best means of prevention; and that "the principle of awarding punishment for different offences in proportion to their magnitude," in order to "deter from crime," is liable to “insurmountable objections" (p. 147.). On the other hand, many zealous philanthropists, while desirous to carry the reformatory process to the utmost practical extent, deem it impossible adequately to repress crime without punishments to deter, as well as instruction and discipline to reform. This disagreement on a fundamental principle unavoidably leads to some difference of opinion on practical questions; but not to so wide an extent as would at first appear probable. "The very process of well-devised punishments for the cure of bad habits, with the attendant seclusion from the world, and with frequent periods of complete solitude, together with enforced industry, early rising, and abstinence, are" (as Mr. Hill justly remarks) "necessarily productive of great pain” (p. 148.). The pain so endured is, in the opinion of the recorder of Birmingham (stated in his report to the Law Amendment Society, which was laid before a Committee of the House of Lords in 1847), "equally potent by way of example as when inflicted with example as its direct purpose;" and he therefore maintains that "there is no such conflict between the principle of punishment on which the law is now administered, and the principle of reformation, as calls for our entering into any controversy on the subject. We conceive, however, that the conflict of principle, though it does not preclude agreement on some important practical questions, materially affects others; and, amongst them, that of capital punishments (the sole object of which is example), and those of the length of imprisonment, and the treatment of prisoners. We must, therefore, briefly advert to Mr. Hill's objection to the principle. He appears to assume that the law professes to apportion its punishments to degrees of moral guilt (p. 147.). Such, also, seems to be the impression of the recorder of Birmingham, who in his evidence before the Commons' Committee calls its principle "retributive or vindictive" (Qu. 399-526.); such a principle it would (as Mr. Hill says), be "impossible to carry out with law except so far as moral guilt and injury to society are identical. It is with the injury to society only that the law deals. Its principle is correctly stated by the Archbishop of Dublin in his thoughts on secondary punishments. "The exact amount of each offender's moral guilt, man can neither ascertain with certainty; nor, if he could, would have any right to visit with proper retribution. Vengeance belongs not to us. We punish (and we have thus only a right to punish) a transgressor, not because he has transgressed, but that others may, by his example, be deterred from disturbing society." "We seek to check the example of crime, and to substitute an example of terror." That the reformation of offenders would be one powerful preventive of crime no one can doubt. It not only removes the offender himself from the category of criminals; but destroys one of the roots of that large proportion of crime which is sometimes not inaptly termed hereditary. But examples of terror must still continue to be necessary, so long as great numbers of criminals remain undetected, and numbers (probably much greater) who have not actually committed crime are restrained from it only by the fear of punishment. As might be expected from a strenuous believer in the efficacy of the reformatory principle, Mr. Hill is opposed to capital punishments. We by no means consider the supporters of the deterring principle bound, as its necessary consequence, to defend such punishments. They are defensible only on the ground that no others will adequately deter from great and dangerous crimes. The principle on which they rest was well stated by Sir James Macintosh in his charge to the grand jury of Bombay, on 20th July, 1811: "I have no doubt of the right of society to inflict the punishment of death on enormous crimes, wherever an inferior punishment is not sufficient. I consider it as the mere modification of the right of self-defence, which may as justly be exercised in deterring from attack as in repelling it." This definition of the principle limits its range to those highly dangerous crimes which justify an individual in inflicting death in self-defence. Mr. Hill, however, does not recognise its soundness, even to this limited extent. He considers the deterring effect of capital punishments on the criminal population "feeble." So general a proposition can only be tested by a careful analysis of criminal statistics; not by individual instances of brutal ribaldry in a street crowd, or the interior of a felon's prison; and we think our criminal statistics suggest serious doubts of its accuracy. No trustworthy conclusions on the subject can be drawn from comparing crimes where capital punishment was usually inflicted with those where it was a dead letter on the statute-book. The comparison must be made. between a crime for which it is still retained, and one for which it was formerly usual to inflict it. Such crimes are murder and rape. Capital punishments for rape practically ceased in 1838, and were formally abolished in 1841, by 4th and 5th Vict. cap. 56. The abolition was followed by that increase in the proportion of convictions to acquittals which is universally and very justly considered a highly important element in the preventive power of punishments. The proportion for 1835-6-7 had been 1 conviction to 19 acquittals; since 1838 it has been about 1 conviction to 21 acquittals. But notwithstanding that great advantage, commitments for rape have increased in the following alarming ratio. In 1835-6-7 (while the capital punishment } 61.3 per annum. 69 "" } 119.4 99 125.4 99 In 1847-51 (the succeeding 5 years) they} rose to 627, or ing with 1847, with that of the five years ending 1851, commitments for rape have more than doubled, while those for murder have not increased to the extent of one-sixth. These facts are apparently so irreconcilable with Mr. Hill's opinion of the "feebleness" of the deterring power of capital punishment, as at least to require explanation; and they cannot be satisfactorily explained by the assumption of a greater willingness to prosecute, -an assumption at best purely gratuitous, and (at least, as applied to the initiatory stage of commitment, which generally takes place while the sense of injury is recent and powerful) probably erroneous. Without, however, entering further into the question, which would require a separate and long article adequately to discuss, we may state that out of thirty-nine English, Scotch, and Irish judges, who answered a series of questions from a Select Committee of the House of Lords in 1847, only three were in favour of abolishing capital punishments; one doubted; three declined expressing any opinion; and the remaining thirty-two were for retaining them; that twelve other witnesses (amongst whom were the Recorders of London and Dublin, and the Governors of Newgate, Coldbath Fields, Edinburgh, and Lancaster prisons), were against the abolition; and only six (one of them being Mr. Hill himself) in favour of it. "Of transportation, in the ordinary sense of the term, few (Mr. Hill says), can have a lower opinion than myself; indeed, I am convinced that the system has generated monstrous evils." (p. 163.) We agree in the wish for its disuse, as a direct punishment, but with a strong impression that in many cases, expatriation, under a different system, as the result, but not as a punishment of crime, and at the close of a sufficient preparation in this country, would be highly beneficial both to the offender and the community. Transportation under the present system, is justly complained of by the colonies as oppressive, and even dangerous, to them; and, from the increasing desire for emigration appears to be gradually losing its terrors for offenders in this country. Those terrors, however, are by no means yet worn out; and, though, looking to its ultimate abandonment as both desira ble and inevitable, we are not prepared for its immediate or precipitate abolition. We are already approximating to a sounder system. The convict sentenced to transportation, first undergoes a considerable length of imprisonment in this country; and, when sent to the colony, the extent and duration of the restraints imposed upon him depend upon his previous conduct. It is to be hoped that the results of this experiment will justify its extension, till both the practice and the name of transportation cease. There remain "pecuniary fines, the exaction of securities, and imprisonment;" punishments which Mr. Hill deems "unobjectionable." (p. 175.) Fines and securities being adapted only to minor offences, and in the great majority of cases depending for their enforcement upon the power to imprison, we may confine our further remarks to that punishment alone. ART. IX.-TREATISE ON THE CONTRACT OF PARTNERSHIP BY POTHIER. SECOND CHAPTER.1 Of the different Kinds of Partnerships. SECTION I. Of Universal Partnerships. 28. THE Roman law draws a distinction between two kinds of partnerships, one of which is called universorum bonorum, For Chap. I. see 17 L. R. 278-300. 29 Partnerships are universal or particular. Civ. Cod. of France, 1835. Different Kinds of Partnerships. There are two kinds of universal partnerships, a partnership of all present property, and a universal partnership of profits. Civ. Cod. of France, 1836. Universal partnerships in feudal times were very numerous in France, especially for agricultural purposes; hence they were often called Rustic Partnerships. Troplong attributes their use to two causes; one civil, namely, that as |