satisfied by the results of new and enlarged experience, that he is laboring under a form of mental disorder, which renders him irresponsible for his acts, but is not mentioned in the law which he is bound to follow. Besides, there are various stages in every mental disorder when the patient may be really irresponsible, but the features of which are not strongly enough defined, to warrant the physician in referring it to any particular one of the forms mentioned in the law.'

Secondly, a general principle may be laid down, by which the judge is to decide, whether or not, the accused is responsible for criminal acts.

This course has been taken by the framers of the proposed Saxon code which contains the following article:-" Responsibility is annulled in persons who are deprived of the use of reason, by mental disease." Art. 65.

Our author observes, that considering the infinite diversity of opinion respecting the exact meaning of such general terms, the legislator will be likely to fall short of his purpose, by making them too broad or too narrow in their import. It is very possible, that in any particular trial, no two persons could be found to agree respecting the practical application of such terms as, deprived of the use of reason, bereft of understanding, &c., and how many judges would see, in the unfortunate monomaniac before them,-who, though stained with the blood of a fellow-man, whom some wild delusion had prompted him to kill, is still correct and coherent in his discourse, staid and dignified in his demeanor, ready and shrewd in his replies,-a being deprived of his understanding, or the use of his reason? We have seen too often the deplorable failure of such general terms to protect the miserable subjects of disease, under the operation of the English common law, to doubt for an instant of the entire correctness of our author's remark.

See a remarkable case of this kind, that of Pechot, in our last number.

Thirdly, particular diseases may be mentioned, as examples of those which annul responsibility.

In the Norwegian code proposed in 1835, we find the following article :-"They are exempt from punishment for their acts, who are affected with general mania or hallucination, and also they who are deprived of the use of their understanding by sickness."

The same objections that were urged against the first form of legislation are equally applicable, says our author, against this. Indeed, the illustration here given from the Norwegian code, it appears to us, would have been as properly arranged under the first.

Fourthly, we may lay down a general principle for determining the state of mind in which responsibility is annulled, and adduce certain diseases as illustrations of the principle.

In the proposed Wurtemberg code, article 91 contains these words--" An illegal act is exempt from punishment, if committed in a state of mind in which the use of reason is taken away; to this state belong, chiefly, general mania, general and partial hallucination, entire imbecility, and complete confusion of the senses, or understanding." In the code of the grand duchy of Hesse, proposed in 1836, the 29th art. reads thus:-" By reason of their impaired responsibility, punishment cannot be inflicted on those who commit penal acts in a state of sleep, of somnambulism, of general mania, of hallucination, of imbecility, or of any other mental disorder, which either takes away all consciousness respecting the act generally and its relation to penal law, or, in conjunction with some peculiar bodily condition, irresistibly impels him, while completely unconscious, to violent acts." The code of the grand duchy of Baden, proposed in 1837, has the following provisions :-" Responsibility is annulled in that condition, in which, either a consciousness of the criminality of the offence, or the free

will of the offender, is taken away." Art. 65. "To the condition which annuls responsibility on the strength of the 65th article, belong chiefly imbecility, hallucination, general mania, distraction and complete confusion of the senses, or understanding." Art. 69. In the code of Lucerne in Switzerland, article 61st reads thus :-" They who have committed an act, in a condition in which they did not possess the use of their reason, are irresponsible for that act, such as those who labor under general mania, general or partial hallucination, or any mental disorder, by which the use of reason is taken away." In the code of 1836, we find the following provisions:-"They only are responsible for their acts who perceive their illegality, and are capable of refraining from them." Art. 76. "The application of penal law is debarred, therefore, in respect to those, who, when they committed the act, were deprived of the use of their reason, by general mania, hallucination, imbecility, or otherwise." Art. 77.

This method, our author considers preferable to the others we have mentioned, inasmuch as it better conveys the real intention of the legislator, and better indicates the meaning of his terms.

Fifthly, the legislator may lay down the principle by which responsibility is to be judicially determined, and mention, by some general designation, alienation of mind, as among the causes that remove responsibility.

In Livingston's code (New Orleans, 1824, chap. 111, p. 15,) we have the following words:"No act done by a person in a state of insanity can be punished as an offence." The revised statutes of the state of New York, (Albany, 1836, vol. ii, p. 582,) contain the same words. The French penal code is equally simple:-"There can be no crime, nor offence, if the accused were in a state of madness at the time of the act." Art. 64.

We cordially agree with our author in considering this

provision as not only having the merit of simplicity, but also as best calculated to promote the ends of justice. True, it cannot be denied, that an insane person may be actually guilty of a criminal act, his insanity being very partial, and the act not within the range of its operation, while by the letter of the law, he must be acquitted. The only way of avoiding this evil, would be to add something like the following; provided, it cannot be proved that the act was not the offspring of the insanity. We are not certain, however, that even this provision might not be the means of defeating the intention of the legislator,

The concluding observations of professor Mittermaier breathe the spirit of the humble, truth-seeking philosopher, and should sink deep into the minds of all whose duty it is to make or administer the criminal law of insanity. "In fixing upon the principle of responsibility, the legislator should avail himself of whatever light the progress of science may have furnished. With jurisprudence alone for his guide, he will never arrive at the truth. It is his duty to give his attention to the researches of philosophers and physicians, to examine them impartially, and select whatever in them is good. In laying down the principle, he should avoid indefinite and ambiguous terms, but in clear, well selected language express the certain indications by which his condition may be recognised, whose responsibility is in question. Neither is the judge, whose duty it is to administer the law, to be satisfied with merely knowing what are its provisions. He should go back to the fountain from which the legislator himself has drawn,—to the precepts of philosophy and medicine, without which and destitute of the aid that true science alone can furnish, he will be unable, in numberless cases, to arrive at the real the legislator."

meaning of

I. R.

ART VI.-ON EXTRADITION, OR THE DELIVERY OF FUGITIVES FROM FOREIGN STATES, CHARGED WITH CRIMES COMMITTED THEREIN.

[Two cases have recently occurred in this country, in which it has become important to investigate the subject of extradition; the case of Dr. Holmes, claimed by the authorities of Lower Canada of the governor of Vermont, and the case of the negroes captured in the Spanish schooner Amistad, claimed of the government of the United States, as offenders against the laws of Spain.

The governor of Vermont, in pursuance of a request from the governor of Lower Canada, made an order for the surrender of Holmes, the execution of which was suspended by a habeas corpus, issued by one of the judges of the supreme court of the state. The case was argued on behalf of Holmes before the whole court, on the 20th July last, by Mr. Van Ness, formerly governor of Vermont, in a very able and conclusive manner. This argument is republished below, as a valuable and interesting document. In connection with Mr. Van Ness's argument, we republish a letter addressed by L. S. Cushing, one of the commissioners for codifying the crimmal law of Massachusetts, and also one of the editors of this journal, to Ellis Gray Loring, Esq., of Boston, on the same subject.]

MR. VAN NESS'S ARGUMENT.

THE Court have already seen that our motion for the discharge of the prisoner rests upon the following grounds:

1. There is no obligation by the laws of nations to surrender persons charged with the commission of crimes in foreign countries, but it is a mere matter of comity between the different governments, and it is discretionary with each how to act upon the subject.

2. Whether there exists an obligation or a comity, a state cannot act upon the matter, but it appertains exclusively to the government of the union.

3. Admitting that the state has a concurrent jurisdiction over the subject with the national government, yet the governor cannot order a surrender without an act of the legislature giving him the power.

4. The practice of surrendering, whether by obligation