Sir Matthew Hale’s forbearance extended to cases of reprieve, after conviction, before another judge. Thus in H. P. C., vol. ii. ch. lvi., he says—“I have generally observed this rule, that I would never give judgment, or award execution, upon a person, reprieved by any other judge but myself, because I could not know, upon what ground or reason he reprieved him.”
Upon this, there is the following pertinent note—“The usefulness of this caution may be seen, from what is observed, by Sir John Hawles, in his remarks on Cornish’s trial, where he relates the case of some persons, who had been convicted of the murder of a person absent, barely by inferences from foolish words and actions; but the judge, before whom it was tried, was so unsatisfied in the matter, because the body of the person, supposed to be murdered, was not to be found, that he reprieved the persons condemned; yet, in a circuit afterwards, a certain unwary judge, without inquiring into the reasons of the reprieve, ordered execution, and the persons to be hanged in chains, which was done accordingly; and afterwards, to his reproach, the person, supposed to be murdered, appeared alive.”
The death of the person, alleged to have been murdered, is, manifestly, not less a constituent part of the crime, than the malice prepense, or the employment of the means. These three things are necessary to constitute murder, in the eye of the law. Thus, an acquittal has taken place, where the murder was alleged to have been committed, on the high seas; and the malice and the blow only were proved to have occurred on the high seas—and the death, in the harbor of Cape François. Such was the case of the U. S. against McGill, reported in Dallas. This extreme particularity appears, to some persons, exceedingly ridiculous; but not quite as much so, as certain commentaries, upon legal proceedings which we sometimes meet with, in the ordinary journals of the day.
Aaron Burr, whom I desire not to quote, too frequently, once shrewdly remarked—“he, who despises forms, knows not what he despises.” To infer the death, from the malice, and the employment of the means, in all cases, would be absurd. If one man maliciously knocks another into the sea, here is, certainly, a violent assault and battery—perhaps an assault with intent to kill. But, before we join, in the popular hutesium et clamor, we have two important points to settle, beyond all reasonable doubt—first, if the person, knocked overboard, be dead, for he may have swum to land, or have been picked up, at sea, alive, in which case, unless he die of the blow, within the time prescribed, there can be neither murder nor manslaughter. And, secondly, if he be proved to have died of the injury within that time, we must duly weigh the previous circumstances and the provocation, to ascertain, if the act done be manslaughter or murder.
Those, who vociferate, most loudly, against the law, for its hesitancy, and demand the immediate descent of the executioner’s axe, upon the neck of the victim, will be the very first fervently to supplicate, for the law’s most merciful carefulness of life, should a father, a brother, or a son be charged with crime, and involved in the complicated meshes of presumptive evidence.
No. LXXXVI.
The transition state, when the confidence of youth begins to give place to that wholesome distrust, which is the usual—by no means, the invariable—accompaniment of riper years, is often a state of disquietude and pain. It is no light matter to look upon the visions of our own superiority, and imaginary importance, as they break, like bubbles, one after another, and leave us abundantly convinced, that we are of yesterday, and know nothing.
The confidence of ignorance, however venial in youth, is not altogether so excusable, in full grown men. Its exhibitions, however ridiculous and absurd, are daily manifested, by mankind, in relation to those arts and sciences, which have little or nothing in common with their own respective vocations. The physician, the lawyer, the clergyman, the deeper they descend into their respective, professional wells, where truth is proverbially said to abide, proceed with increasing caution. Yet it is quite amazing, to witness the boldness, with which they dive into the very depths, that lie entirely beyond their professional precincts. The physician, who proceeds, in the cure of bodies, with the extremest caution, seems to be quite at home, in the cure of souls; and has very little doubt or difficulty, upon points, which have perplexed the brains of Hale and Mansfield. The lawyer, who, in his own department, moves warily; weighs evidence with infinite care; and consults authorities, with great deliberation—looks upon physic and theology, as rather speculative matters, and of easy acquirement. The clergyman frequently practises physic gratuitously; and holding the doctrine in perfect contempt, that the viginti studia annorum are necessary to make a tolerable lawyer, he rather opines, that, as majus implicat minus, so his knowledge of the Divine law necessarily comprehends a perfect knowledge of mere human jurisprudence.
This confidence of ignorance is nowhere more perfectly, or more briefly, expressed, than in four oft-repeated lines, in Pope’s Essay on Criticism: