in the case of an offence committed by an insane person, if it can be shown that the offender was already previously ebrious, he cannot be considered as legally culpable; because the culpability of which we here speak is only a moral, but not a legal one, on the ground, that the drinker might certainly have foreseen that his ebriosity would at last terminate in insanity. When insanity results from drunkenness, it is always an extraordinary circumstance; the drinker sees hundreds of his acquaintances daily drink as much as he himself does; he sees that they sleep off their intoxication, and are then as well as before; he knows, perhaps, that his grandfather and father have often been drunk, but, notwithstanding, lived to a great age, without becoming insane; it cannot, therefore, be asserted, that the drinker might and ought to have foreseen that he would become insane. Many persons become insane, in consequence of selfpollution early practised, or in consequence of other sensual indulgencies, but yet no one thinks of holding such persons legally responsible for criminal acts. There is no doubt, also, that it may be proved by medical observations, that even in cases where ebriosity is followed by insanity, it is not the only cause of the disease, which, on the contrary, may be owing to the operation of many other physical affections and causes. If we have thus far considered an offence as unpunishable, when committed by one in a state of insanity resulting from ebriosity, we hold it also to be our duty, to warn the judge not to suffer himself to be deceived by many phenomena which occur as the consequences of ebriosity; in particular, we observe in some inebriates an extraordinary irritability, which is not unfrequently denominated by the physicians a morbid irascibility (excandescentia furibunda); others, on the contrary, are subject to convulsion fits; but the most common consequences of ebriosity are the so-called hallucinations, which manifest themselves by illusions of the senses, as, for example, when the inebriate imagines he hears voices, or believes he sees objects before him, which do not really exist. None of these conditions is sufficient to render the subject of them irresponsible for his criminal acts; for they are either signs of a perverted moral sense, in which the inebriate gives himself up to his lusts upon the slightest occasion, or they are morbid corporeal affections, which do not destroy his consciousness, and consequently leave him responsible for his acts. Hallucinations must be distinguished into two kinds: (1) those which are proper illusions of the senses,' as, for example, the consequences of diseased organs of hearing and sight; and (2) those which result from a morbid excitation of the imagination. In regard to the first, the understanding always retains sufficient power to distinguish the illusion from the truth; whilst the second appear as the first manifestations of an outbreak of insanity, or as its certain forerunners, and, as such, may either wholly put an end to or very much diminish the offender's responsibility.3 2 II. An appetite for liquor, which irresistibly impels one to drink, may be regarded as a proper diseased condition, which it is necessary to distinguish into two kinds. (1) The first kind is that which results from ebriosity, the effects of which, in the inebriate, have reached the highest degree." In this kind of liquor appetite, in consequence of a diseased 1 Clarus, 1. c. p. 136. 2 In reference to hallucinations of the imagination, see the remarks of Esquirol in the notes to the French translation of Hoffbauer's Legal Medicine, p. 85. 3 See also on the subject of hallucinations, Horn's Archives of Medical Practice, 1825, May number, p. 532; Grohmann in Friederich's Magazine, (für Seelenheilkunde,) No. 4, p. 123. 4 Brühl Cramer, on the Appetite for Liquor, Berlin, 1819; Henke, Dissertations, vol. iv, p. 253; Vogel, Contributions to the Doctrine of the Competency to Imputability, p. 171. Clarus, Contributions, p. 127. state of the digestive organs, and the defective quality of the nourishment afforded by them, a morbid irritability arises, which is characterized' by an irresistible impulse to relieve the exhausted nervous activity by means of strong drink, and manifests itself habitually and constantly, or periodically. This kind of appetite is a culpable one, and a criminal act committed therein is imputable as culpa; but, as has been remarked in regard to ebriosity, in this case, and in a yet stronger degree, the culpability may fall so low as to disappear altogether; though the liquor-appetite seems not to be a true insanity which relieves from responsibility, since it is only a form of bodily disease, in which the diseased person always retains a consciousness of hist acts. (2) Different from this is the liquor-appetite,' which without any connection with ebriosity, but as the consequence of a diseased digestive system and a disordered stomach, manifests itself by an irresistible impulse to cool the burning thirst by means of strong drink. Persons, laboring under this form of disease, when the paroxysm is not on them, abhor every kind of strong drink, and are moderate and mild; but by drinking are easily wrought up to the highest pitch of excitement. This kind of liquorappetite is not culpable, but most nearly resembles the condition (the existence of which is very much controverted by some) of mania sine delirio. III. Lastly, we are accustomed to speak of delirium tremens3 as a particular form of disease; and, it is undoubtedly true, that as a consequence of ebriosity, a state of insanity or madness may arise, which is characterized by a violent trembling, and thence has received its name, but which is only to be distinguished from other mental disease by its cause or occasion. On the contrary, it is going too far, as is 1 Clarus, Contributions, p. 128. ? Esquirol, as above cited, p. 244. * Henke, Dissertations, vol. iv. p. 277; Vogel, Contributions, p. 173. sometimes done, to consider the convulsive trembling, which often occurs in connection with mere ebriosity or liquorappetite, as delirium tremens, and to regard it as proof of a mental disease already existing in the inebriate. For the criminalist, it is only important to inquire,' whether the condition of the inebriate carries in itself the signs of a true mental disease, which is characterized by an absence of the consciousness of the actor, or whether the phe-, nomena are only the consequences of corporeal suffering, without the consciousness of the actor being thereby affected. In the first case only is the disease a ground of exculpation, and in the second it relieves from responsibility precisely in the same manner as other bodily affections may do, when they exert an influence upon the mental activity, so long as this influence falls short of that degree of strength, in which the consciousness of the actor is entirely destroyed. 2 1 See also Heinroth, System of Psychological Medicine, p. 263; Clarus, Contributions, p. 142. 2 Jarcke, in Hitzig's Journal, No. 23, p. 37. ART. III.—BENTHAM'S THEORY OF LEGISLATION. Theory of Legislation; by JEREMY BENTHAM. Translated from the French of ETIENNE DUMONT, by R. HILDRETH. In two volumes 12mo. Boston: Weeks, Jordan & Co. 1840. In an article published some time since (vol. xx, p. 332,) under the head of the "Greatest-Happiness-Principle," we took occasion to express our opinion of the celebrated author of the theory of legislation, in his threefold character of a philosopher, an exposer of existing abuses, and a legislative reformer. In the work before us, he appears in the -- first and last of these characters, but chiefly in the last. The principle of utility, as it is called, is laid down and practically applied as the basis of legislation. The theory of legislation is considered under three divisions, namely: principles of legislation,-principles of the civil code,—and principles of the penal code. The principles of the civil code are treated of in three parts, 1, objects of the civil law; 2, distribution of property; and, 3, rights and obligations attached to certain private conditions. The principles of the penal code are examined in four parts, 1, of offences; 2, political remedies against the evil of offences; 3, of punishments; and, 4, indirect means of preventing offences. This treatise was compiled and arranged from Bentham's manuscripts, by Dumont, who performed the part of a sort of literary accoucheur to his distinguished friend, by rendering his works into French, and ushering them into the world. The principles of legislation, which are first treated of, and which make the foundation of the civil and the penal codes, are all embraced in the one general principle of utility, or the greatest happiness of the greatest number. In the article above alluded to, we have already expressed our opinion regarding the truth and value of this principle as a principle of action; and have stated it as our belief, that the greatest happiness of the greatest number ought not to be considered as the ultimate end and object of human government and laws. In the same article, we also mentioned the remarkable fact, that Bentham himself, towards the close of his life, repudiated the greatest-happiness-principle, as wanting in that clearness and correctness, which had originally recommended it to his notice and adoption. The reasons for this change of opinion are given at length in the first volume of the Deontology, which was compiled and published after Bentham's decease, by his English editor, Bowring. How far this change of opinion, on the part of the author, would have |