« SebelumnyaLanjutkan »
good ground-work of accepted-general doctrines is of laymen is an unsafe tribunal to which to comthus presented to the reader at the outset.
mit an issue of insanity. So far from such a tribu
nal affording any protection to personal liberty it hapFollowing this are the several chapters of the work
pens to operate so frequently in an opposite and opproper. Before proceeding to speak particularly of a pressive directiou that its findings have ceased to have few of the matters discussed therein, it may not be
any weight in the eyes of scientists. As an example
of the perils to personal liberty from jury trials in amiss to mention their subjects as tending to give an issues of insanity may be cited the report of the idea of the scope and bearing of the work.
superintendent of the State Lunatic Asylum at Utica Chapter I gives a synopsis of lunacy legislation in
for 1872, which shows that to this one asylum during
that year fourteen persons were committed as lunaGreat Britain; chapter II, a history of lunacy legisla
tics upon verdicts of juries, none of whom were tion in New York; chapter III consists of a copy of insane, and all of whom had to be discharged as iniour Revised Lunacy Statutes, with a commentary on
properly and erroneously adjudged so. In England, the several sections and citations of cases; chapter IV
such trial by jury is very generally dispensed with." deals with the law as affecting habitual drunkards, While firm in the belief that the right of trial by their status being by legislation closely assimilated to jury is essential to the full protection of all other iudithat of the insane; chapter V gives details of special
vidual rights, and that it should be available, in soine acts relating to counties; chapter VI is devoted to the
form, in all emergencies wherein a man is sought to whole subject of proceduro in Lunacy, and deals with
be deprived of bis liberty, we do not think it possible it exhaustively; chapter VII relates to the civil disa- to controvert the proposition that, in the ordinary bilities of persons of unsound mind; chapter VIII to course of legal transactions, much greater certainty the testamentary capacity of persons of unsound mind; would be attainable in cases of lunacy by reference to chapter IX is devoted to the criminal responsibility of
the opinion of experts acting as a part of the court the insane; while the tenth chapter, in the nature of
than by any other mode of adjudication. And it has an appendix, consists of Forms, including those which
occurred to us that the practice might, with approprithe Commissioner of Lunacy is by statute required to
ate modifications, be extended with advantage to other prescribe, and the observance of which is regarded as
cases than merely issues of insanity. We have often obligatory on those who undertake to certify to the
thought that it was a defect in the law to submit fact of insanity.
questions of negligence, for example, in the use of At the very beginning of the work it may be ob
certain machinery, or in the conduct of recondite proserved that the author looks with favor upon what
cesses in the arts, to a jury almost without knowl. might be called the physical theory of insanity, that,
edge of the meaning of the terms employed, aud not namely, which regards aberration of mind as invaria
capable, without special education, of a full understandbly associated with disease of the bodily organs, and
ing of the technical merits of the question, on the conwhich, therefore, suggests a resort to the knowledge flicting testimony of experts, who oftentimes seemed and skill of physicians as aids both in the making and
amenable to the criticism above suggested, and conin the administration of the laws relative to lunacy.
scious, moreover, of the inability of the jury to deterIn his preface he says:
mine, otherwise than by guess-work, a fact which they
might choose to put in controversy. In the compli“It cannot be necessary to demonstrate why, under any system of jurisprudence, the Department of Lun
cated conditions of modern society, and under a sysacy must always be one dealing with problems of an
tem of division of labor and a multiplication of aroexceptionally perplexing character. Nor, again, that cations which never could have been foreseen when the in every age it must reflect to a high degree the pre- institution of trial by jury was cast ių its present vailing ideas entertained by the medical philosophy of that day touching those mysterious physical con
shape, large numbers, even of the educated classes in ditions affecting both the intellect and the moral affec- the community, must remain in comparative ignortions.
ance of details of manufacture, and almost as incomWhen great medical luminaries, like Mead or Sydenham, believed in the witchery of stel
petent to consider qnestions in reference to them as lar influences upon the mind, or in the influence of the average layman to interpret symptoms of an obdraperies of a particular color upon the treatment of scure disease and to group them together so as to grasp disease, or upon this or that occult and profane agency as a physical disturber, it was natural that the
and appreciate their true significance. Why should authority whence the dogma sprang should have
not questions of negligence, and perhaps other quesgiven it a standing in law as well as in medicine. tious arising in reference to such matters, be submitted
And, despite exhibitions of flagrant ignorance in self-styled experts, retained under the same con
to a jury of experts, on the testimony of other extract as attorneys to secure a verdict for their clients;
perts, if need be, and so placed where they could despite the confusing opinions which often distigure receive intelligent consideration ? What reverence is the scientific value of such testimony because of its due to the utterances of ignorance, even though inherent crudity, there is still a growing feeling that it is a form of evidence which, in the nature of things,
decla red oracular by express enactment or ancient cannot be dispersed with, and which, therefore, needs precedent ? The law should find means to base its to be fostered by legislation or rules of procedure in decisions only upon the highest evidence and the fullsuch a way as to exclude the ignorant and pretentious, while, at the same time, giving to the learned and
est information. deserving a higher standing in judicature than has
In the consideration of the criminal responsibility yet been accorded to them. Not until this be done can of the insane it is apparent that, while the author we expect to see justice informed by science through tbe agency of skilled (884ssors (not party witnesses)
treats fully the subject in the light of the adjudicated though summoned by legal fiction as experts quoad
cases, without seeking to advocate any specific doctrine, he yet incidentally reveals his complacency al
the ameliorations which have been introduced into And, again, at page 90, he expresses his satisfaction with the recent changes in the law as follows:
our practice by considering insanity as a disease, and “ The statute has very properly modified the com
his regret at what he evidently regards as a defection mon law procedure by substituting a commission of
from sound scientific views on the part of the Court of experts for a jury of non-experts. The experience of
Appeals in the case of Flanagan against The People, 5% every day adds weight to the conviction that a jury N. Y. 467, where it was held that “the test of responsi
bility is the capacity of the defendant to distinguish be- testimony out of the question. Nothing but elaborate tween right and wrong at the time of, and with respect statements of conduct in all the relations of life, from to, the act complained of, and that the law does not which the “state of feeling and modes of thinking recognize a form of insanity in which the capacity of could be inferred would help the definition. And distinguishing right from wrong exists without the when we remember how constantly from motives of power of choosing between them."
policy or of passion the outward expression and acts Against this he sets the testimony of many authori
are carefully modulated so as not to express or betray
the real“ state of feeling” or “mode of thinking," or ties, and finally appeals to the very consciousness of those baving dealings with the insane. Thus, he says:
so as to suggest every thing but them, some complicaAn hour's conversation with the insane in any asy
tion is added to the problem. Then, there remains lum will suffice to show that delusions are not omni- the qualification expressed, “when in health,” a matpresent, and that the knowledge of right and wrong is
ter possibly not within the cognizance of those who common in all forms of mental unsoundness outside of idiocy and dementia. All experts in insanity affirm
may happen to be conversant with the individual's this, and it has also been put upon record in the most
daily walk in life. But suppose the “state of feeling emphatic manner. Thus: At the amuual meeting of and modes of thinking usual to the individual when the British Association of Medical Officers of Asy
in health” to be set forth in all their amplitude and lums and Hospitals for the Insane, held in London, July 14, 1864, at which were present fifty-four medical
significance, what remains ? Why, only to establish officers, it was unanimously resolved, That so much that they have been departed from “without an adeof the legal test of an alleged criminal lunatic as ren- quate external cause!” That is, it is for whoever is to ders him a responsible agent, because he knows the difference between right and wrong, is inconsistent
determine the fact of insanity, by this test, to pass with the fact, well known to every member of this
upon the adequacy of the external causes which have meeting, that the power of distinguishing between led to this modification of conduct. It is apparent right and wrong exists very frequently among those
that in a consideration of the adequacy of causes to who are undoubtedly insane, and is often associated with dangerous and uncontrollable delusions.'"
produce certain effects, it is understood that the opeThe subject of the definition and tests of insanity,
ration of such causes upon an ordinary normal intelalways an important one, is treated in a large and
lect is the standard to which we are to recur. And
that would bring us to the consideration of what is generous way, and the fallacies likely to result from an exclusive reliance upon any particular test are exposed.
normal, a matter about as difficult to define, and as He cites in this connection, with approval, the declara
much in need of definition as what is abnormal. tion of Dr. Ray, to this effect:
A few words as to the use of the phrase "external “ Jurists who have been so anxious to obtain some
and we are done with this definition. La definition of insanity which shall furnish a rule for
Rochefoucauld says, “That conduct often seems the determination of responsibility, should under- ridiculous the secret reasons of which are wise and stand that such a wish is chimerical from the very na- solid." A man may for secret reasons which are ture of things. Insanity is a disease, and, as is the wise and solid choose to feign insanity, and as in case with all other diseases, the fact of its existence is never established by a single diagnostic symptom, but
such a case it is highly probable that no adequate by the whole body of symptoms, no particular one of external cause" will be discoverable for the change in which is present in every case."
his state of feeling and modes of thinking it will The author does not attempt, on his owu account, come to pass that he may be adjudged insane!- a conthe oft attempted and always futile task of reducing clusion which dves not seem to have occurred to the the definition of insanity to some short, general expres- commentators upon Hamlet's “distemper.' sion, thinking perbaps as Hovenden and later authors But it is not our purpose to follow out further the have thought in regard to the definition of fraud, that, indications of the opinions of the author. He has not if it were possible, it was not desirable. And, indeed, sought to make this volume a vehicle for the advocacy it is difficult to see of what utility it would be except of any particular theories, but has designed and comto the “cramming” student who desires to be ready pleted a useful work. The cautions on pages 59 and 60 with an answer to an expected question. He has occa- on the gravity of the trust reposed in physicians by the sion, however, incidentally, to refer to several defi- statute of 1874, in relation to the commitment of lunanitions which have been offered. If we might suggest
tics; on pages 63 and 64, in reference to their detenan impression derived from the perusal of those, it tion, and on pages 74, 75, 76 and 77, in reference to the would be that insanity be declared to be any thing
forms and formalities to be observed by medical exwhich was not sanity, leaving the latter to be the sub- aminers, are such as no physician who deals with the ject of definition. And some of the definitions sug.
subject at all can afford to disregard.
J. N. gested amount to just about this, except that they do
BROOKLYN, N. Y. not define sanity. Take for instance one which is cited as of the best, that of Dr. Andrew Combe, viz. : that “it is the prolonged departure, without an ade- POLLOCK'S DIGEST OF THE LAW OF PARTNERSHIP. quate external cause, from the state of feeling and modes of thinking usual to the individual when in
A Digest of the Law of Partnership. By Frederick Pollock,
of Lincoln's Inn, Esq., Barrister at Law, late Fellow of health, that is the true feature of disorder in mind." Trinity College, Cambridge; author of Principles of To recognize the uselessness of this definition, con
Contract at Law and in Equity. St. Louis : F. H.
Thomas & Company, 1878. sider the multitudinous processes through which only it could be applied to a given case.
This is a handy volume on the subject of partnerFirst comes the determination of the “state of feel- ship, giving the law relating thereto in the form of a ing and modes of thinking usual to the individual code, similar to those in criminal law, etc., of Mr. when in health.” A tolerably difficult thing we
Stephen, which have now become familiar to the proshould imagine it to be for a witness to testify as to
fession, a principle being stated and illustrations exthe "state of feeling.” The “modes of thinking plaining it appended. We give a single extract to would present an even more serious obstacle; direct
show the manner in which this is done:
“Article 45. Partners must not make private gain by from executions issued out of justices' courts except partnership transactions. Every partner must account that mentioned in section 169 of Title 4, Ch. II, Part to the firm for any benefit derived by him from a III of R. S. (Banks' 6th Ed., vol. 3, p. 422, $ 149) unless transaction concerning the partnership. Illustration be saved by subdivision 6 of section of said chapter 1: A, B and Care partners in trade. 'C, without the 417, which says that the repeal “ does not affect the knowledge of A and B, obtains for his sole benefit a power or authority of a court," etc. Does this seem renewal of the lease of the house in which the part- broad enough, and is it the intent to keep a statute nership business is carried on. A and B may at their alive as to some courts which has been expressly reoption treat the renewed lease as partnership prop- pealed ? erty."
Chapter 299 of Laws of 1878 amends section 870 of The statements of principle appear to be clear and chapter 416 of the Laws of 1877, which contains but accurate. For a student or business man desiring to four sections. Chapter 448 of 1876 (Code of Civil Probecome familiar with the leading principles of this im- cedure) is undoubtedly intended, but is the expressed portant branch of the law we know of no better work, will of the Legislature sufficiently intelligible to effect and it will also be found useful to the practicing law- | the purpose sought?
• FRED." yer from its convenient form.
COXSACKIE, N. Y., June 18, 1878.
This is a summary in a brief form of the leading SEYER
SPALDING ON COPYRIGHT.
VETO OF THE CODE.
STATE OF NEW YORK, EXECUTIVE CHAMBER, Handy Law Serier. The Law of Copyright, affecting Administrators, Alirns, etc., with practical forms and notes.
ALBANY, June 14, 1878. 5 By Hugh M. Spalding, author of Spalding's Treatises upon the Law of Personal Property, etc. P. W. Zeigler
Memoranda in brief of the reasons for disapproving Senate
bill No. 37), entitled " An Act amending the Code of Civil & Co.: Philadelphia.
EVERAL acts amending single sections of the Code principles of the law of copyright, designed for præc
of Procedure have been passed and approved during tical use. It contains, in addition to a statement of
the recent session. This bill contains about seventy the law, such forms as are necessary in securing copy
additional amendments, and they are made in the same rights, and also a concise statement of the practice form in which amendments are usually made to cases and the forms of pleading in actions for infringement. and bills of exception, that is, striking out and insertIt will be found of use to business men for whom it is ing various words and sentences. They do not give
the section as it will read when amended, consequently chiefly designed.
it will require two men to apply the Code as amended BRADWELL'S REPORT OF EXAMINATIONS FOR THE
by this bill, one to read the sections as they stand, the BAR, VOLUME VI.
other to read the amendments to them. Undoubtedly,
some law book publisher will publish a compilation Report of the eramination of Law Students for admission to the Illinois Bar, in the Appellate Court of Mingis, First
uudertaking to insert these amendments in their District, at the April term, 1877, containing all the ques- proper places, but such compilation will not be law, tions propounded by the examiners, the answers of the students, the remarks of the presiding judge, the
and may not be reliable. The bill would only add to finai determination of the court, together with the the uncertain condition in which the Code now is. rules of court regulating the admission of students. Vol. VI. By Myra Bradwell. Chicago : The Chicago The whole thing seems to me so hopeless that the more Legal News Company, 1878.
it is worked at and amended, the worse it becomes. To that large body of young men who are preparing
L. ROBINSON. themselves for admission to the legal profession the questions contained in this volume must prove of in
the law of nations has issued in pamphlet form a right to practice before the courts. If a student is report of its fifth annual conference, held at Antwerp able to answer correctly all the questions here given in 1877. The various addresses delivered and papers he need have no fear of any scrutiny as to his talents read are reported either in full or sufficiently to preand learning to which he may be subjected. Of sent their important points. The report should be and course the same questions precisely will not be put at we doubt not will be read by all interested in the subother examinations, but there cannot be any very great ject of international law. variation. The answers to the questions cannot be
A singular case is on trial in Brooklyn, where a Mrs. relied on as correct, and a student making use of this Malloy brings suit against St. Peter's Roman Catholic book in preparing himself for the bar should look out his own answers. This would be an excellent way to
church, of which she is a communicant, for $10,000
damages on account of injuries received by slipping on study law, much better than reading text books.
the icy steps of the church. She argues that as she
was bound to attend mass under pain of mortal sin CORRESPONDENCE.
the church was bound to keep its approaches in a
safe condition. EXEMPTION FROM JUSTICES' EXECUTIONS, AND CHAP
The statutes of the State of New York for 1878 comTER 299 OF LAWS OF 1878.
prise 418 laws, as against 475 last year and 871 ten years To the Editor of the Albany Law Journal:
The number of acts signed by the governor is Sir: Chapter 157 of Laws of 1842, 107 of 1858, and 782 417, and one (known as “the pipe-line bill") became a of 1866 (comprising what is often called “the $250 ex- law without executive approval, by lapse of time. emption Jaw"), are all expressly repealed by chapter Twenty-four bills were vetoed during the session, ten 417 of 1877, and so far as I have been able to learn, there were deposited in the secretary of State's otfice, disis nothing which applies to justices' courts to take approved, with memoranda of objections attached, and their place. If this is so, then no property is exempt ninety-three failed by expiration of time.
terest, as showing them what sort of an examination THE
The Albany Law Journal.
that, if the suggestions of the commissioners should be carried out, hardly any wrong-doer would find
refuge in England. ALBANY, JUNE 29, 1878.
The commission only proposes to authorize a trial for
an offense other than the one for which a criminal may ITH this number the seventeenth volume of W THE LAW JOURNAL is concluded. The index extradition could be had; but most of the objections
be extradited, where such offense is one for which will be forwarded with the next number, and will apply here which apply to trials for non-extradibe much fuller and, we trust, much better than any | table offenses. And this answer can always be that have preceded it. With this number is issued made to such a proposition. If the government the last Supplement of the General Laws, accompa
wishes the delivery of a criminal who is charged nied by the index, list of titles, etc. Bound copies offenses it is proposed to try him for, when asking
with more than one offense, it can name all the of the General Laws, including all laws relating to his extradition. The person whose delivery is dethe city of New York, are now ready, and will be manded may be able, in the country from which he forwarded post-free, on receipt of $2.00. This is taken, to prove his innocence of a given charge, volume contains all the General and Public Laws of but unable to do so in the country where he is to the last session, beside those relating to the city of be tried on account of the fact that his material New York; and is not only issued much in advance There are numerous other reasons against such a
witnesses are beyond the jurisdiction of the court. of the session laws, but is cheaper, more convenient, course which have been set forth in numerous artiand contains every thing of general importance. cles upon the subject, which have heretofore ap
peared in our columns. - CURRENT TOPICS.
The heirs of the late Stephen Girard do not mean MHE
of extradition has just made a report which contains an able exposition of the present English erty, or the contestants of the wills of Mr. Stewart
and Mr. Vanderbilt to possess all the notoriety which law and many valuable suggestions for its amend
comes from litigations over large estates. On the ment. The most remarkable suggestion, and one
19th inst. an action was commenced in one of the not in accordance with the views which have usually courts of Philadelphia, to have the will of Mr. been expressed in England, is this, that “when a
Girard set aside. The grounds of this proceeding man has been surrendered for one offense, proofs
are that the trustees are not carrying out the prohaving been given that he has committed another visions of the will, and that these provisions are so extradition offense, he should be tried (if necessary) uncertain that it is impossible for them to do so. for such second offense.” The views of the commis
We do not anticipate a very successful result for the sion in this respect do not meet the approval of the legal journals. The Law Times says: “The prin- Vised or they would not have instituted their suit.
plaintiffs, but we suppose they are differently adciple enunciated has a dangerous tendency; the prisoner whose extradition is sought should be as certainly informed of the nature and character of There is a vast deal more legislation in this country the definite offense for which he is to be extradited than is needed, but the amount of legislation which as a home prisoner is of the charge of crime set we escape from is so vast that we should be thankforth in the indictment which he is to answer. If ful. In the session of Congress just closed, only about it is competent to charge such a man with a second one bill in fifteen of those introduced became a law. offense, why not with a third and so on ad infinitum, Nearly six thousand bills made their appearance in and once in the hands of an outraged fatherland, one house or the other. Many of these related, of charges not at all germane to the original offense course, to private claims, and some of them were might be preferred in endless variety so as to reduce similar to other bills on the same subjects already the prisoner's chance of regaining his liberty to a pending, but there were not a few that sought to minimum.” The report recommends that the dis- radically change the general laws. tinction between felonies and misdemeanors be abolished, and that offenses against person and By chapter 347 of the Laws of this State for the property, cases of fraud, offenses against the bank- present year, it is provided that it shall be unlawful ruptcy laws, forgery, and offenses relating to coin- " for any savings bank, directly or indirectly, to age, all be subjects of extradition. It will be seen receive from any individual a deposit or deposits in that the list is much more extensive than is em
excess of three thousand dollars,” etc. The attorneybraced in any extradition treaty now in force, and I general, in answer to a communication from the act
Vol. 17.- No. 26.
ing superintendent of the bank department, construes Abbott's New Cases, 4 Abbott's New Cases, No. 1, this to mean that any single deposit shall not ex- 43 N. Y. Superior, No. 1, 16 and 17 ALBANY LAW ceed three thousand dollars. That this construction JOURNAL, and 5 and 6 Weekly Digest, there have of the statute is contrary to the intention of the been published 81 decisions in which the New Code person who drew it is admitted by the attorney is construed or referred to. This number includes general, but he thinks that if the Legislature had a few decisions from the New York Daily Register. intended to restrict the aggregate deposits of one
These 81 decisions construe or refer to 63 sections individual to the amount mentioned, it would have of the New Code; 5 at least of them, however, would used the phraseology of Laws 1875, chap. 371, $ 23, have arisen had the Old Code remained in force. which restricts the "aggregate amount of deposits" Several of the cases contain a mere reference to the to $5,000. As it appears to us, the construction of section, but can hardly be called decisions upon the the attorney-general is not correct. The object of Code. On the other hand, during the same time the act was to prevent the use of savings banks by there have been published about 20 decisions on large capitalists, and, therefore, a limit was placed points under the Old Code, which the New Code upon the amount whi h could be received from any would have prevented the necessity of. There have, one person.
A provision that no greater deposit moreover, been published since the New Code went should be made at one time than the sum specified into effect, 515 decisions upon questions of practice, would accomplislı nothing. Under the rule, there- or which are ordinarily cited as such, which still refore, that such construction shall be made as will main of present applicability, but either arose under suppress the mischief aimed at by the statute, and the Old Code or do not turn upon the language of advance the remedy (Lyde v. Bernard, 1 M. & W. any Code. Of these, 153 are upon the 158 sections 113), if the statute will bear two constructions, as of the Old Code which remain unrepealed. the attorney-general admits it will, the one which we have suggested should be preferred. But the
NOTES OF CASES, statute says that a bank shall not receive "a deposit or deposits” in excess of $3,000. By the use of the N Darie v. Lynch, 2 Texas L. J. 347, decided by plural term, in addition to the singular, the provision is made applicable to successive deposits. March last, it is held that auctioneers in possession Under the attorney-general's construction the words of personal property who sell and deliver the same “or deposits” are surplusage. If they are read so as without disclosing the name of their principal, are to mean any thing, the statute forbids deposits liable upon an implied warranty of title, and that from one individual in excess of $3,000 in the ag- evidence of a local custom will not be received to gregate.
alter this rule. In Franklyn v. Lamond, 4 C. B. 637,
it was held that the fact of selling as auctioneers A correspondent (G. B.) writes as follows: It is was not such an indication of agency as to absolve perhaps now possible to make a statistical con- the defendants from personal responsibility. The tribution toward the settlement of the much dis- disposition of the courts is to apply the rule, that an puted questions whether the New Code is likely to agent who does not disclose his agency may be held produce much litigation. Of course the time is yet as principal to every kind of business, even to those too short since it went into effect, to speak conclu- kinds which are of themselves agencies. In Ilolt v. sively from actual experience. But the Code has Ross, 54 N. Y. 472 ; 13 Am. Rep. 615, it was applied been in force nearly ten months; and reporters to an express company. IIere a draft drawn upon have been vigilant in seizing upon decisions made plaintiffs was fraudulently taken from the postunder it, even at Circuit and Chambers. Hun's re- office, the indorsement of the payee forged thereon ports give the decisions of the October, January and and the same intrusted by the wrong-doer to the March terms in the First Department, the November express company for collection, and was by it preand February terms in the Second, the November sented to plaintiffs, who paid it. The company did and January terms in the Third, and the October and not at the time disclose the fact that it was acting January terms in the Fourth Department. Questions as agent. It was held that plaintiffs could recover arising upon motions since the Code took effect from the company the amount paid. The court here have, therefore, had ample time to reach a decision said: “It matters not that the general business of in the General Term. Your own JOURNAL and the the express company was to act as agent for others. Weekly Digest furnish decisions upon motions in It could have owned this draft and have collected it the Court of Appeals and the Supreme Court, while as principal. Knowledge in plaintiffs that defendAbbott and Howard have rivaled one another in ant might have acted as agent was not enough, and industry in gathering up decisions on the New Code, it was not the duty of plaintiffs to inquire, before wherever made. As a result I find that in 12 Hun, paying, whether the defendant was acting as principal 13 Hun, Part 1, 54 How., 55 How., No. 1, 2 and 3, or agent. It was the duty of defendant, if it desired