teach concentration, they form habits of close reasoning, and yet, when we look at the names of the present and recent occupants of the bench, we find far more distinguished as scholars than as mathematicians. On the one side we have Lord Justice Bowen, and Chief Justice Coleridge, and Lord Chancellor Selborne, and Lords Davey and Macnaghten, and Justices Denman, and Kennedy, and Wright, and Chitty, and Reid, A. G., and, on the other side-trained in mathematics-Justices Romer and Stirling and Lord Justice Rigby-eminent judges, but numerically few.

Blackburn joined the middle temple, the working man's inn, and was called one year after her present gracious majesty's accession. He went the Northern Circuit, and attended the Lancashire Sessions, and labored in obscurity. Those early years between a man's call and his emerging, with what hopes and fears, toils and triumphs, and disappointments are they fraught. How little we know of what passes within

Each in its hidden sphere of joy and woe,

Our hermit spirits dwell or roam apart.

Blackburn spent his period of probation in that exercise which makes the best lawyers-law reporting. Eight portly volumes of Ellis and Blackburn attest his industry, his accuracy, and his learning, and greatly are Lord Campbell's judgments indebted to him for their merits. Few ever thought that the young Scotchman, who day by day seated himself in a back row of the old Court of Queen's Bench at Westminster-his habit, as Serjeant Ballantine tells us—was to become one of the greatest judicial lights of the nineteenth century. By degrees he acquired some practice in mercantile cases and other business of the best kind, and in arguments in banc --the true test of a lawyer-the judges owned his skill; but he was still a man unknown to fame. No attorney would have chosen him to conduct a cause which

required adroit advocacy or claptrap eloquence. He could not brave it or bounce it in the Buzfuz

vien. His circuit knew him not.

Great, then, was the surprise when it was announced on Erle's promotion to the chief justiceship of the Common Pleas that Mr. Colin Blackburn was the new judge. Campbell, who was then the new chancellor, enters in his diary, June 1859: "I have already got into great disgrace by disposing of my judicial patronage on the principle, 'detur digniori.' Having occasion for a new judge, to succeed Erle, made chief justice of the Common Pleas, I appointed Blackburn, the fittest man in Westminster Hall, although wearing a stuff gown, whereas several Whig queen's counsel, M. P.'s, were considering which of them would be the man, not dreaming that they could all be passed over. They got me well abused in the Times and other newspapers, but

* **

*

Lyndhurst has defended me gallantly in the House of Lords. Well abused,' indeed. This was the sort of thing. Everybody has been going about town asking his neighbor, Who is Mr. Colin Blackburn?' The very ushers in the courts shake their heads and tell you they never heard of such a party.' His legal claims to this appointment stand at a minimum. ** The only reason which can be assigned for this strange freak of the chancellor is that the new puisne judge is a Scotchman. A national job is worse than a family job," and so on. But Lyndhurst silenced the cavillers. "I wish," he said, "to call your lordships' attention to a recent appointment to the judicial bench-the appointment of Mr. Blackburn to a puisne judgeship in the Court of Queen's Bench. I have been asked who is Mr. Blackburn, and a journal who takes us all to task by turns has asked, somewhat indignantly, 'Who is Mr. Blackburn?'

* ** *

He soon lived down the detraction of envious rivals, and every year he sat on the bench raised his reputation higher. It was said jestingly that Chief Justice Cockburn learnt his law from sitting with Blackburn, and not only was he (Blackburn) a most learned judge, but he was a most patient and painstaking one. He had the "hard-headed logic," as Lord Russell, of Killowen, put it, of his race, and if he had also something of the Scotchman's dry manner and uncongeniality, it was only as it is with the Scotch, on the surface. He soon became as good at nisi prius as in banc, "and there was no judge before whom I," says Ballantine, "would sooner have practiced." There is an anecdote told of him which illustrates what may be called his

is really auto-suggestion. The subject has a belief that he must perform the act, and therefore does it. If this belief is disturbed the act is not performed, and this has been well shown by the fact that good hypnotic subjects can be spoiled for an exhibitor's purposes by merely explaining to them the medical theory of the condition. In a vast majority of cases, if not in all, the efficiency of post-hypnotic suggestion depends entirely upon the belief of the subject in some mysterious power exercised over him by the operator. If moral impulses are strong, there is very little probability of its being effective for evil; it is, at its best, not equal to the profounder sentiments of our nature.

As a plea in criminal cases, it should be especially distrusted, and the benefit of any reasonable doubt ought to be given to the party accused of instigating the crime. This would necessarily exclude the plea, since reasonable doubt in one case naturally destroys it in the other, and the most it could benefit a confessed criminal would be to raise a doubt as to his responsibility. The Kansas jury exactly reversed the rational procedure, and the verdict was therefore justly set aside in the case of the man convicted. The greatest danger of the plea of hypnotism in criminal cases, if it is to become a popular or frequent one, is that of false accusation, and the escape of an occasional criminal is an unimportant miscarriage of justice when compared to that of the conviction of an innocent individual.

The value of hypnotism for purposes of obtaining testimony or ascertaining the truth is also very dubious. So far as it has been tested by competent

making the suggestion rather than to an admitted transgressor. Reasonable doubts in these two cases are mutually exclusive. One of the greatest dangers of the admission of this plea is that of false accusation of innocent individuals.

The testimony of persons in the hypnotic state is vitiated by their condition, and should by itself alone have no legal value.

Susceptibility to suggestion, even to the extent of affecting bodily functions, does not necessarily imply the hypnotic condition, though the difference is to some extent one of degree only. This must be remembered in considering or estimating the value of testimony; otherwise we would have to, more or less, reject all testimony except expert testimony, as was claimed by the late Dr. Beard in a noteworthy article on this subject. Every one is more or less susceptible to suggestion, but not every one is hypnotizable. The fully developed hypnotic state, implying a marked disturbance of consciousness and the personality is an abnormal one, and may have serious physical results on the subject. Conditions distantly related to or approaching it, but within physiological limits that may be manifested by any one, ought not to be called hypnotism, or at least for legal purposes should be clearly distinguished from it. Chicago Legal News.

THE BUILDERS OF OUR LAW DURING QUEEN VICTORIA'S REIGN.

LORD BLACKBURN.

R. JOHNSON would not allow Scotland to de

ere from Lord

I have endeavored to give in the foregoing the substance of the best medical opinion on the medicolegal bearings of hypnotism. It may be admitted as possible that criminal acts may be successfully suggested in the condition of hypnotic trance, though this is denied absolutely by many good authorities, in case of persons with proper tendencies and impulses. It may be considered as extremely improbable in such cases.

The successful post-hypnotic suggestion of crime is still more dubious, and is fully believed in by but a comparatively small proportion of those who have written upon and considered the subject. As a plea in criminal cases, post-hypnotic suggestions should always be distrusted and the benefit of any doubt should be given to the party accused of

Where grateful science still adores
Her holy Henry's shade.

Eton refined the Gaelic barbarism of Selkirkshire, his native county, and Cambridge completed the civilizing process. The intelligent foreigner in the person of a certain Baron X, has lately been informing us that most of the young men at Cambridge are jeunes farceurs given up to boating, cricket, tandem-driving, and so on, with a sprinkling of serious students whom he reckons at about fifty. Blackburn was certainly no jeunes farceurs either at Cambridge or in after life. He studied hard, and he emerged a high wrangler. It would make, by the way, an interesting thesis whether mathematics or scholarship form the best training for success in the law. Mathematics seem to have the greater affinity for law. They discipline the mind, they

teach concentration, they form habits of close reasoning, and yet, when we look at the names of the present and recent occupants of the bench, we find far more distinguished as scholars than as mathematicians. On the one side we have Lord Justice Bowen, and Chief Justice Coleridge, and Lord Chancellor Selborne, and Lords Davey and Macnaghten, and Justices Denman, and Kennedy, and Wright, and Chitty, and Reid, A. G., and, on the other side-trained in mathematics-Justices Romer and Stirling and Lord Justice Rigby-eminent judges, but numerically few.

Blackburn joined the middle temple, the working man's inn, and was called one year after her present gracious majesty's accession. He went the Northern Circuit, and attended the Lancashire Sessions, and labored in obscurity. Those early years between a man's call and his emerging, with what hopes and fears, toils and triumphs, and disappointments are they fraught. How little we know of what passes within

Each in its hidden sphere of joy and woe,

Our hermit spirits dwell or roam apart.

Blackburn spent his period of probation in that exercise which makes the best lawyers-law reporting. Eight portly volumes of Ellis and Blackburn attest his industry, his accuracy, and his learning, and greatly are Lord Campbell's judgments indebted to him for their merits. Few ever thought that the young Scotchman, who day by day seated himself in a back row of the old Court of Queen's Bench at Westminster his habit, as Serjeant Ballantine tells us—was to become one of the greatest judicial lights of the nineteenth century. By degrees he acquired some practice in mercantile cases and other business of the best kind, and in arguments in banc --the true test of a lawyer-the judges owned his skill; but he was still a man unknown to fame. No attorney would have chosen him to conduct a cause which required adroit advocacy or claptrap eloquence. He could not brave it or bounce it in the Buzfuz

vien.

His circuit knew him not.

Great, then, was the surprise when it was announced on Erle's promotion to the chief justiceship of the Common Pleas that Mr. Colin Blackburn was the new judge. Campbell, who was then the new chancellor, enters in his diary, June 1859: “I have already got into great disgrace by disposing of my judicial patronage on the principle, 'detur digniori.' Having occasion for a new judge, to succeed Erle, made chief justice of the Common Pleas, I appointed Blackburn, the fittest man in Westminster Hall, although wearing a stuff gown, whereas several Whig queen's counsel, M. P.'s, were considering which of them would be the man, not dreaming that they could all be passed over. They got me well abused in the Times and other newspapers, but

* k

*

6

* *

Lyndhurst has defended me gallantly in the House of Lords. Well abused,' indeed. This was the sort of thing. Everybody has been going about town asking his neighbor, Who is Mr. Colin Blackburn?' The very ushers in the courts shake their heads and tell you they never heard of such a party.' His legal claims to this appointment stand at a minimum. * The only reason which can be assigned for this strange freak of the chancellor is that the new puisne judge is a Scotchman. A national job is worse than a family job," and so on. But Lyndhurst silenced the cavillers. "I wish," he said, "to call your lordships' attention to a recent appointment to the judicial bench-the appointment of Mr. Blackburn to a puisne judgeship in the Court of Queen's Bench. I have been asked who is Mr. Blackburn, and a journal who takes us all to task by turns has asked, somewhat indignantly, 'Who is Mr. Blackburn?'

* * *

Who is Mr. Blackburn?' I take leave to answer that he is a very learned person, a very sound lawyer, an admirable arguer of a law case, and eminently fitted for a seat on the bench. And the

*

*

He soon lived down the detraction of envious rivals, and every year he sat on the bench raised his reputation higher. It was said jestingly that Chief Justice Cockburn learnt his law from sitting with Blackburn, and not only was he (Blackburn) a most learned judge, but he was a most patient and painstaking one. He had the "hard-headed logic," as Lord Russell, of Killowen, put it, of his race, and if he had also something of the Scotchman's dry manner and uncongeniality, it was only as it is with the Scotch, on the surface. He soon became as good at nisi prius as in banc, "and there was no judge before whom I," says Ballantine, "would sooner have practiced." There is an anecdote told of him which illustrates what may be called his

judicial conscientiousness. He was trying, not long after his elevation to the bench, an action in which damages were sought for an injury to the plaintiff, which had caused him the loss of an eye. The plaintiff's counsel dwelt forcibly on the seriousness of the injury, as blighting the plaintiff's whole future career. "I have lost the sight of an eye, Mr. X.," said the judge, interposing, "and it has not blighted my career, as you see." The jury were much impressed with the judge's remark, and the damages they awarded were trifling. Blackburn was conscience stricken. He thought it over, and the next day he inclosed the plaintiff a cheque for £50.

This judicial scrupulousness was not confined to his own administration of justice. It made him jealous for the law in the mouths of others; witness his brush with Mr. Edmond Beales, the learned judge of the Cambridge County Court. This gentleman had, it may be remembered, encouraged a mob to pull down the Hyde Park railings, and for this spirited vindication of the rights of the people he had been rewarded with a County Court judgeship. One of his directions to a jury, in a case of Taylor v. Great Western Railway, came before Mr. Justice Blackburn, and Mr. Justice Blackburn did not scruple to observe that if the learned County Court judge really did rule so, and "is in the habit of making such rulings, I own I think the lord chancellor should be made aware of it." Mr. Beales naturally did not relish being sent up to the headmaster like this for punishment. He received the remarks with pain and indignation;" but he was much comforted, and his equanimity restored not long afterward, by an address of confidence from the local practitioners.

There was a judge once who is reported to have exclaimed, “Really I cannot have all this noise in court. I have been obliged to decide the last three cases without hearing any of the evidence." Blackburn was not the sort of judge to decide in this way, and it led to an unpleasant fracas on one occasion between him and the high sheriff of Surrey. The scene was the Assize Court at Guildford, a most inconvenient building; at all events, Mr. Justice Blackburn could not hear the witnesses, and he accordingly ordered a portion of the building to be closed against the public. Mr. Evelyn protested, published a placard declaring the proceeding to be contrary to law, ordered the building to be opened, and prohibited his officers from helping to keep the public out. For this Mr. Evelyn was fined £500, and Lord Chief Justice Cockburn, the senior judge, had an opportunity, in inflicting the fine, of delivering an extremely impressive address-quite in his best style-in which he characterized Mr. Evelyn's conduct as a painfully contumacious contempt of

the court." It is worth recording-showing how history repeats itself-that Evelyn, in his celebrated diary, mentions his father being high sheriff for Surrey and Sussex some 200 years earlier, and his state on the occasion. He had 116 servants in liveries, everyone liveried in green satin doublets, and he too says his son was "most unjustly and spitefully molested by that jeering Judge Richardson for repreeving the execution of a woman to gratifie my L. of Lindsey, then admiral; but out of this he emerged with as much honor as trouble." Not so his descendant.

There is a merry tale told of S. T. Coleridge. The philosopher-poet had the careless habits of his tribe, and in particular where his waistcoat and pantaloons should have met, a gap of white linen would disclose itself, of which he was often admonished by his tender spouse. Seated at dinner one day by a lady, his eye caught a glimpse of white at his side, and straightway he tucked away the unseemly apparition. Still it appeared, and still he tucked, until at last the philosopher discovered, as the ladies rose to leave the table, that he had tucked in the greater part of his parti's muslin dress. "Odds, blushes, and confusion," as Sir Lucius O'Trigger would say.

66

We are reminded of this story by reading an incident recorded by Serjeant Ballantine of Mr. Justice Blackburn, at the trial of the Wallingford election petition. "It was," says the Serjeant, a ladies' battle, and the warmth of their advocacy was made so apparent upon the first day that on the second they were divided and placed upon opposite sides of the court. Mr. Justice Blackburn had taken his seat and composed himself for the performance of his duties, when a lady, having arrived late, had to pass him to get to her party. Now his lordship's legs being no unimportant portion of his body, her flounces became seriously entangled in her attempted passage, and for the moment the judge was lost sight of by the audience in front, whilst the lady presented the appearance of sitting on his knee. The judge's voice was heard in no musical tones, and, when relieved from his embarrassment, he declared in emphatic language that he had never been in such a position before;' and this I am disposed to believe."

66

Blackburn was not one like our first parent Adam, "fondly overcome with female charms;" rather he resembled that eminent lawyer, of whom Serjeant Robinson tells us, who said that he was born a bachelor, and in that persuasion he intended to remain." At all events, Mr. Justice Blackburn never married. In 1886, he was appointed on the commission to digest the criminal law. The following year, 1887, he resigned—a victim to that sad disease which often attacks the strongest brains.

At the time of his retirement Lord Blackburn was

the principles of our common law. It is impossible to do anything like justice to his luminous exposition of those principles in judgments which are spread over a judicial career of close on thirty years, but we may take a few samples.

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Pharmaceutical Society v. London and Provincial Supply Association, 43 L. T. Rep. 389; 5 App. Cas. 857, was a case in which the Pharmaceutical Society made a strenuous attempt to squash the stores as vendors of drugs. To do so they had to prove that the association was a "person " within the Pharmacy Act. Of course, a corporation may be a "person," but nobody in common talk, as Lord Blackburn said, "if he were asked who was the richest person in England, would say the London and North-Western Railway Company. The thing is absurd." That metaphysical entity, a corporation, is indeed a puzzling thing, but Lord Blackburn was not for lightening its responsibility. "A corporation," he says, cannot in one sense commit a crime and cannot be imprisoned; a corporation cannot be hanged or put to death, but a corporation may be fined, and a corporation may pay damages. I totally dissent from what Bramwell, L. J., is reported to have said, that a corporation that incorporated itself for the purpose of publishing a newspaper could not be tried and fined, or an action brought against it for libel, or that a corporation which commits a nuisance could not be convicted of the nuisance." This is an important utterance in these days, when more than half the business of life is carried on by limited companies. Debenham v. Mellon, 43 L. T. Rep. 673; 6 App. Cas. 24, is another case in which he lays down very lucidly the position of tradesmen dealing with a married woman. To put it shortly, they have no right to presume from the fact of a wife living with her husband that she has authority to pledge his credit. They must, to be safe, get an actual authority. Of course, the husband may have held the wife out as authorized to pledge his credit, and then the case is different. Notice of revocation of authority must be given.

Orr-Ewing v. Colquhoun, 2 App. Cas. 839, is important to riparian proprietors. Lord Blackburn there laid it down that the owner of the banks of a non-navigable river may without any illegality build a milldam across the stream within his own property and divert the water into a mill lade without asking the leave of the proprietors above him, provided he does not obstruct the water from flowing as freely as was its wont, and without asking the leave of those proprietors below him, if he takes care to restore the water to its natural course before it enters their land.

Estoppels, says Lord Bramwell, are odious; but

Other noticeable decisions of his are, that the marriage of a man with the daughter of the halfsister of his deceased wife is null and void (Reg. v. Inhabitants of Brighton, 1 B. & S. 447)—to such extravagant lengths is this strange prohibition carried; that a public document means a document which is made for the purpose of the public making use of it (Sturle v. Freccia, 43 L. T. Rep. 209; 5 App. Cas. 623); that a statutory power to build a hospital does not give a right to build it so as to be a public nuisance (Hampstead Small Pox Hospital case, 43 L. T. Rep. 225; 6 App. Cas. 193); that a description of a horse as a clever hack and good hunter" is not an implied warranty of soundness (Cleobury v. Tattersall, 3 Sol. J. 715); that though a loss by a woman of the good opinion of her neighbors, consortium amicorum, is no special damage sufficient to support an action for slander of chastity, loss of the voluntary hospitality of friends is (Davies v. Solomon, 25 L. T. Rep. 799; L. R., 7 Q. B. 112)— refined distinctions now rendered happily obsolete by the recent act (54 & 55 Vict. chap. 51); that partridges reared under a hen are the subject of larceny; that the words "it shall be lawful" give a discretion unless intended to effectuate a right (Julius v. Bishop of Oxford, 42 L. T. Rep. 546; 5 App. Cas. 214). In the much vexed case of Angus v. Dalton (6 App. Cas. 740) he delivered the most elaborate of all the many elaborate judgments given. Reg. v. Hickin (11 Cox C. C. 19), "The Confessional Unmasked," was another cause célèbre which came before him; so was Reg. v. Governor Eyre (18 L. T. Rep. 511), a case in which party feeling ran very high, one side regarding Gordon as an injured saint, the other as a "pestilent firebrand."

The following remarks in Orr-Ewing v. Colquhoun (2 App. Cas. 839, 863) illustrate his good sense: "I am not inclined," he says, "to reject the evidence