminal that the crime which he has committed is wrong. It is the type of the Divine law, written in the hearts of all men, at all times, and in all ages. It has God as its avenger. As it is based on human reason, it becomes more perfect in the progress of society. Cicero defines it, in his De Republica, III., § 2, as the will of God. But, on the other hand, Penal laws have a different origin. They spring from the municipal laws of a social community; and are positive laws enforced by human sanctions. They often differ from the Laws of Nature in their extension and in their ends. They are often merely the adoption of natural laws by human legislators. They are, then, natural laws in the imperative mood, when the social interest demands them, e.g., as to laws in regard to the supreme powers in a State, the laws of property, and the laws as to family relations. They have not the universality of natural laws. Their differences under these heads, in different countries and at different times, indicate the advance of societies in social progress. They are not suitable for universal enforcement. They must fit into the national habits, religion, social state, form of Government, and geographical position. Many a blunder has been committed both in Ireland and in India by neglecting these facts. Again, the ends of Natural law and Penal law are different. Natural law has regard to the good of man as a social being; and Positive law to man in organised society. The former has regard to the good of man in the abstract; the latter to the good of man in such or such a society.
Cicero, De Legibus, says, “Lex est ratio humana insita in mztura, qua: jubet ea quee facienda sunt prohibetque contraria." Criminal laws do not, as some have supposed, have their origin in the Civil laws, but at the very same time, and from the same origin as the Civil laws.
Some distinguished authors have given the foundations of Penal law as vengeance, social contract, reparation of injury, social preservation, and public utility. Kant makes absolute justice the foundation of the Penal law. He recognises the same basis for the exercise of the right of punishment. He derives Penal laws from absolute justice, and the punishments for their infraction from the exigency of that justice. Remorse, anger, and the anguish of the conscience are the punishments inflicted on us for breaches of Natural law. Restriction of liberty, corporal punishments, loss of property, and deprivation of political rights are the punishments inflicted on us for breaches of Penal law. The fundamental origin of Penal law ought not to be confounded with the legitimacy of human punishment. The two things are entirely different. Penal Law primarily springs from the Law of Nature. This is the opinion of the majority of legal writers in modern times.
Every law consists (1) of an imperative or prohibitive order to do or forbear; and (2) of an action or power to exact the accomplishment of the order. By the former it commands; and by the latter, it provides for the execution by means of a sanction. When the sanction follows the infraction of a public right it is called apunishment; and when of a civil right, reparation or compensation. Public punishment is reserved to the public authority ofa community, and ought not to belong toa private individual. It is a public right, and the public should inflict it independently of the private party injured. The right or legitimacy of the punishment springs from the same source as the Penal law itself, namely, the society in which it is enforced. In Primitive Society, vengeance naturally appeared as the foundation of punishment, and the party injured followed up the wrong-doer, and inflicted what punishment he thought fit. But, in the progress of society, the State interfered in the interest of all parties, and acted between them as an impartial judge and Arbiter. Seeing that Society had undertaken the defence of all, it necessarily had the right to inflict just punishment on a wrong-doer for his infraction of the laws of the society, and for the protection of the necessary rights of all. The idea that the right of punishment arose from a supposed Social Contract, as enunciated and accepted by Rousseau and his disciples, has long ago been abandoned. The Social Contract is a pure invention of the imagination. Men have always lived in some form of society. The family is the type of human society. In Ancient Philosophy, expiation is the primary, and example a very subordinate end of Penal law. But expiation is internal, and example is outside of the offender, and for the benefit of others; while punishment is external, and political, inflicted by a judge, and for the advantage of society. Plato, in his Gorgias, says that expiation is the end of punishment ; St. Augustine puts forth substantially the same view; and so does Grotius, De .'}’ure Belli et Pacis. Bentham holds that utility is the end of Punishment; but his opinion really terminates in absolute
justice; for he would have punished all acts contrary to utility, and because they were contrary. Some authors say that legitimate defence is the end of Punishment. But how can such a principle apply when the public authority is not in peril, and when the danger of the wrongful act is past ? I hold, with Boresco, that the right to punish springs from the social state which passes the laws, and that the laws are just because they are laws, and are enforceable on the same ground.
As the Legislature has the power to make Penal laws, so it has the power to enforce them by itself, or to delegate to the'Executive power in the State the power to enforce them. When the laws are broken, there arise the duty and power to obtain justice and reparation. In an organised society, a man ought not to set up a system of justice by or for himself. The public authority alone ought to have the right to make laws, and to enforce them, and everything which tends to impeach or interrupt the making or the enforcing of laws ought to be punished. The selfevident principle which I have just now enunciated is the sole basis for the legitimate exercise of Penal law. The foundation of the Penal law is a Natural law that justice commands and the social interest renders necessary. The