required for other acts-for responsibility for crime, for capacity to marry, for capacity to contract, for capacity to give evidence-he had no hesitation in telling them that the highest degree of all was required in order to constitute capacity to make a testamentary disposition.' He quoted from a judgment of Cockburn, L.C.J., in another case the following extract, which appears to embrace in a small compass the legal conditions required to render the will of an eccentric man valid. It is essential to the exercise of such a power (to make a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.' (See the case of Goodfellow, Med. Times and Gaz.' 1870, 2, p. 343; 1871, p. 203.) The jury found that the deceased was not of sound mind when the will was executed.

On these occasions the will is more or less unjust to relatives or those who have a direct claim on the testator. It is easy in such suits to magnify acts of eccentricity into proofs of insanity: and to arrive at the inference that the provisions of the will were influenced by an insane delusion, and did not express the real mind of the testator. Thus a condition of mind which will lead to no interference with the acts of a man during life, may form a subject of costly litigation after his death. It was an admitted fact that the testator in this case had capacity to manage his property, but it was held that he had not sufficient capacity to dispose of that property by will. It must be remembered in reference to these cases that persons who have been eccentric through their lives, and have set at defiance all the customary rules which govern the conduct of men in a normal state, are not likely to make any other than eccentric wills, which may however be the real expression of their minds.

It is difficult to suggest in what manner medical evidence can be brought to bear on cases of eccentricity, involving the question of testamentary capacity. A medical expert may give an opinion whether the acts of the eccentric testator furnish proof of the existence of delusion. He may also be able to say in looking to the previous habits and mode of life of the testator, whether at or before the making of the will there has been any change of habits or character which would indicate insanity-the existence of a causeless hatred to members of the family not mentioned in the will, and a suspicion and distrust of all around him. In reference to cruelty to children, unnatural conduct to a wife, the keeping and feeding of animals, these are points which can be as well considered in relation to testamentary capacity by a jury of educated men, as by experts in insanity.

Wills in senile dementia.-Wills made in incipient dementia arising from extreme age (senile imbecility) are sometimes disputed, either on the ground of mental deficiency, or from the testator, owing to weakness of mind, having been subjected to control and influence on the part of interested persons. If a medical man is present when a will is executed, he may easily satisfy himself of the state of mind of a testator, by requiring him to repeat from memory the mode in which he has disposed of the bulk of his property. A medical man has sometimes placed himself in a serious position by becoming a witness to a will without first assuring himself of the actual mental condition of the testator (case of the Duchess of Manchester, p. 535). It would always be a good ground of justification, if, at the request of the witness, the testator had been made to repeat sub

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stantially the leading provisions of his will from memory. If a dying or sick person cannot do this without prompting or suggestion, there is reason to believe that he has not a sane and disposing mind. It has been observed on some occasions, when the mind has been weakened by disease or infirmity from age, that it has suddenly cleared up before death, and the person has unexpectedly shown a disposing capacity. (Ann. d'Hyg.' 1831, p. 360.) In Durnell v. Corfield (Prerog. Court, July, 1844), where an old man of weakened capacity had made a will in favour of his medical attendant, Lushington held that there must be the clearest proof not only of the factum of the instrument, but of the testator's knowledge of its contents. (Law Times,' July 27, 1844.) In West v. Sylvester (Nov. 1864), Wilde, J., in pronouncing judgment against a will propounded as that of the deceased, an aged lady, said:-At the time she executed the will of Oct. 1863, although for many purposes she might be said to be in her right senses, she was nevertheless suffering from that failure and decrepitude of memory which prevented her from having present to her mind, the proper objects of her bounty, and selecting those whom she wished to partake of it.'

Another judge says:- Another condition may be noticed, which often occurs in the experience of lawyers, and to which medical gentlemen in attendance on aged persons do not sufficiently attend. A person's mind in extreme old age may be quite intelligent, his understanding of business clear, his competency to converse upon and transact such undoubted, and his bodily strength good; but there may grow upon him such a fear and dread of relatives or servants who may have surrounded him, and on whom he may have become perfectly dependent, that his nervous system is wholly overcome, and he becomes a mere child and tool in the hands of those about him, so that he has no power to exert his mind in opposition to their wishes, or to resist their importunities. His mind is enslaved by his fears and a feeling of helplessness, so that to that extent, and in matters in which he may be moved by them, he really is facile and imbecile. This state of things seems to be easily brought on in old age, when the faculties are otherwise entire and the bodily strength considerable.' This condition of mind at a great age (93 or 94) was exhibited in a remarkable manner in a case from Scotland, which went to the House of Lords (Cairns v. Marienski).

Wills'in extremis.'-Wills made by persons whose capacity during life has never been doubted, while lying at the point of death, or, as it is termed, in extremis, are justly regarded with suspicion, and may be set aside according to the medical circumstances proved. Many diseases, especially those which affect the brain or nervous system directly or indirectly, are likely to produce a dulness or confusion of intellect, under which a disposing power is lost. Delirium sometimes precedes death, in which case a will executed by a dying person would be at once pronounced invalid. In Winstone v. Owen (Prob. Court, Nov. 1871), the testator made his will when on his deathbed. His medical attendant took his instructions, and shortly after a solicitor drew up the will from them. The medical attendants and the solicitor attested the will, but it was alleged that although conscious when instructions were given, the testator was unconscious when the will was executed. The solicitor thought he was quite unconscious at the time of execution. The doctor and the nurse thought he was conscious. Lord Penzance said the law required not only that a man should be conscious, but that he should have a sound and disposing mind. The party propounding the will was bound to establish this, and having failed to do so, he must pronounce against it. (Med. Times and Gaz.' 1871,2, p. 605.) It would appear from the evidence in this case

that the will was signed within ten minutes of the time at which the testator was known to have lost his consciousness. His property was bequeathed to the defendant-a stranger. The deceased at the time of signing the will said nothing, did no act, and made no movement to indicate that he was distinctly aware of what he was doing.

On those occasions, when the medical attendant takes a direct benefit under the will of the dying person, the Court looks very closely to all the circumstances connected with the drawing up and signing of the will. A medical man who takes any active part under these circumstances justly lays himself open to censure, and at the same time the will will most probably be set aside on the ground of undue influence.

In Munro v. Lawson (Prob. Court, Jan. 1870), the plaintiff, who was a relation of the husband, propounded the will of a lady, æt. 76. He took her instructions, and the will was drawn up in his own favour. It was proved by the medical man that the testatrix had died from apoplexy, that she was at the time of signing the will exhausted by illness and the near approach of death, and at the date of signing it was incompetent. Lord Penzance said the result of the testimony was that on the day of the execution of the will the deceased retained in some measure her consciousness, but it was very doubtful whether she had sufficient capacity to make a good will. The will in question was made by the person who was benefited by it; no one else was present when the instructions for it were given, and he did not even take the precaution of reading it over in the presence of the witnesses. Even if she had been in full possession of her faculties at the time, the Court must have felt some doubt whether she was fully aware of the contents of the will when she signed it. But it was evident that she was in a state of great physical prostration, and her capacity was very doubtful. The plaintiff had failed to satisfy the Court that the deceased knew and approved the contents of the will, and the Court therefore pronounced against it, and condemned the plaintiff in costs.

In examining the capacity of a person under these circumstances, we should avoid putting leading questions, namely, those which suggest the answers 'yes' or 'no.' Thus, a dying man may hear a document read over, and affirm, in answer to such a question, that it is in accordance with his wishes, but without understanding its purport. This is not satisfactory evidence of his having a disposing mind: we should see that he is able to dictate the provisions of the document, and to repeat them substantially from memory when required. If he can do this accurately, there can be no doubt of his possessing complete testamentary capacity. But it may be objected that many dying men cannot be supposed capable of such an exertion of memory; the answer is then very simple: it is best that the person should die without a will, and his property be distributed according to the law of intestacy.

Restriction of medical opinions. In an important case (Bainbrigge v. Bainbrigge, Oxford Sum. Ass. 1850) in which the testamentary capacity of the testator was disputed, it was held that a medical witness, although conversant with cases of insanity, cannot be asked his opinion as to the insanity of a testator founded upon the evidence given at the trial in his hearing. (4 Cox, Crim. Cases, 454; see also 'Med. Gaz.' vol. 46, p. 240.) In the case of the Duchess of Manchester, however (ante, p. 535), the opinions of Sutherland, Mayo, and Conolly, on the competency of the testatrix, were received by the Court, although based upon the evidence given at the trial.

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CHAPTER 98.

THE PLEA OR DEFENCE OF INSANITY IN CRIMINAL CASES-CIRCUMSTANCES UNDER WHICH IT IS ADMISSIBLE-HOMICIDAL MONOMANIA-MORAL INSANITY-HOMICIDAL MANIA-CAUSES-SYMPTOMS-LEGAL TESTS-MEDICAL TESTS-MOTIVE

FOR CRIME-CONFESSION-ACCOMPLICES-DELUSION-SUMMARY.

The plea or defence of insanity.-Responsibility here signifies nothing more than liability to punishment for crime, and a criminal act implies the existence of intention, will, and malice. (Stephen.) When insanity has reached a certain stage or degree, an act may be perpetrated without malice; and in this sense the person is considered to be irresponsible in law. This is a question of fact, to be determined by a jury from the whole evidence set before them; and the proof rests with those who make the allegation that the act in question, whether murder or arson, was not done wilfully and maliciously. The sanity of a man's conduct,' observes Stephen, J., 'involves the presence of intention and will on all ordinary occasions; and if the act is one of those which the law forbids, it is presumed to be malicious and wicked.' ('Crim. Law of Eng.' p. 89.) This subject is of considerable importance in a medico-legal view; for should a plea of insanity be improperly admitted in any criminal case, then punishment is made to fall unequally on offenders: and if, on the other hand, it be improperly rejected, punishment is administered with undue severity. The rule of law on this subject is that no man is responsible to the law like a sane person for any act committed by him while in a state of insanity. The plea may be raised for the smallest offence up to murder; but it is rarely made a defence in smaller offences, because the close confinement to which an accused person, if found insane, would necessarily be subjected, would often be a heavier punishment than that which the law actually prescribes for the offence which he may have committed. In a case of felonious assault, it was urged in defence that the prisoner was insane; but the evidence on this point was not by any means conclusive, when it was intimated by the Court that, if the plea were admitted, the party would probably undergo a much longer imprisonment than if on conviction he received the legal punishment for the offence. (Reg. v. Reynolds, Bodmin Aut. Ass. 1843.) The judge said that there was no proof of insanity. If the prisoner was pronounced insane, he might be imprisoned for life, and therefore he did not think that finding would benefit him. A verdict of guilty was returned, and the man was sentenced to eighteen months' imprisonment. Making the plea of insanity a question of expediency dependent on the amount of punishment for the offence, must be pronounced unsafe and indefensible. Murder, incendiarism, and theft are the crimes for which the plea of insanity is commonly raised.

Murder may be perpetrated by one who is obviously labouring under delirium or violent mania, or by an idiot or imbecile. Apart from the circumstances connected with the criminal act, there may be evidence of such a disordered state of mind in the person as at once to exonerate him from that amount of legal responsibility which is exacted from one who is sane. The appearance of the accused or the testimony of a medical man, renders it unnecessary to go into the evidence and a verdict is returned accordingly. The cases of difficulty are those in which insanity presents itself in a doubtful aspect, as in mania or imbecility. The mental disorder may be of so slight a nature as not to justify an acquittal for murder. In order to exculpate a person it must be proved that insanity in a certain degree

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existed at the time of the perpetration of the act. In the case of Murray (High Court of Just. Edinb. Nov. 1858), it was proved that the accused recovered his sanity eight hours after he had killed the deceased; but he was acquitted on the ground of insanity at the time of committing the act. In Reg. v. Pate (C. C. C. 1850), the prisoner was indicted for an assault on the Queen. It was proved that he had been guilty of strange and eccentric, and even of that which some might call insane conduct; but there was no evidence to show that he had not a rational control over his actions. Conolly admitted that the prisoner was labouring under no delusion, that he knew the distinction between a right and a wrong action, but he was subject to sudden impulses of passion. He attributed his act to some sudden impulse which he was quite unable to resist. Other witnesses deposed that in their opinion, although the prisoner was fully conscious of his act, he was insane. Alderson, B., observed, in charging the jury, that it was not because a man was insane that he was unpunishable; and he must say that upon this point there was generally a very grievous delusion in the minds of medical men. The only insanity which legally excused a man for his acts was that species of delusion which conduced and drove him to commit the act alleged against him. They ought to have proof of a formed disease of the mind, a disease existing before the act was committed, and which made the person accused incapable of knowing, at the time he did the act, that it was a wrong act for him to do.' The prisoner was convicted. (Med. Gaz.' vol. 46, p. 152; and 'Jour. of Psych. Med.' 1850, p. 557.) The defence of insanity was here advanced upon very weak grounds. Had the prisoner assaulted a policeman instead of the Queen, he would have been fined or imprisoned, and nothing heard of the plea, although the rank of the person assaulted can make no difference respecting the existence or non-existence of a diseased state of mind. (See Winslow, Jour. of Psych. Med.' 1859, p. 445.)

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From the remarks of this judge it would appear that the existence of one degree of insanity admits of punishment for crime, while the existence of another degree excuses it. As it has been already remarked in speaking of testimonial capacity (p. 518), nothing can be more incorrect than to apply one general term (insanity) to the conditions of all persons affected with mental disorder, and to pronounce them therefore all incompetent or all incapable, when common sense suggests that we are bound to inquire into the amount of capacity in each case. If, according to this ruling, we are always to insist upon distinct proof of a disease of the mind existing before the act committed, it is clear that an act perpetrated under a sudden access of insanity, by a person not previously labouring under delusions, would be punishable like that of a sane criminal. Wood repudiates the doctrine that an insane person is necessarily irresponsible, and therefore unpunishable: All who have had the opportunity of studying insanity know full well that, with comparatively few exceptions, insane persons are not only powerfully influenced, but materially controlled, by the same motives which influence and control those who are still mixing in the world, and who have never been suspected of mental derangement.' ('Plea of Insan.' p.4.)

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In Reg. v. Burton (Maidstone Lent Ass. 1862), Byles, J., observed that even the existence of mental disease did not necessarily exempt a person from criminal responsibility. Many a man whose mind is in an unsound state knows perfectly well whether he is doing wrong; and so long as he knows that, he is subject to the criminal law. Even morbid delusion cannot always be allowed to screen a criminal from the consequences of his own acts, while there are instances in which a plea of insanity may properly be allowed, although no such delusion can be proved. Each case must be taken with its circumstances, and legal theories of insanity are chiefly