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New-York Legal Observer.


NEW-YORK, MARCH 1, 1844.


As we have been put to very considerable expense in getting up our digest of English Cases, (for which we make no extra charge) we trust that our country subscribers will forward to us their subscriptions without delay.



THE public seem at length persuaded that the law, which at present regulates the treatment of persons partially deranged, requires considerable amendment, and that, in order to protect society against their violence, it is absolutely necessary that something should be done; so far all parties are unanimous; but here, we fear, their unanimity ends. The moment the question is put, "what shall be done?" a thousand different voices suggest a thousand different schemes. Some boldly require that madmen of every description shall henceforth be deemed responsible for their actions, and in the event of their committing any deed of violence, shall be destroyed from off the face of the earth like mad dogs. These are the blood-thirsty legislators a considerable class, whose feelings bear a somewhat dangerous affinity to those of the homicidal maniac. Others, whom we may denominate the timid legislators, anxiously propose that all persons who betray the slightest symptom of mental derangement, should at once be incarcerated, but the blood-thirsty class oppose this proposition and with reason demand, "who then can be safe?" A third class, the philosophic pupils of the material school, contend, if we understand the argument, that all criminals are alike insane, and as such should be treated; that "the operation of the feelings and pas

No. 1.

sions depetids upon the physical system;" that we are bound, when a person has crime, to receive that fact as sufficient committed or..attempted to commit a evidence that his brain is in an unsound fliction of punishment, in any case whatstate;" and that consequently, "the_inever, is wholly inconsistent with all ideas of justice !"*

Amid these conflicting opinions,,which at least serve to shew that the question is one of very great difficulty, we can scarcely venture to hope that any amend ment we propose, should receive the decisive assent of all parties; still, as the subject is no less important than difficult, we will not be deterred by the mere dread of failure, from suggesting some hints which may possibly be adopted and improved by abler men.

At the very threshold of this inquiry, it is highly important that we should entertain clear views respecting the distinction which exists between sin and crime. Sin is an offence against the law of God and nature, and regards the moral guilt of the offender; but inasmuch as its degree can be justly estimated by that Being alone, to whom the secrets of all hearts are laid bare, punishment, as retribution, "is the Lord's." Crime is an offence against the laws of man and relates to the injury which its commission does to society; and man possesses the right to punish solely from the necessity of protecting the public. The main object of human punishment, is by inflicting pain to inspire fear, and thus to deter others from the commission of similar offences. "Ut pœna ad paucos, metus ad omnes, purveniat." Archbishop Whately in his thoughts on Secondary Punishment, has expressed these views in clear and forcible language. "I am inclined to think that in this" (the punishment of juvenile delinquents,) "and in many other points, important practical errors may be

* Sampson, 23, 4.

The plea of Insanity in criminal cases.

traced to the very prevailing mistake of confounding together two perfectly distinct considerations; the moral guilt of an offender and the propriety of punishing him for the sake of example. The theory of punishment, indeed, viz., that it is inflicted for prevention, and not for retribution, is, in the abstract, understood and admitted by almost every one, and is distinctly recognized in our legal enactments. But, in particular cases, there are notions and practices inconsistent with a doctrine so-evident, which are by no means uncommon." Again the author observes, as for the circumstances relating to any one's responsibility in the sight of God they can be fully known to him only. The exact amount of each offender's moral guilt, man can neither ascertain with certainty; nor if he could, would have any right to pretend to visit with proper retribution. Vengeance belongs not to us. We punish, (and we have thus only a right to punish) a transgressor, not because he has transgressed, but, that others may, by his example, be deterred from disturbing society. We punish a "wilful and malicious offender, not on account of his being morally more culpable than one who offends accidentally, but because wilful acts are the only ones that can be prevented by the fear of punishment. We punish a eal on the same principle that we extinguish a conflagration to prevent its spreading. We seek to check the example of crime, and substitute an example of terror."

t altogether unpunished if the impunity of the offenders were followed by danger or prejudice to the commonwealth? The fear lest the escape of the criminal should encourage him, or others by his example, to repeat the same crime, or to commit different crimes, is the sole consideration which authorizes the infliction of punishment by human laws."

We have quoted these authorities and have dwelt upon the distinction between sin and crime, or in other words, between the objects of divine and human punishment at great length, because however obvious this distinction may be, it is often wholly, or in a great measure disregarded. Men still speak in common parlance of such and such criminals deserving death, an expression which is clearly inapplicable with regard to the objects of human laws; and even those, who, from their acquirements and position might be expected to possess sounder views, and to express themselves in a more accurate manner, too frequently display a like confusion of thought when they endeavour practically to supply the maxims of penal jurisprudence.

To illustrate this position we need only refer to a few cases in which the responsibility of the prisoner has depended upon his state of mind.

On the trial of Bellingham for the murder of Mr. Perceval in 1812, Sir James Mansfield thus laid down the law :--" In order to support the plea of insanity, it must be proved by the most distinct and unquestionable evidence that the prisoner Paley also in his moral philosophy, was incapable of judging between right makes similar observations. "The pro-and wrong. It must in fact be proved per end of human punishment, says that eminent writer, is not the satisfaction of justice but the prevention of crimes. By the satisfaction of justice, I mean the retribution of so much pain for so much guilt, which is the dispensation we expect at the hand of God and which we are accustomed to consider as the order of things that perfect justice dictates and requires. In what sense, or whether with truth in any sense justice may be said to demand the punishment of offenders I do not now inquire; but I assert that this demand is not the motive or occasion of human punishment. What would it be to the magistrate, that offences 462.

beyond all doubt, that at the time he committed the atrocious act with which he stands charged he did not consider that murder was a crime against the laws of God and nature. So long as persons can distinguish good from evil, they will be answerable for their conduct," &c.* Again, in the case of Offord, who was tried in 1831, for shooting a man named Chisnall, Lord Lindhurst told the jury that "they must be satisfied, before they could acquit the prisoner on the ground of insanity, that he did know when he committed

* Collins on Lunacy, 636; Shelford on Lunatics,

Accumulation from property settled to separate use.

the act, what the effect of it, if fatal, would be as to the crime of murder. The question was, did he know that he was committing an offence against the laws of God and nature?" His Lordship then referred to the doctrine laid down by Sir James Mansfield in Bellingham's case, and expressed as the reporter tells us his complete accordance in the observations of that learned Judge.* In the case of Bowler, who was tried in the same year as Bellingham, LeBlane, J., concluded his summoning up, by observing that the jury must determine whether the prisoner, when he committed the offence was capable of distinguishing between right and wrong, or under the influence of any illusion in respect of the person he shot, which rendered his mind at the moment insensible of the nature of the act which he was about to commit since in that case he would not be legally responsible for his conduct.† In the case of Lord Ferrers, who was tried by the Peers for the murder of his steward, the counsel for the prosecution contended, that a man was answerable for his acts if he could discriminate between good and evil. On the trial of Parker, who was indicted for adhering to the King's enemies, the Attorney General argued, that to acquit the prisoner, the jury must be satisfied that he did not know "right from wrong, (1 Collinson 477). And in the case of Martin, who was charged with feloniously firing the cathedral at York, the same test of responsibility was admitted on all hands to be correct, (Shelford 465; Annual Register, vol. 71, p. 301.)


It is well settled that where, previous to or during the marriage, property is settled either by deed or will, for the separate use of the wife, she will be entitled thereto exclusively of her husband, and if she is not restrained from anticipation she may deal with it in equity as if she were a feme sole (Hulme

5 C. and P. 168.

† Collins on Lunacy, 673. 19 How. St. Tri. 886.

v. Tenant 1 B. C. 16. Jackson v. Hob-
house, 2 Meriv. 487; Tullett v. Armstrong,
1 Beav. 17)-but with respect
to the
right to the accumulation from any such
fund, there seems a difference of opinion
between the English courts of law and
the equity and ecclesiastical courts, to
which we wish to direct the attention of
our readers. In the case of Ledgard v. Gar-
land, 1 Curteis, 286, the deceased previ-
ous to her marriage, had certain property
conveyed to trustees with a power to her
to receive the dividends and instalments
thereof during life, and to dispose of the
principal fund by will, executed in the
presence of, and attested by two witnesses.
She died, leaving her husband surviving,
and having duly executed her will ac-
cording to the power appointing executors.
The question was, whether a certain sum
remaining at her tanker's to her credit,
(being her savings out of the trust divi-
dends,) was to be included in the probate.
The ground on which it was contended
that it did not pass, was not that the de-
ceased did not possess the power of dis-
posing thereof, but that she had not dis-
posed of it. Sir H. Jenner said, it was a
question of construction not for him to de-
termine, and that he would grant probate
to the executors limited to the settled pro-
perty, and all accumulations over which
she had a disposing power, and which she
had disposed of; and the learned Judge
observed that this was the usual ?
convenient mode, in order to give parties
an opportunity of making their claims
elsewhere. In the case of Molony v.
Kennedy, (10 Sim, 254,) Sir L. Shadwell;
V. C., doubted, in a similar case, whether
the husband was bound to take out admi-
nistration, but he held that the executors
were entitled to deduct the funeral and
other expences.


At law, however, a different rule prevails. In case the accumulations were stolen, in an indictment for the offence, the property must be laid in the husband (2 Russ. and Ry. C. C. 491). In Carne v. Bryer, (7 M. and W. 183,) it was held that the property in wearing apparel, bought for herself by a wife living with her husband, out of money settled to her separate use before marriage, and paid to her by the trustees of the settlement, vests by law in the husband, and is liable to be taken in execution for his debts.


Historical outlines of the law.

In a late case on this point (Tugman v. | this money, if taken in her life time, but Hopkins, 5 Scott, N. S. 464), the facts that the husband alone must have sued. were that Mrs. Tugman who had for some Probably in equity, he would have been only time lived apart from her husband, had, a trustee: but still, the legal property would under her marriage settlement, an interest be in him. Carne v. Brier, (7 M. and W. in certain property secured to her separate 183) is an a thority to this effect, it was use. At her death, a sum of money was there held that the property in wearing found locked up in a drawer in the ap- apparel bought for herself by a wife living partments she had occupied. The de- with her husband, out of money settled to fendant went to the house, and obtained her separate use before marriage, and paid possession of that money, acting, it is to her by the trustees of the settlement, said, for his father, who was one of the vests by law in the husband, and is liable executors named in Mrs Tugman's will to be taken in execution for his debts; and however, he received the money." "Now the case of Malony v. Kennedy, (10 Sim. of what did the money consist" said Tin- 254) while it seems to shew that it is comdal, C. J. "Did it consist of accumula- petent to a wife living apart from her hustions of interest from the stock secured by band, to dispose by will of accumulations the settlement? or did it arise from other arising from property settled to her sepasources? if the latter, the question falls to rate use, also shews that in the absence the ground. But assuming it to have of such disposition, the husband is without consisted of savings out of the interest, administration, entitled to them in his mathen comes the question whether, at the rital right." And Coltman, J., said Carne death of Mrs. Tugman, it became the pro- v. Brier, seems to me to go the full length perty of her husband, without adminis- of deciding that where dividends are retration, or of some person to whom she ceived from property settled to separate gave it by her will. It is enough to say use of a married woman the money so here, that under the will they are not dis- received is by law vested in the husband. posed of. I cannot interpret the will I entirely agree with that principle. In otherwise than as limited to the long an- order to protect it, the money must remain nuities, and the proceeds of the sale there- in the hands of the trustees. In equity it of the accumulations are left untouched. seems the property is considered to be afBut it is said that Mrs. Tugman having fected with a trust, but of that we can appointed executors, the accumulations take no notice at law. By her will, Mrs. vest by law in them. Their power, how- Tugman has not disposed of the money in ever, is only co-extensive with the purpose question; but I am inclined to think that, for which they are appointed; and it is so even if she had, still at law it must be treated by the ecclesiastical court, for the taken to be the property of the husband, probate granted is a limited one. The and as passing to him in his marital right, authorities shew that the husbad is enti- without administration, according to the tled to the accumulations. In Comyn's case of Malony v. Kennedy, (10 Sim. 254.) Digest, ("Baron and Feme." E. 3.) the general rule is thus laid down:-All chattels personal, which the wife has in possession in her own right, are vested in her husband by her marriage, though he do not survive. So chattels personal, not in possession at the time of marriage, if they are reduced into possession during the coverture (Co. Litt. 351 b.) So, if chattels are given to the wife after the coverture. the interest vests in the husband, though he has not possession of them before the death of his wife." This shews that any thing found in the possession of the wife, comes to the husband. It was admitted in the course of the argument, that the wife could not have maintained an action for




BUT few changes were made in the law in this short reign, and even these had principally for their object, the furtherance of enactments made in the reigns of Henry the 4th and Richard the 2nd.

The first statute of this reign was for the purpose of ascertaining the qualifications of the electors, and persons to be elected. By it, it was enacted that knights of the shire were not eligible, unless they

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