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No. 540-VOL. XI.

MAY 15, 1847.

PRICE 18.

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A CASE tried on the 12th instant in the Common Pleas, (Barnes v. Ward), adds another link to the strong chain of evidence on which is founded a general belief that in framing measures of legal reform, Parliament seems always to delight in the omission of something most material. The case was one under the 9 & 10 Vict. c. 93, for compensating the families of persons killed by accidents. The act expressly has in its contemplation the case of death occurring by accident to those whose death leaves unprotected, persons incapable of protecting themselves, and to whom the mere awarding of a gross sum of money is a very questionable benefit. Be it enacted, says the second clause, "That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. And the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct."

sons for whom the act seems principally intended, is that of persons, who, with their families, depend upon labour for support, and to whom, therefore, the loss of an efficient relative is a loss, subjecting the survivors to the danger of poverty. We do not of course mean to say that cases may not arise in classes much above humble life, where the act may apply, but it is obvious that by far the greater number of instances for its application will be found to occur where the parties suing are in humble life. This being so, and the act plainly, by its very wording, contemplating?a compensation for the children of a deceased person, would it not have been thought that provision would have been made for the proper securing and applying such sums for the benefit of children, as a jury should under the act think fit to award? But no; such a precautionary provision is not to be found in the act. The jury may divide the damages between the parties suffering, in such shares as they may think fit; but there is not a word giving to them or to any other authority, any power to regulate the estate to be taken by the sufferers, or the mode in which the damages shall be applied. The damages must be given to the parties entitled, in a gross sum or not at all.

The case of Barnes v. Ward brought out in a marked manner this oversight of the Legislature. The deceased was a charwoman, gaining towards the support of her family from 2s. to 38. per day. The verdict was for the The Legislature must have been well aware in pass- plaintiff, the husband, (subject to leave to move for a ing this, in many respects beneficial act, that it was le- new trial on certain legal objections); and the damages gislating principally for the poor. If a wealthy or even given were-1007. to the husband; 75%. to each of two a tolerably wealthy man receives injury from the un- female children; and 50%. to a boy. Now, it is needlawful carelessness of another, he very rarely in practice less to say, that, even to an adult male in the class of seeks to recover any compensation, unless the case has life of the plaintiff, the sudden possession of 100%. abbeen one of gross and oppressive carelessness, in which solutely, may prove anything but a benefit; but, as to he desires for the good of others less wealthy, to give a the children, what was to be done with their share of wholesome lesson to the wrongdoer. The class of per-damages? The jury in the case referred to, expressed a

very proper and prudent desire that the money award-paid, and if there be nothing in the act to convert the

cause it found that science then adopted that, and no other, as the test. But the principle of Dew v. Clark was, to treat insanity or no insanity, as a question of fact, and to ascertain from evidence what then was understood to constitute insanity. If then since Dew v. Clark another test of insanity has been discovered, we apprehend, that, consistently with authority and consistently with common sense, the law must adopt the new test as well as the old one, as a fact; and the conclusion is, that, in Freer v. Peacock, the decision is either wrong, or, if right, is put upon wrong grounds. If the new doctrine is true as a matter of science; if there is in fact a moral insanity; and if in fact such insanity draws after it the consequences attendant upon exercise of volition as applied to those qualities of the mind requisite for making a will, then of course the decision is wrong, as being a verdict against evidence. If the new doctrine is not sufficiently supported by facts and reasoning, to be relied on as a statement of a fact, then we say, with great deference, the decision is put upon wrong grounds, because it is put upon the ground that whatever may be the medical doctrine, the law knows no insanity unaccompanied by intellectual delusion; whereas it ought to have been put upon the ground that the evidence of the fact of insanity was insufficient. The distinction is very material, because, if the Court is right on the ground on which it has put the decision in Freer v. Peacock, no amount of belief in mankind generally in the existence of moral insanity, no amount of evidence of its existence, or of its consequences upon the exercise of the faculties of the mind, can ever justify a different decision.

delusion of mind, there is insanity, &c. Medical writers have laid down the same criterion by which insanity may be known." And then his Honor goes on to quote Dr. Battie, Mr. Locke, and Dr. Willis, to shew what are the ingredients and tests of insanity. So that, after all, the Court founded its notion of the legal definition of insanity, on conclusions drawn from the statements or opinions of medical and metaphysical writers on the question of fact, what is insanity. When, therefore, in Freer v. Peacock, the Court treats it as settled that there can be no insanity in the eye of the law except where there is intellectual delusion, as distinguished from moral perversion,-when it treats this as settled law upon the ground that there has been "no case decided in a court of law where moral perver-intellectual delusion, viz. an incapacity for the healthy sion of the feelings, unaccompanied with delusion, has been held a sufficient ground to invalidate and nullify the acts of one so affected," -we conceive, with very great submission, that the Court is not putting the law on its true grounds; that it is attributing to the law the adoption, as of its own authority, of some standard by which to define what shall be held insanity, instead of attributing to it the course which it really has pursued, that of adopting conclusions drawn from the existing state of scientific knowledge, as to what is in fact insanity. Of course insanity must have been always the same; that is to say, the same state of mind cannot have been in one age diseased and in another healthy; but it is perfectly possible, and, indeed, it is the fact, that that which, from the imperfect state of science, has at one time not been known to be a diseased state of the mind, has at a subsequent period been discovered to be so. It is well known, for instance, that, in the middle ages, many pursuits were held to be indicative of insanity which are now known to be perfectly consistent with health of the mind; and vice versâ, certain states of mind, particularly those marked by great religious exaltation, were considered to be the result of inspirations from Heaven, or at least the manifestations of superior holiness, which would now be recognised as proceeding simply from disease of the brain. Applying this to a period nearer to our own, we find that the scientific investigators of mental disease, until lately, did not entertain the idea that there could be a morbid state of the mind unaccompanied by intellectual delusion; hence they stated as a fact that the test of insanity was intellectual delusion. In the progress of science it has been discovered, or at least some men of no trivial scientific reputation have believed they have discovered, that there is another form of mental disease, affecting, not the understanding, but the feelings. They have termed such disease moral insanity, and they have argued and produced facts to shew that such a state of mind is morbid; that is, amounts to mental disease or insanity, although there may be no illusion or belief of any unreal and imaginary facts. Now it may be that these men are wrong in their scientific conclusions. It may be, that they are wrong in stating, as a fact, that a perverted state of the feelings is the result of disease of the mind; and it may be, that if it is the result of disease of the mind, still such a disease is not incompatible with the possession and exercise, with full volition, of those faculties of the mind which are requisite to make a will. But all these considerations are, we conceive, questions of scientific fact, in which a court of law cannot lay down any positive definition of its own authority, but must rely, as it does, in respect to all other matters of science, on the testimony of witnesses who from their study of the subject are best qualified to form an opinion.

The conclusion is, that there is no rule of law which makes it necessary to adopt as the only test of insanity, intellectual delusion. The law has, down to the case of Dew v. Clark, adopted that as the test of insanity, be

The third and last branch of the inquiry to which we shall very shortly address ourselves is, whether the true question to be solved in cases of this kind is not, whether the mental disease of the testator, by whatever name it may be designated, and whatever may be its special manifestations, be not such as to afford a strong inference against his capacity to apply his faculties to the making of a will; whether, in fact, a will made by a person labouring under such mental disease, can be taken to express the intentions which the testator would have had, if he had been wholly sane. And if the answer be in the negative, then it follows that the proof of the existence of such mental disease in the testator, ought to avoid his will. Now, it should be recollected, that, in the matter of making of a will, the two classes of mental faculties, the existence of which is not denied, viz. the intellectual and moral faculties, are both necessarily called into action. The recollection of what property the testator has, and the arrangements appertaining to its disposition, come within the functions of the understanding. But the selection of the recipients of the testator's bounty, is altogether within the domain of the moral faculties, or, what are in common language termed, the feelings. These are the mental instruments with which the testator must make his calculations of the relative claims to his bounty, of all those of whose existence and claims he has knowledge; and when it is admitted that a testator's moral feelings are perverted, or that he is wholly or partially without any such feelings, it is admitted, in fact, that he is without, or has only in a perverted and distorted state, some of the mental qualities which are essential to impressing upon a will all the marks of a whole and sane mind. What is the necessary inference? That the will of such a person ought not to be taken to be the offspring of a whole and sane mind.

C. S. D.

MASTER IN CHANCERY.-The Lord Chancellor has appointed John Hemmant, Gent., of Whittlesey, Cambridge, to be a Master Extraordinary in the high Court of Chancery.