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was guilty, as he never ought to have been convicted, and

was only convicted through the error of the State, his SOME recent discussions and events have called public right is to be remitted back to the condition in which attention in a forcible manner to a great defect in the he was before the whole transaction. To give him jurisprudence of this country. We allude to the ab- a pardon, is, in fact, an insult and an absurdity. They sence of any effective power in the Crown to do justice are pardoned who have done wrong; and if a sentence in certain circumstances, where injustice has been done is passed upon one who has done no wrong, he ought in its name to the subject. Take, for instance, the case not to be pardoned, but the sentence ought to be reof a person accused of crime. Such a person is accused versed, wholly swept away, as if it had never existed. and tried at the suit of the Crown, representing the But this is not all: if, in addition to the injury done by State. The crime, if he has committed one, is against the mere fact of the erroneous judgment, he has rethe public; at any rate, the public, through its organ ceived also through it consequential injury, he is of and representative the Crown, is the prosecutor; and right entitled to compensation for such injury. As the punishment is almost invariably dictated by a no between man and man, no one ever dreams of contesttion of atonement to the State, rather than of compen- | ing the soundness of this doctrine, and the law recogsation to the particular individual who may have been nises and acts upon it. If, for instance, through an erthe subject of the crime. The whole principle, in fact, roneous estimate of my own rights I injure another, of our criminal law is, that crime is an offence against the law exacts from me, not only that I shall undo the State, in which the offence against the individual is whatever I may have done against him, but that I shall merged and lost. Accordingly, the Crown is armed with make to him compensation for any consequential injury abundant powers for detecting and punishing crime, but that he may have sustained. If this be a just rule, and it possesses no sufficient powers for doing justice to a sub- no one denies its justice as between subjects or members ject against whom its corrective powers may have been of the same state, why should a different one prevail erroneously carried into effect. If, for instance, a per- between a member of the State and the State itself? son has been accused of crime, prosecuted at the suit And what good purpose can be answered by the asof the Crown, tried and convicted, and sentenced to the sertion of an impossible infallibility on behalf of the punishment awarded by the law, and such sentence has State and its representative the Crown? Such, howbeen carried into effect, and it turns out afterwards, as ever, is the state of things as between the subject and it does sometimes occur, that the whole affair-prosecu- the Crown. The Crown bas no power to atone for tion, conviction, and sentence-is founded in error, not the error of those bodies to whom the execution of the of law but of fact, and that the convicted person never laws is entrusted, if in their execution of them they did commit the crime for which he is sentenced to improperly convict and sentence to imprisonment a punishment; what is his position? What are his rights, subject, except by treating him as it would an actual and what are the powers of the Crown with regard to criminal found deserving of mercy, viz. by pardoning him? His position is that of a total dependant upon the him; and beyond that, in the way of compensation for power vested in the Crown of shewing mercy. His rights, consequential injury, it is not possessed of any powers we mean his moral rights, are pretty clear. As he never whatever. It has no public funds at its disposal for

Vol. X.

V v

repaying to him even actual expenses improperly recollect, that in all these cases the Crown is, in truth, forced upon him, still less for making to him any but a name, and the litigant is really the public,—that compensation in the nature of damages. Now this, public whose unbounded wealth is the wonder of all we apprehend, is a grievous defect in the powers vested nations,—and that it is in all such cases a litigant for in the Crown, and one which could be easily remedied. its own protection and its own advantage, shall we not Nor do we apprehend any great indisposition would say, that it is monstrous that this suitor of endless milbe found in the public to place at the disposal of the lions, should avail itself of an obsolete fiction, to drive Crown the means of affording compensation, where, its individual members into submission, by placing itself in the exercise of its powers for the benefit of the beyond the pale of that liability to pay costs, if suing State, it has, through its officers, committed injustice, unjustly, which is found so powerful a check upon the if the public were once thoroughly imbued with the cupidity of individual suitors ? idea, that in such matters—that is, in the administration of the law—the Crown is at this day purely the

OBSERVATIONS ON GIFTS IN WILLS, WITH representative of the State, and not in the slightest

WORDS IMPORTING THE PRESENT TENSE; degree personally concerned. When the Crown prose

AND ON THE DOCTRINE OF KEEPING cutes, it is the public that prosecutes for its own pro

MORTGAGE DEBTS ON FOOT, WITH REtection. If the public has caught and punished the

FERENCE TO COCKRAN V. COCKRAN, (14 wrong person, it has no more. right to shield itself

Sim. 248), AND MEDLEY v. HORTON, (Id. from making compensation, under the vague piece of

226). mystification of the Crown's irresponsibility, than an individual would have if he had injured a fellow-subject and the public, we are satisfied, would be heartily Two cases are reported in the number recently pubashamed of so sheltering itself, if it once saw clearly,

lished of Mr. Simons' Reports, which afford much

scope for reflection upon the doctrine to be collected as is the fact, that the Crown and itself are, in the

from the authorities bearing upon their subjects rematter of enforcing the laws, one and the same thing. I spectively. The cases to which we allude are, Medla The Crown, then, should be invested with the power v. Horton, (14 Sim. 226), on the question of priorities of reversing and wholly obliterating, at its own ex- as between incumbrancers; and Cockran v. "Cockran, pense, (that is, at the public expense), a sentence proved I (Id. 248), on the effect in a will, of words of gift, 88to have been founded in error, and should not be driven (vouring of the present tense. We shall take the second

case first. to the subterfuge of saving by its mercy a subject,

In Cockran v. Cockran, the words of a will of per. who, not having sinned, cannot properly be an objectsonalty were these: “I will that my wife shall receive of mercy. And it should also have placed at its dis- the interest of all the property that I possess in the pub posal sufficient means for a warding to a person unjustly lic funds, for her own use during her natural life.” The subjected to loss, and suffering through the error of its | testator at the date of his will had no property in the officers, compensation, in the nature of damages at the

funds, except some Long Annuities, which remained in

his name at his death; and the question was, whether hands of the public.

the legatee was entitled to the income of other property A part of the system to which the above remarks that the testator had in the funds at his death. apply is, the rule of practice, that, in litigation between The judgment is, according to the report, of extreme the Crown and subjects, the Crown pays no costs,-a | brevity. It runs thus:--Vice-Chancellor.--" It seems rule which is, at this day, as absurd as it is harsh. It to me that the words all I possess' mean, 'all I now

possess; that is, at the date of the will." --Declare acis founded, like the incapacity to make compensation,

cordingly. partly on the legal fiction that the Crown can do no! The authorities on this point are collected in Mr. wrong, and partly on what was, in the olden time, a Jarman's Treatise on Wills, Chap. 10. That learnreality, viz. that while the Crown was, as representing ed writer commences by stating two propositions: the State, obliged continually to act as a litigant on

firstly, that, in regard to wills made before 1838*, behalf of the State, its revenues did not flow directly

wherever a testator refers to an actually existing state

of things, his language is referential to the date of the from the people, but were the property of the Crown

the crown will, and not to his death, as this is then a prospective itself; and were, in fact, scarcely ever sufficient for the event; secondly, that verbs in the present tense have a maintenance of the authority, and the execution of the similar effect in restricting a devise or bequest to the various duties, that the political constitution of the subjects or objects existing at the date of the will. But times cast upon the Sovereign. But those times and

| the learned writer goes on to say, that, in some of the

cases, considerable reluctance appears to have been mathose political arrangements having long passed away,

nifested to carry out this principle. with them should pass away usages which might then The cases cited by Mr. Jarman in reference to the be necessary, but are now no longer so. Where, for second point are, Wilde v. Holtzmeyer, (5 Ves. 816); instance, at this day, the Crown, for the sake of the Bridgman v. Dove, (2 Atk. 201); Ringrose v. Brampublic revenue, proceeds at law or in equity for the de- | ham, (2 Cox, 384), all of which support the contrary of termination of the liability of an individual to pay le- / the second general doctrine laid down by him; nor does gacy-duty, the rule that the Crown pays no costs, is

he cite a single one which supports it. We propose to

examine these cases and some others, and to endeavour productive of great injustice, operating, in many in- to point out the distinction that must be referred to in stances, to compel submission merely because the cer- order to find when the rule is that the will speaks from tainty of losing some given amount of property, is better than the uncertainty of the loss that may be inflicted

* We take it for granted, that, in Cockran v. Cockran, the in the shape of costs that cannot be obtained from the ment of the 24th section of the Wills Act, would throw great

will was made before 1838. If it was not, the express enact. plaintiff, even if the defendant is successful. If we i difficulty in the way of supporting the decision.

its own date, and when from the date of the testator's subjects coming into existence after the date of the will. death.

The words “all my debts that I owe, or that I have conIn Wilde v. Holtzmeyer, the will was penned by a fo- tracted,are as applicable to the state of things existing reigner, and was very informal. There was first a at the testator's death, as to that existing at the date bequest of a particular sum of stock, in these words:- of his will. So, if I give to all the children that A, hath, " And as for such worldly estate and effects which I the words may, without any strain upon their meanshall be possessed of, or entitled unto, at the time of my ing, include children at the death as well as at the date decease, I give unto my son, Henrich Herman Holtz- of the will. The rule does not, therefore, seem to demeyer, and Robert Charnley, their executors and ad- pend upon whether the words used in themselves deministrators, the sum of 21001. Consols, 31. per Cent. signate the present, (for in all the three cases above Bank Annuities, upon trust." Numerous trusts were mentioned the words did particularly designate the then declared; and after providing for various events present), but upon this question, to what present they relative to his son and daughters, came these words:— are capable of being referred; whether they are neces“And in case my three daughters and son shall all sarily confined to the present existing at the time when happen to die without issue, child or children, of his, they are written, or whether they are capable of inher, or their body or bodies, him, her, or them respect cluding subjects or objects afterwards coming into exively surviving, then, from and after the decease of the istence. survivor of them, upon trust for, and I do hereby give The cases in which it has been held, that words deand bequeath all the said trust funds, and all I am pos- signating the present, confine the gift to objects or subsessed of, unto and amongst all child of my brothers, de-jects existing at the date of the will, will all, we think, ceased and living, and sister and her children in Germany, be found to fall under one of the following two classes. all equally alike, as shall be then living, share and share They are either cases in which the testamentary instrualike. Also, I give and bequeath" &c. Then followed ment itself necessarily speaks at the date of its execution, a specific bequest to his daughters, a specific bequest and not at the date of the testator's death, and in which, to his son, and other bequests. And at last came a ge- therefore, though there might be a prospective gift if neral residuary bequest in these words:-“ And in con apt words were used, there cannot be such a gift if sideration, after my decease, when all my debts and words importing reference to the present are used, befuneral and testamentary expenses are paid and dis- cause there can be, with reference to the instrument, charged, I give and bequeath all the rest and residue, but one present, viz. the time of its execution :-or else both real and personal, viz. bonds," &c. There was they are cases in which the subject or object is so spealso a codicil.

cifically designated, that the will cannot include an The question arose upon the words “all I am pos- object coming under the same description at the date of sessed of,”_whether they referred only to the 21001., or the death, without necessarily excluding the one to to the general residue, subject to the specific bequests; which that description applied at the date of the will; and it was held, that, having regard to the various gifts a construction which would be absurd, because, though in the will, particularly to the gift of the residue, dis-a man may intend to include the future under a detinct from the gift of all he was possessed of, and having scription also applicable to the present, he cannot be regard also to the codicil, and the general rule, that a supposed to use words designating the present, for the sense must be put upon all the words of a will if pos- purpose of describing exclusively the future. sible, the words “all I am possessed of” meant all he Of the first class are the cases upon devises of real possessed of the particular fund before referred to. The estate before the Wills Act of 1838, such as Crossley v. judgment was professedly based on the peculiar lan-Clare, (Amb. 397), cited by Mr. Jarman, (vol. 1, p. guage and the whole context of the will; and the 278). Crossley v. Clare was a devise of lands to persons court, upon the general question of construction, used described as the descendants of A.“ now living in and these words: “I have no difficulty in saying, the legal about Seven Oaks, or hereafter living anywhere else." construction of the words, standing by themselves, is- And Sir Thomas Clarke, M. R., held, that descendants not exactly what they purport in language--all at the born after the date of the will, were excluded by the time of making the will ; but, if not explained, they must words “ now living.Here the will, being of lands, have the effect of passing all the interest in personal could only speak at the date of its execution. If it had estate which the testator might have at his death. spoken of descendants generally, it might have included And I admit, that if those words closed the will, they them, though coming into existence after its date, bewould have passed all the trust fund, and everything cause it might, as well as a common conveyance, have the testator might have at his death. That is the legal carried estates to persons unborn. But when it used construction, whatever may be the literal one."

the word “now," that word could have no reference but In Bridgman v. Dove, (3 Atk. 201), the question to the time when the will spoke, and therefore could arose upon the words as to certain estates: “I make not possibly be referred to the testator's death. liable to all debts I have contracted since 1735.The Of the second class are such cases as Abney v. Milcourt said, “ In all clauses in respect to provisions for ler, (2 Atk. 593), where a testator gave all his college payment of debts, they relate to the time of the death leases which he then held; and, after making his will, of the testator, in order to make a more honest and surrendered those leases, and took others; and it was faithful provision for payment of debts. If it had been held that this was a revocation of the bequest. The all the debts that I owe, still it would be extended to court said, “Where a testator expresses himself in the the time of his death. The words here are, “which I present tense, it must relate to what is in being at the have contracted;" have contracted must be construed time of making the will, and can mean only the first "shall contract.” In Ringrose v. Bramham, the gift lease and the term to come in it." Now here, if at was to “ Joseph Ringrose's children, 501., to every the date of the testator's death he had continued to child that he hath by his wife Elizabeth ;” and the Mas- hold the same lease that he held at the date of his will, ter of the Rolls said, “I think I may fairly construe of course there could have been no dispute. But althe word “hath,' so as to make it speak at the time the though the will, being of personalty, was capable of will takes effect, and let in children born between the speaking at his death, yet, the subject-matter falling at making of the will and the death of the testator." his death within the description of the leases that he

In the foregoing cases, it will be observed that the then held, being distinct from and of necessity dislanguage was not such as to point at all at a specific be-placing the subject-matter that fell within that descripquest. There was nothing in either of them, in the words tion at the date of the will, it was impossible to hold of the gift, inconsistent with including in it objects or the will to apply to the leases of which he was actually

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