any of the theorists on the subject, and yet it is vital and fundamental to the true theory of penal law. No theory can be satisfactory, no principle can work, which does not afford us a good working guidance as to the proportion of punishments, for this proportion must have reference to the nature and the degree of the crime, its heinous character, and the kind of injury it inflicts. One great cardinal principle was laid down by Livingston-that is, a distinction between crimes and misdemeanours, between rape, robbery, and murder, and a mere breach of some positive law, a violation of regulations of revenue or police, an assault, a libel or a fraud. But is there not another great principle that no offence against property can equal a crime against the person, and that no crime against the person can equal that of murder? The principle of proportion necessarily implies a scale, and as you cannot inflict a heavier punishment than death, it follows that this must be reserved for the worst crimes. Livingston, however, desired to abolish it entirely; but his countrymen would reserve it for murder, treason, and rape. In this country we have gone a step beyond this, and reserve the dread penalty of death for murder, and virtually for the worst type of murder. Even in treason, if there has been no murder or attempt, or design to commit it, we never dream of inflicting the capital punishment. And this follows necessarily from the great cardinal principle-that the object of punishment is the prevention of crime. For if treason, robbery, or rape, are capital, then the criminal has a direct temptation to add murder to his other crime in order to escape detection. The same principle is applicable to the next severe grade of punishment-penal servitude for life, that it ought to be reserved for the next grade of crime, just below the worst, the less heinous forms of murder. And so of other periods. of penal servitude, they should be proportioned to various grades or degrees of guilt.

But the great difficulty is in secondary punishment, among which Livingston enumerates simple imprisonment, trans

portation, labour on public works, chains, handing stripes. Transportation we have been compelled to abandon; penal servitude with us is labour in chains on public works. Simple imprisonment is, Livingston thinks, very ineffective as a punishment for crime, nearly the worst. If solitary it is too severe for most offences, if not solitary it is likely to become a school for vice. Here is one great source of difficulty, and here arise the great necessities of the age, Prison Discipline.

There is another important branch of the subject, and that is criminal procedure, which in this country is of greater interest because our procedure is extremely clumsy and ineffective. These are the two most important subjects of Livingston's works. It is to be observed that these works of Livingston were written half a century ago, before our criminal law had been improved by the labours of Romilly and Peel, and therefore his views of penal law are not of such interest now as his ideas upon prison discipline and criminal procedure. These subjects are treated with great copiousness, clearness, and good sense, and the principles of good systems, whether of procedure or of prison discipline, are here to be found explained and enforced in the clearest and most powerful style. As to prison discipline the cardinal principles applied are separation and classification, and the adoption of such punishments as may at once be deterrent and tend to improvement; labour, for instance, hard, and yet teaching the convict some useful occupation. In this department we believe we have in this country made much progress since Livingston wrote, though there may be still room for improvement.

But there is another branch of the subject, that of Procedure, in which we fear we have made little or no progress; and this part of Livingston's work is therefore of undiminished interest and importance. What he says, for instance, as to the examination of the accused is marked by good sense, and takes a safe course between the extremes of English and continental systems. When he wrote, the

prisoner practice prevailing in Louisiana was similar to that which is followed in this country, that is, the accused was cautioned, so as to invite him to silence. This, Livingston thought absurd, and he also thought that an unrestrained right of interrogating is very apt to produce evasions and catching questions. He, therefore, proposed a prescribed and restricted mode of examination.

"A prejudice, but it appears to me a groundless one, and certainly very favorable to the guilty, exists against procuring testimony from the judicial examination of the party accused before a magistrate, and yet without scruple we admit testimony of his informal and private confessions to individuals, as if he would be more apt to inculpate himself without cause when put on his guard by the admonition of the judge, and a knowledge of the consequences, than he would in a loose conversation, which he might imagine would not be repeated. Or as if the record of what he has said, corrected and signed by himself after due deliberation, were not as high evidence as the declaration of a casual who may misrepresent or misunderstand. After weighing the arguments on the question, I have come to the conclusion that it would be unwise to abandon the advantage to be derived from examination of the accused, but at the same time that justice refuses us to reduce to the lowest degree the two evils inseparably attached to this mode of proceeding, and I thought that this might be effected by restricting the magistrate to a prescribed form of interrogatory, so drawn that no innocent person could be entrapped answering, while, at the same time, evasions or untrue answers might frequently lead to the detection of guilt; and, to avoid inaccuracies in recording the answers, the interrogatories are pointed only to such simple circumstances as can be detailed with the greatest simplicity of language, and they are not to be considered as complete until they have been corrected and signed by the party. If we add to this that he has the assistance of counsel and has heard what the witnesses against him have deposed, it will be found that the accused is in no danger of being circumvented or incriminate, to his prejudice in the preliminary examination.

Indeed, the only question is whether the power of examination would not be too much limited. But, at all events, it will be seen that Livingston took a moderate and carefully guarded view, avoiding the evils of either extreme, the absurd and clumsy inefficiency of the English system and

the fearful severity and ensnaring stringency of the continental.

On another vital point, the necessity for unanimity, Livingston pronounced rightly in favour of unanimity, pointing out, truly, that when the verdict of the majority sufficed the jury consisted, as grand juries now do, of twenty-three, so that a unanimous verdict of twelve was always required, and he vindicates the necessity for unanimity in some number not less than twelve, on the broad, solid, sensitive, ground that the evidence that subjects a person to conviction and penalty for a crime ought to be so clear as to satisfy at least that number of men.

In Livingston's treatise on Judicial Evidence, he entered into the most important parts of civil procedure, and he advocated the great vital principle laid down in the last century by Lord Chief Baron Gilbert, the great master of the Law of Evidence, and supported by the authority of the Civil Law and the practice of our Courts of Equity, that the statements of a party in his own favour are not credible, and are only reliable when against his own interest, and therefore he proposed that the plaintiff should be compelled to verify his claim. on oath, but that this oath should not itself be evidence, and should only be required in order to act as a safe-guard against vexatious claims, and to expose the suitor to the test of cross-examination, and next that either party should be liable to examination—that is adverse examination-by the other, or by the judge. This is the true principle, and the principle on which in Equity the defendant was interrogated, and had to answer upon oath; and it is the principle on which at law and Equity either party can now interrogate the other. It was indeed departed from in our law when the Act of 14 and 15 Vict. made the parties to a suit "competent and compellable to give evidence" at all events, on the construction put upon it by the judges, that either party was competent and allowable to give evidence on his own behalf, which we shall always consider an unfortunate construction, as it has

tended rather to the increase of perjury than the discovery of truths. However, as to interrogatory before the trial or hearing, the principle of Livingston is now adopted in our courts, and it is an obvious anomaly which allows the parties to do that at the trial which they cannot before the trial, give evidence in their own favour. The answer in Chancery was never evidence for the defendant, though it would be evidence against him, and it is only adverse evidence of a party which is worth anything.

There is another subject on which Livingston showed equal good sense. With reference to contempt of Court, he

wrote:

"The power of punishing for contempts, in the extent to which it has been carried, it is believed has never been vindicated by the plea of necessity. Its repugnance to the fundamental principles which secure private rights in the administration of justice is so apparent that no other argument can possibly be used. There is nothing, from a rude word up to the most violent opposition to legal authority, which may not be brought within the law of contempt. Now, I put it to those who contend that there ought to be this power in the Courts, what will secure a man against its exercise in the hands of a vain or vindictive judge? The person offended is made the only judge, and, lest his resentment should have time to cool, he is armed with the power of summary process. Judges are men, their passions will be more readily moved by real or fancied results than by injuries, and nothing can be more at variance with justice than passion. Words, which a man of cool and considerate disposition would pass over without notice, might trouble the serenity of another more susceptible in his feelings, or irritable by nature."

There is great truth in all this, and it entirely accords with the view we have taken of the question. It is a good specimen of the sound sense which characterises all Livingston's views. We need say no more as to the value of his works, and we hail the edition of them as a boon to the public.