necessary to constitute the capacity of disposing of property by will. And this is true, whether the incapacity is produced by means of moral or intellectual mania-by means of imbecility or dementia.

This principle has been followed in a recent case in which the question as to whether a delusion, which was not calculated to influence the disposition of property, should be held to invalidate the capacity was tried. In every respect the judgment in this case is most instructive. The case referred to is that of Banks against Goodfellow. The facts in this case were these: the testator had been confined as a lunatic for some months in 1841, and he remained subject to delusions that he was personally molested by a man who had been dead for years, and that he was pursued by evil spirits whom he believed to be visibly present, and it was proved that these delusions had existed between 1841 and the date of the will, and also between that date and the testator's death in 1865. Some contradictory evidence was given, as is usual in such cases, as to the testator's capacity to manage his own affairs, but it was admitted that at times he was incapable of making a will. The question which was left to the jury was whether at the time of making the will the testator was capable of having such knowledge and appreciation of facts, was so far master of his intentions, and free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it, and they were directed that the mere fact of the testator's being able to recollect things, or to converse rationally on some subjects, or to manage some business, would not be sufficient to show he was sane, while on the other hand slowness, feebleness, and eccentricities would not be sufficient to show he was insane; and that the whole burden of showing that the testator was fit at the time was on the party claiming under the will. Lord Cockburn, C.J., in delivering judgment, said that "it was necessary to consider how far such a degree of unsoundness of mind as is involved in the delusions under which this testator laboured would be fatal to testamentary capacity; in other words, whether delusions arising from mental disease, but not calculated to prevent the exercise of those faculties essential to the making of a will, or to interfere with the consideration of the matters which should be weighed and taken into account on such an occasion, and which delusions had, in point of fact, no influence

Law Rep., vol. 5, Q. B., 549.

whatever on the testamentary disposition in question, are sufficient to deprive a testator of testamentary capacity and to invalidate a will." He then examined the evidence which was adduced in proof of the existence of partial insanity, and after an exhaustive consideration of what has been said by the text writers in this and other countries concerning this subject, he proceeded to consider some of the cases which have been decided in English and American courts of law in which questions of capacity have been raised. In the course of his judgment he said, "No doubt when the fact that the testator had been subject to any insane delusion is established a will should be regarded with great distrust, and every presumption should in the first instance be made against it. When insane delusion has once been shown to have existed it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form, or instance, in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property; and the presumption against a will made under such circumstances becomes additionally strong where the will is, to use the term of the civilians, an inofficious one, that is to say, one in which natural affection and the claims of near relationship have been disregarded. But when in the result the jury are satisfied that the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under such circumstances should not be upheld. Such an inquiry may involve, it is true, considerable difficulty, and require much nicety of discrimination, but we see no reason to think that it is beyond the power of judicial investigation and decision, or may not be disposed of by a jury directed or guided by a judge. In the case before us two delusions disturbed the mind of the testator, the one that he was pursued by spirits, the other, that a man long since dead came personally to molest him. Neither of these delusions, the dead man not having been in any way connected with him, had, or could have had, any influence upon him in disposing of his property. Under these circumstances, then, we see no ground for holding the will to be invalid." The rule therefore which was applied for on the ground that the judge misdirected the jury, and that the verdict was against the weight of evidence, was discharged.

In this way this very difficult and much disputed question has been set at rest. With regard to the legal relations of the partially insane it may be said generally that they should be left in possession of every civil right that they are not clearly incapable of exercising, but at the same time they ought not lightly to be subjected to the performance of duties involving the interests and happiness of others. We see no reason, however, for saying that in no case shall a monomaniac occupy a position implying a fiduciary character, such as becoming a guardian or trustee, but we would recommend great caution before duties which, if not properly performed, may involve others in unhappiness and discomfort, is thrust upon those who may be unable to discharge them efficiently.

It will be evident that the principles which have been laid down with reference to the connection between a delusion entertained and the validity of the act performed will not apply with regard to the contract of marriage. Just as we have seen the mere answering of simple questions, the carrying on of a common-place conversation, will not prove the existence of sufficient sanity and capacity to make a will, neither will the ability to understand the ordinary process of the act of marriage, the capacity to go with usual accuracy through a well-known service, prove anything with regard to the real ability of the individual to enter into the contract. The essence of all contracts is consent, and a man who is about to enter into a contract of marriage must understand the new relation which the consummation of this contract creates; he must understand the responsibilities which it imposes, and the duties the performance of which it involves. Unless the individual can appreciate these things he cannot be said to be in a position to give a rational consent, without which the contract will be invalid. In regard to other contracts the capacity of monomaniacs may be undoubted, for in most contracts the thing to be given, or the act to be done or to be refrained from, is perfectly definite, and there is little possibility of any misunderstanding. But this is not the case with regard to marriage, and just in proportion to the difficulty with which, owing to the complicated nature of the duties and privileges of the married state, the character of this act can be understood, so ought to be the rarity of the cases in which persons labouring under partial insanity should enter upon it. Sir John Nicholl has well said concerning this subject, "going through the ceremony was not

sufficient to establish the capacity of the party, and that foolish, crazy persons might be instructed to go through the formality of the ceremony though wholly incapable of understanding the marriage contract." It is clear that this is the correct view to take of this question, for the very nature of a contract implies that both parties know what they agree to, and if it can be proved that, owing to delusions upon the part part of one of the contracting parties, there has been a want of mutuality, the contract evidently becomes of none effect.

* Browning v. Reane; 2 Phill. Ecc. Rep., 69. See also Turner v. Meyers ; 1 Hagg. con Rep., 441. Parker v. Parker, 1 Hagg. C. R., 417; Ellis v. Bowman, 17 Law T., 11; R. v. Kelly; Shelf on Lun., 2nd ed., 515; Inst. Juris Con., b. 2, t. 12, and 15 Geo. II, c. 30. See Private Acts, 23 Geo. II, c. 6.

CHAPTER X.

ON THE LEGAL RELATIONS OF MORAL MANIA.

THE plan by which the construction of this work was determined was necessarily departed from in connection with moral or emotional insanity, and concerning the legal relations of the various forms of this disease. In this place a few general statements, embodying in a more abstract form the concrete principles already adverted to, will be all that is necessary to our object. The great difficulty in connection with this subject is, the discrepancy which seems to exist between the assertion that the intellectual powers are not directly affected, that the individual is able to understand what is right and what is wrong, what is commanded and what is forbidden, and that yet many medical men hold that on account of the existence of this emotional insanity the individuals ought to be held civilly incapable and criminally irresponsible. This seems to be a departure from the principles stated upon the authority of so many able medical jurists, viz. that the mind can be affected in one part without being affected in all; it seems to be a return to the doctrine that mind is a unity, whatever it may mean, and that, therefore, a disease of any part is a disease of the whole. In connection with this subject it may be well to quote the recent utterances of a learned judge.*

"It is not given to man," he says, "to fathom the mystery of the human intelligence, or to ascertain the constitution of our sentient and intelligent being. But whatever may be its essence, every one must be conscious that the faculties and functions of mind are various and distinct as are the powers and functions of our physical

* Per Cockburn, C. J., Law Rep., vol. v, p. 519, Q. B.