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mental condition as to be incapable of guiding his acts in any way, and some people who look at one side of a subject may say, is it fair he should, when he becomes sane again, be deprived of all his property to meet the claims of those he has injured during his insanity? But the case stands thus: A maniac, who does not know what he is doing, injures the property of a sane man who does not know what the maniac is doing, and the question is which of these shall suffer. It is evident that in many cases where injuries to the persons or properties of others is done by insane persons, the insane person is in some measure culpable. In many cases, individuals are aware that insanity is coming on, and they are therefore in a position to take precautions against any evil consequences which may arise during the continuance of the disease. This is proved by many of the cases which have been quoted. It takes place even in relation to impulsive insanity, which gives the least warning of its coming. And we find persons warning others to save themselves by getting out of their way, and others voluntarily placing themselves under restraint. Now, if a lunatic is aware of the imminence of the disease, and does nothing to avoid consequences which may arise from diseased impressions, he is to a certain extent culpable. In such a case it is evident that the insane person should be made to recompense any one that he has injured in person or property during the continuance of the diseased condition. But even where this is not the case, the common law principle is consistent with equity and justice. Why should a man suffer because he is sane, and have immunity because he is insane?

156. Insanity in relation to Partnership.-One other legal relation of insanity must be considered in this place. Partnerships are entered into with a view to mutual assistance with a view to the accomplishment of common undertakings which are to result in the advantage of the members of the firm. But all undertakings require two kinds of capital before they can be entered upon-a capital of money, or money's worth, and a capital of skill, of experience. It may happen that one of the partners brings the whole of the

former, while all the experience, all the knowledge, all the skill, is to be contributed by the other. Such arrangements are by no means uncommon. If, after such an arrangement had been entered into, the partner who was to bring his skill to bear for the mutual benefit of both were to be incapacitated by mental disease, it would seem to be a case calling for the interposition of the court of equity. "Insanity," says Mr. Bell, "has the effect not only of depriving the partner of the power of aiding the partnership by his exertions, but it prevents him from controlling for his own safety the proceedings of his copartners. And, accordingly, where there are two partners, both of whom are to contribute their skill and industry, the insanity of one of them, by which he is rendered incapable of contributing that skill and industry, seems to be a good ground to put an end to the partnership. At the same time, it may be observed that these cases are cases of infinite delicacy. There is no line of distinction by which it shall be ascertained how long a term of inability shall justify measures of this description. A broken leg or an accidental blow may incapacitate a partner for a time as much as insanity, and the one may be as temporary as the other; and perhaps the nearest approximation to be made to a rule on the subject is that a remedy and relief will be given where the circumstances amount to a total or important failure in these essential points on which the success of the partnership depends." But it could not be held that mere temporary insanity would be a ground for dissolving a partnership. No man devotes the whole of his time to business, and it would almost be as reasonable to claim relief on the ground that one's partner took a holiday as on the ground that he was temporarily incapacitated from performing his duties, although that incapacity arose from mental disease. [193] With regard to the legal relations of the partially insane it may be said generally that they should be left in possession

See Story on Partnership, § 292; Crawshay v. Maule, 1 Swans. 495, 514; Jones v. Noy, 2 Myl. & K. 125; Wrexham v. Huddleston, 1 Swans. 514, note; Waters v. Taylor, 2 Ves. & B. 299; Wray v. Hutchinson, 2 Myl. & K. 235, 233.

Bell's Commentaries, 7th ed., pp. 525, 526; Sayer v. Bennet, in Montague on Partnership, vol. i,, notes, p. 16. See per Lord Chancellor Eldon, in Waters v. Taylor Ves. & B. 302.

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, are thrust upon those who may be unable to discharge them efficiently.

BR. INS.-18

CHAPTER VIII.

157.

MORAL MANIA.

Necessity for distinguishing Crime from Insanity. [104]That the one black sheep which is within the fold of a respectable household should be whitewashed, may, to piebald brothers and sisters, seem a desirable thing. That a family moving in good society, and living in a good street, should, in the event of one of its members committing a crime, have recourse to the family physician rather than to the police, and should look upon the act as a symptom of disease and not as a crime in the true sense of the word, seems a very natural proceeding. For a long time insanity was looked upon as the work of God's hand, while, even at the present day, the Devil is regarded as the mechanist of crime. If, then, a family has an opportunity of mistaking the hand of the Devil for that of God, it will probably embrace it. Many a one when asked, like Sam Weller, if he can see the individual who was guilty of contempt of court, and knows that that individual is a relation, and had laid himself open to punishment, will look at the ceiling, and say "No!" Heaven knows that the grandest things upon earth are those dear home-eyes which will not see our faults—those dear lips that are "no thoroughfare" for reproaches, and those dear heads which are armories full of defences of our errors, which would fain find a leaning to virtue in all our vices, and the mental darkness caused by the shadow of God's hand in that night of the moral life in which the Devil rides. But although friends may be breakwaters about the home-harbor, it is the duty of a government to punish crime, and in order to do so, it is necessary to distinguish crime from insanity.

158. Theories of Moral Insanity.-Is there, then, such a disease as moral mania?—a disease the symptom of which is crime and if there is such a disease, how is it to be distinguished from immorality? Pinel was the first who [105] asserted that there were "many maniacs who betrayed no lesion whatever of the understanding, but were under the dominion of instinctive and abstract fury, as if the affective faculties alone had sustained injury;" and very many writers since his time have distinguished between intellectual and moral insanity. Some have argued that this disease is exclusively confined to the moral sense, that it may coexist with a perfectly heathy condition of every other faculty, and that the only symptom which manifests the presence of disease is depravity in a somewhat exceptional degree.

2 159.

Crime and Insanity.-That twenty convictions would prove a man mad, the law has as yet denied. That if the disease is manifested by no other symptoms than the commission of criminal acts, the individual shall be liable to the consequences of those acts, the law has upon more than one occasion asserted; and although many loud voices have been raised against the law on account of that denial and that assertion, the principle laid down seems to us to be sound. Nay, further, although we admit that crime is in many cases a sign of the presence of disease, and although we think that in most cases in which it is so, the history of the individual, and the presence of insanity or nervous disease in the parents will establish the fact of moral insanity in the individual under examination; we are of opinion that only on very rare occasions should moral insanity stand between the individual and the consequences of his criminal acts, for it seems to us certain that punishment is in most cases one of the means of cure, and that moral maniacs may be restrained from criminal acts by an adequate system of discipline.

160. The Psychology of Moral Insanity.-The philosophy of the subject seems somewhat defective. We find frequent assertions that this disease consists in a morbid perversion of natural feelings, or habits, or moral dispositions, and that it is unaccompanied by any lesion of the intellect;

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