aging his own affairs, shonld be sufficient for the continuance of the commission. And yet many very cogent reasons can be given why our English courts were disinclined to sanction the commission, unless the return asserts mental unsoundness. The object of the commission is not to ascertain whether the party is or is not able to manage his own affairs, and is or is not capable of governing himself, but, whether by reason of mental infirmities, amounting to one or another kind or description of insanity, he is thus unable to manage his affairs or thus incapable of governing himself. And the principles upon which our law has made an inference of insanity necessary from the circumstances, seem to me to be sound, and founded upon a more thorough principle of justice than has been understood by those who argue against its expediency The expedient of allowing a jury to find simply that the person was incapable of managing his affairs would have avoided the difficulty which we have here to consider, viz., of deciding what amount of mental unsoundness will justify an inquisition. In the late case of Mr. W. F. Windham, the Master, in summing up to the jury, said: "What the jury had to decide was whether Mr. Windham was of such sound mind as to be able to govern himself and his affairs. In the time of Lord Hardwicke, it was necessary to find a man absolutely insane; but in 1802, Lord Eldon declared that the Court of Chancery thought itself authorized to issue a commission, provided it were made out that the party was unable to act with any proper and provident management, was liable to be robbed by any one, or (and?) was labouring under that imbecility of mind which, though not strictly insanity, equally required the protection of the law. Lord Lyndhurst, in 1827, adopted the ruling of Lord Eldon, which might be taken, therefore, as an authoritative declaration of the law of England." And after referring to the doctrine above alluded to and its decision by Lord Eldon, the Master continued: "From all this, it resulted that in order to justify a verdict against Mr. Windham, the jury must be satisfied that he was incapable of governing himself and his affairs, by reason of unsoundness of mind. Mere weakness of character; mere liability to impulse or susceptibility of influence, good or bad; mere imprudence, extravagance, recklessness, eccentricity, or

immorality—no, not all these put together, would suffice unless they believed themselves justified, on a view of the whole evidence, in referring them to a morbid condition of intellect." "Mere extravagance or follies," as Lord Chelmsford declared when commenting on this case in the House of Lords, "are not sufficient, unless the imbecility amounted to unsoundness of mind." "From these principles of the law, it may be inferred that in any case where the person is not in a position to manage his affairs with prudence and reason, and where such incapacity is due to mental disease, the Court of Equity will interfere to protect the individual and his estate from the prodigality, the wastefulness, and incompetence of his diseased self." In America, on the trial of an issue, in the proceedings on an inquisition, the Court charged that, "until the mind is entirely blotted out, persons must be left to manage their own affairs. As long as there is a spark of intelligence left, the law does not permit their liberty to manage themselves or property to be taken from them." In reference to this remark, it may be said that in no case could these conditions of equitable interference be met with; in no case could it be said that the mind is entirely obliterated; in no case do the faint sparks of intelligence die out before death itself extinguishes them. A writ of error was taken out in this case, on the ground that the above quotation contained a misdirection. In the Supreme Court, the opinion was that "the true and practical test under this proceeding is this: Utter and unmitigated madness, or absolute and hopeless idiocy, resulting from cerebral injury or disease or want of intellect from nativity, are by no means the only tests. The protection of property is one, if not the main object of the statute: it is practical that the test of insanity should depend greatly on the unsoundness of mind which discloses incompetency to its management, and the care and protection of it in a rational manner; and this is the rule in England."2 Another case is quoted by Wharton," in which a petition for commission de lunatico inquirendo was presented by the son of Sarah Collins, in 1867, to the Chancellor of New Jersey,

"Times," 30 January, 1862.

Commonwealth v. Schneider, 59 Penn. 328.

3 Mental Unsoundness and Psychological Law, § 104. BR. INS.-7

2

applying for a commission to take charge of his mother's person and estate. She was in the hundredth year of her age: her hearing was somewhat impaired, and her sight very much So. The weight of the medical testimony, however, was in favor of her soundness of mind. The Court held that there was no presumption against her soundness from her extreme age. "She may," says the Chancellor, "be so weak and infirm as to be easily influenced or imposed upon, which would be a reason for setting aside any instruments or transactions executed under the effect of such influence, but this does not amount to unsoundness such as to take from her the control of herself and her property." The doctrine which was laid down by Pollock, C. B., in Nottidge v. Ripley and Nottidge, which was an action brought to recover damages for the incarceration of the plaintiff, (a maiden lady,) in a licensed house for lunatics, under the pretence that she was of unsound mind, when in truth she was perfectly sane, where he directed the jury that if they considered upon the evidence that the plaintiff was not in such a state as to be dangerous to herself or others, then, the plea to that effect not being made out, the verdict ought to be for the plaintiff," has been long since seen to be wrong, and it is well understood that the objects of lunacy legislation in this country have been undertaken as much with a view to the cure of the individual affected, as for the safety of the community. But as it is well understood, as the Commissioners in Lunacy have pointed out, that it does not require the verdict of a jury to justify incarceration in an asylum, so it is obvious that in many cases, in which such incarceration may be resorted to

Collins In re, 3 Green Ch. (N. J.) 253.

2 Reported in "Times," June 25, 26, and 27, 1819. See also Journal of Psychological Medicine, vol. ii., p. 630.

The Commissioners in Lunacy addressed a letter to the Lord Chancellor on this subject on the 4th July, 1849. (Printed by order of the House of Commons 1st August, 1849, Sess. Papers, No. 620.) In it they entered fully into the important question as to the class of lunatics who may be lawfully placed and kept in confinement. As the Lord Chief Baron had intimated an opinion that no person ought to be so confined unless he was dangerous to himself or others, the Commmissioners in speaking of the scope of the lunacy acts, said: "The object of these acts is not, as your Lordship is aware, so much to confine lunatics as to restore to a healthy state of mind such of them as are curable, and to afford comfort and protection to the rest. Moreover, the difficulty of ascertaining whether one who is insane be dangerous or not is exceedingly great, and in some cases can only be determined after

for the benefit of the individual, and with a view to his more rapid recovery, there does not exist such a condition of mental unsoundness as should deprive a man of the management of his estates. So far as we know, there has been no judicial decision upon this important point, but we cannot doubt that such would be the holding of the Court of Equity, if the question came before it. With the purpose of showing how jealous the law is for the liberty of the individual, and for his uninterfered with rights as to his property, and as further illustrating the point which has been dwelt upon, viz., that it is always necessary to prove mental unsoundness, we may refer to some of the facts which were proved in the case already referred to, and from which we have quoted the Master's statement of the law. In this case, the petition alleged imbecility as a cause for a commission on William Frederick Windham of Felbrigg Hall, Norfolk. It appeared that he was sent to Eton as a boy, but that while there his conduct was so strange and extravagant as to lead to the belief that he was at that time insane. With time, his peculiarities did not diminish, but increased. He was lavish and absurd in his expenditure of money, and bought things which he could not possibly use. He incurred large debts: he was guilty even in public of gross indecency, and he sought companionship among the dissolute and uneducated. Shortly after he came of age, he contracted a marriage with a woman of disreputable character, knowing that up to the night preceding his marriage she had been the mistress of, and cohabited with, one of his own friends or associates. His income did not

minute observation for a considerable time." It is of vital importance that no mistake or misconception should exist on the subject of lunacy; and every medical man who may be applied to for advice on the subject of lunacy; every relative and friend of any lunatic, as well as every magistrate and parish officer, (each of whom may be called upon to act in cases of this sort,) should know and be well assured that, according to law, any person of unsound mind, whether he be pronounced dangerous or not, may legally and properly be placed in a county asylum, lunatic hospital, or licensed house, on the authority of the preliminary order and certificates prescribed by the acts." And further, with respect to resorting to a commission of lunaey, the commissioners added: "It is obvious that the finding of a jury is in no case essential in order legally to justify the confinement of a person of unsound mind." See also the Fourth Annual Rep. of the Commissioners in Lunacy, 30 June, 1849, p. 10, and Fifth Rep. 30 June, 1850, p. 14. See a remonstrance with the Lord Chief Baron touching the case of Nottidge v. Ripley, by John Conolly, M. D., London, 1849. In re Windham, see "Times," 30 Jan., 1862.

exceed £1580 per annum, yet he presented his wife with jewelry of the value of £12,000 or £14,000, and settled £800 a year upon her absolutely. He condoned his wife's adultery. His habits were uncleanly, his appetite voracious, and his feelings blunt and callous. There was, of course, a conflict of medical testimony. Drs. Forbes, Winslow, Mayo, Bright, and Southey, came to the conclusion that he labored under imbecility, and was quite incapable of managing his own affairs, while Drs. Tuke, Sutherland, Hood, Seymour, and Connolly, held that Mr. Windham was sane and of sound business capacity. After Master Warren's summing up, the jury, by a majority of 15 to 8, returned a verdict that Mr. Windham was of sound mind and capable of taking care of himself and his affairs. The question, then, to be decided in all these cases is, is the alleged lunatic incapable of managing his affairs; not does he manage his affairs well or ill; not is he prudent and thrifty, or imprudent and prodigal; not is he wise or foolish? It would be for the interest of friends, in many cases, to prevent young and rash men from squandering princely fortunes with a profuseness which would have emptied the treasure-chests of Croesus. But the law is not for the purpose of keeping fortunes together for the benefit of those who may come in time to possess them: it is not for the purpose of compelling men to be wise and prudent, but it is for the protection of those who are incapacitated from exercising their understanding in the affairs of business, when that incapacity is due to mental disease. And from what has been said above, the principles upon which the law exercises this care of the insane, and the amount of mental unsoundness which will call for this protection cannot fail to be understood.

31. Conclusions. It is scarcely necessary to sum up the conclusions which have been arrived at in this chapter. They are given with considerable brevity in the text, and will require to be separately reiterated when we come to consider the nature of the various kinds of disease which incapacitate a man as a citizen, or render him irresponsible for those departures from citizenship, or common human duty, which have been called crimes. We have seen that there is a per