river. But when one state is the original proprietor, and grants the territory on one side only, it retains the river in its own domain, and the newly erected state, or the old state to which the cession is made, extends only to the river; and low water mark is the boundary. This is the law in case of fresh streams, as well as in those in which the tide ebbs and flows.' So it was held in Handley's lessee v. Anthony,' on a claim to an island in the Ohio river, as part of the territory of Kentucky-the cession by Virginia describing the territory as "situate, lying and being to the northwest of the river Ohio." If this had been a question between private citizens, grantor and grantee, the latter would have held to the centre of the river.

In the ordinance for the government of the territory northwest of the river Ohio, passed July 13, 1787, it was declared, that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor." a

3

Though, in general, the public have only an easement in the land over which a highway or road passes-as in rivers that are actually, though not technically, navigable-yet a grant of land, bounding on a highway or road, seems, in Massachusetts, to be construed to exclude the land used for a way, instead cf extending to the centre. In some other states, a contrary construction is given to such grant."

1 Vattel, Book I, chap. 22.

25 Wheat. 374.

3 Journals of the old Congress, vol. 12, (Folwell's ed.) p. 62; 3 U. S. Laws, (Story's ed.) 2077; 5 Hammond, 414.

4 Alden v. Murdock, 13 Mass. 256; Sibley v. Holden, 10 Pick. 249; Tyler v. Hammond, 11 Pick. 213. See 17 Pick. 104; 21 Pick. 295, 296.

5 Peck v. Smith, 1 Connect. 103; Chatham v. Brainerd, 11 Connect. 60; VOL. XXIII.-NO. XLVI. 19

If a deed bound land on a way upon one side, this is construed as a covenant by the grantor that there is such a way; and it is not regarded as mere description.' But a grant bounding land on "a thirty feet street," is not held to amount to a covenant that the street is of that width throughout. It is considered as description only. Nor is a grant of land as abutting in the rear upon a street, which was merely laid down as such upon a map, but not actually opened, an implied grant of way in such supposed street, or a covenant to open a way there, the land being accessible by a street in front.3

T. M.

Jackson v. Hathaway, 15 Johns. 454; Cortelyou v. Van Brundt, 2 Johns. 357; 3 Kent's Com. Lecture LI.

1 Parker v. Smith, 17 Mass. 413.

2 Clap v. M'Neil, 4 Mass. 589.

3 Case of Mercer Street, 4 Cow. 542.

ART. II.-ON THE EFFECT OF DRUNKENNESS UPON CRIMINAL RESPONSIBILITY AND THE APPLICATION OF PUNISHMENT.

[Translated from an article by Professor C. J. A. MITTERMAIER, in the New Archives of Criminal Law, volume xii. pp. 1–52.]

$I. Doctrine of the Roman Law.

An examination of the doctrine of the legal effect of drunkenness will clearly show, how little we are able to find a basis for each particular principle of the common law, in some general decision; and how carefully we ought to guard against deriving general rules from isolated fragments of the jurists or from imperial rescripts, which refer to and are founded upon particular cases. In like manner, when we examine the doctrines of the legal systems of modern times, in regard to this matter, we shall easily convince ourselves, that very little is gained by the insertion of a

general principle or two on the subject in a code ;-that the doctrine is first derived from the details of the practical administration of justice;-and, that, where the law is defective or inappropriate, a practical remedy is not unfrequently found in bold constructions and distortions. The whole course of the development of the subject will also show, that it would be just as erroneous to lay down the principle, that drunkenness does not relieve from criminal responsibility, as it would be to assert, that the highest degree of drunkenness is always a ground of exemption from responsibility. A nice discrimination between premeditated, intentional, culpable, and inculpable drunkenness, and between the state of body induced by habitual drunkenness, and the appetite for liquor merely, can alone furnish a safe practical guide in the application of the law to particular cases. Of the truth of the assertion, that criminal laws of excessive severity, and which are not in harmony with the sound feeling of the nation, are inexpedient, because they are liable to be circumvented in all possible ways, and, by disproportionately lessening punishments, lead to an injurious extreme, the law of France affords a striking example. The penal code of that country does not mention drunkenness at all; and, from the progress of the development of the French legislation, which will be more closely examined hereafter, it will appear beyond a doubt, that the legislator did not intend that drunkenness should in any case relieve from responsibility or free from punishment. But the reader will be convinced, when the doctrines of the existing French jurisprudence come to be noticed, in IV, that the French courts have no scruple in acquitting a drunken person, even when guilty of the highest crimes, on the ground that drunkenness is a state of temporary insanity (demence passagère), and that article. 6 of the penal code declares generally that insanity is a ground of exculpation.

If the inquiry be now made in what manner drunkenness was regarded in the Roman law, it will not surprise any one, who is acquainted with the spirit of the Roman criminal law, and who of course knows that it does not rest on any complete criminal code, to find that it contains no general legal provision on the subject. In the times of the old leges, or of the judicia ordinaria, the sources contain no intimation whatever of the effect of drunkenness in the application of punishment; since, according to the character of the proceedings in the questionibus perpetuis, the judices were only bound to try the truth of the complaint, and could merely acquit or condemn; and, consequently, it did not come within their functions to propose the application of any milder punishment than the pœna legis, or to take into consideration any ground of extenuation.' The apprehension, that, in consequence of this disregard of many conditions of mind, which exculpate from crime altogether, or at least diminish responsibility, unjust punishments might have been occasioned, will appear to be groundless, when it is recollected, that the judices in the questionibus perpetuis were in the situation of the English and French juries of the present day, and that, in those cases in which they regarded the legal punishment as disproportionately severe, they had it in their power to acquit altogether, as French juries not unfrequently do in cases of sacrilege and counterfeiting; and this could be done by the Roman judices the more readily, that they were not subject to be called to account for their sentences. It was not until the time when the judicia extraordinaria had been gradually introduced, and it had thus become of no consequence even to apply the punishment determined by the old lex, since the judicial power had also extended

'On this question, see Feuerbach, in his Revision, i. p. 365; Besserer, Comm. de indole jur. crim. roman. Fasc. ii. p. 22-49; Rosshirt, Principles of Criminal Law (in German), p. 71.

itself to the invention of the punishment,-that we first find traces of any regard being paid, in the application of the law, to the effect of drunkenness. The principal distinction which the Roman jurists kept in view, namely, whether a crime was committed dolo malo, that is, with a malicious intention directed to the crime, or ex animi impetu,' was applied to the case of drunkenness; and it cannot be strange, therefore, that the jurist Marcian should mention ebrietas as an example of impetus, thereby intimating, that a drunken person, when he commits a crime, should be equally punishable, but should not be put upon the same footing, with an offender acting in cold blood and calculating his act with clear consciousness. In other cases, where the offence was of such a nature, that, if committed without clear consciousness and a malicious intention, it would lose its injurious character and be no longer dangerous, as, for example, the offence of speaking against the government; or, where, by reason of drunkenness, an act, which would otherwise be a gross dereliction of official duty, becomes only a culpa; in these cases, drunkenness was taken into consideration. In reference to soldiers, who attempted to mutilate themselves or to commit suicide, drunkenness was regarded as a mitigating circumstance," clearly on the ground, that the reason for subjecting the suicide of soldiers to punishment, according to the Roman law, was present in those cases only where the attempt

3

1 Rosshirt, in the New Archives of C. L. viii. p. 381. ? In the law 11. D. de pœnis.

3 L. un. Cod. Si quis imperatori maledixerit. The word temulentia, in this fragment, according to the use of the term by Roman authors, (Plinius: Hist. Nat. lib. xiv. chap. 13; Tacit: Hist. ii. chap. 63; Cicero, pro Sextio, chap. 19.) signifies drunkenness.

According to the law 12. D. de custod. reor., the keeper of a prison is subjected to a milder punishment, where a prisoner escapes in consequence of the drunkenness of his guard.

L. 6. § 7. D. de re milit.