punishment at least, not that of death. The usual treatment of such offenders, it is to be feared, is prompted more by prejudice and excited feelings, than by enlarged views of human nature and of the ends of criminal jurisprudence. While the public feeling has become too refined to tolerate the infliction of blows and stripes on the imbecile and the mad in the institutions where they are confined, and is inclined to discountenance altogether the idea of punishment as applied to the insane, it can still be gratified by gazing on the dying agonies of a being unable to comprehend the connection between his crime and the penalty attached to it, and utterly insensible of the nature of his awful situation. The voice of reason and humanity which speaks successfully in the first instance, is, in the last, drowned by the more imperious tones of prejudice and passion. When imbeciles are convicted on a charge of great criminal offences, the only rational course to be pursued with them, is that of perpetual confinement, which at once secures society from their future aggressions, and is most conducive to their mental and bodily welfare. - § 102. It has been already mentioned (§ 69,) as an essential defect in Hoffbauer's description of the various grades of imbecility and stupidity, that he has almost entirely left out of view the state of the moral faculties, an omission that is fatal to the value of the principles which he lays down relative to the legal consequences of this mental condition in connection with crime. The ground above taken (§§ 69, 70,) obliges us to consider the principle he has adopted, of graduating criminal responsibility by the strength and extent of the intellect alone, as exceedingly partial and unjust in its operation. The only conditions of culpability which he recognizes are, first, a knowledge that the act is contrary to law; and, secondly, that the act is precisely the one prohibited by the law. In the first degree of imbecility — for in the third all legal culpability is annulled- the absence of these conditions may be alleged in excuse; but only, first, when the violated law neither forms a part of those general relations which concern the offender in common with other members of society, nor belongs to his own particular condition or circumstances; and, secondly, when the action forbidden by the law is not contrary to the law of nature. Accordingly, he considers "that inattention or absence of mind, want of foresight, etc. are not to be received in excuse when they have regard to objects universally known, as to fire, or to those which are familiarly used by the imbecile, as the tools, etc. of his profession. In all other instances his fault loses the degree of culpability that belongs to it, in abstracto, according to the expression of jurists. This is also the case when the act is the result of sudden anger or fear, to which weak persons are prone.1 § 103. In determining the civil responsibilities and relations of the imbecile, Hoffbauer's descriptions are not so unsuitable for practical application; as these must chiefly be determined by the condition of the intellect alone. As his observations, however, have reference in a great measure to the legal regulations of his own country, they will be noticed no farther than merely to state his opinion that when imbecility reaches, or approaches the third degree, the party can no longer be considered capable of taking care of his property, or of bequeathing it by will. § 104. No cases subjected to legal inquiry are more calculated to puzzle the understandings of courts and juries, to mock the wisdom of the learned, and baffle the acuteness of the shrewd, than those connected with questions of imbecility. Much of the difficulty consists, no doubt, in a want of that practical tact which is obtained by experience, in unravelling their intricacies, and of that knowledge of the psychological nature of this condition of mind, which directs the attention exclusively to the real question at issue, and abstracts whatever is extraneous, or without any direct bearing on its merits. It is impossible to specify any particular rules for ascertaining the mental capacity of imbecile persons; for circumstances, always proper to be taken into the account, are constantly varying with each individual case. The education of the party, the sphere of life in which he has moved, his capacity of acquirement, his exposure to improper influences, and especially the nature of the act in question, are points which require a close and thorough consideration. In questions of interdiction which present the greatest difficulty, some overt acts of extravagance or indiscretion generally appear in evidence, when the party is really incapable of managing his affairs, which will remove the doubts that a direct investigation of his intelligence and capacity may have left behind. It ought to be considered as a general rule, that when no acts of this kind have been committed, notwithstanding the management of his property has been entirely in his own hands, beyond the control of others, the party ought not to be interdicted on the score of imbecility. In all cases it will be indispensably necessary, as Mr. Haslam advises, to investigate his comprehension of numbers, without which the nature of property cannot be understood. But the assertion of this writer, that "if a person were capable of enumerating progressively to the number ten, and knew the force and value of the separate units, he would be fully competent to the management of property," is by no means to be admitted as true; for it is very certain that a large proportion of those whose mental capacity is unquestionably inadequate to the management of property, have, nevertheless, these arithmetical acquirements. Cases, even, are occasionally met with of imbeciles who possess surprising powers of calculation, but have not the competency of children to manage pecuniary affairs of any extent. No doubt the converse of the proposition, in reference to people of doubtful capacity, comes nearer the truth. When there exists this inability of comprehending the value of numbers, the individual ought to be considered, in all questions of property, as legally non compos mentis, notwithstanding we might hesitate to adopt this conclusion, after an investigation of his intellectual capacity in regard to the 1 Medical Jurisprudence, as it relates to Insanity, 347. general nature and relations of property and business transactions. § 105. Imbeciles in the third degree are evidently incapable of making wills; but not necessarily so, Hoffbauer thinks,' are imbeciles in the first degree, even when subjected to a curator. The purpose of this guardianship is to protect them from the damage they might do themselves if left with the administration of their affairs, and to prevent them from entering into engagements which they would find it impossible to perform. But as testamentary dispositions depend on a single arrangement, and one which the testator may have taken time to think upon and mature, they do not require the same degree of intelligence as the administration of property, and therefore the validity of a will ought not to be considered as necessarily incompatible with the interdiction of the testator. As a general principle, the correctness of Hoffbauer's doctrine may be admitted, because it places no arbitrary restriction on the exercise of a natural right, the abuse of which can be sufficiently prevented by judicial interference; and because, if it be rejected, we may have the curious spectacle of a person debarred from having any voice in the final disposition of his property, in an act which really comes within the reach of his understanding, while in the management of his property, a judicious committee is constantly paying all the deference to his wishes and suggestions which their reasonableness deserves. It cannot be denied that the nature and consequences of a testament may be sufficiently understood by many an imbecile who is utterly incapable of discerning the complicated relations that are involved in the management of property. For this reason it is said that, "if a man be of a mean understanding, neither of the wise sort, nor of the foolish, but indifferent as it were, betwixt a wise man and a fool, yea, though he rather incline to the foolish sort, so that for his dull capacity he might worthily be called grossum caput, 1 Op. cit. sup. § 73. - a dull pate or a dunce; such a one is not prohibited to make a testament." Nothing can be more natural than that he should be attached to those who have rendered him important services, and perhaps have well-founded claims on his bounty; and if anxious to leave some substantial token of his regard, no legal impediment ought to prevent him from bequeathing them a reasonable portion of his property. The danger anticipated from such an exercise of the testamentary power, is probably more imaginary than real; for it can hardly be conceived that testamentary dispositions, which turn the descent of property altogether from its natural channels, to heap it up in the lap of a stranger or a favorite, would not be attended by appearances of fraud or circumvention, that would inevitably destroy their validity. All that is required to establish the wills of people of weak understandings is that they should have been capable of comprehending their nature and effect,2—a point entirely independent of the accidental circumstance of interdiction. Much injustice, therefore, might be committed by depriving all interdicted imbeciles of the testamentary power, compared with which the temporary inconvenience that would arise from the absence of any statutory provisions on the subject, is hardly to be mentioned. Of course, the slightest appearance of interference, or improper influence, should be closely scrutinized, and as much less evidence required to substantiate its existence, as the party is more likely to have been affected by it. The propriety of the practice here advocated was recognized on the 14th of February, 1808, by the Royal Court of Aix, who confirmed the will of the Sieur Beauquaire, a person of weak understanding (though at the time of making it he was under the surveillance of a curator); for the reasons that the dispositions of the will were rational, and that the mind of the testator was capable of understanding them, though too weak to be intrusted with the management of his property. The French tribunals, ac 1 Swinburne on Wills, part 2, s. 4. 3 Sirey, Recueil 2 Shelford on Lunacy, 275. gen. des lois et des arrêts. viii. 315. In coming to this |