and life; that he married her, knowing that up to the night previous to her marriage she had lived with one of his friends. as his mistress; that having married her, he infected her with the venereal disease, and subsequently presented her with jewelry of the value of from £12,000 to £14,000, and settled £800 a year on her for life; that his income at the time he did this was not more than £1500 per annum.

The evidence further went to show that, although his wife subsequent to her marriage cohabited with another man, Mr. Windham condoned this act by residing with her even after her adultery; that he was in the habit of acting as a railway guard, was careless as to personal cleanliness, and on occasion displayed an utter want of feeling. These are the facts which were chiefly relied upon by the petitioners. The ninety witnesses who were examined on the other side gave the impression that all these eccentricities were harmless and rather amusing jokes. Their mental attitude seemed to be that of a broad grin. There was much playfulness in all these actions they thought.

But the medical evidence in the Windham case was the most peculiar feature. Drs. Forbes Winslow and Dr. Mayo were appointed examiners by the Lords Justices, before whom the petition came, and Dr. Bright was associated with them as assessor. The examination of these medical gentlemen seems to have been conducted with the greatest care. They came to the conclusion that Mr. Windham, the respondent, was in a state of mental imbecility; that he was a person of unsound mind, incapable of managing his affairs. They did not regard the amount of mental unsoundness under which he labored as incompatible with the acquisition of a certain amount of classical knowledge: they looked upon it as consistent with a capacity to write letters, to settle small accounts, and to make purchases. Still, they regarded him as a person of weak and childish intellect, as dead to moral obligations. Dr. Southey, who was also appointed by the Lords Justices to examine the respondent, came to the conclusion that he was laboring under imbecility, and was of unsound mind, and did not hesitate to express his opinion that "he was not capable of managing himself or his affairs." But there was medical evidence on the other side. Dr.

Tuke regarded Wr. Windham as sane, and he came to this conclusion after considering-1st, the powers of observation of the alleged imbecile; 2d, the manner in which he had conducted the arrangements for his defence; and 3d, from his delicacy in conversation. He did not regard it as at all inconsistent with the sanity of Mr. Windham that he should get into debt to the amount of £25,000 or £30,000, or that he should give £14,000 worth of jewelry to his wife. Dr. Sutherland, Dr. Hood, of Bethlehem Hospital, Dr. Seymour, Dr. Conolly, and Mr. Handcock, had examined Mr. Windham, and regarded him as a person of sound mind and as capable of managing his affairs.

Mr. Warren, one of the Masters in Lunacy, in addressing the jury said: "The question to be decided was not whether Mr. Windham was absolutely insane, but whether there was such imbecility of mind, not amounting to insanity, as to render him liable to be robbed by any one. The broad question was whether he was of sufficiently sound mind to be entrusted with the management of himself and his affairs. Mere weakness of character, mere liability to impulse, good [68] or bad, mere imprudence, recklessness, and eccentricity, to which might be added immorality, did not constitute unsoundness of mind, unless, in looking fairly at the whole of the evidence, there was good reason to refer them to a morbid condition of intellect. They might furnish evidence of unsoundness, but they did not constitute it."

Mr. Windham was subjected to a lengthened examination before the jury, and the result of these proceedings was that on the 28th of January, 1862, the jury, by a majority of fifteen to eight, returned a verdict that Mr. W. F. Windham was of sound mind, and capable of taking care of himself and his affairs.

The argument that because Mr. Windham labored under no illusions or delusions, that therefore he was not insane in the ordinary sense of the word, is beside the mark, as Dr. Taylor has pointed out,' as their "absence proved nothing for or against the existence of imbecility or weakness of mind." The test of imbecility is undoubtedly conduct, and

Taylor's Medical Jurisprudence, p. 1081.

that conduct which has become fixed and permanent, namely, disposition. And the objection raised by a writer in the "Solicitors' Journal," that unless the system of lunacy inquiry be materially changed every commission may amplify itself into a biographical inquisition,' has evidently been made in entire ignorance of the subject, The only reasonable method of coming to a right conclusion in any case of imbecility is from a careful consideration of all the facts of conduct during a long series of years. That this method sometimes produces unsatisfactory results may be due either to the inherent defects of medical testimony or to the liability which even British juries have of coming to erroneous conclusions.

296. Changes in the Law. We have seen that in the time of Lord Hardwicke it was necessary for the jury to find a man absolutely insane in order to entitle him to the protection of the law; but in the beginning of this century, Lord Eldon decided that the Court of Chancery would regard itself as authorized to issue a commission provided it was made out that the party was laboring under such imbecility of mind as to render him incapable of proper and provident management of his affairs, and rendered him liable to be robbed by any one; and that this imbecility was something different from insanity. Lord Lyndhurst followed Lord Eldon, and adopted his views with regard to this matter. Hence, it arose that the term "unsoundness of mind" came to have an enlarged meaning attached to it, and this new definition has been acted upon in the Court of Chancery since that time."

It has been a subject of regret to some legal writers that the term "unsoundness of mind" should have become wider in its significance than it formerly was; a regret which is somewhat stupidly conservative. How can law stand against fact? It has been tried more than once, and what has been the result? That shallow thing law has been torn in frag

Solicitors' Journal and Reporter, vol. vi. p. 227. February, 1862.

"Ante § 30.

See also Nailor v. Nailor, 4 Dana, Ky., 339; Shaw v. Dixon, 6 Bush, Ky., 644; Commonwealth e. Schneider, 59 Pa. St. 326.

BR. INS.-13

ments by that tremendous reality-outraged facts. Such law is a lie; and although it may survive for a little while, it cannot live. Even in Shelford the following sentence is to be found: "It is to be lamented that the original meaning of the term, unsound mind,' should have been departed from, [63] and that so much latitude and uncertainty should have been given to it as are implied by the words of Lord Eldon. For if unsound mind does not mean a deprivation of reason, but a degree of weakness, and the Crown can issue commissions to try whether a party be of sufficient understanding to manage himself and his affairs, this is such a vague and uncertain ground of inquiry as will open a door to invade the liberty of the subject and the rights of property."2

It is somewhat difficult to share this regret. The object of all such definitions seems to be to facilitate the administration of justice. They are, as it were, the machinery of the law. And it would require to be shown that the introduction of this term, "unsoundness of mind," and the admission of the mental state to which it corresponds as a reason for depriving an individual of his personal liberty, and the management of his property, has been detrimental to the due administration of justice before they are condemned. Mr. Shelford's objection that if unsound mind does not mean deprivation of reason, but a degree of weakness, seems to be due to a want of thorough appreciation of the meaning of the terms. Some degree of weakness seems to us to amount to what would fairly be designated a deprivation of reason. And as in law a deprivation of reason is only an inference from conduct of a certain character, so a certain degree of weakness is as easy of inference from the same facts. But it seems most difficult to get lawyers, who worship a method which has arisen from an obsolete system of jurisprudence, modified by the requirements of progressing epochs, to understand that the true method is the method of nature, and that the term introduced by Lord Eldon allows of a nearer approach to the actual facts of mental aberration than could be made without some such distinction. It seems to be a strife about words.

In re The Earl of Portsmouth, 22d April, 1815.

2 Shelford's Law of Lunatics and Idiots, 2d ed. p. 5.

Why should not law afford its protection to a man against his own diseased weakness? We have in another place compared mental disease to duress, and surely, as when the mental weakness is of such a character as utterly to deprive the individual of all power over the management of his affairs, where it can be distinguished from simple stupidity, as it always can, if the rules that have been laid down are closely attended to, in such a case the law does well to interfere and [64] protect; as in a case of duress it would relieve from a contract which had been entered into under force or fear. Eldon has well said: "Provided it is made out that the party is unable to act with any proper or provident management, liable to be robbed by any one under imbecility of mind, not strictly insanity, but as to the mischief calling for as much protection as actual insanity, the Court has felt itself authorized (though certainly many difficult and delicate cases with regard to the liberty of the subject occur upon that) to issue the commission."

Lord

Still, as we have seen, a mere finding by the jury that the subject of the inquiry is of weak intellect, or that he is unable to manage his affairs, is not sufficient to warrant the issue of the commission. But that the term imbecility, as it is used by Lord Eldon in the last quoted case, and as it is explained and used in this work, falls under, and explains the meaning of the phrase "unsoundness of mind," we are inclined to believe. "The term unsoundness of mind," according to Mr. Amos, "in the legal sense, seems to involve the idea of a morbid condition of intellect, or loss of reason, coupled with an incompetency of the person to manage his own affairs;" and yet he says, in the same article, "Soundness of mind is a legal term, the definition of which has varied, and cannot, even in the present day, be stated with anything like scientific precision."2 With regard to what the law regards as perfect capacity, the averment to be contained in a common condidit will indicate a standard. It says that the testator was of "sound mind, memory, and understanding, talked and discoursed rationally and sensibly, and was

1 Ridgeway v. Darwin, 8 Ves. 65.

* London Medical Gazette, vol. viii. pp. 419–421.