in this particular respect are well established. "As admirable a display," says Brougham," of logical acumen, in long and sustained chains of pure ratiocination, is frequently exhibited among their ranks as can be seen in the cultivators of any department of rhetoric, or the student of any branch of science.'

But an admiration for the logic of law led to the most serious exaggerations. Several writers, for instance, attempted to transfer to law the certainty that belongs to mathematical truth alone. The law and mathematics were alike placed in the category of exact sciences. Ritso, one of the most extravagant writers on this subject, declares that a proposition in law is as capable of being resolved and demonstrated as a proposition in the mathematics; the theorem that by the extinction of a fee in a seignory, a particular estate for life in that seignory is also extinguished, is as certain as the theorem that the square of the subtending side is equal to the two squares of the containing sides of a right-angled triangle.' Similarly, Locke and Dr. Clarke attempted to introduce into the science of morals the methods of mathematics. "I doubt not," says Locke, "but from self-evident propositions, by necessary consequences as incontestable as those in mathematics, the measures of right and wrong may be made out to any one that will apply himself with the same indifferency and attention to the one as he does to the other of these sciences." But the greater part of Locke's disciples, as Dr. Whewell points out, disregarded altogether those suggestions respecting a morality founded upon ideas and established by means of demonstration. The same fate awaited the suggestions and speculations of jurists, who treated mathematically the science of jurisprudence. Among these Wolffus, the disciple of Leibnitz, may be regarded as the leader. The Wolfian philosophy exercised a great influence, direct and indirect, over the jurists of Germany. The great defect of this system (as Reddie mentions), was that its author and supporters attempted to demonstrate many truths which must be derived from quite different sources by mere philosophical reasoning. and ultimately for the most part only from gratuitously or arbitrarily assumed positions, while to them it appeared sufficient for the foundation of a science, if a series of ideas and propositions were tied together in a sort of reciprocal dependence, and were wrapped up in the exterior garb of a so-called proof or demonstration. The causes which led to this class of speculations have been attributed to the habits of abstraction produced by the

* Ritso's "Introduction to the Science of Law." Mr. Austin, under the head of necessary truth, includes mathematical truths, and the truth of certain legal consequences, following upon certain law cases, as such.-Lectures, vol. iii., p 259,

doctrines of the Aristotelian philosophy, previously so powerful among the learned, and partly to the opinion of the greater certainty which attends mathematical truth (which is mere abstract consistency), than what is produced by the evidence of physical fact; as Wolfins, indeed, thought he could make the rules of the jus naturæ more certain by dressing them up in the garb of quasi-mathematical definitions and demonstrations. The result of these speculations is well known.

*

Thus in the construction (if I may so speak) of the science of law itself, may be found the conditions of a logical exercise of the reason, and of all well known systems of law, in none more than in the Roman jurisprudence, which doubtless exhibits the greatest precision and elegance. It is a remark of Dugald Stewart, that the nearest approach to mathematics as a hypothetical science is to be found in a code of municipal jurisprudence, or rather may be conceived to exist in such a code, if systematically carried into execution, according to some general or fundamental principles. Whether these principles should or should not be founded in justice or expediency, it is evidently possible, by reasoning from them consequentially, to create an artificial or conventional body of knowledge, more systematical, and at the same time more complete in all its parts, than in the present state of our information any science can be rendered, which ultimately appeals to the eternal and immutable standards of truth and falsehood, of right and wrong. "This consideration," says Stewart, "seems to throw some light on the following very curious parallel which Leibnitz has drawn (with what justness I presume not to decide) between the works of the Roman civilians and those of the Greek geometers. Few writers certainly have been so fully qualified as he was to pronounce on the characteristical merits of both."

"I have often said that after the writings of the geometricians there exists nothing which in point of force and subtilty can be compared to the works of the Roman lawyers. And as it would be scarcely possible from mere intrinsic evidence to distinguish a demonstration of Euclid from one of Archimedes or of Apollonius (the style of all of them appearing no less uniform than if reason herself was speaking through their organs), so also the Roman lawyers all resemble each other like twin brothers; insomuch that from the style alone of any particular opinion or argument hardly any conjecture could be formed with respect to the author. Nor are the traces of a refined and deeply meditated system of natural jurisprudence anywhere to be found more visible or in greater abundance. And even in those cases where its principles are

* See Reddie's " Inquiries in the Science of Law."

departed from, either in compliance with the language consecrated by technical forms, or in consequence of new statutes or of ancient traditions, the conclusions which the assumed hypothesis renders it necessary to incorporate with the eternal dictates of right reason, are deduced with the soundest logic, and with an ingenuity which excites admiration." *

II. SENTIMENTALISM AND THE CAT.

By EDWIN PEARS, Barrister-at-Law.

THE HE controversy which went on a few weeks ago in the columns of the Daily News, on the question of the employment of the cat as a means of corporal punishment, aroused considerable public attention, and has more than a passing interest. It is a question which makes us return to the first principles of penal science; makes us ask, Why is punishment inflicted at all? and why should we not, with a view to the suppression of crime, inflict death more commonly than we do, or try old methods of torture? The controversy was commenced by a letter from Mr. P. Taylor, the member for Leicester. That gentleman quoted a description, which had appeared in the Daily Telegraph, of the flogging of two offenders. This newspaper, after its

Leibnitz, tom. iv. p. 254.-But apart from the mere study of law, it is clear that the application of it in the course of practice, affords the conditions for the highest exercise of the reasoning powers. The common law, which has grown out and expanded in the course of the administration of justice, is spoken of as a body of reasoned truth rigidly and carefully evolved. As out of the contentions of the forum this body of reasoned truth has been evolved, it must be allowed that in those contentions alone the discipline of the lawyer is such, as no other pursuit or profession can afford. "After all the certainty," says Paley," that can be given to points of law, either by the interposition of the Legislature, or the authority of precedents, one principal source of disputation, and into which, indeed, the greater of legal controversies may be resolved, will remain still, namely, the competition of opposite analogies.' When a point of law has once been adjudged, neither that question, nor any which completely, and in all its circumstances, corresponds with that, can be brought a second time into dispute. But questions arise which resemble that only indirectly, and in part, and in certain views and circumstances, and which seem to bear an equal or a greater affinity to other adjudged cases: questions which can be brought within any fixed rule only by analogy, and which hold an analogy by relation to different rules. It is by the urging of the different analogies that the contention of the Bar is carried on." (See on this subject "Austin's Note on Interpretation," and the "Excursus on Analogy.")

Mr.

In

fashion, had described the flogging pretty accurately. Taylor denounced the system which could make such descriptions possible. Upon this a shoal of letters appeared defending the cat, and attacking Mr. Taylor. The commonest charge brought against him, and those who take his view on this question, was that they are sentimentalists. Now, as sentimentalists are usually warm-hearted, weak-headed people, who are quite as often wrong as right, and in either case by chance, a charge of this kind as bearing on the support which the alleged sentimentalists give to any particular opinion is worth looking into. It seems to me that a little reflection must convince any one that it is precisely the sentimentalists who are the advocates of the cat. This does not, of course, afford a conclusive argument against its use, for, as I have implied, the sentimentalists are sometimes right; but it does afford ground of suspicion. The true sentimentalist is one who is guided by his emotions rather than by principle. Instead of reasoning, he feels. He usually acts in a hot-headed and impulsive manner. He has a large amount of heat, but little light; a warm heart, but no head. In religion he is the prey of the first fanatic or bigot with whom he meets. politics, full of the most generous enthusiasm, he will regenerate the whole of society by the first patent method that comes under his notice, by which every wrong may be righted; or, if he is born in another circle, he will denounce everybody who wishes to change an iota of the constitution as a revolutionist. He is always liable to panics. He has a tendency to run from one extreme to another, in reliance on what he regards as his heavensent instincts. It is the sentimental portion of the mob which has usually caused its passing opinion to be fickle, and therefore worthless. The mob which to-day would lynch a man for committing a murder, will, a month hence, when the man is sentenced to be hanged, have forgotten all about the victim, and have transferred its sympathy to the murderer. Though it would be far from the truth to say that sentimentalism is confined to the ignorant, it no doubt prevails more among the uneducated than the educated, and therefore, also, for this reason, more among women than men. What we generally agree to regard as woman's emotional nature-witness Sydney Smith's ungallant definition of her as a hysterical, interjectional, parturient animal-also makes her more liable to sentimentalism than man; has made her in all ages more religious than man; more under priestly rule than man; and even to-day, makes radical reformers, like Goldwin Smith, fear to give her political power.

In truth, sentimentalism is always a dangerous guide. A generation ago it led to the monstrous exaggerations which were talked about prisoners and their reformation; about their innocence of heart, their seducers, and their certainty of return

to the paths of virtue under proper management. The great heart of the sentimentalist rushed to raise the fallen brother or sister, and boiled with indignation at the injury society had done them. Then, of course, a reaction set in sensible people pointed out that the condition of the nine hundred and ninetynine people who never go to prison was of more consequence than that of the prisoner; and that though the hardworking labourer was not so interesting a mortal as a subject under prison treatment, it was not desirable to overlook him in favour of his erring brother. Let it be remarked, however, that it was the sensible people who had commenced the reform of our prison system; the same people also who began and carried out the agitation for improved education and better houses for the working classes. Carlyle, in some respects the embodiment of common sense, as in others of the gospel of brute force, aided the reaction enormously by his latter-day pamphlet on "Model Prisons." Dickens followed with Uriah Heep. The great army of smaller cynics, men who belong to the class which invariably depreciates efforts to be made at a distance for the benefit of anybody, on the ground that we have enough poverty and distress at our own doors, and as invariably depreciates and refuses to aid any efforts made at home, followed these great leaders. The tide had turned, and now the great heart of the sentimentalist boils with indignation against the garroter and the wife-beater as much as before it yearned for him.

It was the province of sensible men to protest against the elimination of the notions of pain and punishment from prison discipline; against the mere petting of the prisoner; against the mere possibility of making his lot an enviable one. It is the province of sensible men now, as it seems to me, while the pendulum is running to the other extreme, to protest against returning to the evil state of things from which even the pampering of prisoners (which never existed) would be an improvement. It is especially necessary to call attention to this duty now, because, unfortunately, there has been of late years a luxuriant growth of sentimentalism. Even Dickens, whom we have seen aiding the reaction, and who, in his novels-though this is far from the case in Household Words-never introduces an organization, or for the matter a professedly religious man, except for the purpose of ridicule, is continually setting up some little sentimentalism as an object of worship. Since he led the way we have had sentimental novels by the score. Some of our newspapers have carefully cultivated the feelings of their readers. We have sentimental agitations carried on both by men and women; and if there is some danger of our legislation becoming sentimental, it is probably because political power is thrown more into the hands of the ignorant portion of the community than before-a remark which does