teen, and in that country alone girls are whipped if under the age of twelve.- Condensed for Public Opinion from the London Hospital. questions as to the maintenance and extension of our national dominion. It is not the province of the courts to participate in the discussion or decision of these questions, for they are of a political nature and not judicial. Congress and the presi CHANGE OF SOVEREIGNTY OF A PEOPLE dent having assumed jurisdiction and sovereignty AND THE UNITED STATES CONSTITU- * ** all the people and the courts of the coun- HISTORY does not furnish us with a well- liminary to government, whether the territory be defined precedent where a nation, in case of contiguous or remote, whether our tenure be temconquest or acquisition of foreign territory, has ever succeeded in abolishing the laws and customs of a people brought under its dominion. porary or permanent, whether we keep, lease, sell or grant independence; these are all political matters intrusted without appeal to the discretion of congress. The act transferring a country from one sovereignty to a new one transfers the allegiance of its inhabitants. They, however, do not participate in political powers, nor can they share in the powers of the (new) general government, until they become a State.< It is a well-recognized principle of international law that the cession of sovereignty over a country by one nation to another affects only the political relations of the inhabitants of the ceded country, and makes them subjects thereafter of the nation receiving the cession; that while the inhabitants of the ceded territory change their allegiance, their relation to each other and their rights of property remain undisturbed.f Laws, usages and municipal Pilate surrendered Christ to the Sanhedrim because He had offended only against the Jewish authorities. Upon the overthrow of the Roman empire by the northern barbarians, Theoderic, the enlightened king of the Ostrogoths, proclaimed, "that other kings had made their conquests at the ruination of the conquered peoples; that, he, on the contrary, only desired that the Romans might congratulate themselves on the benefits of his dominion." His government was marked by a few radical changes in existing institutions and by that humane and considerate policy which was observed by the Visigoths upon their entrance in Spain, in permitting the inhabitants to continue in the exercise of their own laws and customs while the conquerors practiced the unwritten laws and observ-regulations in force at the time of cession remain in ances of the Goths.a William the Conqueror, upon force until changed by the new sovereignty. The his invasion of the British Isles, was not able to new sovereignty may deal with the inhabitants and extinguish Anglo-Saxon ideas of rights and justice, give them what law it pleases, unless restrained and the Moors occupied the Iberian Peninsula by the treaty of cession, but until alteration be made, nearly eight centuries and, although their sway the former law continues.g affected legislation, they left it Spanish. Warren Hasting's plan of 1772 for the government of British India continued Mohammedan law in force; Austria has seen good reasons for not attempting to make changes in Hungary; while it is surprising to find how Spanish everything is even to-day through out Latin-America. And so it would seem that upon the broad and general grounds "of the eternal fitness of things," aside from the political and legal aspects of the case, the United States of America should not ex abrupto force its Constitution as a whole with its far-reaching results, nice distinctions and discriminations, many of which are peculiar to the common law, upon a civil-law people who are strangers to Anglo-Saxon legislation and customs and who will require at least a generation in which to understand and to be able to differentiate the two systems. The maintenance and extension of our national dominion is a political and not a judicial problem, notwithstanding the existing evil, if evil it be, of too much judge-made law. The president and congress are vested with all the responsibility and powers of the government for the determination of a Walton's Civil Law in Spain and Spanish-America, pp. 39-43. Walton's Civil Law in Spain and Spanish-America, p.163. By the recent treaty with Spain sovereignty is ceded to the United States over Puerto Rico and the Philippine Islands with the following proviso: “The civil and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by congress." The ceding power imposes no conditions and reserves no rights defined and secured by the federal Constitution to the inhabitants of these new possessions. None of our territories have ever been organized under the Constitution but are creatures exclusively of the legislative department of the government and subject to its supervision and control, and in a territory all the functions of government are within the legislative jurisdiction of congress; conse quently, it is for congress to decide what the political status of residents of our new possessions shall be; whether they shall exercise the rights of suf c 50 Fed. Rep. 110. d 14 Pet. 538; 9 How. 242; 18 Wall. 320; 101 U. S. 133. e Story on the Const., Sec. 1234; 1 Pet. 542; Halleck's Int. Law, p. 380 (Baker's ed.); 2 Whart. Dig. Int. Law, D. 425. f Vattel, Book 3, Chap. 13; 1 Pet. 511; 7 Pet. 51; 9 Pet. 711; 12 Pet 410. g 9 Pet. 711; 16 How. 164. h 9 How. 242. i 86 Fed. Rep. 459. frage or not, and that right, if granted, may be lim- It divide the inhabitants into two classes, and proited or extended at the will of congress. The late treaty with Spain is distinguished from all others heretofore made by the United States in the acquisition of new territory. It is provided in the treaty of 1803 for the cession of Louisiana that: "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages and immunities of the citizens of the United States, and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess." The treaty of 1819, by which Florida was ceded to the United States contains a similar provision in Article VII. The administration of Mr. Monroe, expressly, by unanimous cabinet decision, and each house of congress, impliedly and without division, decided that no part of the Constitution and no act of congress applied to a territory unless extended to it by congress. The question arose by Judge Fromentin issuing a writ of habeas corpus to have the body of ex-Governor Callava (then imprisoned by the order of General Jackson) brought before him, claiming the right to do so under the Constitution and under the laws of congress vesting United States judges with that power. Governor Jackson denied the power and dealt militarily with the judge for issuing the writ, telling him that no part of the Constitution had been extended to the Floridas, nor any act of congress authorized him to issue the writ. The case was brought before the president and congress with the above stated result. The act for the temporary government of Florida was not an isolated instance in the history of our territorial legislation: it but copied in almost the exact words the first act for the establishment of a temporary government in Louisiana. The “liberty, property and religion," the free enjoyment of which was guaranteed to the inhabitants of the territories by these acts, were subject to the despotic authority exercised by the American governor, as the successor of the Spanish captain-general, and this despotic government in Florida actually lasted four years. Senator Benton states that: "Two different administrations and two different congresses, at the distance of sixteen years apart, governed two acquisitions of new territory exactly alike, and as incompatibly with our Constitution as a Spanish regal despotism is incompatible with Our free republican government." vides that they may return to Russia within three years, and in respect to those who do not return, states: "But if they should prefer to remain in the ceded territory, they, with the exception of the uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes shall be subject to such regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country." The Constitution and federal laws have not been made operative in Alaska, and only such statutes have been extended to it as circumstances warranted. It is an organized territory, governed directly from Washington. Physically it is foreign, its nearest point being 400, and its farthest 2.400 miles from Seattle. The Aleutian Islands extend even into the geographical limits of another continent. For thirty-two years a few judicial and executive, but no legislative functions of government have been conferred upon the inhabitants. It is unquestionably within the constitutional power of congress to withhold from the inhabitants of Alaska the power to legislate and make laws.k In every treaty by which the United States has acquired inhabited territory, prior to the Paris treaty with Spain, the ceding power has inserted a provision that the inhabitants, except uncivilized tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and all, except that by which Alaska was acquired, contain the further provision that they shall in due time, to be determined by congress, be admitted as a State or States into the Union. In the absence of treaty provisions, it, therefore, appears that the Constitution, with the exception of the thirteenth amendment, does not ex proprio vigore extend itself over the newly acquired territories. Colonies are territories settled by citizens of the sovereign or parent state who left their native land to people another and to remain subject to the mother country. Puerto Rico and the Philippines, already densely populated, afford little opportunities for American colonization, and, therefore, can hardly be designated as colonies. Unorganized territories, such as Alaska and the Indian Territory, as we have seen, possess no local government and are not usually subject to the Constitution and federal laws, but are ruled directly by congress. The treaties by which New Mexico, Utah, Cali- Organized territories, such as New Mexico and fornia were acquired in 1848 and 1853, embrace | Arizona, are portions of the national domain, over provisions similar to the Florida treaty (Articles which congress has extended the Constitution and VIII, IX, and V). The treaty of 1867, by which Alaska was acquired, has no provision for the incorporation of tne territory into the Union as a State or States. j Benton's Examination of the Dred Scott Case, pp 4, 73. federal laws and in which a local government has been allowed to be established.' Territories may be considered as either organized or unorganized dependencies or provinces, these words being in of delusion promised for a while to become the sole reality synonymous terms. The word "colony" test of insanity, and, acting under the duress of such has no place in the history of our government. It is natural for the people of the United States to turn to the federal Constitution, the bulwark of their rights and liberties, for the solution of all kinds of governmental problems, and in so doing there is a tendency to overlook one of its principal objects and purposes, namely: To provide means for the better distribution, exercise, and regulation of a greater part of the sovereign power of the United States than had existed under the articles of confederation. From the recognition of the independence of the United States among nations, from 1783 until 1787, and until the time of its adoption, this government existed, however, and exercised sovereign power without the Constitution. Since its adoption, and up to the present time, the government, in numerous cases, has exercised sovereignty independently of the Federal Constitution. - Clifford S. Walton, in American Law Register, Washington, D. C. INSANITY AS A DEFENSE. F ALL medico-legal questions those connected with insanity are the most difficult and perplexing. It has become of late a matter of comment among intelligent men, including the most advanced thinkers in the medical and legal professions, that the deliverances of the law courts on this branch of our jurisprudence have not heretofore been at all satisfactory, either in the soundness of their theories or in their practical application. The earliest English decisions striving to establish rules and tests on the subject, including alike the legal rules of criminal and civil responsibility and the supposed tests of the existence of the disease of insanity itself, are now admitted to have been deplorably erroneous, and, to say nothing of the vacillating character, have long since been abandoned. The views of the ablest of the old text writers and sages of the law were equally confused and uncertain in the treatment of these subjects, and they are now entirely exploded. Time was in the history of our laws that the veriest lunatic was debarred from pleading his providential affliction as a defense to his contracts. It was said, in justificaton of so absurd a rule, that no one could be permitted to stultify himself by pleading his own disability. So great a jurist as Lord Coke, in his attempted classification of madmen, laid down the legal rule of criminal responsibility to be that one should "wholly have lost his memory and understanding," as to which Mr. Erskine, when defending Hadfield for shooting the king, in the year 1800, justly observed: "No such madmen ever existed in the world." After this great and historical case the existence delusion, was recognized in effect as the legal rule of responsibility. Lord Kenyon, after ordering a verdict of acquittal in that case, declared with em-' phasis that there was "no doubt on earth" the law was correctly stated in the argument of counsel. But, as it was soon discovered that insanity often existed without delusions, as well as delusions without insanity, this view was also abandoned. Lord Hale had before declared that the rule of responsibility was measured by the mental capacity possessed by a child fourteen years of age, and Justice Tracy and other judges had ventured to decide that, to be nonpunishable for alleged acts of crime, “a man must be totally deprived of his understanding and memory, so as not to know what he was doing no more than an infant, a brute or a wild beast." All these rules have necessarily been discarded in modern times in the light of the new scientific knowledge acquired by a more thorough study of the disease of insanity. - It is everywhere admitted, and as to this there can be no doubt, that an idiot, lunatic or other person of diseased mind who is afflicted to such extent as not to know whether he is doing right or wrong, is not punishable for any act which he may do while in that state. Can the courts justly say, however, that the only test or rule of responsibility in criminal cases is the power to distinguish right from wrong, whether in the abstract or as applied to the particular case? Or may there not be insane persons of a diseased brain, who, while capable of perceiving the difference between right and wrong, are, as a matter of fact, so far under the duress of such disease as to destroy the power to choose between right and wrong? Will the courts assume as a fact not to be rebutted by any amount of evidence or any new discoveries of medical science that there is and can be no such state of mind as that described by an eminent writer on psychological medicine as one "in which the reason has lost its empire over the passions and the actions by which they are manifested to such a degree that the individual can neither repress the former nor abstain from the latter?" Much confusion can be avoided in the discussion of this subject by separating the duty of the jury from that of the court in the trial of a case of this character. The province of the jury is to determine facts; that of the court to state the law. The whole difficulty is that courts have undertaken to declare that to be law which is matter of fact. If the tests of insanity are matters of law, the practice of allowing experts to testify what they are should be discontinued; if they are matters of fact, the judge should no longer testify without being sworn as a witness and showing himself to be qualified to testify as an expert. No one can deny that there must be two con stituent elements of legal responsibility in the commission of every crime, and and no rule can be just and reasonable which fails to recognize either of them: disease. The attempt has been repeatedly made and has proved a confessed failure in practice. The symptoms and causes of insanity are so variable and its pathology so complex that no two cases may (1) Capacity of intellectual discrimination and be just alike. (2) freedom of will. The fact of the existence is never established by Mr. Wharton, after recognizing this fundamental any single diagnostic symptom, but by the whole and obvious principle, observes: 64 If there be either incapacity to distinguish between right and wrong as to the particular act, or delusion as to the act, or inability to refrain from doing the act, there is no responsibility" (1 Whart. Crim. Law [9th ed.], sec. 33). Mr. Bishop, in discussing this subject: “There cannot be, and there is not, in any locality or age a law punishing men for what they cannot avoid" (1 Bish. Crim. Law [7th ed.], sec. 383b). If, therefore, it be true, as matter of fact, that the disease of insanity can, in its action on the human brain through a shattered nervous organization, or in any other mode, so affect the mind as to subvert the freedom of the will and thereby destroy the power of the victim to choose between the right and wrong, although he perceive it - by which I mean the power of volition to adhere in action to the right and abstain from the wrong is such a one criminally responsible for an act done under the influence of such controlling disease? - body of symptoms, no particular one of which is present in every case (Ray, Med. Jur. Insan., sec. 24).- John Tracy Jones in Chicago Evening Post. REMINISCENCES OF LORD RUSSELL OF Mr. Edward Dicey contributes to the Fortnightly Review an interesting article on the late lord chief justice, with whom he was on intimate terms of friendship. He says: 'He was, as all who knew him privately are aware, an habitual card-player. I can hardly recall amidst my many card-playing acquaintances anyone to whom cards were, if I may use the phrase, such a solace as they were to him. But it always seemed to me that for him the real attraction of card-playing lay, not in the desire to win, but in the relaxation cards afforded him after the constant strain of his daily life. No man ever took his work more seriously than Charles Russell. He threw his whole heart into any case he took up. His clients' interests were, for the time, as important to him as his own. To sit still, however, and to be idle was not in his nature. common with many other men who lead busy, tiring and harassing lives, he found the best, if not the only, way to obtain mental rest after his day's work was over was to engage in some pursuit which for the time occupied his attention to the exclusion of every other. In * * * He carried into card I clearly think not, and such, I believe, to be the just, reasonable and humane rule, toward which all the modern authorities in this country, legislation in England and the laws of other civilized.countries of the world are gradually but surely tending. It will not do for the courts to dogmatically deny the possible existence of such a disease, or its pathological and psychical effects, because this is a matter of evidence, not of law or judicial cognizance. Its existence and effect on the mind and conduct of the playing the same extreme dislike to being beaten individual is a question of fact to be proved, just as which constituted one of the chief causes of his much as the possible existence of cholera or yellow success at the bar. He was too high-minded a man fever formerly was before these diseases became to derive much pleasure from winning money for the subjects of common knowledge, or the effects money's sake. But he enjoyed the excitement of the of delirium from fever or intoxication from opium game, the satisfaction of pitting his skill against and alcoholic stimulants would be. The courts that of other players, and winning at the end. I could, with just as much propriety, years ago have have known of his sitting up for hours if the cards denied the existence of the Copernican system of went against him, while, if the cards were running the universe, the efficacy of steam and electricity in his favor, he was the first to leave the table. If as a motive power, or the possibility of communi- you look on cards merely as a means of making cation in a few moments between the continents of money, I should not class him as a first-class player. Europe and America by the magnetic telegraph or But, in respect of skill, he showed the same care, that of the instantaneous transmission of the human the same clearness of mind, the same quickness of voice from one distinct city to another by the use decision which he displayed in his professional purof the telephone. suits. He was not, I think, generally popular as a These are scientific facts, first discovered by ex- card-player. His impatience of mistakes on the part perts before becoming matters of common knowl-alike of partners and opponents, and his outspoken edge. So, in ke manner, must be every other un- criticism of play which did not meet with his known scientific fact in whatever profession or de- approval, were apt to give offense to people who did partment of knowledge. not know him. But to those who did, these slight defects were more than atoned for by his kindliness and liberality in all cases of dispute, such as necessarily arise from time to time in card-playing com I am constrained to the opinion that the courts cannot, upon any sound principle, undertake to say what are the invariable or infallible tests of such munities. It was at the card-table I learnt to know of luck which had ever happened to him. If,' he said, I had been elected, I should have lived and died an obscure stipendiary official in a provincial city; as it is' and here he left the sentence unfinished."- Law Journal (London). Legal Notes. there were in Japan during a recent year 358.589 According to statistics furnished by a missionary, marriages and 116,775 divorces about one divorce to every three marriages. Chicago will have to him intimately; and it is my experience of life that Lord Russell was not very much given to talk Legal Laughs. "I shall have to make a lawyer out of that boy of mine. I don't see any other way out of it," declared the well-known attorney, with a laugh. 'He came into my office the other day on his way home from school and laid a nickel down on the desk before me. "What is that for, son?' I asked. "My boy dug down into his pocket and produced a note from his teacher and placed it before me without comment. It was to the effect that he had been cutting up,' and advised a whipping. "Now, what would you advise?' asked he, in a business-like voice, after I had read the note and saw the trap that the young rascal had led me into. "I think that our first move should be to apply for a change of venue,' said I. "Very well,' he answered, 'you're handling the case.' "Then we will turn the note mother,' said I. over to your "I saw the young imp's face fall at this, but he braced up and said: See here, pop, you're bound to see me through on this, 'cause you've accepted my retainer, you know!' "I'll argue your case before the court,' I answered, but you will have to accept the decision. I would not dare to attempt to influence the court.' "Well, I pleaded the boy's case, promptly had it thrown out of court, and the boy got what he deserved - a good whipping. "It was the first time I ever played false to a client."- Detroit Free Press. The following verdict was rendered by a coroner's jury in Mississippi: "We, the jury, find that deceased came to his death by a stroke of an eastbound train, No. 204, on I. C. R. R., at Fentress, Miss., in Choctaw county, on the 27th day of November, 1898, he being in a reasonable state of intoxication." |