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impossible; and the first comment of the DECISIONS IN THE ENGLISH lawyer will be on the drastic interference with COURTS.
freedom of contract. In these circumstances it
is needless to say that everyone, lawyer and Whelan v. Henning.
layman, concerned with charter-parties and
bills of lading is under the necessity of making REVENUE
himself acquainted with the substance and PROFITS OR GAINS FROM FOREIGN POSSESSIONS effect of these rules. All such persons will -NO PROFIT IN YEAR OF ASSESSMENT—INCOME be grateful to Mr Cole for the prompt publicaTAX ACT, 1918 (8 & 9 GEO. CAP. 40) tion of his full and clear commentary on the SCHEDULE D, CASE V., RULE 1.-H, who lived rules and the statute which gives to them in the United Kingdom, held shares in a tea the force of law. company incorporated in Ceylon. He was not a director of the said company. The dividends The Factory, Truck, and Shop Acts. By the declared on his holding had all been trans
late Alexander Redgrave, C.B. Thirteenth mitted to this country, and up to 5th April 1920 he had been assessed on a three years'
Edition by Charles F. Lloyd, Barrister-at-Law.
1924. London : Butterworth & Co. Price average, under Schedule D, Case V., Rule 1.
21s. net. The company declared no dividend for the year 1920, and consequently H received no The war left its mark on our factory legisincome from these shares during the tax year lation in the perpetuation of certain rules 6th April 1920 to 5th April 1921. An assess- imposed as temporary measures during its ment based upon the average for the three progress, and it is no secret that an important preceding years was made on him for that codifying and amending bill has long been on year, against which he appealed. Held that the the stocks at the Home Office.
In the meanliability to assessment depended on the time, however, the appearance of that bill existence, not of sources apart from profits, seems to be delayed by recurring political but of actual profits, and that the assessment in convulsions, and a new edition of Redgrave question fell to be discharged.—K.B. Div. on the Factory Acts makes a welcome appear(Rowlatt J.).-2nd July 1924.
The rapid growth of legislation by departmental regulations would alone justify the bringing up to date of a book on which a
large public has long learned to rely. LAW LIBRARY.
Law and Practice of Libel and Slander in a BOOK NOTICES.
Civil Action, with Precedents of Pleadings,
etc., and Canadian, Australasian, and The Hague Rules Explained : being the Carriage American Cases on the Subject. By Clement
of Goods by Sea Act, 1924, with Introduction, Gatley, LL.D., B.C.L., Barrister-at-Law.
The outstanding feature of this bulky and All lawyers interested in shipping have long exhaustive treatise on the law of defamation been familiar with the controversies and the is the full citation of Colonial and American negotiations which resulted in the assembling authorities, wherever these throw light on of an international conference at the Hague to novel or doubtful points of the law. Scottish adjust the mutual rights and liabilities of cases are also cited, though these are often shippers and shipowners. The Hague Rules referred to as illustrating differences in the there adopted in 1921 have been the subject law. The reader will thus find in Mr Gatley's of much exposition and criticism. The inten- pages an exceptionally full treatment of this tion of the conference was that these “ rules” branch of law, and he will, moreover, find the should be incorporated by agreement in future whole expounded with commendable clearness contracts of affreightment. In this country, and lucidity. The first half of the volume however, the Legislature has gone much explains the doctrines of the substantive law; further. By the Carriage of Goods by Sea Act, while the second half is concerned with matters 1924, Parliament has given to these rules the of procedure in which, of course, the English force of law. “Every bill of lading . shall law is alone looked to. We welcome the book contain an express statement that it is to have as an important contribution to a branch of effect subject to the provisions of the said law which, though much written on in recent Rules.
Contracting out” is made years, does not lose its interest or its importance.
his cattle by the road, and twenty miles' start THE HABITUAL CRIMINAL. by road is nothing nowadays. Take, however,
the theft of motor cars, which is now somewhat (The Ina Address of the Scots Law Society
prevalent. Does anyone doubt that if the of Edinburgh University-Session 1924–25.)
theft of a motor car were a capital offence very By The Hon. LORD SANDS, LL.D.
few cars indeed would be stolen ?
The third theory of punishment is that of There are at least three ideas which may reformation of the offender. Not, however, underlie the treatment by the law of serious reformation in the old theological sense, in crime. There is first of all the idea of retribu- which chastisement itself, though for the tion. This is doubtless the primitive idea, present not joyous but grievous, yet worketh which law came to supersede private vengeance, afterwards the peaceable fruits of righteousness and although it has fallen somewhat into the in those that are exercised thereby. No doubt background, it cannot be said that it has there is a theory that suffering following upon altogether ceased to operate. In cases of sin has a salutary or redeeming influence apart violent outrage, savage cruelty, or heartless altogether from any question of deterrence. I fraud, it still affects the popular and even the should be sorry to cast any
that. judicial mind and influences to a certain extent But this doctrine has a very limited application the administration of punishment. But, broadly as regards the ordinary prisoner, and it is not speaking, it can hardly now be recognised as a the working idea of the reformatory element working principle of criminal jurisprudence. in criminal administration. No. The theory We have come to realise more fully than was is that the nature and the conditions of the possible in the days when the words were punishment are to be such as to allow rewritten: “Vengeance is mine; I will repay, saith formatory influences to exercise themselves the Lord."
upon the mind and habits of the criminal. The The second theory of punishment is that of reformatory idea, however, will not stand quite deterrence. Offenders are punished in order by itself. Divorced from any idea either of that the prospect of like punishment may retribution or of deterrence it will not work. deter persons from committing the like offence. According to prevalent ideas, a man must have According to the old form of indictment, the earned criminal pains before society can underaccused person was, if convicted, to be punished take his attempted reformation under any in order to deter all others from the like offence. system or compulsion. However much a man Mark all others.” Not the criminal himself. may stand in need of reformation, however So many crimes were capital in the old days cruel, immoral, or depraved he may be, his that it would have savoured of the cynical to reformation under any form of restraint or have indicated the deterrence of the accused compulsion cannot be undertaken unless he himself from a repetition of the offence as one has been guilty of some offence entailing of the objects of the punishment; but un- punishment under the criminal law, apart doubtedly in the present day deterrence of the altogether from any idea of reformation. accused himself from a repetition of his crime My subject, however, is not punishment of as well as the deterrence of other people from crime in general, but the treatment of the a like offence is part of the working theory of habitual offender in particular. In considering deterrent punishment. “Take that, and don't this matter, the subject to which I have just do it again or you'll get the same and more of referred—reformation-has an important bearit.” That punishment has a deterrent influence ing. In the case of the habitual offender the can hardly be disputed. Doubts have indeed reformative influences of our primitive systembeen expressed by some as to whether, in so far the reformatory school, the borstal institution, as the deterrence is governed by the degree of withdrawal by seclusion in prison from all punishment, this applies to capital sentences. temptations to drink, regular work, wise
, It is pointed out that certain crimes, which in counsel, education, spiritual ministrations, outformer times were capital offences, were more side agencies to help after discharge-these common in these days than they are now. I influences have all been tried with, on the whole, am disposed, however, to think that this save in the case of a certain proportion of young argument does not take sufficient account of offenders, disappointing results. As regards the changes in social and material conditions. the habitual old offender, there is but slender In the old days cattle-stealing was a capital hope that perseverance in these efforts will offence. It may be that this crime was more lead to any great result. God forbid that one prevalent in those days than it is now; but should suggest that any soul is past redemption; fences, telegrams and telephones, and motor but, humanly speaking, the chance of redemption cars have rendered it a far more difficult crime of any man who has earned two long sentences successfully to carry out. The thief must take is small, and in the interest of society we must
try to shape our policy upon the aggregate and person detained within the limits of the term not on the off-chance of the individual.
of sentence. This was the line of reasoning adopted by the The confusion of the two ideas of prevention late Sir Robert Anderson, a criminologist of and reformation occasioned misunderstanding, very wide experience, but also a man of most not only in Parliament, but also in administratender and humane disposition and of deep tion. I had something to do with prison religious convictions. His idea was simple. administration when the Act came into force. There is a limited number of professional or As it seemed to me prison authorities did not habitual criminals in the country. More than appreciate the preventive (as distinguished half of these are in confinement at any given from the punitive or the reformatory) idea time. If they were all at large the volume of even in its mitigated form. They seemed serious crimes of dishonesty would be doubled; disposed to regard the period of preventive if they were all in confinement the volume of detention as a period of somewhat milder such crime would be reduced to very small imprisonment with certain facilities for reforproportions. Moreover, the training of new mation. There was, on the one hand, a relucthabitual criminals would be greatly checked ance to sanction luxuries, unusual in a prison, by the absence of trainers. Accordingly, he which might very well be accorded to a man proposed that when a person is convicted of who had by his punishment expiated his offence serious crime and, after full and careful enquiry, and who was detained solely for the public his previous record shews that he is a habitual protection. On the other hand, the dominant criminal of an obstinate and professional type, tendency was not to detain the man in detention he should not be released upon the expiry of as long as on any reasonable construction of his punitive sentence, but should be detained the statute he might be detained, but to let in confinement, not as continued punishment him out as soon as possible, preferring the for his offence, but for the protection of the slender evidence of his professions to the strong community, as one might detain a person evidence of his past record. The man is affected with infectious disease. Like the liberated before the expiration of his term, inmate of a lunatic asylum, he should be made not because there is any
well-founded assurance as comfortable as was compatible with restraint. that society no longer needs protection by his Further, as his detention was not to be regarded detention, but because his conduct under as punitive, neither was it to be regarded as detention and his professions of repentance primarily reformatory with a view to release. seem to warrant at least a faint hope that he He had been tried and found wanting as a free may not again relapse. member of society, and, except under very
Attention has been concentrated upon the special circumstances, he was not to be released, reformatory idea. No doubt if man is at all events until it was deemed that old age reformed this may be preventive of future had rendered him harmless.
crime. But that was not the idea underlying When this plan was submitted to Parliament the word "preventive” in Sir Robert Anderthe members of the Legislature were staggered son's scheme. The man was to be detained by the idea of perpetual detention, the creation because so long as he was detained he would of a place of confinement, over the portals of be prevented from committing crime. Reforwhich, as over the doors of Dante's Inferno, mation was a side issue, not because reformation should be inscribed “ All hope abandon ye who is unimportant, but because it is so improbable. enter here.” Accordingly, the plan was greatly Between Parliament and administration, howmodified, and, under the Act which became law ever, the preventive idea has been lost sight in 1908, preventive detention was limited to a of and the reformatory idea is dominant. The maximum of ten years, with a minimum of five. place of preventive detention is regarded, not This limitation was associated with the re- as a place where men are to be kept in comfort formatory idea which, in any sanguine aspect, as long as possible in order to keep them out was not part of the original scheme. If, of mischief and to protect society, but as a according to the conception of that scheme, it reformatory from which a man is to is necessary that men should be detained, not so as his professions and his conduct for punishment, but for the protection of the seem to suggest a chance, however faint, that, public, it is illogical to limit the term to any contrary to the general experience of his type, thing short of the arrival of the time when he may not relapse into crime. Release before there is reason to believe in their harmlessness. the expiry of the term so far from being The Act carried the reformatory idea still reserved for an exceptional case is made the further than merely limiting the term and seeking general rule. One cannot but regard with to make provision for reformation by the time some distrust a system which is worked upon of the expiry of the sentence, for it contains lines absolutely contrary to the theory in which provisions for the release on probation of the that system had its origin. There can be no
doubt that the attitude of mind which has I recall that the judge remarked to me: “That prevailed is due partly to the consideration will see him out.” It was a source of satisthat preventive detention is preceded by a faction to the judge that the man was not likely long period of penal confinement as the punish- to live long enough ever to be again enlarged ment of the crime. There is a certain
prey upon human society; but was it nance against the idea of detaining a man who really in the interest of society or of this man has already expiated his crime by punishment. himself that he should have been enlarged so For society to do so for its own protection-well, often before with the practical certainty that that seems selfish; to do so for the man's he would resume a criminal career, and so go on own reformation-well, there is a moral flavour committing serious crimes until he was caught about that.
again and restored to a life of hardship and Sir Robert Anderson's idea may have been misery ? Again, was it really necessary that too drastic. It might be necessary to temper this poor old creature, whatever his crimes of it with some recognition of the truth :
dishonesty may have been, should have been
sent to drag out his remaining years under the “As long as life its term extends
conditions deemed appropriate for the sharp Hope's blest dominion never ends. For while the lamp holds on to burn,
punishment of the ravisher? There was another The greatest sinner may return."
well-known criminal-James Muirhead, known
Scotch Jimmy.” This man, who was an But however this may be, the idea of Sir expert housebreaker and crib cracker, was Robert Anderson has not simply been tempered, convicted and released again and again. The but, in my view, between legislative and authorities had no belief in his reformation. administrative action it has been lost sight As soon as he was out the police were on the of altogether. In effect the result has been qui vive to see where he would break out next to divide the sentence of a habitual criminal time. Generally, however, he succeeded in into two parts, one determinate, the other committing or arranging for the commission indeterminate but within a certain limit. of several serious crimes before he was caught
When the emasculated measure became law and brought up for a fresh sentence. There Mr Justice Wills, a judge of long criminal are a number of convicts at present in Peterexperience and by no
unmerciful head who, though not so well known to the temperament, wrote to Sir Robert Anderson public as Scotch Jimmy,” are just as well as follows:
known to the authorities as men of inveterate I can only now thank you heartily for your criminal tendencies. Nevertheless all these manly and courageous support of true principles men, with one or two possible exceptions, will and your plain speaking upon matters with be unloosed upon the public within the present respect to which hesitation, cowardice, and decade. mealy-mouthedness have already done such But what else can we do with these men ? infinite harm.
I do not plead for the adoption of Sir Robert "I agree that we must not lose heart. The Anderson's plan of permanent detention; but 'humanitarians,' as they audaciously call that plan at all events holds the field as the only themselves, have scored this time, and I suppose plan which professes to afford any solution they will till a set of statesmen arise, if they ever of the problem. do, who have views of their own and will stick We are apt to regard imprisonment as the to them regardless of consequence when a great normal form of punishment for all offences principle is at stake."
except the few which are so heinous as to be I am not to be understood as here advocating capital, or the many which are so trivial as to the adoption of Sir Robert Anderson's scheme be adequately dealt with by a pecuniary fine. in its most drastic form. I confess that the But the idea was not always so. It is a modern ideas which he advanced appeared to me to be idea. Speaking generally, the prison in old attractive when I first examined them. But days was not a place for the detention of conI recognise the difficulties which surround the victed criminals; it was a place of detention question and the danger of dogmatism, and I for accused persons to await trial in due course merely suggest that the matter requires re- or for an indefinite period under the exercise consideration. Our present system is unsatis- of arbitrary authority. Punishments, where factory. I recall the case of an elderly man the death sentence was not inflicted, were, tried long ago before Lord Adam at Glasgow according to the expression once familiar in our Circuit Court for a crime of dishonesty, criminal law, arbitrary.” They might be housebreaking, I think. That man, according and often were corporal, as by whipping, or to my recollection, had served two terms of branding, or maiming. They might be derisory, five, one of seven, and two of ten years. He such as the stocks, the cutty stool, the offensive was again sentenced to ten years' penal servitude. placard, ducking in water, etc. Finally, there
was banishment, it might be banishment from severe punishment, and I am not adverse to a town or from a county or from the country, the idea of making the conditions of long-term and it might be either simple banishment or confinements fairly comfortable. In the cruel banishment to a penal settlement.
old days even men under sentence of death Nowadays capital offences have been reduced were scourged or tortured, and even in milder to practically one; derisory punishments have times, as the form of our death sentence shews, entirely disappeared ; corporal punishment is were fed on bread and water only prior to restricted within very narrow limits; banish- execution. Such treatment is quite repugnant ment too has disappeared, the only trace of it to modern ideas. If men are sentenced to being the deportation of criminal aliens. In terms so long as to operate as deterrent by their some ways the loss of this form of punishment, mere endurance and as a protection of the public though inevitable in the present condition of by their removal from its midst, I see no good the world, is to be regretted. You got rid reason why they should be made uncomfortable of the criminal yourself. The criminal himself in their inevitably monotonous surroundings. had probably more of a chance in his entirely This brings me back, however, to preventive new surroundings. If he did not avail himself detention, from which I have wandered. of that chance his new surroundings had short venture to think that the weak spot in preand sharp methods of getting rid of him. ventive detention and the cause of misunder
Through force of circumstances then we have standing and failure is the double sentence or come to be shut in to imprisonment as the only the splitting up of the sentence. The man available form of punishment for serious crime. is to get so many years penal servitude, to be The punitive essence of imprisonment is followed by preventive detention. The theory deprivation of liberty. This is much more is that he must be adequately punished for his the case nowadays than in former times. In crime first of all, and thereafter he is to be the bread-and-water, tread-mill days the idea detained, not as punishment for his crime, but was to detain the prisoner under conditions for the protection of society. But when a man of discomfort as severe as was compatible with has suffered what is deemed to be adequate the 'maintenance of life. By and by the punishment for his crime, the idea of detaining maintenance of health came to be recognised. him further for the protection of society is, But 'in recent times amelioration has gone whether rightly or wrongly, repugnant to many beyond even this requirement. I remember minds. Unless the man is suffering like a that once in addressing the Scots Law Society lunatic or a person with infectious disease for Lord Guthrie rather deprecated the idea that something for which he is irresponsible, what, prisons can be made too comfortable, the it is said, is the warrant, as between society deprivation of liberty being by itself sufficiently and him, for compulsorily detaining him after irksome for all deterrent purposes. I confess he has been duly punished ? He committed that I did not altogether agree with him. a serious crime. True. He deserved punishThere is undoubtedly a class of offenders, well ment, but he has suffered punishment and known to the prison authorities, who have completed the punitive term which was deemed come to recognise that there are worse places appropriate for his offence. than prison, particularly in the cold weather. If preventive detention is to be continued, I No doubt they are glad to be let out for a season, venture to suggest that, in order to give the but they are not sorry to find themselves back system and the preventive idea underlying it for another turn, always provided it is not so a fair trial, there should be no splitting of the long as to grow irksome. Lord Guthrie's test sentence, that the person convicted of a serious
Open the door and the prisoners will crime and of being a habitual criminal should walk out.” Yes, and open the door or enclosure be sentenced simply to preventive detention for domestic animals and they will all walk out; without any limiting term or for a very long yet many of them will soon return and be glad term. The conditions of such detention would to do so. The parrot in the cage may fret be less drastic than those of ordinary penal against its restraint, but the parrot in the cold confinement, but this would be compensated, wood will not look back with horror on the cage from the punitive point of view, by the length or shudder at the prospect of a return to it. of its endurance; and this detention should be
My doubts in regard to this matter, however, regarded and treated as being, whilst protective apply only to shorter terms of imprisonment. of society, the punishment of the man's crime The case is different when one comes to long and not, as under Sir Robert Anderson's scheme,
Here we have not merely the present something supplementary thereto, solely for irksomeness of deprivation of liberty and the protection of society, or, as under the monotony of life and surroundings, but the present system, as something supplementary appalling prospect that these are to continue thereto for the man's reformation, with a view for a term of years. In most cases that is to his early enlargement upon the public.