The Plea of Insanity in Criminal Cases.

of physicians who employ their time and ber that medical men are expressly called talents in alleviating the sufferings of the for the purpose of discovering the existence insane. If these gentlemen confined their of insanity: and we should betray but a remarks to an explanation of the remote slight acquaintance with human nature if causes and premonitory symptoms of in- we knew not how to appreciate that fact. sanity, or even undertook to point out what Advocates as a body, are honorable men: kind of facts might be relied on, as indica- yet how many, in endeavoring to persuade ting the presence of mental disease, they others, have unconsciously persuaded themwould greatly assist judicial investigation; selves, that the unrighteous cause of their but when, after two or three interviews client is founded on the strictest morality with a prisoner awaiting his trial on a capi- and justice! Surveyors are equally hontal charge, and after some loose conversa- orable; yet it is notorious that their opintion of which they have taken no accurate ions respecting the value of an estate will note, and can relate with certainty neither vary fifty per cent, as they may chance to the questions nor the answers, they come be employed by the vendor or the purinto court, and, with some of the dictation, chaser. Physicians are neither more or and much of the obscurity of a Delphic less honest than counsellors or surveyors; oracle, pronounce that the act in question and we are firmly persuaded that the Howas the climax of an irresistible impulse, and that the criminal is an irresponsible agent, they confound their duty with that of the jury, and promote anything but the interest of truth. Nor are they better calculated to arrive at a satisfactory conclusion, when they commence their examination of the prisoner's state of mind, in the full confidence that it is impossible to deceive them. The ancient Zacchias asserts, that no disease is more easily feigned or difficult of detection, than madness. The pages of history declare that Ulysses, Solon, Brutus, David, and Sampson all pretended to be insane, and with equal success; and the numerous frauds practised during the last war, prove to demonstration, that in the science of malingering, the moderns are in no respect inferior to the ancients.

ratian maxim "insanus et tu, stultique prope omnes," would find warm supporters among many of that learned body, if any object was to be gained by their pronouncing such an opinion. A man is suspected of madness, and a conclave of physicians are desired to examine him. He is indignant at their intrusion, and treats them with rudeness. They provokingly request him to be calm, pity his excited state, and request permission to see his tongue, and to feel his pulse. Exasperated at their conduct, he jumps up, violently rings the bell, desires his servants to turn them out, and, in no very measured language, wishes them all at the devil. Poor gentleman! his paroxysm of rage is clearly indicative of the presence of mania. If, on the other hand he treats them with politeness and But, even should the prisoner have no avoiding all conversation about himself and desire, or no capacity to deceive, the very his supposed ailments, talks rationally of atrocity of his crime, or the dread of the the weather, politics, or passing events of awful punishment which awaits him, may, the day, he is, with no less confidence, profor the time, have confounded his reason, nounced mad, as he has exhibited that most and rendered his words and actions inco- certain indication of madness, a cunning herent and strange. Now, if the physician desire to conceal his delusion, and to appear compares, as he is apt to do, the conduct sane. So, if the patient is discovered by of this man with the calm demeanor of a his medical inquisitors, burning waste paperson in a perfectly sound state of mind, per, this is construed into a frightful symphe cannot fail to be struck with the start- tom of pyromania, which they were led to ling difference of the two cases, and may expect; if he put his penknife or his purse easily mistake the excitement of conscious into his pocket at their approach, he is a guilt, or excessive fear, of the effects of palpable victim of cleptomania, he has an which he has no experience, for the par- irresistible propensity to steal. Thus the oxysm of madness, to which in many re- most natural indignation is misconstrued, spects it is nearly allied. Can we then the most innocent actions are misinterpreplace any confidence in an examination ted, the most harmless words misunderconducted under such disadvantageous cir- stood. Every object is jaundiced, being cumstances? Besides, we should remem-seen through the yellow glass of a precon

The Plea of Insanity in Criminal Cases.

ceived opinion. If then, in an ordinary in- is an act of free will, whereas the other quiry into a patient's state of mind, the smacks of coercion, and men no more like physician is liable to be deceived by the to die than Jack Falstaff did to give a reacasuistry of his own prejudice, how much son, upon compulsion." We are well more open to error must he be, when the aware that in examining the frightful renatural horror inspired by a deed of savage cords of insanity, a few authentic instances violence, leads him "to hope even against might be found, of persons who had comhope," that it may prove to be the phren-mitted murder for the sole purpose of unzied act of an irresponsible being, and the known penalty attached to its commission by a sane man, forcibly reminds him that the life of a fellow creature depends upon his judgment.

dergoing the penalties of the law; but these cases are so isolated and rare, that they prove nothing in favor of the doctrine of impunity, but merely then the fallacy of all human laws.

The evil of allowing monomaniacs, or persons partially insane, to escape from the just penalty of their crimes, is threefold. First, it induces others in a similar reckless state of mind, to violate the law in the expectation of enjoying a like impunity. Secondly, it opens a door to the most iniquitous frauds, and encourages every criminal to hope that he may avoid capital punishment by feigning madness; and thirdly, it greatly diminishes in the minds of the public, that feeling of security, which is one of the greatest blessings consequent on modern civilazation.

* Koningsmarke.

MAN.-Man is sent into the world

It will perhaps be contended in further opposition to our views, that as the homicidal and suicidal propensities are in general found to co-exist, the insane murderer must frequently entertain no fear of death, but on the contrary desire it; and consequently any law, which renders him subject to capital punishment, must have a tendency to cause, rather than restrain, the commission of crime. But this argument, if admitted at all, proves far too much; since it is levelled at the punishment of death in all cases of murder. Indeed, Mr. Sampson, who has made the most ingenious use of it, in his thoughts on Criminal Jurisprudence, has avowedly carried it this length, when he asserts, that, "however unsuitable the punishment of death may feeble and helpless-unendowed with the be as a remedy for other descriptions of wings of the bird, the swiftness of the stag, crime, it is above all, the most unfit to be the tortuous speed of the serpent, without applied as a corrective in the case of hom- means of defence against the claws or dart icide;* and further, endeavors to support of an enemy, nay, against even the inclethis assertion by shewing that capital mency of the weather. He has no shell, punishment, "by ministering to the suici- no fleece, no covering of fur; nor even a dal propensity, operates as a stimulant to the perpetration of the very crime which it was intended to repress." The fallacy into which this author has fallen, arises, as we conceive, from disregarding the distinction which exists between an act of compulsion, and an act of choice. Many men might attempt to commit an act of suicide in a moment of irritation or despair, who a few days, or even a few hours afterwards, would instinctively shrink from undergoing a public and disgraceful execution. A man may die by his own hand, who would submit to any misfortune without a murmur, rather than die by the hand of the common hangman. "There is a great difference," says one of our writers, "between a man dying of his own accord, and dying because he cannot help it. The one *Sampson, p. 79, 2nd ed. + Id. p. 79.

den or burrow for his hiding place. Yet, by the force of his natural powers, he has driven the lion from his cave, despoiled the bear of his shaggy coat for a vestment, and the bull of his horns to form a drinking cup. He has dug into the entrails of the earth, to bring forth elements of future strength; the very eagle, in traversing the skies, finds himself struck down in the midst of his career, to adorn his cap with a trophy of distinction.

ON DIT WESMINISTER HALL.-We learn that Mr. Pemberton Leigh, (usually known in the legal circles as Mr. Pemberton,) is to be the Chancellor, with a peerage. Mr. P. is a gentleman of profound attainments as an equity lawyer, and there is no doubt but his appointment will give great satisfaction to the bar of England.

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THE

New York Begal Observer.

VOL. III.]

NEW YORK, MAY, 1845.

[MONTHLY PART.

OF DONATIONS MORTIS CAUSA. remained, after the special purpose was

ARTICLE II.

answered. In a late English case, Hills v. Hills, Mee. & W. 401; which was an THOUGH it is said that the gift must, in action for money had and received to the order to make a valid donatio mortis causa, use of the plaintiff as administrator, to which be to take effect in case only the giver die, the defendant pleaded nonassumpsit, it apyet it is not required that the donor should peared at the trial, that the deceased on the make such an express declaration, for if the morning of the day on which she died, feelgift be made during his last illness, the law ing herself very ill, went to bed, and shortinfers the condition that the donee is only ly after said to her landlady, a person of the to have the thing given in case the donor name of Wright, "I feel myself much die of that indisposition. Lawson v. Law-worse, I wish my brother James (the deson, 1 P. Will. 441; Gardiner v. Parker, 3 Madd. 184; Tate v. Hilbert, 2 Ves. Sen. 11; Edwards v. Jones, 1 My. & Craig, 233; 1 Rope. Leg. (by White) ch. 1, s. 2; In Lawson v. Lawson, 1 P. Will. 441; the testator being languishing on his death bed, delivered to his wife a purse of gold containing one hundred guineas, and bid her apply it to no other use but her own, and the transaction was supported as a donatio mortis causa. So in Gardner v. Parker, 3 Madd. 184; A. being confined to his bed, gave to B. a bond for £1800 two days before his death, in the presence of a servant, saying: "There, take that and keep it." The question was between the donee and the executors. The vice chancellor (Sir John Leach,) decided in favor of the donation, observing that the doubt arose from the donor's not having expressed that the bond was to be returned if he recovered. He said that the bond having been given in the extremity of illness, and in contemplation of death, the intention of the donor was to be inferred, that the bond should be holden as a gift only in case of his death, adding that if a gift be made in the expectation of death, there is an implied condition that it is to be held only in the happening of that

event.

If such a gift be charged with the condition of the performance of a particular act or purpose, it will not therefore be invalid. Blount v. Barrow, 4 Bro. C. C. 75; and Roper (Legacies, ch. 1, s. 2) adds, that there seems to be no reason why the donee should not have the surplus money if any

fendant) to bury me comfortably, and to have all I have." There was at the time lying on her pillow, a pocket which contained the money in dispute, the deceased remarked that it was dirty and its contents were accordingly transferred to a clean one, which she then placed on the pillow. At a later period of the day she was assisted down stairs, when she took the pocket into her possession, and having occasion to make a small payment, took a half sovereign out of it, which she changed and paid ten pence. The remainder she replaced in the pocket, and having made a declaration similar to that in the morning, deposited the pocketbook again on her pillow, from whence it was before her death, removed by Mrs. Wright, and delivered to the defendant. On this evidence Rolfe, B., told the jury there were two questions for them to consider, first, whether this was an absolute gift inter vivos, made by the deceased to the defendant? Secondly, assuming it not to be such, whe. ther it was a donatio mortis causa? Tha: if the deceased parted with the possession of this pocket and its contents to the defend. ant during her life, with the intention that he was to retain them for himself in the event of her death, subject, however, to her resuming her original control over them in case of her recovery, it would be good as a donatio mortis causa, but that if her inten tion by the words she used, was to make a general disposition of her property in his favor, it would be a nuncupative will and void. That the conduct of the deceased seemed to shew, that she did not understand

Of Donations Mortis Causa.

defendant, subject to be defeated only by the ordinary contingency of her recovery, and coupled with what has been called the condition of paying out of it the expenses of her funeral. With the correctness of the finding of that jury, we have at present nothing to do, inasmuch as the only question for us is, does the coupling this condition as it is called, render the donatio mortis causa void?

This is indeed not, properly speaking, a condition, for by that expression is meant that property is not to vest unless a particu. lar thing is performed, whereas this is more in the nature of a bequest of money in trust

that, by the statement made by her in the morning, she had done anything to prevent her appropriating this property to her own use, and that it was for them to say whether, when she repeated the declaration in the evening, it was not with the same object as in the morning. The jury found, first, that this was not a donatio inter vivos, and secondly, that by the declaration used, the deceased meant to bestow on the defendant a gift of the pocket and its contents, to take effect only in the event of her death, and coupled with the condition that he should defray the expenses of her funeral. A verdict was accordingly entered for the de- to pay the expenses of her funeral, &c.; and fendant. A motion was subsequently made to enter a verdict for the plaintiff. In support of the rule it was contended, firstly, that the facts of the case negatived the legal inference of a donatio mortis causa. Secondly, that the condition annexed to the gift, namely, that of providing a funeral for the deceased, prevented it from being a good donatio mortis causa.

Lord Abinger, C. B., said, "we think this was properly a case for the jury. It is contended that in point of law, there can be no donatio mortis causa, whenever any condition is imposed, but on the authority referred to of Blount v. Barrow, (4 Bro. C. C. 72, 1 Ves. jun. 346.) It is clear that that is not so, and that a donatio mortis causa may be given for a particular purpose on a particular condition, or coupled with a particular trust, and it was therefore under the present circumstances, properly left to the jury to draw their conclusion as to the intention of the party. That has been done, they have drawn their conclusion, and this rule therefore cannot be granted."

that certainly does not render this the less a donatio mortis causa. As to the legal meaning of this latter expression, there can be no doubt that the property, which is the subject of a donatio mortis causa, must be transferred to the donee, by delivery, during the life of the donor, and that fact has been determined by the verdict of the jury, who have found that these things were delivered by the deceased, during her life, to Mrs. Wright, for the benefit of the defendant. Does then the annexed condition render this void? Now, the case of Blount v. Barrow, where money was given to the donee to enable him to carry on a chancery suit then pending, shows that it is no objection to the validity of a donatio mortis causa, that the chattel was delivered for a special purpose. That case seems decisive on the point, and by analogy here, I think this a good donatio mortis causa, although coupled with a trust. A very strong argument might (as I have already observed) have been raised on the evidence in the cause, that it was not the intention of the deceased to give a donatio mortis causa, but that her object was to make the defendant executor of a nuncupative will; with that however, we have nothing to do at present."

Parke, B., said, "The only question for our consideration here is, whether that which is set up as a donatio mortis causa, and found by the jury to be such, is the less so in point of law because it is given, coupled with the Rolfe, B., said, "I am of the same opincondition that the donce is to provide for the ion. I told the jury that a donatio mortis funeral of the donor? I think there was causa was always to be viewed with suspi very strong ground for arguing from the ex- cion, but if it be allowed at all, I cannot see pression used by the deceased, that she how the annexation of a trust to the gift can meant the defendant to be her executor make any difference. If it be lawful so to generally, and that her intention was in give the property out and out to the party short to make a nuncupative will, of which to his own use, I cannot see that it makes he was to be executor, with the obligation any difference, that with it he is to pay of paying her debts, if any; but the jury have got over that difficulty, by pronouncing that the deceased delivered this property to Mrs. Wright, in order to be delivered to the

for a particular thing. If a man on his death bed gives another £1000, is it any addition to the evil, attending the mode of bestowing property that he attach a condi.

Life Insurance Societies.

LIFE INSURANCE SOCIETIES.

THE following article, which we copy from an English periodical, will, we have no doubt, be read with some interest by many of our subscribers.

tion to it; as, for instance, that he stipu-means, at all events, prompt them to render lates that his brother shall receive an outfit their leisure more available, resolve to "set to India. The case of Blount y. Barrow is up an insurance office, intending to seexpressly in point, and disposes of the ques- cure to themselves some of those situations tion; and I have no doubt that other cases which an office of this kind usually affords. to the same effect might be found. These industrious individuals then become what are called the "founders" of the of fice, and forthwith apply to their friends and acquaintances, and in some instances to the public, to aid them in their undertaking, and in this way we have understood some offices have originated. Now, as a general rule, people are not very fond of advancing some The capital of an insurance company is money, and risking more, in untried underalmost in every case a nominal capital. takings, without some considerable advan-, The advertisements, and even some of the tage, but more especially in a "joint stock policies are headed with a "Capital 1,000,- company." Indeed, those three words, if 0004" or "500,000l."; but this is not the mentioned in miscellaneous society, often real state of the case. It is avowedly a cause the most disagreeable sensation. We business which may be carried on in the have heard them dropped by accident at the first instance with very little capital, and in most cordial and friendly dinner party, and a great many offices-nine out of ten we we have known them to produce a cold shudshould say only one call, or at most two der in half the company. We have seen calls, of 51. in the 1007. on the shares several respectable persons, before these have been paid. It will be seen however, words were uttered, in a happy and hilathat the capital of the company is usually rious state, all at once become grave, and made the sole security for the payment even groan aloud. As we ourselves were of the money secured. It becomes, there- never sufferers in this way, we continued to fore, of great importance to see of what enjoy the good things before us; but the this supposed capital consists. The only bare allusion to this unhappy subject, has justification for making this statement of often quite spoilt the party. "I took shares this nominal capital is this:-True it is, to oblige a friend, and all that I can say is, they say, that we have not all this capital I am not out of it yet." "If I had only put in esse, but it is certainly in posse; we my money into the 3 per cents., I should can get it any day; it is in the pockets have been a rich man at this day." These of our shareholders. Now, then, who are are the sort of exclamations common on such these share holders? Are they all rich, occasions; but almost all have some loss to solvent, and respectable men? Are they tell of, some neglected warning to deplore, all persons who can and will pay? Will and some dearly bought experience to relate. they all be disposed to hand over their How much difficulty is there then to induce hard cash, not to increase their own gains, but to pay the losses of the company? Or if they should be so disposed, will they at all future times, and whenever called upon, have the power so to do? These, it will be seen, are very important questions; because, if they cannot be properly answered, what becomes of the security of the supposed capital.

We do not wish at present to pursue this part of the subject further; but we must ob. serve that there is a sort of way of "getting up an office of this kind, of which we have heard. It is this:-Two or three persons, who are not otherwise very fully employed, or who sometimes have been unsuccessful in other pursuits, and whose

one's friends to join in an undertaking of this kind! But there are some tempting places in the disposal of the "founders. Only take shares, and you shall be a director, say they, or you shall be auditor, or you shall be a chairman, or a president, or a trustee. Now power is dear to human nature-power and patronage-and becoming a public character, have all their charms, to say nothing of a snug salary, or golden guinea, which is also held out; and thus it is that an office is got up. Now that this is a mode in which many of the existing offices have been set afloat, we do not say; but that the case as to some is not exaggerated, we are perfectly sure. But it is to be recollected, that even in these, we do not