to be devoted to this extra work, and the second letter was in December. It is a hard thing indeed to call upon judges at such a season, perhaps at any season, to depart from their province of applying the law, and give their opinion upon the details of a measure for altering or consolidating it; and it is probably not a good thing for the law itself that this confusion of functions should be attempted. But, whatever doubt may be entertained on this point, there can be no doubt at all that the remarks of those learned, able, and experienced persons are entitled to the most respectful attention, and that all must examine them not only with a great bias in their favour, but with every disposition to find their criticisms well founded. It is with such an inclination that every candid reader will peruse the answers of the Judges; and with a proportionable reluctance will he find himself under the necessity of agreeing with the authors of the reply, even although they are defending the work of very learned and accurate men, and the provisions sanctioned by the high authority of the Lords' House of Parliament. No doubt it must strike every one who considers this matter as à priori eminently improbable that a work so elaborately framed, and which had undergone, and repeatedly undergone, such careful revision by so many minds, of such various descriptions, should be found to contain the multiplicity of errors, not a few of a glaring kind, which some of the Judges have, in the unavoidable hurry of business, thought that they had detected. What increases the presumption against the validity of the objections is that while the very eminent lawyers who considered the measure in the House of Lords sat together, and had the advantage of all the knowledge which each could furnish, the Judges only went through the Bill in their individual capacities, and returned separate answers. That some slips might have occurred even with such men as the Commissioners, and escaped detection by all the Law Lords of the Committee, was no doubt possible; but that the Digest thus prepared and thus revised should abound with the most palpable mistakes-nay, that any considerable number of those should have found their way into it-must on all hands be regarded as in the highest degree unlikely. The work now before us converts the likelihood into a certainty. It appears that in most of the instances the error exists not in the Digest of the Lords but in the remarks of the Judges. Some criminal lawyers of eminence, we understand, have examined the answers of the Judges and the explanations of the Assessors to the Lords' Committee, and have declared that in almost every instance the remarks of the Judges have been satisfactorily VOL. XCIV. NO. CLXXXVIII. 2 H satisfactorily answered. We will not go so far as this; we conceive that the learned Judges have very probably detected material errors; we doubt not that their remarks will meet with the most respectful attention from the Lords' Committee to which they are referred; but we hesitate not to affirm that the objections of most importance have been met, and that due attention bestowed upon the work submitted to their consideration would probably have prevented nearly the whole of their criticisms. We shall give one example as sufficing to show how plain it is that the ceremony of reading any work under review (we speak with some nervous feeling as reviewers), which should be gone through by those who assume the office of criticising it, has in this case been omitted by the learned Judges in many instances.-Three of them object to the Digest that it does not punish a battery. Unless I am greatly mistaken,' says one, if a man knocks another down, doing him no bodily harm, he will not be liable to prosecution or punishment;' and his Lordship refers to Sec. 133. It is at least doubtful,' says another learned Judge, whether he could be punished.' And he adds, the Sec. (133) does not in express terms include a battery, however violent, and there is no section, I believe, that does.' expressions plainly show that their Lordships were conscious of not having fully examined the enactments-and no more had they -for Sec. 127 does include a battery, though not by name; and it clearly comprehends the case of knocking a man down, even supposing it possible this operation could be performed without doing him any bodily harm; for it applies to any one who causes bodily harm or does any violence to the person of another.' 'It seems,' say the authors of this tract (p. 62), to have escaped the recollection of the learned Judges, that no battery can possibly take place unless an assault, as defined by Sec. 133, has taken place:' and again (ib.), 'one of the learned Judges has fallen into the error of supposing that an assault, in legal signification, includes a battery."' Sometimes the learned Judges object to provisions as superfluous from not adverting to cases actually reported, and very recently, which prove those provisions to be necessary; sometimes they treat as absurd definitions which such cases have in terms sanctioned. Thus, Mr. Justice Talfourd, than whom,' say the authors of the Letter most justly, a more sincere lover of truth, right, and justice never adorned the bar, nor graced the bench,' ridicules the definition of 'wound' by mention of the skin being divided either externally or internally,' remarking that 'the latter branch of the alternative denoting a possibility of wounding by dividing the internal cuticle without dividing the external, external, must be intended to anticipate some future discovery of science.' But so far from being dependant on a future discovery, the words were introduced in consequence of an antecedent fact, it having been expressly held in the case of Reg. v. Smith, 8 Car. and Payne, 173, that a wound was within the statute where the skin was broken internally but not externally.' The same learned judge dwells at some length on the introduction for the first time of the term excuse into the criminal law,' adding that, though new, it is not good, arguing that what is termed excuse must mean defence, and further complaining of the bad grammar as well as bad legislation which makes the Act excuse when only the Crown can do so. We must confess that in the impartiality which we really feel in this great question, nothing can seem more triumphant than the answer given by the tract before us to all these charges. Four chapters of Lord Hale are cited (Hale, c. 5, c. 6, c. 7, c. 8), in all which 'excuse' is the technical term used, and used grammatically in the same way the Digest uses it. Thus, c. 5, 'concerning casualty-how far it excuseth in criminals.' Then as to the law only justifying or condemning, and never excusing;' excusable homicide is an instance to the contrary. And when the same learned judge, observing upon the expression present fear, asks, how can fear exist unless it be present?' he has entirely forgotten that 'present fear of death' is the term used in the books. 6 Thus, too, Mr. Justice Erle regards it as absurd to consider that a party acting with good motives under a mistake of his legal rights, and causing damage, can act maliciously-yet the absurdity is in the law as laid down by the most eminent judges -for Mr. Justice Littledale, in Macpherson v. Daniel, 10 B. and C., 272, defined malice in its legal sense to denote a wrongful act done intentionally without just cause or excuse;' and other judges have held exactly the same language,-Rex v. Harvey, 2 B. and C., 268. In fact, as Mr. Justice Best remarked in the latter case, the legal import of the term differs from its acceptation in common conversation.' The work before us adduces several such examples of oversight, but we only give a few instances to show the consequences which flow from having imposed on the learned Judges the task of examining the numerous enactments of the Bill when otherwise occupied with their ordinary and proper duties. The instances, beside the one we first mentioned, are numerous in which they ask why provision is not made for cases connected with one clause, and yet the tract before us refers to some other clause where that provision is made. But instances even occur where they complain of that as the enactment of the Digest 2H 2 which 6 which is the enactment of some statute-as where Mr. Justice Erle objects to s. 110 respecting Legal Liability,' and omits to consider that the phrase is used in an act only passed three years ago, on which that whole section is framed-14, 15 Vict. c. 11, s. 1. If such criticisms make nothing against the Bill, as little, we are anxious to add, does it tell against the learned Judge. Of the vast mass of legislation which is annually added to the Statute Book, a large part can only be considered by the Bench as occasions arise for its application. A most distinguished and careful judge, a man thoroughly awake to the times he lives in, has been heard to say, 'I know pretty well what the law was ten years ago, but I am not quite so confident what it is now." Before closing these remarks upon the very important subject of the Digest and the answers of the learned Judges, it is necessary in justice both to those eminent persons and to the framers of the document, that the course unfortunately pursued by the Lord Chancellor should be borne in mind. Not only did his Lordship promulgate the answers of the Judges without the reply and explanations of the Commissioners, but having submitted to the Judges the Digest in some important articles unfinished, their remarks, valuable as they would have proved in aid of the House of Lords when putting the last hand to the work, were not reserved for that stage of the proceeding, but made public immediately. Thus it happens that several matters of great moment being purposely left for further and final consideration, nay in some instances, alternative enactments being actually given in the margin, the observations of the Judges are given upon one alternative, or upon matter professedly still under consideration, and a condemnation apparently pronounced as if the ultimate resolutions of the Lords had been formed. clearly the commentaries of the Judges should have been regarded as themselves hypothetical and intended for the use of those about to be engaged in completing the work, instead of being promulgated so as to render that completion more difficult, by enlisting against the whole scheme the prejudices so naturally raised when judicial authority seemingly, not really, was interposed. This course so unhappily taken has led to the publication of the reply to which we are desirous of giving all possible publicity; for if the story told of Alexander that on a complaint being made to him, he stopped one ear with his finger, saying that he kept it to hear the other side, is seldom acted upon in ordinary matters, there is no chance that it would prevail in a case in which the Judges had been supposed to have pronounced an authoritative decision upon a question of criminal law. Most The remarks of Mr. Justice Coleridge are peculiarly valuable. Mr. Justice Cresswell's have also great merit. ART ART. VI.-Treasures of Art in Great Britain; being an Account of the chief Collections of Paintings, Sculpture, Drawings, Illuminated Manuscripts, &c. By Dr. Waagen, Director of the Royal Gallery of Pictures at Berlin. 3 vols. London. 1854. THERE is no greater mistake than to suppose that con noisseurship in the formative arts is a knack or an instinct with which favoured individuals are born, or which they acquire in some manner not to be clearly accounted for. On the contrary, if there be any study in life in which the gift of ardent enthusiasm will do little without unwearied diligence, sound sense, and true humility, it is pre-eminently the study of that outward form of a mysterious inward poetry now-a-days talked and written about, with more or less truth and eloquence, ignorance, folly, and bad temper, under the hacknied but ever glorious name of Art. The education of the professed critic in art is essentially the same as that of the student in the exact sciences. Nothing is left to feeling, predilection, or wish-his stand must be taken upon a slowly gathered accumulation of facts, each one resting securely on that beneath it. Works of art must be treated as organic remains, subservient to some prevailing law, which it is the critic's task to find out and classify by a life of observation and comparison. For though not to be compared with the works of nature in invariability of system, yet every master has a certain prevailing hand-writing, inseparable from his individual temperament, though influenced by the schools he passes through and the course he runs, the signs and secrets of which a critic has to explore with a care and modesty analogous to that exercised by a Davy, or an Owen. And the comparison does not end here; for, as the inquirer into one physical science must bring to the task the knowledge of many others, so he who aspires to be a true connoisseur of art must come furnished with stores of collateral information, to which it would be presumptuous to assign limits. All forms of knowledge minister to this one-the highest and the lowest-history and poetry-truth and romance-languages and manners-mechanical materials and chemical processes: no student can have his scale too full, or his grasp too wide; the workman's tools must be as familiar to him as the poet's feeling and the scholar's lore. Our readers will perhaps suspect that, under all this superstructure, the enthusiasm we put first on the list will be fairly stifled. But there is no fear of any such result. Nothing indeed save that alone, which in its and engrossing character stands only second in the human heart to the natural affections, will keep the professional connoisseur steady in his path, for the toil is great and the disappointments pure many. |