if he had got the prisoner down and was beating him when he was defenceless, the whole character of his offence would have been changed. If all the mitigating circumstances suggested concurred, if the man killed were a mere wrongdoer who made use of his superior strength to insult and humiliate his antagonist grossly, if the prisoner had had a knife in his hand when he was so attacked and ill-treated, and had given a stab in return for a blow, the punishment on conviction would probably have been imprisonment instead of penal servitude. The case, however, is one in which every variation in circumstances ought to be represented in the amount of punishment. The provocation given may be so great as to entitle the offender to be regarded as acting in self-defence. It may be so slight as only just to justify the jury in returning a verdict of manslaughter instead of murder.

The second of the three classes into which I have divided manslaughter differs from the first only in the circumstances that less serious violence is employed. Crimes falling within it would be very variously punished, according to the kind of violence and the degree of brutality used.

I will give a few instances to illustrate the different classes of cases which fall within this general description. The worst are those in which death is caused by acts not intended, nor generally speaking likely, to kill, but indicative of gross cruelty and brutality, especially towards the weak or persons under authority. I should say that, if a strong man caused the death of a delicate woman or a child by blows not meant nor likely to kill, but still cruel and brutal, or if the mate of a ship killed a seaman by striking him down with a handspike by way of punishment for some act of disobedience, he might properly be sentenced to seven years' penal servitude.

Suppose, however, that the violence used is comparatively trifling, that a man is killed by a blow given in a common quarrel and under circumstances showing no particular brutality. In such a case the punishment would obviously be imprisonment for a term varying according to all the considerations which would apply in a case of common assault, reference being, however, had to the principle that, in measuring punishment, regard should be had, not only to the intention of the offender, but to the effect of his act. Probably no two cases of this kind are exactly alike.

The third kind of manslaughter is manslaughter by negligence—that is to say, by the omission to discharge some legal duty tending to the preservation of human life. The most serious cases of this sort are those in which children or sick persons are brutally neglected; and I can imagine, though I do not recollect to have met with more than one case in which such conduct would deserve penal servitude. Causing death by gross negligence or ignorance by medical men, or by quacks who assume to act as such, or by gross carelessness- as, for instance,

drunkenness on duty-by guards, engine-drivers, or other persons in charge of machinery, are instances of this offence. They would all be punished by imprisonment in ordinary cases; but the circumstances vary so widely that the punishment would vary exceedingly. A man who got drunk, and, by omitting to regulate the ventilation of a mine, caused an explosion which killed many persons, would not be too severely punished by a year's imprisonment. A man who, by leaving unlighted at night a small heap of rubbish in an unfrequented lane under repair, caused a tax-cart to be upset and the driver to be killed, might probably be fined.

There is hardly any crime from which illustrations of this kind might not be drawn. Take, for example, treasonable felony. Gallagher and his associates, who were convicted of dynamite outrages in London, were sentenced to penal servitude for life. Wilson, the accomplice of Davitt, who took a subordinate part in forwarding arms to Ireland for treasonable purposes, was sentenced by the late Lord Chief Justice to seven years, and Davitt himself, whose part in the matter was much more prominent, to fourteen years' penal servitude.

Rape also varies very widely in guilt. Cases in which several persons have helped each other, in which the crime has been accompanied by torture to compel submission, and has been repeated, have often been punished by penal servitude for twenty years. I have known instances of unmentionable atrocity, where the punishment has been for life. The degree to which the woman resists, her character and her conduct,'all affect the question of punishment. I have known sentences of penal servitude of all lengths allowed; I do not remember more than one case in which the punishment was imprisonment and hard labour. If the circumstances justify such a sentence, they are generally such as to call for an acquittal, or such as would justify, if the law permitted it (which I wish it did), an acquittal for rape and a conviction for indecent assault. I abstain, however, from multiplying illustrations. Those which I have given are enough to show that, wide as the range of punishment may and must be, there is still a nearer approach to a customary scale of punishment than is often supposed to be the case. I speak, of course, of sentences passed by judges of the Assizes and the Central Criminal Court, to which for many years my experience has been confined.

In conclusion I may observe that some degree of uncertainty as to punishment has its advantages. An habitual thief meditating a particular crime is likely to be made more uncomfortable by the reflection that if he is tried for it by a severe judge he will be sent to penal servitude, than by the reflection that whoever tries him will give him a year's imprisonment. I do not see any advantage in making thieves and rogues and bullies and burglars feel that, whatever they do, they know the worst; that they will not have to suffer more than a certain well-defined amount of punishment.

Several things might easily be done, which, though not reforms of the first magnitude, would be distinct improvements in the infliction of punishments. The prison authorities ought to be well aware of the physical effects of imprisonment for a certain number of months. The punishment is certainly more severe than it used to be. So far back as 1865 solitary confinement, which used to be an occasional aggravation, and which still keeps its place as such on the statute book, became, under the name of separate confinement, the rule. As the law now stands, it is understood that two years' imprisonment is a punishment so severe that it ought to be inflicted only under very exceptional circumstances; but it would be important to know whether, for instance, a year's imprisonment affects the health of ordinary men either severely or permanently.

I think it should be a fixed rule that a sentence of imprisonment should date back to the day when the prisoner was received into custody, instead of dating, as at present, from the first day of the sittings at which it is passed, or from the day when it is passed. As matters now stand, a prisoner generally, though not always, gets in his sentence credit for part of the time at least of his imprisonment when under committal. I think the law should give it him; though to a certain extent imprisonment under committal for trial is less severe than imprisonment under sentence, the anxiety which the prisoner has to undergo must make it at least equally unpleasant.

There is one kind of punishment known to the present law which I think ought to be altogether abolished, as it is inflicted by mere operation of the law, no discretion being reposed either in the judge or, I believe, in any other authorities, and as it operates with cruel and, what is worse, with retrospective severity. It punishes a man literally for having in his earlier life deserved well of the public. I refer to the relics of the laws of forfeiture, which were unhappily preserved when forfeiture for felony was abolished in 1870 by 33 & 34 Vict. c. 23, § 1, and the following provision was enacted in the place of the old law. I transcribe it, and the remarks made upon it in my History of the Criminal Law 5 :

'It is provided by section 2, that upon a conviction for felony and a sentence of twelve months' imprisonment or upwards, or imprisonment with hard labour for any term, the convict shall forfeit "any military or naval office or any civil office under the Crown or other public employment, or any ecclesiastical benefice, or any place, office, or emolument in any university, college, or other corporation which he may hold, and also any pension or superannuation allowance or emolument" to which he is entitled. I think that the question whether a person should on account of a conviction of felony, followed by a sentence of imprisonment and hard labour, be deprived of official employment or ecclesiastical preferment, should be left to his

Vol. i. pp. 488-89.

official or ecclesiastical superiors. I do not see why an officer in the army who, in a moment of irritation, strikes a blow which kills a man and is convicted of manslaughter, should lose his commission because the judge sentences him to imprisonment with hard labour; nor do I think that in considering the sentence the judge ought to be obliged to take into account the fact that a sentence of hard labour will necessarily cost the offender his commission. This matter seems to me to be one for the military authorities, just as the question whether a barrister should be disbarred upon a conviction is a question for the Benchers of his Inn.

'To deprive a man of a pension or superannuation allowance, which is in reality deferred pay earned by work done, is to keep up the principle of forfeiture of property as a punishment for crime in a special class of cases when it has been given up in all others. Two officers of a bank are convicted of a forgery for which each is sentenced to a year's hard labour. One is a retired Indian civilian with a pension of 1,000l. a year; the other has bought a life annuity of the same amount out of his savings in a profession. Why is the one to lose his pension and the other to keep his annuity? The pension is just as much property as the annuity. It is part of the consideration for which many years of labour were given. Apart from this, why, when removing an admitted grievance, keep up a perfectly irrational distinction between the punishment of felons and the punishment of misdemeanants? Suppose that two other persons-directors of the same bank-had fraudulently misappropriated its funds in concert with the two forgers, but by means amounting only to misdemeanour. If they held pensions or commissions they would forfeit nothing, even if they were sentenced to penal servitude. Surely this is highly unjust. It seems to me that the whole Act, except the section which abolishes forfeiture, should be repealed. If its provisions are not wanted in cases of misdemeanours, they are not wanted at all. They are practically a dead letter in cases of felony.'

I have confined my observations to sentences passed by judges of the High Court, because they are the only ones on which my own experience qualifies me to speak.

JAMES FITZJAMES STEPHEN.

DIET

IN RELATION TO AGE AND ACTIVITY.

ENOUGH, and more than enough perhaps, has been uttered concerning the prejudicial effects on the body of habitually using alcoholic beverages. It is rare now to find anyone, well acquainted with human physiology, and capable of observing and appreciating the ordinary wants and usages of life around him, who does not believe that, with few exceptions, men and women are healthier and stronger, physically, intellectually, and morally, without such drinks than with them. And confessedly there is little or nothing new to be said respecting a conclusion which has been so thoroughly investigated, discussed, and tested by experience, as this. It is useless, and indeed impolitic, in the well-intentioned effort to arouse public attention to the subject, to make exaggerated statements in relation thereto. But the important truth has still to be preached, repeated, and freshly illustrated, when possible, in every quarter of society, because a very natural bias to self-indulgence is always present to obscure men's views of those things which gratify it. While, in addition to this, an exceedingly clever commercial interest of enormous influence and proportions never ceases to vaunt its power to provide us with the soundest,' 'purest,' and-most to be suspected of all-with even medically certified,' forms of spirit, wine, and beer; apparently rendering alcoholic products conformable to the requirements of some physiological law supposed to demand their employment, and thus insinuating the semblance of a proof that they are generally valuable, or at least harmless, as an accompaniment of food at our daily meals.

It is not, however, with the evils of drink' that I propose to deal here they are thus alluded to because, in making a few observations on the kindred subject of food, I desire to commence with a remark on the comparison, so far as that is possible, between the deleterious effects on the body of erroneous views and practice in regard of drinking, and in regard of eating, respectively.

I have for some years past been compelled by facts which are constantly coming before me, to accept the conclusion that more mischief in the form of actual disease, of impaired vigour, and of shortened life, accrues to civilised man, so far as I have observed in our own country