responsibility of [15] the latter greater than that of the former, and renders the privileges of the one who has the capacity of higher enjoyment infinitely greater than those of the othermay be true; but that such law is not the law of England is a fact, and that, even if it were possible, it is well that it should not be the law of England, is quite capable of proof. While it is admitted that gratitude and charity, kindness and goodness, are of the highest importance to the welfare of the individual and the community, yet, even by the equity jurisprudence of this and of every other civilized nation, they are left to be enforced in foro conscientiæ, upon account of the difficulty of framing any general rules to meet matters of that kind, and from the mischief and inconvenience which would arise from attempting to enforce such duties. From similar reasons, and for the paramount reason that laws are for the prevention of mischief, the legislature has refused to graduate responsibility; and he alone, in the estimation of our criminal law, is irresponsible who is non compos mentis.

PART II

22. The Capacity of the Insane-Wills.-Sir James Hannen, in the recent case of Boughton v. Knight,' after quoting the words which Chief-Justice Tindal used in delivering the opinion of the Judges as to criminal responsibility which has been above alluded to-which words were as follows: "It must be proved that at the time of committing the act the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong”—said: "Now that, in my opinion, affords as nearly as it is possible a general formula that is applicable in all cases in which this question arises, not exactly in those terms, but in the manner in which I am about to explain to you." We think it well

42 L. J. P. 25; 28 L. T. 562.

In the case of Kinne v. Kinne, (9 Conn. 102,) the Court said that the same rule should be applied to the question of testamentary capacity which is applied to that of responsibility for crime; namely, that although the prisoner may be laboring under partial insanity, if he still understands the nature and character of his act and its consequences, and has power to apply that knowledge, such partial insanity is not sufficient to exempt him from criminal responsibility. (Commonwealth v.

that the principle which the law applies to its treatment of criminals who are irresponsible through mental disease should be understood to be the same as that which it applies to the disabilities which those persons labor under who are deprived of capacity by mental derangement. This fact has not been appreciated, and its want of appreciation has led to some confusion and misunderstanding. The question in connection with crime is, Does the accused know what he is about, and can he refrain-has he capacity to choose one course rather than another? that in connection with testamentary disposition is, Did the testator know what he was about, and had he power to will this disposition? The questions of fact which are associated under the phrase, "know what he was about," are in these two cases very widely different. In the one, the man, to understand what he is about, (say in murder,) must appreciate that that is a human being who is opposite to him; that it is a knife which he holds in his hand; that a knife will cause a wound, and that certain wounds result in death: he must know what actions he is actually performing; that he is raising his hand and arm; that he is exercising his strength to strike home, and the like. If he knows none of this, then it may be truly said that it was not he who committed the act, any more than it was the knife, but that they were both instruments in the hands of disease. In the other, the man must understand that he has a house, or lands, or money, and something about it, that he has the power of disposing of these by will, which is an instrument of the law by which the wishes of testators are given effect to after their deaths: he must know that he has or has not relations: he must, if he has relations, know who they are, and know and remember something of his relations to them, and of their claims upon his memory, affection, and bounty. If he has none of this knowledge, then, although he may sign his name to an instrument pretending to be a will, and purporting to be a disposal of his property, it is no will of his, any more than it is the will

Rogers, 7 Metc. 500. See also Comstock v. Hadlyne, 8 Conn. 265.) But see McTaggart v. Thompson, 14 Penn. St. 149, where it was decided that a less degree of imbecility is necesssary to invalidate a will than would be ground of acquittal from a criminal charge.

of the pen with which he attached his signature. It is evident that will or volition-the expression of which is found in a testament-presupposes knowledge or cognition. It is absurd to say that a man wills that another person of whose existence he is at the time ignorant shall have a piece of property, which at the time he does not know he possesses. Our idea of will is that it is thought or knowledge becoming active or passing over into act. An illustration, which we have made use of before, will serve to make this matter clear. Natural philosophers are in the habit of distinguishing two kinds of energy-potential, and kinetic or actual. Thus, when you wind up a clock, you raise the weight, and are storing up in it a certain amount of potential energy which will be changed to actual energy as the weight falls and turns all the wheels in the timepiece. Now, thought may with some accuracy be likened to potential energy, and will to kinetic or actual energy, or to change the simile to a metaphor, thought may be called potential will, or will kinetic, or actual thought. This, then, shows the necessity for making knowledge of affairs, of property, and of friends and relations, a prerequisite to willmaking. A man without knowledge cannot will.

? 23. The Degree of Capacity required for Willmaking. The difficulty in relation to the irresponsibility of the insane for criminal outrages arose in connection with the question of the amount of mind which was required to enable a man to appreciate his position or know what he was about, and with the question as to how the controlling power of will was to be ascertained. A similar difficulty has to be encountered in connection with the subject of testamentary capacity. How are we to ascertain the degree of capacity which will enable a man to form correct conceptions in regard to his property and affairs; what memory is sufficient to give faithful reminiscences of one's friends and relations, and of the claims that these may have in virtue of affinity, service, affection, or the like, upon one's generosity. Very different views have been taken in courts of law with reference to the comparative difficulty of making a valid will and of entering into a binding contract. Some Judges have maintained that the degree of mental capacity required for

the disposal of our property by will must be much greater than that which is required for a transaction of barter.' Others have held quite as decided an opinion that a will being a matter which a man may plan and think over at leisure; a matter the duties of which his whole life has been teaching him; a matter which may be postponed from time to time, so that the most favorable opportunity for its execution may be secured, is a comparatively easy affair; and that a contract which may have to be entered into on a sudden, with the distracting importunities of the person who bargains on the other side, which has to be effected with one whose interests are opposed, and who may take every means of endeavoring to overreach, is a much more arduous affair, and requires a much greater degree of mental soundness. However, although there has been difference of opinion as to the relative difficulty of these two acts, there has been no want of uniformity in the dicta of the Judges with regard to what constitutes testamentary capacity. It has been held that this is a thoroughly practical question, one which the common sense which men learn from their everyday experience of the world and the doings of their fellows, would enable them to answer. Each man reasons of his neighbor's capacity from his own. And in twelve average men, one gets a very fair average of the common sense of mankind generally. Now it is just this everyday understanding which would enable men to say whether a testator had enough of sense to know what he was doing, and enough will to give effect to his wishes in relation to the things that belonged to him. Now this is, as we have seen, the rule that has been laid down in relation to the power of making a will, and it is a rule which has been almost universally acted upon. As we shall see when we come to inquire more minutely into the symptoms of the various kinds of disease which come under the notice of the medical jurist, there are many cases in which the mind is almost like the blank sheet of paper which Locke

1 Per Sir James Hannen, in Boughton v. Knight, 42 L. J. Prob. 25.

2 Hogg v. Macgill, 8 March, 1828, 4 Mur. 449; Campbell v. Davidson, 14 March, 1827. 4 Mur. 179; Newhouse v. Godwin, 17 Barb. 236; Terry v. Buffington, 11 Ga. 337; Kirkwood v. Gordon, 7 Rich, 474; Dornick v. Reichenbach, 10 Serg. & R. 84; Heister v. Lynch, 1 Yeates. 108; Stevens v. Van Cleve, 4 Wash. C. C. 262.

figured it prior to the photography of impressions; cases in which the individual is utterly careless as to property, and has none of the feeling of proprietorship; cases in which the individual is so wrapt up in self that he cares nothing for friends or relatives; cases in which the wild incoherence of thought makes it impossible for the individual to fix a shooting attention for two consecutive instants on the same thing; cases in which the individual has, through disease, formed perfectly erroneous conceptions of his possessions-in which he believes himself the possessor of millions and millions of money, of chariots of gold and the like, although his whole possession may be limited to a pittance. In all such cases, it is scarcely necessary to say, the individual is not in a condition to form a correct opinion of his position, and at the same time in a frame of mind to influence the distribution of any property he may possess by an expression of volition. But there are many cases where mental health is slightly impaired; where the haleness and strength of middle life are somewhat diminished; where old age has caused a certain dilapidation of the mental structure; where there are curious mental eccentricities of thought and action; and in all these cases, if the individual retains sufficient of the reproductive faculty to collect in his mind, without the suggestions of others, the particulars of the business in hand and the possible objects of his bounty; if he has the power of retaining these in his mind for a sufficient length of time to perceive their relations to one another, and if he is able to form a sound and rational judgment with respect to them, then he is, according to law, in a position to exercise this privilege of disposing of his own property. True, this seems

Harwood r. Baker, 3 Moore P. C. C. 282, 290; 1 Wms. Exs. 37; Herbert v. Lounds, 1 Ch. Ca. 24; 1 Dyer, 72 a in Marg.; Right v. Price, 1 Doug. 241; Ball v. Mannin, 3 Bligh, N. S. 1; S. C. 1 Dow & Clark, 380; McDiarmid v. McDiarmid, 3 Bligh N. S. 374, per Sir John Nicholl, in Marsh v. Tyrrell, 2 Hagg. 122, and in Ingram e. Wyatt, 1 Hagg. 401; Constable r. Tufnell, 4 Hagg. 465; Sloan v. Maxwell, 2 Green Ch. 572; Turner r. Cheesman, 15 N. J. Ch. 243; Whitenack v. Stryker, 1 Green Ch. 11; Van Alst v. Hunter, 5 Johns. Ch. 158; Den v. Johnson, 2 Southard, 454; Lowe v. Williamson, 1 Green Ch. 82; Burger v. Hill, 1 Bradf. Sur. 360; Blanchard v. Nestle, 3 Denic, 37; Clark v. Sawyer, 2 Comst. 498; Horne v. Horne, 9 Ired. 99; McTaggart v. Thompson, 2 Harris. 149; Gass v. Gass, 3 Humph. 278; Kinne v. Kinne, 9 Conn. 102: Comstock v. Hadlyme, 8 Conn. 265; McClintock v. Curd, 32 Missouri, 411; Parish v. Parish, 42 Barb. 274; Snow v. Benton, 28 Ill. 306; Van Guysling v. Van Kuren, 35 N. Y. 70.