judgment of the multitude." "The English and American lawyers investigate what has been done; the French advocate inquires what should have been done; the former produce precedents, the latter reasons. A French observer is surprised to hear how often an English or American lawyer quotes the opinion of others, and how little he alludes to his own; while the reverse occurs in France. There the most trifling litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed, and the fundamental principles of law are discussed in order to obtain a perch of land by the decision of the court. This abnegation of his own opinion, and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this servitude of thought which he is obliged to profess, necessarily gives him more timid habits and more conservative inclinations in England and America than in France." If our author were now alive he would recognize the need of adding a note to this text, to acknowledge the change which years have wrought, in this country at least. The maxim stare decisis has had its day, and now we are called on instead to stare at the decisions of our highest courts, which alter the rule of law on any given point every year. Nay, even from one term of court to another, and that on the gravest constitutional questions, before the highest legal tribunal of our land. The "opinion of our forefathers" seems to have lost its potency. Sheridan's father once counseled him to take a wife; "Whose wife shall I take?" replied the witty profligate. So now, if we look for a precedent we may well ask, considering their contrariety, which one shall we stand by? Our law books are subject to the reproach which some infidels allege against the Bible-you can prove any doctrine by them. That De Tocqueville was right to some extent in his idea that French lawyers are less attentive to precedents than others, must be admitted. Nothing can exceed the license, turbulence and uncertainty of French trials, even in these times. Witness the recent great trial of Prince Pierre Bonaparte for the murder of Victor Noir. The Nation newspaper says of it: "The examination, or cross-examination of counsel is unknown in France, that duty being reserved to the court, and dexterity in it is one of the qualifications of a good judge. But the result is that there are no rules of evidence. Every thing that has the remotest connection with the case is welcome, hearsay of all kinds included; and the witnesses mix up their opinions with their facts somewhat in the style of a parlor narative, broken by attempts on the part of the judge to trip the narrator up, or point out the moral of what he is saying, or indicate the course which virtue ordained under the circumstances described. Considering that every pains was taken to make the trial decorous and solemn, the report suggests some amusing speculation as to what would have been the nature of the proceedings had Rochefort's demand in the chambers been complied with, and the prince been 'tried by the people.'

Our author also says: "In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class, and the most cultivated portion

of society. They have nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply, without hesitation, that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and bar." "The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time, and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community, and penetrates into all the classes which compose it it acts upon the country imperceptibly, but finally fashions it to suit its own purposes." Since De Tocqueville's day, a great body of literary men has sprung up in this country, and the monopoly of the legal profession over political offices is at an end. There is now a great fourth estate, composed of platform lecturers, authors, and notably of editors, who gather a large share of political honors. Within a few years we have witnessed the novel spectacle of the second of the most lucrative offices in the gift of the general government bestowed on a novelist, and a historian now represents us at the court of St. James. The man selected to go to England and defend the cause of our government against the doctrine of secession, was chosen more for his shining abilities as a platform lecturer, than even his elevated reputation as a clergyman. We construct senators and governors, even, out of wholesale grocers, shoemakers, and country general-store-keepers, and iron founders and cotton manufacturers sit in the lower house of congress. The day, then, is gone by for lawyers to monopolize political preferment, but they may still lead and dictate the policy of our government, provided they are counselors and not pettifoggers.

BISHOP HALL,

in the third Satire of the second book, animadverts on the Law and Lawyers:

"Who doubts? the laws fell down from heav'n's height,
Like to some gliding star in winter's night?
Themis, the scribe of God, did long agone
Engrave them deep in during marble stone,
And cast them down on this unruly clay,
That men might know to rule and to obey.
But now their characters depraved bin,
By them that would make gain of others' sin.
And now hath wrong so mastered the right,
That they live best that on wrong's offal light.
So loathly fly, that lives on galled wound,
And scabby festers inwardly unsound,
Feeds fatter with that poisonous carrion,
Than they that haunt the healthy limbs alone
Woe to the weal where many lawyers be,
For there is sure much store of malady.
'Twas truly said, and truly was foreseen,
The fat kine are devoured of the lean.
Genus and Species long since barefoot went
Upon their ten toes in wild wonderment: *
Whiles father Bartoll † on his footcloth rode,
Upon high pavement gaily silver strow'd.
Each homebred science percheth in the chair
While sacred arts grovel on the groundsel bare.
Since peddling Barbarisms 'gan be in request,
Nor classic tongues, nor learning found no rest,
The crouching client, with low bended knee,
And many worships, and fair flattery,
Tells on his tale as smoothly as him list,
But still the lawyer's eye squints on his fist;
If that seem lined with a larger fee,
Doubt not the suit, the law is plain for thee.
Tho' must be buy his vainer hope with price,
Dishclout his crowns, and thank him for advice.

I. e.. the professor of logic is obliged to go a foot.

↑ Bartholus, a civil lawyer of the fourteenth century.

So have I seen in a temptestuous stowre,*
Some briar-bush showing shelter from the show'r,
Unto the hopeful sheep that fain would hide
His fleecy coat from that same angry tide;
The ruthless briar, regardless of his plight,
Lays hold upon the fleece he should acquite,t
And takes advantage of the careless prey,
That thought she in securer shelter lay.
The day is fair, the sheep would far to feed,
The tyrant briar holds fast his shelter's need,
And claims it for the fee of his defence:
So robs the sheep, in favour's fair pretence."

COLERIDGE,

in "Table Talk," has this chapter on "Duties and Needs of an Advocate": "There is, undoubtedly, a limit to the exertions of an advocate for his client. He has a right, it is his bounden duty, to do every thing which his client might honestly do, and to do it with all the effect which any exercise of skill, talent, or knowledge of his own may be able to produce. But the advocate has no right, nor is it his duty to do that for his client which his client in foro conscientiæ has no right to do for himself; as, for a gross example, to put in evidence a forged deed or will, knowing it to be so forged. As to mere confounding witnesses by skillful cross-examination, I own I am not disposed to be very strict. The whole thing is perfectly well understood on all hands, and it is little more, in general, than a sort of cudgel-playing between the counsel and the witness, in which I think I have seen the witness have the best of it as often as his assailant. It is of the utmost importance in the administration of justice, that knowledge and intellectual power should be, as far as possible, equalized between the crown and the prisoner, or plaintiff and defendant. Hence, especially arises the necessity for an order of advocates-men whose duty it ought to be to know what the law allows and disallows; but whose interest should be wholly indifferent as to the persons and characters of their clients. If a certain latitude in examining witnesses is, as experience seems to have shown, a necessary means toward the evisceration of the truth of matters of fact, I have no doubt, as a moralist, in saying, that such latitude within the bounds now existing is justifiable." "Still, I think, that, upon the whole, the advocate is placed in a position unfavorable to his moral being, and indeed to his intellect also, in its higher powers. Therefore I would recommend an advocate to devote some part of his leisure time to some study of the metaphysics of the mind, or metaphysics of theology; something, I mean, which shall call forth all his powers, and center his wishes in the investigation of truth alone, without reference to a side to be supported. No studies give such a power of distinguishing as metaphysical, and in their natural and unperverted tendency they are ennobling and exalting. Some such studies are wanted to counteract the operation of legal studies and practice, which sharpen indeed, but like a grinding-stone, narrow while they sharpen."

Considerable sensation has been caused in San Francisco by reports that Judge Fields and Hoffman are to be impeached by Congress for misconduct in office. The leading journals discredit the charges.

*Shock.

† Acquit.

THE LAW OF INSANITY.

The attention of the public and the profession has of late been so strongly called to this subject that we have deemed it advisable to give a brief statement of what the law of the State of New York is on that subject.

That law is to be found in our statutes and in the reports of the decisions of our courts.

SAFE KEEPING OF LUNATICS.

Title three of chapter twenty of the first part of the revised statutes (1 N. Y. Statutes at Large, page 586) is devoted to "the safe keeping and care of lunatics." The person to whom this statute is made applicable is one who "by lunacy or otherwise becomes furiously mad, or so far disordered in his senses as to endanger his own person, or the person or property of others, if permitted to go at large." And it is enacted as follows:

21. When such person has sufficient property to maintain him it is made the duty of the committee of his person and estate to confine and maintain him in such manner as may be approved by the overseers of the poor.

2. If he has not such property, then his father, mother and children, if of sufficient ability, shall provide a suitable place, and so confine and maintain him.

4. In case that is not done, it is made the duty of the overseers of the poor to apply to two justices of the peace to have him arrested and his lunacy inquired into, and then have him safely locked up and confined, either in some place to be provided by those overseers, or in the county poor-house, or in such private or public asylum as the board of supervisors may approve, or in the asylum in the city of New York.

6. No such person shall be committed as a disorderly person to any prison, jail or house of correction, in any other way than thus directed.

7. No such "lunatic, or mad person, or person disordered in his senses"-here it will be noted a different language is used, embracing more than the furiously mad-shall be confined in the same room with one accused or convicted of crime, nor be confined in jail at all, more than four weeks; and if he continue furiously mad or dangerous he shall be removed to the poor-house or an asylum.

28. Any two justices of the peace, without an application from the overseers of the poor, may so apprehend and confine such "lunatic or mad person." ?? 9, 10. When such lunatic is confined in a county poor-house, the county superintendents may send him to the lunatic asylum in New York, and provide for the expenses of keeping him there.

In addition to the foregoing, there is this provision in the poor law, 1 N. Y. Stat. at Large, 583, § 73: “In those counties where county poor-houses may be established, the superintendents may provide for the support of paupers that may be idiots or lunatics, out of such poor-house, in such manner as shall best promote the interests of the county, and conduce to the comfort and recovery of such paupers."

THE PROPERTY AND ESTATE OF LUNATICS.

By 10 of article second of title 1 of chap. 1 of part 2 of the revised statutes, 1 N. Y. Stat. at Large, 667,

"idiots and persons of unsound mind" are declared incapable of conveying any interest in land, though by section eight they are declared capable of holding the same, and of taking it by descent, devise, or purchase.

But there is a subsequent act, passed in 1864, providing for the sale and conveyance of any interest in real estate belonging to lunatics. 6 N. Y. Stat. at Large, 291.

Title 2 of chap. 5 of part 2 of the revised statutes, 2 N. Y. Stat. at Large, 53, relates to "the custody and disposition of the estates of idiots, lunatics, persons of unsound mind, and drunkards."

Herein is given to the chancellor (now the supreme court), the care and custody of all such persons, and of their real and personal estates, so that the same shall not be wasted or destroyed, and it is made his duty to "provide for their safe-keeping and maintenance, and for the maintenance of their families and the education of their children," etc.

That title contains sundry provisions which need not be here stated in detail, for executing these powers and performing these duties, making ample provision for trying the question of unsoundness of mind, and for restoring the property to its owner on his restoration to soundness of mind, or distributing it among his heirs or next of kin, in case of his death. This act was amended in 1865, as to such distribution. 6 N. Y. Stat. at Large, 581.

Thus far, it will be seen that provision is made for the confinement and maintenance of such persons and the preservation of their property, and to that extent the law is ample. But it does not stop there.

THE MARRIAGE TIE.

By article second of title one of chapter eight of part two of the revised statutes, 2 N. Y. Stat. at Large, 147, it is provided:

20. That the chancellor (now the supreme court) may declare void the marriage contract for this, among other causes, "that one of the parties was an idiot or lunatic."

? 24. When sought to be annulled on the ground of idiocy, it may be declared so on the application of any relative interested to avoid the marriage.

25. When sought to be annulled on the ground oflunacy, it may be declared so on similar application. In the former case, it may be so declared during the life-time of either of the parties; in the latter case, during the continuance of the lunacy, or after the death of the lunatic in that state, and during the life-time of the other party.

INSANE CRIMINALS.

By title one of chapter one of part four of the revised statutes, 2 N. Y. Stat. at Large, 678, ?? 16, 17, 18, it is provided, that if a convict, sentenced to death, shall become insane, the sheriff shall, with the concurrence of a judge, summon a jury of twelve electors to inquire into the insanity. If that jury find him insane, the sheriff shall convey him to the asylum for insane convicts, there to be confined until his recovery, and, on his recovery, the governor shall order the sentence to be executed.

By title seven of the same chapter of the revised statutes, 2 N. Y. Stat. at Large, 720, it is provided:

? 2. No act done by a person in a state of insanity can be punished as an offense, and no insane person can be tried, sentenced to any punishment, or punished for any crime or offense while he continues in that state.

Such has been our statute law since 1830. In 1842 an act was passed "to organize the state lunatic asylum, and more effectually to provide for the care, maintenance and recovery of the insane." 4 N. Y. Stat. at Large, 18.

Section twenty of that act modifies section four of title three of chapter twenty, above mentioned, by directing subjects to be sent, within ten days, to the state or some other asylum, and forbidding their confinement in any other place beyond ten days, and especially makes it the duty of the superintendents and overseers of the poor “to see that this provision be carried into effect in the most humane and speedy manner, as well in case the lunatic or his relatives are of sufficient ability to defray the expenses as in case of a pauper."

Section twenty-one provides for an appeal from the order of the two justices, when the case may be fully tried before a county judge.

Section twenty-two forbids a warrant by two justices, unless upon the evidence of two respectable physicians.

Section twenty-four requires the name, residence, occupation and office of every person bringing such lunatic to an asylum to be recorded.

Section twenty-six provides for admission to the asylum of a person in indigent circumstances, but not a pauper, becoming insane.

Sections thirty-one, thirty-two, thirty-three and thirty-four provide for the cases of persons charged with crime who become or are insane.

When the accused is acquitted on the ground of insanity, the court shall carefully inquire and ascertain whether the insanity still exists, and if it does, shall order him into safe custody, and to be sent to the asylum.

When a person is in confinement under any other than civil process a county judge shall institute a careful investigation, call two respectable physicians, and other witnesses, invoke the aid of the district

attorney, and a jury, and, if it be that the man is insane, order him removed to the asylum, where he shall remain until restored to his right mind, and on his restoration, to be set free or remanded to his imprisonment, as the case may require.

When the person is imprisoned on an attachment or other civil process, or for non-payment of a militia fine, similar proceedings may be taken; but on his restoration to a sound mind he shall be set free, with liberty, however, for the creditor to arrest him on new process.

When a person is charged with a misdemeanor and acquitted on the ground of insanity, he may be dealt with in the same way as persons charged with crime.

By section forty-two of that act, a patient of the criminal class may be discharged by order of one of the justices of the supreme court, if, upon due investigation, it shall appear safe, legal and right to make such order.

By chapter 446 of the laws of 1851 (4 N. Y. Statutes

at Large, 31), section 20 of the act of 1842 was modified so as to allow the county judge to send indigent lunatics to the county poor-house, or the asylum, as he may deem best.

By chapter 282 of the laws of 1850 (4 N. Y. Statutes at Large, 30), section 26 of the act of 1842 was modified as to persons in indigent circumstances and not paupers, requiring as a condition of their admission to the state asylum that their derangement shall be of recent origin, and providing for their support after being two years in the asylum.

It will be observed that different terms are used in these statutes to designate the objects of them, such as "idiots," "lunatics," "insane," "unsound mind," and out of this some uncertainty might grow. Thus, in the criminal law, the word used is "insane." In the act respecting property it is "lunatics and persons of unsound mind," and in the marriage act it is "lunacy."

This mischief, however, is a measure guarded against by the statutes themselves. Thus in the marriage law, it is enacted that the term "lunatic" extends to every person of unsound mind except idiots," (2 N. Y. Stat. at Large, 149, 29); in regard to criminals it is enacted that the terms "lunacy," "lunatic" and "insane" include every species of insanity, and extend to every deranged person, and to all of unsound mind other than idiots. 4 N. Y. Statutes at Large, 28, ? 46.

From these enactments, it would seem that every case was provided for, and a complete system established whereby the lunatic and the community are alike provided for by statute. That, however, is not so to the full extent.

For instance, take the case of a man who is arraigned on an indictment, and who seems to be too unsound of mind to know what is occurring around him, what is to be done in that case? Is his insanity to be taken for granted? If it is, a sane man may escape a just punishment. If it is not, then an insane man, too far afflicted with the disease to know or guide the circumstances surrounding him, may be tried and convicted, and, perchance, executed.

The statutes are silent as to what is to be done in such a case, but the courts have power to remedy the evil, and an enlightened tribunal will readily find the means of doing justice.

In The People. v. Lake, 2 Parker Cr. C. 215, rules and directions are given to govern the jury in trying the question of present insanity.

In The People v. Kleim, 1 Edmonds' Sel. Cas. 13, the whole proceedings on the trial of the question preliminary to the trial on the indictment are given. A jury was impaneled the form of their oath is given the prisoner was held to have the affirmative on that issue, and that jury found against the issue of present insanity. He was then tried on the charge

of murder, and acquitted on the ground of insanity. And notwithstanding the finding of the first jury, the court made an order in these words:

"The prisoner having on his trial for murder been acquitted by the verdict of the jury on the ground of insanity, and the court being certified of the fact, and having also carefully inquired and ascertained that such insanity does still continue, it is ordered that the said prisoner be detained in safe custody, and be sent to the State Lunatic asylum; that the sheriff of the city and county of New York do forthwith transport the said prisoner to the said asylum, and that the said prisoner be detained and kept in safe custody in the said asylum until thence discharged according to law."

To that case is appended a note that the prisoner remained a few years in the asylum and died therehis disease having steadily grown worse until he became a mere driveling idiot.

In that same volume of reports there are other cases of insanity as a defense in criminal cases.

In The People v. Griffen, page 126, where the prisoner murdered the seducer of his wife, there was no preliminary inquiry, but an acquittal, on the ground of insanity, and a commitment to the lunatic asylum, because of the continuance of the disease. The confinement in the asylum continued some four years, and the report of this case is interesting as showing the modus operandi of discharging a prisoner under the act of 1842.

The People v. Catharine Doran, in the same volume, page 580, is another case where a woman who murdered her own son was committed to the asylum and afterward discharged.

INSANE CONVICTS.

Taking, then, these enactments and reported cases, and we seem to have worked out a complete system, on which the public mind may rest secure of protection. But there is an additional link in the chain to make the system entire.

Some years ago there was great complaint by the officers of our state prisons that some of the convicts were insane and no provision was made for them. In 1843 a scrutiny showed that more than thirty of the convicts in one prison (Sing Sing) were insane.

In 1846 a law was passed (5 N. Y. Stat. at Large, 188) directing the removal from the state prison, to the state lunatic asylum, of all convicts who were insane, there to be retained so long as the insanity should continue, and on their recovery, to be remanded to the prisons.

In 1855 it was enacted (5 N. Y. Stat. at Large, 241) that provision should be made in the prisons for insane convicts, and then that they should be removed from the state asylum.

In 1858 an act passed (5 N. Y. Stat. at Large, 242) organizing a state lunatic asylum for insane convicts, which was erected at Auburn, and now contains all the insane convicts in the state, numbering at this time some eighty subjects.

It was in February, 1859, that the first patients were received in that asylum. From that time to the first of October, 1868, there were 180 insane convicts received there, of whom 81 were discharged, six escaped and seventeen died.

This institution is provided only for those who are found to be insane while confined in the state prisons. Those who are not yet convicted of crime are sent to the state asylum at Utica. Thus maintaining here, as in the outside world, a distinction between those who have been convicted of crime and those who have not been.

We have thus given a general view of the state of the law among us, as to the insane. Our limits compel us to be thus succinct and to omit many of the details, and an enumeration of the various provisions which have been adopted to carry out the humane purposes of our legislation. It will readily be seen that due care is taken of those thus dreadfully afflicted, and every available opportunity of ultimate recovery is provided, and especially for the criminal, the pauper and the indigent, and, at the same time, that the law is abundant for the protection of the community against the madly furious, and even against those who are liable to a return of homicidal mania, or mania for stealing or burning. If the community are put in danger from such persons being turned loose upon society the fault is not in the law, but in those who administer it. And when a judge presides over a trial where the homicide, the thief, or the incendiary is acquitted on the ground of insanity, he may well be asked how he excuses the omission to obey that law which says that in such case he shall carefully inquire and ascertain whether the insanity in any degree continues, and if it does shall order him in safe custody, and to be sent to the asylum.

ON USURY.*

The subject of usury has been a fruitful source of discussion and contention among the ablest theorists, and, down to the present time, has arrayed in antagonistic relations the most profound and philosophical minds that, through successive ages, have adorned the world.

And to-day, when unlimited wealth flows into the coffers of our merchants and bankers, the subject is necessarily exercising the mind and attention of commercial men throughout the state and country in a very large degree. Almost every nation and country has fixed by law a rate of interest for the use of money. Centuries ago, usury was understood to mean the taking of any money for its use; at the present time, if money be paid for its use, according to the legal rate, it is denominated interest; if more be taken it is pronounced usury.

The laws in England, regulating interest and usury, have been quite various and significant.

In the third year of Henry VII (A. D. 1488) an act was passed prohibiting the taking of interest for money on any bargain, promise, by bill or otherwise, as being "contrary to the law of natural justice, to the common hurt of the land and the great displeasure

The following article on usury was delivered before the Brooklyn Law Club, on the 12th of May, 1870, by John F. Baker, LL. B., of the New York bar, and has been furnished us by the club. The subject is one of general interest, and the manner in which it is herein discussed will be found interesting to the profession.

ED. A. L. J.

of God." Such bargains were to be void, and the parties or their agents to forfeit £500.

Eight years after the passage of that act, so general were the evasions of its provisions, another act was passed which repealed the former, and substituted what was deemed a more efficient remedy.

Great complaint also being made of this law as being injurious to commerce and the improvement of the country, an act was passed in the 37 of Henry VIII, entitled “a bill against usury," by which it was forbidden to take above the sum of ten pounds in the hundred for the forbearing or giving day of payment of one whole year.

Thus, in the language of an eminent writer, "for the first time in England, interest was negatively and indirectly sanctioned by law-the sense of mutual benefit having at length triumphed over both the decrees of the church and the prejudices of mankind."

This act, however, was repealed seven years afterward, and things were restored to their former footing by an act which declared all interest whatever illegal, and subjected the taker to severe penalties.

But, notwithstanding the rigor of this last statute, the necessities of a growing trade had suggested numerous expedients for evading its provisions, and accordingly in the 13 of Elizabeth the act of Henry VIII was revived, and interest again tolerated at ten per cent. The act of Elizabeth, though at first temporary, was afterward, in the 39 of the same reign, declared to be perpetual.

The rate thus established continued, with but slight variation, until James I came to the throne (1603), when it was reduced to eight per cent.

While England was a commonwealth, interest was only six per cent, which rate was re-enacted under Charles II (1661).

Here we cannot but notice the change which, in a comparatively short period of time, had taken place in regard to the law of usury. The taking of interest for the use of money, which, from the earliest periods of antiquity, had been visited with these verest penalties, was now established and regulated by positive law; and that which had been stigmatized as a "damnable sinne," now became divested of its odiousness, and was incorporated into the policy of the country.

From this period may be dated the era of commercial enterprise. It was soon discovered that, as the restrictions were removed, the rate of interest lowered in a proportionate degree, and that both lenders and borrowers were placed upon a more equal and advantageous footing than ever before. But, notwithstanding this general revolution in society, the change was not complete.

Ever since the taking even the least amount of interest had been legalized, so quickly did its policy and expediency recommend itself to the trading community, that numerous propositions had been already made to repeal all remaining restrictions, and thus free commerce from the last vestiges of extraneous control.

This movement met with a firm resistance from the landed interests, upon the ground that it would cause capitalists to prefer the more remunerative investments of commerce rather than on mortgage security,