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is a doctrine of law-that only a certain amount of insanity will constitute such irresponsibility-the jury must be instructed as to a test to discover whether that amount or not existed before they can find the fact of irresponsibility. Hence, insanity, in this sense-and it is only in this sense that the word is used-is a question for the Court. As to the second, we may say that the whole of the medical profession has been asserting for many years that it is impossible to draw a line between insanity and sanity, between mental health and mental disease. We are not prepared to doubt this assertion. But we agree with that profession that no line can be drawn: that as it has been said no man is at all times wise, it might be truly said no man is at all times sane. each one of us there are seeds of disease; in each one of us these, like Jonah's gourd, grow up now and then and shadow our lives, and it is only because, like Jonah's gourd, they die down again anon, that we are not held to be insane by all our neighbors. It is impossible, then, for any one to say what acts are or are not the product or offspring of disease. But of all persons or bodies of persons who are unqualified to judge of mental disease, and of the acts that are likely to be the products of it, jurymen, or a jury, are the most so. True, it might be argued that it would be a jury after listening to medical testimony, but that to our thinking scarcely mends matters. We shall, in another place, see that what Macaulay said of statistics might almost be said of medical experts, viz., that they are mercenaries, and will fight on either side. We cannot but regard this direction of Judge Doe as most unfortunate and erroneous. With reference to his third error, we may remark that it is evident that it would be absurd to hold that proof that the criminal act was the product of disease was an absolute defence. The real question is not whether it sprang from disease, so much as whether it could or could not be inhibited.1 If the want of inhibition was due to mental disease, then the individual may be held excused. But the mere ground that the act had its origin in disease is no good ground for exempting the person from the punitive consequences of his act, if he was in a position to resist that

"If the impulse was resistible," says Mr. Fitzjames Stephen, p. 91, "the fact that it proceeded from disease is no excuse at all."

impulse, and did not. The jury must find that the individual was not in a position to choose or to refrain. It matters not whether the act was in the first instance the product of a healthy or diseased belief, if, through disease, the individual had no volition: in that case, he is not a fit object of punishment. But the jury must be told that they are to find whether he had this free volitional power or not, and that is what is in effect done when a Judge tells a jury that if they are convinced he did not know what he was doing, or if they believed that although he knew what he was doing he did not know that he was doing wrong, then they are to return a verdict of not guilty, on the ground of insanity. But this is leaving the facts to the jury, while the question of insanity is retained by the Court. We cannot think that with the whole mass of authority both in this country and in America against them with the weight of the true principles of procedure and the true facts of observation and of science also opposed to them, that these erroneous decisions will be followed. We must believe that in future, as in time past, responsibility will remain a judicial question.

89. Contracts by Idiots and Imbeciles.-The rule with reference to the contracts of idiots is really the same as that which is in force with reference to the contracts of any other persons who are deprived of mental capacity, and therefore of the power of giving a reasoning consent.' If the deficiency of intelligence is such as to render the party incapable of understanding and acting in the ordinary affairs of life, or in the particular contract, his idiocy will annul his contract.It is unnecessary, nay, it would be confusing, to lay down any nice abstract rules as to the degrees of amentia, and to give any scientific test by which the contracting capacity of the party affected with imbecility might invariably be determined. It cannot be too often said that the determination of this question is for the practical common sense of ordinary men, and the rule which applies to it must be a strong practical rule which will do for everyday use, like the scales

1 See Grotius De Jure Belli, B. 2, Ch. 11, § 5; and Inst. Lib. 3, tit. 20, § 8; Dig. Lib. 50, tit, 17, 1. 5, 1. 40.

* Ball v. Mannin, 3 Bligh, N. S. 1.

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on a counter, and not a fine-drawn definition, like the fine balance which is kept under a glass case in the chemist's laboratory. The validity of a contract, then, will be determined by the fact of proof that the party contracting did or did not, at the time, understand what he was about.

290. Weakness of Mind in connection with Fraud.Although a contract will not be set aside on the ground that one of the parties was of weak mind, if that weakness did not amount to incapacity as above described, yet any imbecility will be material consideration in inferring fraud, when the contract is disadvantageous to the party laboring under this mental weakness. If the contract is open to the imputation of fraud, it will be void, whatever be the character and comparative intelligence of the parties. A court of equity will vacate an agreement where an evident advantage has been taken of a weak-minded person, when it would refuse to set aside the same contract if made between persons of more equal understanding. This relief is granted on the ground of fraud, rather than on that of the mental incompetence, which is to be regarded only as the reason why the fraud was successful. If no such deception were used, even a court of equity would refuse relief, for it cannot undertake to "graduate intellectual differences on a nicely adjusted scale, nor to reduce sagacity and talent to the level of weakness and folly.'

891.

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The maxim as to Self-Stultification considered. It was a maxim of the common law, and was affirmed by Lord Coke, that "a man shall not be allowed to stultify himself;" the meaning of which maxim was that a man was denied the privilege of pleading idiocy or lunacy. This privilege was, however, with some inconsistency, permitted to his privies in blood and in representation, who could, after his

Doane v. Kirkwell, 8 Car. & P. 679.

2 Gartside v. Isherwood, 1 Bro. Ch. 560; McDearmid v. McDearmid, 3 Bligh, N. S. 374; Dent v. Bennet, 7 Sim. 589; Dunnage v. White, 1 Wils. C. C. R. 67; 1 Story's Equity Jur. § 238.

3 McAdam v. Walker, 1 Dow, 177; Grant v. Thompson, 4 Com. 208.

See 1 Story Eq. Jur, § 224, et seq.; Lewis v. Pead, 1 Ves. Jr. 19; Farman v. Brooks, 9 Pick. 212.

4 Co. 123; Co. Litt. 147. But see Fitzherbert v. Natura Brerum, 202 n.

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death, avoid his contract, on the ground that he was non compos mentis.' This maxim has seemed to very many writers to be ridiculous and absurd, but it may be enough to quote the words of Mr. Justice Story, who says: "How so absurd and mischievous a maxim could have found its way into any system of jurisprudence professing to act upon civilized beings, is a matter of wonder and humiliation." But the stringency of this rule has been much relaxed in England, and while its evil effects remain in the fact that although idiocy or lunacy alone cannot be pleaded as a perfect defence to a simple contract, the more rational principle admits it as most powerful evidence to establish the fact of imposition. The rule, then, is, that the contract of an idiot stands upon the same footing as that of a sane person, but acts and facts will afford indications of fraud in relation to the former, when they would not with regard to the latter." Yet lunacy is, as we will see hereafter, a good defence to an action on a specialty made when the party was insane. We find a strong analogy between the law as applicable to the responsibility of infants and that which is applicable to the responsibility of idiots upon their contracts. Neither is ordinarily liable upon specialities, and both are liable for necessaries supplied bona fide."

292. Inquisition and its effect upon the Power to Enter into Contracts.-In England, it has been held that an inquisition of lunacy does not necessarily make all the contracts entered into by the idiot or lunatic during its continuance void or voidable. In the words of Lord Ellenborough, "an inquisition of lunacy was by no means conclusive on

Co. Litt. 247 a, b; Beverley's Case, 4 Co. Rep. 123; 2 Bl. Com. 291.

2 Fonbl. Eq. B. 1, Ch. 2, § 1, 46. See also Yates v. Boen, 2 Str. 1104: Buller's N. P. 172; per Lord Holt in Thompson v. Leach, 3 Mod. R. 301. Pothier on Oblig. Evan's note, App. No. 3, p. 28.

Brown v. Jodrell, 3 Car. & P. 30; per Ld. Tenterden, Sentance v. Poole 3 Car. & P. 1; Levy v. Baker Moo. & M. 106 n; Manby v. Scott, 1 Sid. 112. In America, the maxim has been entirely discarded. Mitchell v. Kingman, 5 Pick. 431; Seaver v. Phelps, 11 Pick. 304; Grant v. Thompson, 4 Conn. 202; Lang v. Whidden, 2 N. H. 435; Somes v. Skinner, 16 Mass. 348.

Dane v. Kirkwall, 8 Car. & P. 679.

Baxter v. Portsmouth (Earl), 2 Barn. & C. 170; Chitty on Contr. 136.

7 Baxter v. Portsmouth (Earl), 2 C. & P. 178; Tarbuck v. Bispham, 2 Mess. & W.6; Fisher v. Jewett, Bert. 35. See Contracts of Lunatics, §

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the trial of that issue [sanity or idiocy], but was admissible as evidence." In the United States, the rule is somewhat different. It is provided, in some of the States at least, by statute, that, upon representation or request, idiots, lunatics, drunkards, and other persons of unsound mind, may be put under guardianship; and when that is done, the finding of lunacy by a competent court is conclusive evidence of unsoundness of mind, so as to render all contracts subsequently entered into by the idiot or lunatic void, unless in cases of absolute necessaries supplied to the lunatic under special circumstances.3

93. The Contract of Marriage in relation to Imbecility. That the same principles are applicable in relation to the contract of marriage, it is scarcely necessary to state, but we may refer to one or two cases, which will be useful not only in illustrating these principles, but as giving some indication of the evidence that will be required and received in such cases.

[59] Miss Bagster was proved by the evidence to be a frivolous and weak-minded girl whose education had been much neglected. She was a lady of fortune, and she ran away with and was married to a Mr. Newton. An application was made by her family to dissolve the marriage on the ground that she was of unsound mind. Amongst other facts urged before the commission as proof of the allegation, there were mentioned that she was occasionally violent and self-willed, that she had been passionate as a child, and that even in maturer years she had little or no self-control. That she was ignorant of arithmetic, and therefore incapable of taking care of her property. That she had some erotic tendencies, which were evinced by her want of womanly delicacy, and by her having engaged herself with a view to marriage to several individuals. On her examination before the commissioners, her answers were intelligent, and her conduct in no way dif

Faulder v. Silk, 3 Camp. 126. See also Sergison v. Sealey, 2 Atk. 412; Tarbuck v. Bispham, 2 Mees. & W. 2; Ball v. Mannin, 3 Bligh N. S. 1.

Leonard v. Leonard, 14 Pick. 280; McDonald v. Morton, 1 Mass. 543; White v. Palmer, 4 Mass. 147. See also Fitzhugh v. Wilcox, 12 Barb. 235; Wadsworth v. Sherman, 14 Barb. 169.

McCrillis v. Bartlett, 8 N. H. 469.