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In White and wife v. Willis, the court decided that a widow is dowable of a lot of wild land, used by her husband in connexion with his dwelling-house and cultivated land; that such being the facts in the case at bar, it was distinguishable from those previously decided, respecting dower; they limiting the disallowance of dower to wild land, which is not used with the homestead or with cultivated land.'

In New Hampshire, a widow is entitled to dower in lands of which her husband was seised during coverture, if the lands were at the time, "in a state of cultivation," though yielding no net income; and lands must be considered "in a state of cultivation," when they are not in their original state of nature, or, after being cleared and worked, have not reverted to a similar state." In the case of Conner v. Shepherd, already cited, one of the main reasons assigned for refusing dower in wild lands is, that a tenant for life cannot derive any benefit from such lands without committing waste, and thus forfeiting her estate. What constitutes waste, is a question of some difficulty, both in England and in this country; and sometimes depends on another unsettled question, what are timber trees?' The law is not uniform in England and not strictly applicable here.* According to some of the cases, it is clear that a tenant for life may, to a certain extent, cut wood from waste lands, and derive considerable benefit therefrom, without incurring the charge of committing waste. Furthermore, it is not quite clear, that by subjecting the lands to cultivation, the

1 White et ux. v. Willis, 7 Pick. 143.

2 Johnson v. Perley, 2 New Hamp. 56.

As to what constitutes waste and what are timber trees, see 15 Petersdorf's Abr., art. Waste.

Hastings v. Crunkleton, 3 Yates, 261; Findlay v. Smith, 6 Munf. 134; Jackson v. Brownson, 8 Johns. 237; Crouch v. Puryear, 1 Rand. 258; Jackson v. Sellick, 8 Johns. 262; Ballentine v. Poyner, Hayw. 110; Parkins v. Cox, 2 Hayw. 339; Elliott v. Smith, 2`N. H. 430; Loomis.v. Wilbur, 5 Mason, 13.

tenant would in all cases be chargeable with waste.' The law of waste in the United States, being constructed to suit the condition of a new settled country, has not adopted the rigid rules which prevail in England; in Massachusetts a greater observance of the English rule as to what constitutes waste, prevails, than in the other states. The reader is referred to the American cases cited below, in addition to those already cited, as proofs of its variable character; which accommodates itself to the circumstances of the country." We will bring this article to a close, by extracting the sensible remarks of Sir Joseph Jeckyl, in the case of Banks v. Sutton.3 "The relation of husband and wife, as it is the nearest, so it is the earliest, and therefore the wife is the proper object of the care and kindness of the husband. The husband is bound by the law of God and man, to provide for her during his life and after his death, the moral obligation is not at an end, but he ought to take care of her provision during her own life. This is the more reasonable, as during the coverture, the wife can acquire no property of her own. If before her marriage she had a real estate, this by the coverture ceases to be hers, and the right thereto, whilst she is married, vests in the husband; her personal estate becomes his absolutely, or at least is subject to his control. So that unless she has a real estate of her own (which is the case of but few), she may, by his death, be destitute of the necessaries of life, unless provided for out of his estate, either by jointure or dower. As to the hus

1 Governors, &c. of Harrow School, v. Alderton, 2 B. & P. 87; Hastings v. Crunkleton, 3 Yates 261; Jackson v. Andrews, 18 Johns. 431; Loomis v. Wilbur, 5 Mason, 13; 1 Bingh. 382; 1 J. & W. 651; cited in Conner v. Shepherd, 15 Mass. 161, Rand's Ed. in note.

2 Den v. Kinney, 2 Southard, 552; M'Cracken's heirs v. M'Cracken's Exr's. 6 Monroe, 342; Owen v. Hyde, 6 Yerg. 334; Coombs et al. v. Young's heirs, 4 Yerg. 218; Williams v. Rogers, 2 Dana, 374; Wilson v. Smith, 5 Yerg. 379; People v. Alberty, 11 Wend. 160; Sergeant v. Towne, 10 Mass. 303; Padelford v. Padelford, 7 Pick. 152.

2 P. Williams, 702.

band's personal estate, unless restrained by special custom (which very rarely takes place), he may give it all away from her; so that his real estate (if he had any), is the only plank she can lay hold of, to prevent her sinking under her distress. Thus is the wife said to have a moral right to dower."

F. B.

ART. V.-PENAL LAW AND PENITENTIARY SYSTEMS.

A Popular Essay on subjects of Penal Law, and on uninterrupted Solitary Confinement at Labor, as contradistinguished to Solitary Confinement at Night and Joint Labor by Day, in a letter to John Bacon, Esquire, President of the Philadelphia Society for alleviating the miseries of Public Prisons. By FRANCIS LIEBER, Corresponding Member of the Society; Professor of History in South Carolina College. Mild Laws-Firm Judges-Calm Punishments. Philadelphia: Published by order of the Society, 1838.

FEW of our fellow-citizens have done so much to throw light on the subject of crime and punishment, as the author of this essay. He first made himself favorably known to the public, as a criminalist, by his translation of the work of Messrs. de Beaumont and de Tocqueville, on the penitentiary systems of the United States, to which he prefixed a learned and interesting introduction, and added many valuable notes. His next production was a letter on the relation of crime to education, which was reprinted in England, and has been very generally circulated.

The present essay, the author informs us, is to be considerd as a forerunner of a systematic work on punition”: but the immediate occasion of its publication was a request on the part of several of the author's friends, that he would

prepare and publish "an exposition of the advantages resulting from the Pennsylvania system" over the Auburn system of penitentiary punishment. His determination to comply with this request was quickened into action, by the remarks on page 59 of the Twelfth Annual Report of the Prison Discipline Society, relating to the new penitentiary at Columbus, Ohio, in which the writer impliedly, at least, seems to charge the large number of deaths in that institution during the preceding year, to the violence done to the nature of man, by "keeping him shut up in a solitary cell on the sabbath, and not suffering him to come forth and enjoy the soothing and healing influences of the sabbath school, the sanctuary, and the public worship of Almighty God."

Mr. Lieber first institutes an inquiry into the source of the "punitory power of the state,”—a subject, which, as he remarks, "has perplexed for so many centuries the ablest philosophers and inquirers into the dearest interests of society, from Aristotle to Kant, from Kant down to the latest times;" and, for this purpose, he reviews briefly some of the most prominent theories, which have been assumed as the basis for the right or obligation of a political society, to punish offenders against its laws. The theories, which he thus examines, are those of expiation,-necessity or expediency, deterring, special prevention,—warning,-contract,—correction or reform,―retaliation,-retribution,—and self-defence, which last, however, resolves itself into that of necessity or expediency. None of these theories, in the opinion of the author, furnishes a solid basis upon which to establish the punitory power of the state. This power, however, exists. We find it in the idea of the state.

Man, by his very nature, must live in society; otherwise he cannot live as man; he cannot fully and appropriately develop his faculties; he cannot become that for which his maker has placed him on the earth. It is the right and duty

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therefore, of each individual, in his character of man, to develop and exercise all his faculties, according to their proper sphere and function: but, as this right and duty belong equally to every other individual, it is plain, that the development and exercise of the faculties of each must be limited and restrained, in such a manner, as to admit of the same development and exercise on the part of every other. This is individual moral freedom. The existence of the state results from the social nature of man; it is not an artificial thing, made by man, that may or may not be adopted; but it is necessary, and therefore natural, grown and indispensable; and the object of it, or the idea on which it is founded, is to regulate and fix the individual moral freedom, which each man possesses as man,—as a rational and moral being,-placed in society and co-ordinate with others. The conduct of each individual towards others is consequently the rule which he himself establishes for their conduct towards him; and, it follows, that "every individual in the state must grant to others the right he claims for himself; if he inteferes with the rightful state of others, he grants them the abstract right to interfere with his." When one individual, in the exercise and development of his faculties, interferes with the doing of the same thing by any one or all of the others, he gives to each one or to the whole (which is the state) a right to set up the same interference as a rule for their conduct against him. This is the idea on which the abstract right of punishment is founded; but this abstract right is to be made use of, so far only as its exercise may be found necessary.

Mr. Lieber next proceeds to inquire how far it is necessary to make use of the abstract right of punishment; and, in considering this question, all the various objects before examined, such as protection, warning, reform, expediency, &c., from which it had been attempted to derive the "first punitory right of the state, come in as motives of punishment, or, in other words, as reasons, why we make use of the right

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