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Younge and Jervis from 7 Geo. IV.
In the ‘Addenda,' besides cases from some of the preceding reports, there are those from Manning and Ryland (abridged M. & R.) K. B.; Moody and Malkin (M. & M.) K. B. and C. P.; Moore and Payne (M. & P.) C. P. Burrell and Ryan's Crown Cases reserved (B. & R. C. C.); Ryan and Moody's Crown Cases reserved (R, & M. C. C.)
Amos and Ferad's Law of Fixtures. An American edition of this work has been recently published in New York, with notes of American cases, of which we shall probably take more particular notice hereafter. The subjects of the work are the right to remove fixtures; as to fixtures for trade, agricultural purposes, or ornament or convenience ; as between landlord and tenant; as between tenant for life or in tail, or their personal representatives; in respect to ecclesiastical persons; and between heirs and executors ; the rights and liabilities of parties in respect to land increased in value by the annexation of personal chattels; remedies.
Bentham's Principles of Legislation. Mr. Dumont says, in his discourse prefixed to this work, 'His [Bentham's] Introduction to the Principles of Morals and Legislation, is regarded by a small number of enlightened judges, as one of those extraordinary works, that form an era and a revolution in science. We cannot but regard this as a very flattering view of Mr. Bentham's work, of which Mr. Neal here gives us an English translation. This volume consists of 1. A biographical notice of Mr. Bentham, by Mr. Neal, for which the author collected materials during a personal acquaintance with the philosopher, from October, 1825, to April, 1827, during a greater part of which period Mr. N. was an inmate in Mr. Bentham's domestic establishment in Queen's Square, and kept an unsparing journal of all matters that transpired, philosophical, literary, social, domestic and personal, relating to the venerable codifier; whose conversation, manners, domestic habits, and peculiarities are very unreservedly displayed. 2. Mr. Neal's exposition of the doctrine of utility, or the greatest happiness principle, which the Utiltarians consider to be a new parent idea in morals, the matrix of a better order of things.' 3. Biographical sketches of Mr. Dumont, by J. B. and by J. C. L. de Sismondi; the latter being translated from the Revue Encyclopedique, with notes by Mr. Neal, 4. Morals and Legislation, consisting of thirteen chapters. A definition and explanation of the principle of utility are given, and then the principle of ascetism is considered, namely that of voluntary suffering of pain, such as wearing hair shirts, whipping, &c., whereby 'pious hypochondriacs persuade themselves that for every instant of voluntary pain here, they will enjoy an age of felicity hereafter.' This doctrine of the monks is considered to be an antagonist principle to that of utility, but we do not see that it is at all so. Those 'pious hypochondriacs’ suppose that if all men, women, and children would whip themselves soundly, divers times a day, they would thereby secure the mutual esteem of each other in this world, and an infinite felicity in the next; and they accordingly, upon the greatest-happiness-of-the-greatest-number principle, recommended to all persons whomsoever by no means to spare their own flesh; and that they might promote the greatest happiness, as far as they were themselves concerned, they resolutely mortified their flesh. They were undeniably Utiltarians; though it is very possible they may not have adopted the best mode of promoting the greatest happiness. The next principle at war with utility, is, that of an arbitrary disposition, or the principle of
sympathy and antipathy,' or, as we understand the author, unreasonable, capricious, and mistaken preferences and aversions, loves and hates. The most trifling incidents, the difference in make of garb, a slight diversity of opinion, a variety of taste; either is enough to give a man the aspect of an enemy.
What is history but a record of the most absurd quarrels and of the most useless persecutions. A prince takes a dislike to some persons who utter certain idle words; he calls them Arians, Protestants, Socinians, Deists. The scaffold is prepared for them; the ministers of the altar get ready the faggot : the day when heretics are burnt, becomes a national festival. Was there not a civil war in Russia, after a long controversy, to determine how many fingers were to be used in making the sign of the cross?" &c. This is very forcible and just, and Mr. Bentham certainly attacks the follies and abuses of governments and teachers, in a powerful and masterly manner; but the mistake seems to us to lie in his supposing that he is teaching any new principle, or any new application of an old principle, of morals or politics. In the next chapter the author gives an analysis of the causes of antipathy, as offence to the senses, (we dislike, ex. gr. a monster because such a thing is rare;) wounded pride, (a man by not adopting our opinion, so far shows a want of respect to us;) power repelled, (for as we see that people dissent from our opinions, we feel our power over them to be limited ;) loss of confidence, (for we have less confidence in one who opposes our opinion ;) disappointment, (for harmony of opinion with others is a kind of certificate or guaranty of the correctness of our own ;) and envy, which is, as every one knows, a great cause of antipathy. The author then proceeds to show, in a very cursory manner, that the prejudices arising from this principle of antipathy, have a sinister influence upon governments and civil society; and in a note Mr. Neal makes some just remarks upon
great influence of our own vehement republican prejudices upon our opinions and feelings in respect to forms of government and institutions different from our own; for we fall too readily into the error of supposing that our institutions are as well adapted to all other states of society as to that existing in the United States. After enumerating some objections to the principle of utility, which, however, the author thinks hardly worth the trouble, he proceeds to an analysis of pleasure and pain, introductory to a consideration of them as sanctions. The inquiry then assumes a metaphysical character in an investigation of the subject of sensibility, and the moral and physical causes by which it is influenced, followed by an application of these remarks, or this theory,' in making an estimate of the evil of a crime, just satisfaction of an injury, 8c. The author appears to think all along that he is pursuing a connected chain of investigation, and that his propositions arise successively in a dependent series, though we confess that we do not perceive this. On the contrary, bis propositions and speculations seem to us to be as detached and independent of each other, as are those of Montesquieu. We are told that Mr. 'Bentham is very concise, and so is obscure to the uninitiated, and that his works afford materials for whole libraries of treatises, and this, though meant for praise, is, in fact, a severe censure; we understand it to mean that his works are crude, unelaborated, and unfinished. For ourselves we should prize a thorough treatise on one of the subjects here stafted, to a dozen volumes of imposing theories and grand conceptions in confused masses. It is acknowledged by the admirers of Mr. Bentham, that his productions are thrown off from his hands very much in the rough, and Mr. Neal thinks them the worse for being not finished, but frenchified, by Mr. Dumont.
We next come to an analysis of political good and evil, and how they are spread in the world, a subject sufficiently extensive, but in respect to which the author seems to us to do little more than lay out his work. It would be a treatise worth the making and reading, that would give us a survey of all the kinds and degrees of political evil in this evil world; but to tell us that there are evils of the first order, which spend themselves upon individuals,
and of the second order which extend from one to another; evils primitive, derivative, immediate, consequential, extensive, divisible, permanent, transient ; makes us but little the wiser. And though it is a good maxim, that'good is the necessary result of natural causes, which operate continually, while evil is produced by accident and at intervals,' it is a very trite one, a bald repetition of which, does not disclose any of the hitherto hidden laws of the universe, which decide the fate of men.
The author then inquires into the reasons for declaring some actions to be crimes, and subjecting them to punishment, which he says must be resolved into utility, whose decisions would reverse many of the usages of countries in this particular; but we shall look in vain in the chapter which treats of this subject, for any definite, practical principles, by which to direct legislation; and any one having a case in hand to be decided upon, will get little help from Mr. Bentham's eleventh chapter.
In the last chapter the tone and spirit of the work are raised again, for here the author is attacking the false modes of reasoning on subjects of government, and it is in attacks that he shows his strength, even prodigally at times, for he beats down obstacles to utility with the exertion of his huge strength, which would fall before a breath. He crushes and demolishes the massy fabrics of the philosophers with a gigantic power; he is a very Sampson Agonistes among their temples. But as a builder he has little
He only presents the old doctrine that interest and self-love is the spring of action and basis of moral obligation, without any other novelty than the incorrectness of phraseology and not a little pretension to authority,
Pickering's Seventh and Eighth Volumes. Our abstracts include Mr. Pickering's seventh volume. The great case of the Charles River and Warren bridges, which occupies nearly half of this volume, will hereafter be a subject of discussion before the Supreme Court of the United States.
The first part of the eighth volume, now just published, embraces a proportionally large number of important questions. It includes the Suffolk cases for March, and some of Berkshire for September, 1829. Amongst the latter is the case of Sackett v. Sackett on the subject of forfeiture for waste by tenant for life, mentioned in the article in this number on Mr. Dane's 9th volume. This case is applicable to some other states besides Massachusetts.
Lupton v. Carter and trustees, p. 298, decides that where a debtor assigns goods and choses in action, for the benefit of creditors, and the amount due to creditors, who have assented and become parties to the assignment, is greater than the value of the goods, but less than that of the goods and choses in action together, the assignee cannot be held as garnishee at the suit of another VOL. IV.NO. VII.
creditor, not a party to the assignment; in other words, the court will not compel him first to apply the proceeds of the choses in action to the payment of the creditors, parties to the assignment; and to hold the surplus of the goods, if any, for the benefit of the attaching creditor. This had been a long doubted question under the trustee law of Massachusetts.
Curtis v. Norris and trustee, p. 280, involves the question discussed in Owings's executors v. Owings, 1 Harris and Gill, 494, noticed in Am. Jur. vol. 3, p. 334. This case of Curtis & Norris decides that where H. holds goods of N. and at the request of N. verbally promises S. & Co. that he will pay a draft of N. which they had accepted, H. is bound by this promise; or in other words, this is in effect an assignment of the proceeds, to that amount, to S. & Co. Besides some of the cases cited in the Jurist in the place referred to, this case refers to Hall v. Marston, 17 Mass. R. 575; Van Staphorst v. Pearce, id. 258; and Hodgson v. Anderson, 3 B. & C. 842.
Adams v. Cordis, 8 Pick. 260, decides that a garnishee, who is such in consequence of a balance due from him to his agent in London, is chargeable only at the par of exchange, and not for the premium, which he must have paid for exchange on England to replace the amount which had been advanced for him by the agent there. To this point of holding the garnishee answerable only for the amount at the par of exchange, which was in fact a saving of ten per cent to him, taking the customary mode of comparing exchange; the court refers to Martin v. Franklin, 4 Johns. R. 125, and Scofield v. Day, 20 Johns. R. 102. Another point decided in this case was, that the garnishee could not charge and retain out of the funds in his hands, enough to cover his counsel fees and other expenses occasioned by his being summoned as garnishee. A law was passed at the last session of the Massachusetts legislature, allowing the garnishee to retain an amount, to be determined by the court, to reimburse these expenses.
In Hobart v. Norton, 8 Pick. 159, it is decided that where a master, at the commencement of the voyage, intends to deviate, by putting into a particular port, and in the prosecution of the voyage thé circumstances of weather, &c. are such that he is obliged to put into the same port, as a measure of prudence and necessily, his putting in is not a deviation.
In Commonwealth v. Brickett, 8 Pick. 138, it is decided that bail, becoming such in another state, may arrest their principal in Massachusetts. A similar doctrine is held in Nicolls v. Ingersoll, 7 Johns. R. 145.
In Baker v. Briggs, 8 Pick. 122, it is held that a person not a payee or endorsee, who endorses a note at the time of making it, is liable to an action as an original promissor, on the note, and may be declared against as such. In Wylie v. Lewis, 7 Day,