WILLS

Although a medical man, as a rule, should refuse to draw up a will, still there are occasions when his doing so may save much litigation and expense. The following directions may therefore be of use:

1. Let the wishes of the testator be expressed in the plainest and simplest words, avoiding all expressions that seem to admit of another meaning than the one intended.

2. All alterations in the will should be initialled.

3. Do not scratch out a word with a knife, and no alteration must be made after the will is executed.

4. Two witnesses are necessary, who must both be present and sign the following attestation at the end of the will, or on each sheet if more than one sheet of paper be used: “Signed by the testator (or testatrix, as the case may be) in the joint presence of us, who thereupon signed our names in his (or her) and each other‘s presence.”

5. Add address of witnesses.

6. A clause appointing an executor should be inserted thus: “And I appoint J. B. executor of this my will.”

7. Begin, “This is the last will of me, W. B. of S.”; and end, “and I revoke all former wills and codicils.”
Dated this ___________ day of ______________ one thousand, &c.

CHAPTER XVI
MENTAL UNSOUNDNESS

In the whole range of medical jurisprudence there is no subject more interesting, more difficult, or more important than the diagnosis of insanity, and its relation to the criminal responsibility of individuals. It is impossible, in the short space at our disposal, to do more than to offer a few remarks which may assist the student in the elucidation of some of the most important cases which may engage his attention.

Legal Definitions.—Three forms of mental disorder are recognised in law:

1. A nativitate, vel dementia naturalis—idiocy or imbecility.

2. Dementia accidentalis, vel adventitia—acquired general insanity, either temporary or permanent, lunacy.

3. Dementia affectata, acquired madness from intoxication, &c.
(See “Delirium Tremens,” [p. 205].)

Under the term lunacy are included the mania, monomania, and dementia of medical writers. Another term frequently used in legal proceedings, the meaning of which it is not easy to give, is “non compos mentis,” unsoundness of mind. According to the late Forbes Winslow, “unsoundness of mind is not lunacy” in the legal acceptance of the phrase. This term was first used in a Statute passed in the reign of Henry VIII., relating to the punishment of treasonable offences, and is defined by the early law text-books to be strictly one who gaudet lucidis intervallis—a definition not psychologically exact. The phrase “unsoundness of mind” was first used by the late Lord Eldon to designate a state of mind not exactly idiotic, and not lunatic with delusions, but a condition of intellect occupying a place between the two extremes, and unfitting the person for the government of himself and the management of his affairs.

The above definition has been acted upon by other judges—Lyndhurst, Brougham, &c. As a rule, a medical witness will consult his own interest in not attempting to define insanity, bearing in mind the philosophic caution of Polonius, who, when addressing Hamlet‘s mother, says—

To the legal mind, the chief character of insanity is the presence of

delusion

; but this view is far too restricted. It was first advanced by Erskine in the trial of Hadfield. Before that trial the doctrine was that every man was responsible for his acts, unless he was totally deprived of his understanding and memory, and did not know what he was doing, “no more than an infant, than a brute, or a wild beast” (R.

v.

Arnold). In the case of Bellingham, the knowledge of “right” and “wrong” in the abstract was the test of mental unsoundness; and, as in the opinion of the judge and jury he was held to be capable of solving this metaphysical problem, Bellingham was duly hanged.

Since the trial and acquittal of MacNaughton on the ground of insanity, the doctrine of the knowledge of abstract right and wrong has been changed to a knowledge of right and wrong in relation to the particular act of which the person is accused, and also at the time of committing it.

It has also been held that, on the assumption that a person labours under partial delusion only, and is not in other respects insane, he must be considered in the same situation as to responsibility as if the facts, with respect to which the delusion exists, were real. For example, if, under the influence of delusion, he supposes another man to be in the act of attempting to take his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion were that the deceased had inflicted a serious injury on his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. “Here,” says Maudsley, “is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reasonably, ... that he is, in fact, bound to be reasonable in his unreason, sane in his insanity.” Yet this was the doctrine laid down by the judges in answer to certain questions propounded by the House of Lords after the acquittal of MacNaughton (see Maudsley‘s Responsibility in Mental Disease, pp. 88 et seq.).

As laid down by English lawyers, madness absolves from all guilt in criminal cases. Where the deprivation of the understanding and memory is total, fixed, and permanent, it excuses all acts; so, likewise, a man labouring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same degree, as one whose disorder is fixed and permanent (Beverley‘s Case, Co. 125, Co. Litt. 247, 1 Hale 31). “But the difficulty in these cases is to distinguish between a total aberration of intellect and a partial or temporary delusion merely, notwithstanding which the patient may be capable of discerning right from wrong; in which case he will be guilty in the eye of the law, and amenable to punishment.”[17]

Lord Hale, who first pointed out the distinction to be drawn between total and partial insanity, offered the following as the best test he could suggest: “Such a person, as labouring under melancholy distempers, hath yet as great understanding as ordinarily a child of fourteen years hath, is such a person as can be guilty of felony.” (On this subject, see R. v. Ld. Ferrers, 19 St. Tr. 333; R. v. Arnold, 16 St. Tr. 764, &c.)

To excuse a man from punishment on the ground of insanity, it appears that it must be distinctly proved that he was not capable of distinguishing right from wrong, and that he did not know, at the time of committing the crime, that the offence was against the laws of God and nature (R. v. Offord, 5 C. & P. 186).

I shall here quote from Macdonald‘s Criminal Law of Scotland: “Insanity or idiocy exempts from prosecution. But there must be an alienation of reason such as misleads the judgment, so that the person does not know ‘the nature of the quality of the act’ he is doing, or if he does know it, that he does not know he is doing what is wrong. If there be this alienation, as connected with the act committed, he is not liable to punishment, though his conduct may be otherwise rational. For example, if he kill another when under an insane delusion as to the conduct and character of the person—e.g. believing that he is about to murder him, or is an evil spirit,—then it matters not that he has a general notion of right and wrong. For, in such a case, ‘as well might he be utterly ignorant of the quality of murder.’ He does the deed, knowing murder to be wrong, but his delusion makes him believe he is acting in self-defence, or against a spirit. Nor does it alter the effect of the fact of insanity at the time, that the person afterwards recovers.... But the alienation of reason must be substantial. Oddness or eccentricity, however marked, or even weakness of mind, will not avail as a defence. Even monomania may be insufficient as a defence, where the delusion and the crime committed have no connection, or where the person, though having delusions, was yet aware that what he did was illegal.”

Mere moral insanity—where the intellectual faculties are sound, and the person knows what he is doing, and that he is doing wrong, but has no control over himself, and acts under an uncontrollable impulse—does not render him irresponsible (R. v. Burton, 3 F. & F. 772). Some medical writers contend that there are two forms of insanity—moral and intellectual. The law only recognises the latter, owing probably to the difficulty of distinguishing between so-called moral insanity and moral depravity. Taylor says: “Further, until medical men can produce a clear and well-defined distinction between moral depravity and moral insanity, such a doctrine, employed as it has been for the exculpation of persons charged with crime, should be rejected as inadmissible.”

The day may not be far distant when the term “moral depravity” will be unknown, and future generations, ceasing to believe in absurd superstitions, will come to look on crime as the result of disease of the brain, and learn to treat, instead of to punish, the morally diseased. (For a full discussion of this subject the reader is referred to the works of Dr. Henry Maudsley.)

The fact of the sanity or insanity of the prisoner at the time the crime was committed is left to the jury to decide, guided by the previous and contemporaneous acts of the party; and it has been laid down by Lord Moncreiff in Scotland, and Lord Westbury in England, that the mental soundness or unsoundness of any individual is to be decided by the jury on the ordinary rules of every-day life, and that on these principles they are as good judges as medical men. The whole tendency of legal practice, when dealing with the plea of insanity, is to entirely ignore the medical evidence. On the question of medical evidence in cases of insanity, Doe J., of New Hampshire, remarks: “At present, precedents require the jury to be instructed by experts in new medical theories, and by judges in old medical theories,” and that in this “the legal profession were invading the province of medicine, and attempting to install old exploded medical theories in the place of facts established in the progress of scientific knowledge. If the tests of insanity are matters of law, the practice of allowing experts to testify what they are should be discontinued; if they are matters of fact, the judge should no longer testify without being sworn as a witness, and showing himself qualified to testify as an expert.”

Lunacy—What Constitutes? (8 and 9 Vict. c. 100, secs. 90 and 114).—Imbecility and loss of mental power, whether arising from natural decay, or from paralysis, softening of the brain, or other natural cause, and although unaccompanied with frenzy or delusion of any kind, constitute unsoundness of mind, amounting to lunacy within the meaning of 8 and 9 Vict. c. 100 (R. v. Shaw, 1 C.C. 145).

The above is the last definition of lunacy up to 1875; but as the law on this subject is so constantly changing, the student will find it best to consult the Law Reports from time to time. (See the account in the case of R. v. Treadaway, Law Reports. Also the Lancet, on the same case, vol. i. 1877.)

For some valuable remarks on the subject of the irresponsibility of madmen, the student is referred to the works of Maudsley, Pritchard, Ray, Hoffbauer, Georget, and others.

The following suggestions are offered for consideration on this subject:

1. Was the act an isolated event in the life of the culprit? Has it the appearance of spontaneity, or was it the culminating point of a life spent in so-called criminal acts?

2. Absence of a motive for the committal of the deed.—The absence of an apparent motive is no proof of an unsound mind; the moving principle may be “the conscious impulse to the illegal gratification of a selfish desire.”

3. The presence or absence of a well-concerted plan of action is a diagnostic sign of little value.—Casper remarks that “only in one case can the examination of the systematic planning of the deed afford any information, and that is when these plans and preparations themselves evince the stamp of a confused intellect, and betray the hazy consciousness, the mental darkness, in which the culprit was involved.”

4. A dominant delusion may be so concealed as to be for a time undiscoverable.—The case of the man who gave no indication of his madness till he was asked to sign the order for his release, when he signed Christ, is an example how carefully a delusion may be concealed even during a most careful examination. Questions directed to this point showed that he laboured under all the errors which such a delusion might suggest.

5. It may “easily be conceived that insane persons, whose unreason affects only one train of thought more or less restricted, yet labour in other respects under disorders of feeling which influence their conduct and their actions and behaviour without materially affecting their judgment: and that many of such deranged persons, who often conduct themselves tolerably well in a lunatic asylum, and while living among strangers with whom they have no relations, and against whom they have no prejudices or imaginary reason of complaint; subjected, besides, to the rules of the house and to an authority that nobody attempts to dispute; would, nevertheless, if restored to liberty and residing in the midst of their families, become insupportable, irritable at the slightest contradiction, abusive, impatient of the least remark on their conduct, and liable to be provoked by trifles to the most dangerous acts of violence. If, under such circumstances, a lunatic should commit any act of injury or serious damage to another, would it be just to punish him; because it cannot be made apparent that the action has any reference to, or connection with, the principal delusion which is known to cloud his judgment, it being apparent that his moral faculties have undergone a total morbid perversion?”

6. Insanity with Lucid Intervals.—Haslam, Ray, and others appear to deny the possibility of lucid intervals; but M. Esquirol, on the other hand, fully recognises the existence of this form of insanity. In a legal sense, a temporary cessation of the insanity constitutes a lucid interval, but the cessation must be complete, and not merely a remission of the symptoms. The interval must be of some duration; and when continuous insanity has been proved, the onus of proving a lucid interval in civil cases rests with the party trying to support the validity of a deed executed during the alleged interval. “If you can establish,” says Sir W. Wynne, “that the party afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved is sufficient, and the general habitual insanity will not affect it, but the effect of it is this—it inverts the order of proof and presumption; for, until proof of habitual insanity, the presumption is that the party agent, like all human creatures, was rational; but when an habitual insanity in the mind of the person who does the act is established, then the party who would take advantage of the fact of an interval of reason must prove it.” In civil cases the law recognises the validity of wills made during lucid intervals, and has even taken the reasonableness of a will as a proof of a lucid interval.

7. Have measures been taken by the culprit to escape punishment?

The classification of insanity adopted here is that given by Ray, and is sufficient for all practical purposes:

 I 
N
S
A
N
I
T
Y.		Defective
development
of the
faculties.		Idiocy1. Resulting from
congenital defect.
2. Resulting from an
obstacle to the
development of the
faculties supervening
in infancy.
Imbecility1. Resulting from
congenital defect.
2. Resulting from an
obstacle to the
development of the
faculties supervening
in infancy.
Lesion of
the faculties
subsequent
to their
development.		Mania1. Intellectual—
(a) General.
(b) Partial.
2. Affective—
(a) General.
(b) Partial.
Dementia 1. Consecutive to mania,
or injuries of
the brain.
2. Senile, peculiar to
old age.

DEFECTIVE DEVELOPMENT
OF THE FACULTIES

Under this heading may be included idiocy, cretinism, imbecility, feeble-mindedness, and moral imbecility.

Idiocy is congenital, and was defined by Esquirol thus: Idiocy is not a disease, but a condition in which the intellectual faculties are never manifested, or have never been developed sufficiently to enable the idiot to acquire such an amount of knowledge as persons of his own age, and placed in similar circumstances with himself, are capable of receiving. Idiocy commences with life, or at an age which precedes the development of the intellectual and affective faculties, which are from the first what they are doomed to be during the whole period of existence. Since the days of Esquirol, much improvement has been made in the care and treatment of the idiot; and it appears that he is capable of some, though in most cases slight, mental culture. The cases in which improvement takes place probably belong to imbecility, leaving the idiot in the same condition as described by Esquirol.

Cretinism differs from idiocy in being endemic; it is also more curable, or at least more susceptible of improvement, than the latter. In the idiot the malady is congenital; the cretin, on the other hand, may to all appearances be free from disease for a time. “Every cretin is an idiot, but every idiot is not a cretin; idiocy is the more comprehensive term, cretinism is a special kind of it.” The enlarged thyroid gland, high-arched palate, and brown or yellow colour of the skin, are characteristic of the cretin. Local causes are at work in the production of cretinism; e.g. defective function of the thyroid gland.

The idiot is usually cunning, mischievous, and dirty in his habits.

The derivation of the word idiot, from the Greek, ίδιώτης— a private person, or an ill-informed ordinary fellow—is peculiar. A person suffering from any form of mental unsoundness, and thereby rendered incapable of taking care of himself or of his property, was formerly called by English law “an idiot,” and this word was not infrequently joined with “fatuus” in old writs.

Imbecility.—This is a minor form of idiocy, and may or may not be congenital. It admits of considerable degrees of intensity. Imbeciles exhibit mental defection, rendering them incapable of managing themselves or their affairs, and imbecile children are incapable of being taught to do so.

Feeble-mindedness is a lesser degree of mental defection than imbecility. It may exist from birth or an early age. Such persons require care and control for the protection of themselves and others. They may be incapacitated from acquiring the knowledge imparted in ordinary schools.

Moral imbeciles exhibit moral defects which render them vicious in behaviour, and they often exhibit criminal tendencies, which are not affected by punishment.