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sions of the disease. It is true, indeed, that the disease has its moments of calm, in which the patient regards objects in their true point of view. But, how, even in these moments, can he be made responsible 2 How can it be ascertained, what secret influence the disease may not have exercised over his acts 2 How can it be affirmed, that an internal impulse has not suddenly led the mind of the agent astray and directed his arm Mr. Mittermaier concludes, therefore, with reason, in these terms: si ertat morbus, actionem ad liberum arbitrium minime referre licebit.
It is a more difficult question to decide, whether it is sufficient to render the agent responsible, that he should distinguish between good and evil, and should perceive the morality of his actions. This question is of great interest in partial insanity, in monomania, where the mind is subject to illusion and is led astray upon a single point only, and where the agent, in regard to every other object, preserves the sagacity of his judgment, and possesses his ordinary freedom of action. The English criminalists do not hesitate, in this case, to consider the agent responsible; but this opinion is combatted by Mr. Mittermaier. What influence have the notions of the just and the unjust upon him who is fascinated by an illusion ? Is he less excusable, because he comprehends that homicide is a culpable act, when, under the dominion of an error which deceives his senses, he imagines himself pursued by a ferocious beast, and, in self defence, inflicts death upon a human being * The error of the criminalists consists in not perceiving, that, if the monomaniac distinguishes good and evil in general, he ceases to do so in reference to the point which constitutes the subject of his insanity; he does not lose sight of the rule, but he does not perceive its application; he does not cease to condemn homicide, but he does not know that he is committing it; his eyes are closed in this respect; his disease is a cloud which intercepts a ray of his understanding. This distinction is clearly explained by the author of the dissertation; but it remains for the judge to establish the fact of this partial divergence; and, herein, it must be confessed, consists one of the gravest embarrassments of human justice.
This difficulty, which is again brought forward, and followed by the author through all the kinds of partial insanity, as epilepsy, hallucination, weariness of life, gives occasion to the learned professor to inquire, what method should be adopted by the legislator in formulating the excuse of insanity-whether all the diseases which import a justification of the agent should be enumerated in -the law, whether a few only should be mentioned as examples, or, finally, whether as in our penal code, the law should provide an exception to the general rule of imputability, in favor of acts committed in a state of insanity, without defining them. The author adopts this last method; and the sanction thus given by theory to practice ought to settle the question. It is certain, besides, that this provision, the simplest of all, is also the truest. The legislator would be drawn into useless details, if he should undertake to provide rules for cases, which are constantly varying, and the different shades of which it is impossible to seize: he must content himself with establishing the rule; it is for the judge to apply it, upon an examination of the facts.
We have thus indicated, but too succinctly, the contents of the substantial and learned tract of Mr. Mittermaier. We have been compelled to omit a great number of points, in which the new and ingenious theories of the author challenge discussion,--a multitude of views full of sagacity. This method of selecting a thorny subject of law, and making it the object of a profound dissertation, is of the greatest advantage to science. It is thus, that a subject is elaborated by investigation, and its principles combined and arranged; such is the result of the labor of Mr. Mittermaier, in regard to the excuse of insanity. This work will be received with interest by all criminalists.
10–An Abridgment of the American Law of Real Property, by FRANCIs HILLIARD, Counsellor at Law. Wol. II. Boston: Charles C. Little and James Brown, 1839.
The first volume of this work appeared in 1838, and was noticed in the July number of the American Jurist for that year. The present one completes the work. In it are comprehended the subjects of estates in fee and tail, the rule in Shelley's case, jointtenancy, easements, ways, franchises, uses, watercourses, fishery, prescription, statutes of limitation, descent, title by deed, forms of decds, effect and construction of deeds, fraudulent conveyances and registry, devise, powers, &c. We have not been able to devote to this volume the time necessary to a full appreciation of its merits, but from the examination we have been able to give to it and from what we know of the character of the first volume, we feel ready to recommend it with confidence to the favorable regard of the profession. The first volume we have had frequent occasion to consult, and parts of it we have examined critically with reference to the authorities cited, and we have always found the information we were in search of, and the principles correctly and perspicuously stated, and that the point decided by the courts was accurately copied. Mr. Hilliard has confined himself to the task of stating the law as it actually is, without going into the rationale of it, and has abstained from the metaphysical subtleties which are so abundant in the pages of Coke and Preston, and in this respect he has acted judiciously. The task he imposed upon himself was one of great toil, and he has resolutely and manfully performed it, evincing a patience of labor, worthy of the students and jurists of a former age; and he may fairly felicitate himself as having completed a work creditable to himself, and of great practical utility to the profession, throughout our whole country. The lawyer will find here brought into the compass of two reasonable volumes, a vast amount of matter, gathered from many camel-loads of text-books, reports, and statutes, correctly stated; and should he desire to pursue his investigations further, he will find himself by the author's assistance, in the way to do it easily and expeditiously.
11.-A Treatise on the Law relative to Sales of Personal Property, by George LoNG, Esq. Second American edition with additions, by BENJAMIN RAND, Esq., Counsellor at Law. Boston: C. C. Little and James Brown, 1839.
A good book on Sales is a desideratum in legal literature. Mr. Long's treatise is a work of moderate pretensions and moderate
merit, not aspiring to any thing more than a digested collection of reported cases, and though quite useful and respectable as a book of reference, is radically defective as a text book. It has, however, been a popular book, because the subject is so important a one, that no lawyer will overlook any source of information respecting it, and he will purchase it and put it in his library, because it is a treatise on sales, and because there is no better one. We agree with the editor in his observation in the preface, that “it would be much better to write a new treatise than to endeavor to supply the defects of the original work;” and we regret that he had not undertaken that task, rather than the one of supplying what was defective and correcting what was faulty in the present work. In the execution of his plan, he has incorporated into the text more than two hundred additional pages of his own, which are printed in the same type as the original treatise, and distinguished only by being inserted in brackets; a way of doing things not altogether to our taste, though we are not aware that we have any other objection to it than that. Mr. Rand's peculiarities and accomplishments as an editor are well known from his previous labors in that department. His learning is copious, abundant and overflowing, and his views, whether they agree with or differ from the received authorities, are always enforced with power and ability. We think, however, that he is rather too resolute an enemy to innovations, occasionally a little whimsical in some of his opinions, and that courts and judges sometimes receive rather too cavalier treatment at his hands. The present volume contains ample evidence of the editor's learning and research. He is evidently thoroughly acquainted with every thing relating to the subject of sales, which is of authority in the courts of England or America, and his copious additions have greatly increased the value of the original work. But while we give to his labors the ample commendation which they deserve, we feel bound to point out wherein they are defective, and the objections to which the work is liable. The decisions of the courts in New England in general, and of Massachusetts in particular, do not receive from Mr. Rand the consideration which they deserve. Cases from the reports are very seldom stated, and important principles are passed by in silence. For instance, the case of Wain v. Warlters, (5 East, 10) is discussed at considerable length in the original work, and the editor states that this decision has been confirmed by subsequent ones, and is now settled law, without taking the slightest notice of the contrary decision in Packard v. Richardson and others (17 Mass. 122) and of the fact that the Massachusetts doctrine has been adopted in Maine and Connecticut. In the original work of Mr. Long, the question, whether a contract for the transfer of stock is within the seventeenth section of the statute of frauds, is discussed and is stated not to be settled; but no notice whatever is taken, by the editor, of the case of Tisdale v. Harris, (20 Pick. 9), in which the point is expressly decided in the affirmative. In the discussion of the question, whether sales by auction are within the statute of frauds, the editor remarks, “it seems now to be well settled, that sales of goods at auction are within the seventeenth section of the statute,” without adverting to the case of Davis v. Rowell (2 Pick. 64) which is directly in point. In the discussion of the legality of sales and contracts made upon Sunday, no notice is taken of the cases of Geer v. Putnam, (10 Mass. 312) and Pearce v. Atwood, (13 Mass. 324). Under the head of illegal sales, we think also it would have been well to cite the case of Wheeler v. Russell, (17 Mass. 258). The above are the instances of the defect we have alluded to, which have come under our observation in looking over the work. A more minute examination might detect others. That the learned editor does not hold in the highest estimation the decisions of the supreme court of Massachusetts, is a fact well known to all who have had occasion to examine his editions of the Massachusetts Reports, but we think it a subject of regret, that this feeling should have been manifested in a work intended for a text-book for students, and a manual for reference for practitioners, in which it is important that all the decisions should be stated. Principles deemed erroneous need not have been incorporated into the text, but might