1839.] Schröder on Laws and Institutions for the Insane. 231

What an additional difference was this between the Israelites and the Egyptians! Among the latter, the mass of the people did not dare, without incurring the hazard of the most terrible punishment, to utter a word on affairs of state; it was Harpocrates, the god of silence, with his finger on his closed lips, who was their God; in Israel, it was the right of speech.'

"But we forbear any further reflections, and submit this remarkable performance to our readers. Those, who are familiar with the animated tone of French writers, will perhaps discover in this translation some loss of the fire and intensity of the original; but the translator's purpose will be effected, if his version shall be found to be a faithful one."

14.-Dissertatio juridica inauguralis, de Legibus et Institutis in Commodum Mente Alienatorum, quam publico ac solenni examini submittit JANUS SCHROEDER. Trajecti ad Rhenum, 1838.

This dissertation, in two hundred and forty octavo pages, presents the fullest, most accurate, and most methodically arranged view, which we have ever seen, of the laws and institutions of different countries, for the benefit of the insane. It is divided into three parts: I. De legibus et institutis apud populos cultiores circa mente alienatos ante sæculum XIX obviis; II. De legibus et institutis apud populos cultiores in mente alienatorum causa sæculo XIX ortis; III. De jure, in causa mente alienatorum constituendo observationes. The first part contains three chapters: 1, de legibus et institutis, quæ mente alienatorum personas spectant; 2, de jure ad tuenda mente alienatorum bona apud varios populos constituto; 3, de examinanda animi conditione eorum, qui mente alienati esse dicuntur. The second part contains three chapters: 1, de legibus et institutis, quæ mente alienatorum personas spectant; 2, de legibus ad tuenda mente alienatorum bona sancitis; 3, de examinanda animi conditione eorum, qui insani esse dicuntur. The third part contains two chapters: 1, de iis, quæ vel personarum vel bonorum mente alienatorum cura a legumlatore adhuc postulare videntur; 2, de causæ cognitione et mentis alienationis inquisitione rite instituenda.

INTELLIGENCE AND MISCELLANY.

ENGLISH EQUITY IN AMERICA.

It would be mere affectation in us, to pretend to be indifferent to the estimation, in which the works of our own countrymen are held by men of scientific and literary distinction in other countries. We were much gratified, therefore, to see an elaborate review of Mr. Justice Story's work on Equity Pleading, in the (London) Law Magazine for May last, under the title of English Equity in America. The writer, who, from the signature, and certain internal evidence, we conjecture to be Mr. Calvert, author of a treatise on Parties to Suits in Equity, pronounces a favorable and complimentary judgment upon the work. The following extract, which, however, relates quite as much to the subject of the title of the review as to the book reviewed, will be read with interest.

"When we found that a lawyer, distinguished by these cele brated publications, had written commentaries upon the pleadings and practice of courts of equity in England and America, our curiosity was excited to see how far our English doctrines are in harmony with those of the writer himself, and of the courts of which he is a distinguished ornament. That there should be a difference upon essential principles, we did not expect. But we have certainly been much surprised to find, that all our doctrines, with, we believe, scarcely any exceptions, are approved of and adopted in daily practice in the American courts of equity. A half century has elapsed since the two countries were separated. During that period the courts of America have been wholly inde

pendent of the courts of England. American advocates have been allowed to argue, and judges to decide, without any other deference to the decisions and principles of the English courts, than that which good sense and pure morality will always retain over enlightened and correct understandings. Yet we find that the sway of our equitable principles is as firmly established in American courts, as if they still owed allegiance to the house of lords, as to the supreme court of appeal. This result appears to us to be most satisfactory; a result, in which this country may find abundant cause for self-congratulation. We may add, in justice to great men now departed, that such coincidence of opinion, such approbation of lawyers, of men of property, of men engaged in business, in all the intricate relations which arise out of the possession and transfer of property, and compelled by their own interests and labors to observe the consequences to which legal and equitable principles have led, of men, too, who have the power of changing laws which they deem erroneous, as well as that of confirming them when found to be correct, may teach this country how large a tribute is due to the memory of many of her chancellors, of such lawyers as lords Nottingham and Macclesfield, who sowed the seeds of our equitable jurisprudence, and lords Hardwicke and Eldon, who have successively added their exertions in bringing the harvest to maturity. The dynasty of Napoleon has passed away, but his code, in fulfilment of his prophecy, still asserts for his memory abundant claims upon the gratitude of France: and now that England has lost political dominion over her colony, she still maintains with every judgment that issues from her courts a judicial authority over her independent ally.

"The cases quoted by Mr. Justice Story in support of his opinions are English cases, in the proportion of full twenty to one. We search in vain for fresh lights thrown by American judges upon our equitable doctrines. Those judges have followed in our traces with scrupulous care; nor does the work before us mention any departments of the science, in which they have introduced alterations or essential improvements. We confess, that

we did not wish to find the homage to English authority carried to so great an extent. It would have given us far greater pleasure to have been informed of some decisions, in which more original views had been taken, and in which our commentator had relied with greater confidence upon the decisions of American courts."

In the following remarks, the reviewer comments upon Mr. Justice Story's criticism of the rule laid down by the former, (if we are right in our conjecture that the writer is Mr. Calvert) in his work on Parties to suits in Equity. Both the rule and the exposition of it are well worthy the attention of the equity lawyer.

"There is no part of the commentaries which is more carefully labored than the chapter on the proper parties to bills. We advert to it the more attentively because we venture to think that our author has dissented, without good reason, from a criticism upon the general rule concerning parties, which has been offered in a modern publication. In a recent work,' (Calvert on Parties to Suits in Equity) it is remarked in a note, 'which came to my hands since this whole chapter on parties was written, it is stated that the true rule is, that all persons having an interest in the object of the suit, not all parties having an interest in the subject of the suit, ought to be made parties. Whether this criticism on the language of the authorities and of the elementary writers is well or ill founded, it does not seem necessary here to consider, as I am not aware that it removes a single difficulty or doubt in examining the subject of parties.' It is obvious that there is a distinction between the ideas conveyed by the two words. The prayer contains the object; the stating and charging part, the subject of suit. In one bill a trust is stated, and execution of it is prayed; in another the same trust is stated, with a prayer that the trust fund may be reduced into possession. These bills are identical in the subject of suit, namely, the trust. They differ in the object, as one is the execution of he trust and the other is not. The cestuis que trust are necessary parties in the former, but not in the latter. Again, two bills con

tain the same statement of the same mortgage, the one praying a sale, the other a foreclosure. In the former the personal as well as the real representative of the deceased mortgagor is to be a party, in the other the real representative alone.

"But it may fairly be said, that the vagueness introduced into the rule by the use of the word subject is much greater than it would appear to be from the consideration of these cases. Two bills may be filed with reference to the same landed estate, the one praying specific performance of a contract for sale, the other praying a partition. There is certainly no abuse of language in applying the word subject to the estate. Yet no reasoning is necessary to show that these two suits will altogether differ from one another in respect of the persons to be made defendants. These doubts disappear at once, if the word 'object' is substituted in the general rule for the word subject.' We have mentioned these instances as being of the most common occurrence. They appear to be sufficient to show that the distinction has not been suggested without adequate reason. In truth, the distinction is one of vital importance. A pleader's mind must for ever dwell on his decree on the position which he is to occupy at the hearing for further directions, on the relief to be then obtained, and the mode in which the several interests of the several parties are then to be dealt with. What difference is there between a bill for relief and a bill for discovery? Simply the object of the suit. The two bills may contain the same statements of the subject. They differ in the prayer, that is, in the statement of the object. Corresponding with that difference there is also a difference in the requisite parties.

"In examining a few passages of the work before us, it will, we think, appear, that our author has fallen into one or two errors by overlooking this very distinction, and that he actually adopts it when he desires to be precise. For instance, he observes, 'Indeed it may be laid down as a general rule, that where any persons are made trustees for the payment of debts and legacies, they may sustain a suit either as plaintiffs or as defendants, without bringing before the court the creditors and legatees for whom