emotions, propensities, have been as completely ignored as if they did not exist. The fact is not easily explained, because the division of the mental powers into intellectual and moral has come down to us in one form or another, from the earliest times, and has been adopted by most English writers on metaphysics. Indeed, those who most strongly insist on the essential homogeneity of the mind are willing to admit that the various modes in which it may be manifested, imply so many different powers. Now we have no warrant, whatever, for believing that some of these powers are, and some are not, liable to be disturbed by cerebral disease. They are all equally dependent on the cerebral organism, and, consequently, must be equally ready to be affected by changes in its structure or other abnormal conditions. To suppose that any one of them can be exempted from the operation of such a law, would be as absurd as to suppose that digestion or respiration or assimilation can escape the influence of disease in the organs with which they are respectively connected. Why, in a given case, some should suffer and some escape, is a question which the present state of our knowledge does not enable us to answer. The part of the brain affected, the intensity and duration of that affection, the nervous connections of one part of the brain with another, all these are among the facts that determine precisely which of the mental powers will be disturbed. Upon this class of facts it depends whether the patient believes that he hears a voice speaking to him from the ceiling of his room, or conceives a violent dislike of his father and mother, his wife and children ; whether he imagines himself to be a prince, or millionnaire, or is bent on killing himself or some one else. But however it may be explained or fail of being explained, observation teaches that no power of the mind, either intellectual or moral, either passion or propensity, imagination or memory, invariably maintains its normal healthy condition, exempted from the influence of disease. Now, if all these powers have a rightful place in the constitution of the mind, each one necessary, in its way, to the production of the complete result, it follows that if any one is impaired or perverted by disease, the integrity of the mind is more or less broken, and the patient is, to that degree, insane. It is indifferent where the break in this course of reciprocal and harmonious action may occur; whether the ability to distinguish the real from the imaginary has been annulled, or feelings of kindness and good will have been replaced by those of hatred and malice; whether a host of delusions have transformed all the outward relations, or the individual finds his supreme delight in acts of mischief and words of bitterness. A man who, as a matter of disease, obeys an impulse to kill or annoy others, to steal or to lie, can no more be regarded as sane than he who imagines himself to be the Saviour of the world or the son of perdition. The law supposes that only the knowing faculties can be disordered in insanity, and its definitions and tests are constructed accordingly. Nothing can be farther from the truth. Every practical observer of the disease confirms the statement of Esquirol, that, while many of the insane evince little if any intellectual disorder, one is seldom found evincing no grave disorder of the passions or affections. We cannot avoid the conclusion that the integrity of the whole mind the moral as well as the intellectual powers-is necessary to responsibility. To understand the full significance of Judge Brewster's test, we have only to call to mind those decisions which seemed to recognize the integrity of the moral powers as an element of responsibility. In Rogers's Case, 7 Met. 500, Chief Justice Shaw held that a man who commits a homicide under an irresistible and uncontrollable impulse is not responsible, but that does not necessarily imply that the disorder was exclusively moral, for in that chaotic confusion of mind which often marks the early stage of acute mania, when the patient acts blindly and unconsciously, he may be said to be governed by an uncontrollable impulse. Indeed, it was this very condition of mind the court had to deal with in the case before it. Chief Justice Gibson, of Pennsylvania, once admitted (Wharton, Mental Unsoundness, § 54) " that there is a moral or homicidal insanity, consisting of an irresistible inclination to kill, or to commit some other particular offence;" and he talked of "an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid," but he undertook to lay down no definition of insanity which would apply to such cases. Indeed, it may be doubted whether he very heartily believed in the existence of the fact itself. With a confusion of thought not uncommon in judicial opinions on this subject, he said, that "the frequency of this constitutional malady is fortunately small, and it is better to confine it within the strictest limits." The limits of a malady are supposed to be fixed by nature, though the skill of the physician may sometimes shorten the possible range of its operation. The idea in the mind of the judge was, probably, that the fact of moral insanity would require a greater amount of evidence than other forms of insanity would; of course it would require a different kind of evidence, but we see no reason why it should require more or less than would be sufficient to establish any other fact. While under the ordinary rulings, an insane person is held to be accountable for criminal acts, as long as he knows such acts to be really criminal, that is, wrong and illegal; this rule of Judge Brewster's requires something more, and supplies their fatal defect. The person must also have the power to pursue what he knows to be right, and avoid what he knows to be wrong. He must labor under no disorder, the offspring of disease, which destroys or impairs this power. In short, the rule recognizes, for the first time, in all its length and breadth, the doctrine of moral insanity, and thus establishes harmony between the law and the teachings of medical science. A far greater advance of judicial opinion on this subject-one, indeed, that may be regarded as final has been made in two cases recently adjudicated in New Hampshire. Boardman v. Woodman, 47 N. H. 120, came before the Supreme Court of that State, on an appeal from the decree of a judge of probate, allowing the will and codicil of Margaret Blydenburgh, and was tried before a judge of the Supreme Court and a jury, one of the issues being that the testatrix was not of sane mind. On this issue, the judge instructed the jury that "mere moral insanity, insanity of the moral nature, that is, disorder of the moral affections and propensities, will not, unless accompanied by insane delusion, be sufficient to invalidate a will, or incapacitate a person to make one." And a majority of the judges held the instructions given to the jury to be correct, resting chiefly on Frere v. Peacocke, 1 Rob. 442; Dew v. Clark, 3 Add. 79; Trumbull v. Gibbons, 2 Zab. 117. "Delusion," says Judge Sargent, delivering the opinion of the court, "in the technical sense, as explained by Sir John Nicholl and others, is, then, the legal test of the presence of active insanity, and if the will is the offspring of this delusion it should be set aside; but if there is no such delusion, then there is no fact which is tangible as a matter of proof in a court of justice, upon which it would be safe or wise to act." From this view of a majority of the judges, Mr. Justice Doe dissented. In order to convey an adequate idea of the nature of his objections, we shall be obliged to make copious extracts from his opinion; but none of our readers, we are sure, will regard them, as tedious: "The question whether Miss B. had a mental disease was a question of fact for the jury, and not a question of law for the court. Whether delusion is a symptom, or a test, of any mental disease, was also a question of fact, and the instructions given to the jury were erroneous in assuming it to be a question of law. The jury should have been instructed that if the writing propounded in the probate court was the offspring of mental disease, the verdict should be that Miss B. was not of sound mind. Insanity, other than the healthy absence of development in infants, is the result of a certain pathological condition of the brain, a condition in which the intellectual faculties, or the moral sentiments, or the animal propensities, have their free action destroyed by disease, whether congenital or acquired; and the tests and symptoms of this disease are no more matters of law than are the tests or symptoms of any other disease in animal or vegetable life. If a jury were instructed that certain manifestations were symptoms or tests of consumption, cholera, congestion, or poison, a verdict rendered in accordance with such instructions would be set aside, not because they were not correct, but because the question of their correctness was one of fact to be determined by the jury upon evidence. Experts may testify to the indications of mental disease, as they could not if such indications were matters of law. "The misunderstanding which prevails on this subject, arises from the fact that medical errors of former days gained the sanction and the name of law by being published in law-books of high authority. Such a transformation was not difficult in times when courts were accustomed to instruct juries in regard to matters of fact and weight of evidence, and when the distinction between the duty of the court and the duty of the jury was not clearly defined and observed in practice. Hale and Coke, unfortunately, copied the opinions of the medical authorities of their day on the subject of insanity; and their successors were slow to question any thing indorsed by so great names. The errors of those opinions have in time been discovered and abandoned. But it has not been sufficiently observed that they were medical errors, corrected by medical men. And now the other medical theory, that delusion is a test, introduced long after the times of Hale and Coke, having been adopted by an ecclesiastical court in England, is claimed. to be law, although it is purely a matter of science. The decisions of the ecclesiastical courts are not authorities on this point; for, in these courts, the judges are judges of fact as well as of law. The authorities that recognize delusion as the test, are based on Dew v. Clark, 3 Add. 79, decided in 1826, in which case Sir John Nicholl said, 'The court is confirmed in, or rather possibly has derived, this its own view of the subject, by and from writers, as well medical as other, best qualified to discuss it, and upon whose authority accordingly it may safely rely.' "It does not appear that he [Nicholl] regarded the question as one of law, but rather the contrary; and, therefore, Dew v. Clark is not authority; and, as all subsequent authorities on the same point are expressly built upon that case as settled law, and are not sustained by reason or principle, they all fall together. "The definitions of mental disease, contained in books of law, show nothing but the former state of medical science, and they show that only by hearsay. Books written by physicians or men of science, are neither proofs on questions of fact for a jury, nor authorities on questions of law for a court. But such books led Nicholl, in the decision of a question of fact, to pronounce a dictum concerning a matter of fact, and that dictum has been received as a final determination of a question of law. "Furthermore, if we are to take judicial notice of a fact as settled by the scientific knowledge of experts, we must recognize the fact as established. by the unanimous medical authorities of our day, that there is a mental disease sometimes called moral insanity, and that delusion is not the test of it. Hale and Coke adopted the received medical opinion of their day, and Nicholl professed to adopt that of his time, which was in conflict with the former. If we go back to 1826, or 1800, for medical information, we might, with equal reason, go back to the physicians of Hale's time, or to Galen, or Hippocrates. If we are to follow a progressive science, it is not necessary to follow at a greater distance than did Hale and Nicholl. If it is necessary that the law should entertain a single medical opinion concerning a single disease, it is not necessary that that opinion should be a cast-off theory of physicians of a former generation. That cannot be a fact in law, which is not a fact in science; that cannot be health in law, which is disease in fact. And it is unfortunate that courts should maintain a contest with science and the laws of nature, upon a question of fact which is within the province of science, and outside the domain of our law. All inconsistencies and difficulties are avoided by adhering to the spirit and elementary principles of the law, which declare that a will cannot be produced by any form of mental disease, and that the indications and tests of mental disease are matters of fact." These are the opinions of a single judge, dissenting from the rest of the bench; but in a case tried shortly after in New Hampshire, State v. Pike, Chief Justice Perley instructed the jury that the "verdict should be not guilty by reason of insanity,' if the killing was the offspring or product of mental disease in the defendant; |