cording to Georget, have ever shown themselves the protectors of the right of making wills, taking into consideration the mental condition of the testator and the dispositions of the will itself.

1

§ 106. It would seem to be reasonable that the validity of the contracts of imbecile persons not under guardianship, should be determined by the same principles, as that of their wills. This, however, is not the doctrine of the law, which does not recognize imbecility as a form of insanity. Whatever may be the nature or magnitude of the contract, the question at law is one, not of capacity or incapacity, but of soundness or unsoundness of mind; and on this question, the law "makes no distinction between important and common affairs, large or small property." Courts of law have always refused to invalidate the contracts of imbeciles and others of weak understanding, and courts of equity have declined to interfere, except on the ground of fraud. There is this strong objection to this doctrine, that we have no rule, and cannot have in the nature of things, by which the question of compos or non compos can be uniformly determined; for one court or jury, for instance, may range through the whole life and conversation of the party, while another may think itself obliged not to go beyond the particular act in question. A surer and safer principle is, that if the imbecile person is capable of comprehending the nature of the particular act, then has he all the capacity which the

decision, the Court considered the testator to be one of those persons whose case is contemplated in the following article (499) of the Civil Code, in which the power of making a will is not mentioned among the civil acts, which they are rendered unable to perform. "In rejecting a petition for interdiction, the court may, nevertheless, if circumstances require, decree that the defendant is henceforth incapable of appearing in suits, of making contracts, of borrowing, receiving payment for debts or giving a discharge, alienating or pledging his property, without the aid of a council which shall be appointed in the same judgment."

1 4 Dane's Abridgment, 561. This point is discussed at some length, in Jackson v. King, 4 Cowen, 207.

21 Story, Commentaries on Equity, 238.

case requires, and the act should be established; and vice versa. Indeed, whether the question be one of capacity or soundness, regard must always be had to the nature of the subject to which the mind is applied, and the utmost respect for technical rules and definitions cannot prevent us from being governed by this rule, in the majority of cases. Noth ing can be more unjust than to infer imbecility in general, from facts that establish its existence merely in regard to certain subjects or relations. No one imagines a general or a statesman to be necessarily non compos, because the one may have shown himself incapable of conducting a campaign, and the other of controlling the destinies of an empire. And nothing can be more absurd, as well as unjust, than to conclude that because a weak-minded person can be shown to have acted shrewdly in small and familiar matters, he must possess a legal capacity for the transaction of the most important and complicated affairs. Many an imbecile is perfectly competent to purchase the necessaries of life, or make contracts relative to personal service, who could not be trusted with the disposal of an estate, or with making an investment of money. We cannot help concluding, therefore, that the universal application of the rule, compos or non compos, is repugnant to the most obvious principles of justice. § 107. Imbeciles in the third degree, and others of whatever grade under interdiction, are legally incapable of contracting marriage, for since they are presumed to be incapable of transacting business of the smallest amount, they must be equally so of becoming a party to a contract which is not only to affect their pecuniary interests, but their whole future happiness and comfort. When, however, the mental deficiency has not been sufficient to provoke interdiction, though plain enough to be generally recognized, it, very properly, constitutes no legal impediment to marriage, but on proof of fraud or circumvention, the marriage has been pronounced by the courts, null and void. It is obvious that no general

1 1 Haggard Ecc. Rep. 355. Portsmouth v. Portsmouth; Miss Bagster's case, Ante, § 76.

rule can be applied to all such cases, for while marriage might conduce to the interests of each party in one case; in another, it might be equally ruinous to the interests of one or both parties. Every case should be judged on its own merits, and only annulled when the mind of either party is proved to have been operated on by improper influences.

CHAPTER V.

PATHOLOGY AND SYMPTOMS OF MANIA.

$108. WHILE medical literature is far from being deficient in works on Insanity considered as one of the most serious maladies to which man is liable, the popular notions respecting it are peculiarly loose and incorrect. As these, however, are the source of many of the faults in the jurispru dence relating to this affection, it is necessary to enter somewhat into its medical history, and to discuss points which might seem, at first sight, to be of an exclusively professional nature, but a proper understanding of which is absolutely necessary to save us from gross mistakes on this subject. Certainly no greater absurdity can be imagined than that of fixing the legal relations of persons in a particular state of mind, while entertaining the most imperfect notions of what that state really is, unless it may be that of pertinaciously clinging to those notions and discouraging every attempt to correct them, after the progress of scientific knowledge has shown them to be erroneous. Before describing the phenomena of mania, it should be distinctly understood that it is, first, a disease of the brain; and, secondly, that in its various grades and forms, it observes the same laws as diseases of other organs. The importance of these propositions makes it proper to state the grounds on which they rest; for until they are clearly recognized and appreciated, it will be in vain to expect any improvements in the medical jurisprudence of insanity.

§ 109. I. Mania arises from a morbid affection of the brain. The progress of pathological anatomy during the

present century, has established this fact beyond the reach of a reasonable doubt. It can hardly be necessary at the present time, to prove the fact of the dependence of the mind on the brain for its external manifestations, that, in short, the brain is the material organ of the intellectual and affective. powers. Whatever opinion may be entertained of the nature of the mind, it is generally admitted—at least by all enlightened physiologists—that it must of necessity be put in connection with matter, and that the brain is the part of the body by means of which this connection is effected. Little as we know beyond this single fact, it is enough to warrant the inference that derangement of the structure, or of the vital actions of the brain, must be followed by abnormal manifestations of the mind; and, consequently, that the presence of the effect indicates the existence of the cause. Whether the morbid action arises in the digestive, or some other system, and is reflected thence to the brain by means of the nervous sympathies, or arises primarily in the brain, the soundness of the above principle is equally untouched. This leads us to the source of the hesitation that has been evinced by pathologists to consider the brain as the seat of insanity.

§ 110. From the fact that organic lesions are not always discoverable after death in the brains of the subjects of insanity, it has been inferred that the brain is not the seat of this disease; though, if this fact were true, it being also true that no other organ in the body invariably presents marks of organic derangement in insanity, the only legiti mate inference would have been, that, in some cases, it is impossible to discover such lesions by any means in our power. The strangest theoretical error which this apparent soundness of the brain in some cases has occasioned, is that of denying the existence of any material affection at all, and attributing the disease entirely to an affection of the immaterial principle. If the same pathological principles had guided men's reasoning respecting this disease, that they have applied to the investigation of others, this error would never have been committed. It will scarcely be contended, at the present day at least, that the structural changes, found