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being non compos mentis "of unsound mind," are certain terms in law, and import a total deprivation of sense; but weakness does not carry that idea along with it; but Courts of law understand what is meant by non compos, or insane, as they are words of a determinate signification (d).

Lord Coke makes four classes of such persons - 1st, idiot, or fool natural, who from his nativity by a perpetual infirmity is non compos mentis: 2nd, a person who was of good and sound memory, and by sickness, grief, or other accident, wholly loses his memory and understanding: 3rd, a lunatic, lunaticus, who has sometimes his understanding and sometimes not, qui gaudet lucidis intervallis, and therefore he is called non compos mentis so long as he has not understanding: and 4th, a person who by his own vicious act for a time deprives himself of his memory and understanding, as he that is drunken; but such a person has no privilege by this voluntary contracted madness (e). Yet, if a person by the unskilfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causes temporary or permanent phrensy, this puts him in the same condition in reference to crimes as any other phrensy, and equally excuses him; and also, if, by one or more such practices, an habitual and fixed phrensy be caused, though this madness was contracted by the vice and will of the party, yet it puts the party in the same condition in relation to crimes, as if it had been contracted involuntarily at first (ƒ).

The word idiot is derived from the Greek word doc privatus, and signified a private man, who has not any public office. Among the Latins, idiota is taken for illiterate, or foolish (g), and in Cicero and other authors signifies commonly an unlearned and illiterate person. With the English jurists, however, idiot is a legal term, signifying a person who has been without understanding from his nativity, and whom the law therefore presumes never likely to attain any (h).

(d) Ex parte Barnesley, 3 Atk. 173. See 2 Eq. Cas. Abr. 580.

(e) Co. Litt. 247. a.; 4 Rep. 124 b; 4 Bl. Comm. 25. (f) 1 Hale's P. C. 32.

(g) 4 Rep. 128; See Du Cange's Glossary, tit. "Idiota.".

(h) Co. Litt. 246. b., 247. a.; 3 Mod. 44; 4 Rep. 126; 1 Bl. Comm.

302.

Fitzherbert defines an idiot from birth to be a person who cannot count or number twenty pence, nor tell who was his father or mother, nor how old he is, &c., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss: but if he have sufficient understanding to know and understand his letters, and to read by teaching or information of another man, then it seems he is not an idiot (i).

In a recent case in the House of Lords, Lord Tenterden is reported to have said, in allusion to the above definition of Fitzherbert, the strict legal definition of an idiot is, that if a man can repeat the letters of the alphabet, or read what is set before him, he cannot be taken to be an idiot. But that was contrary to common sense, for, as to repeating the letters of the alphabet, or reading what is set before him, a child of three years old may do that (k).

Although a person has a weak mind, yet, if he appears to be capable of acquiring by conversation and instruction a competent share of understanding to enable him to govern himself or his estate, and a memory sufficient to retain the knowledge which he may so acquire, he is not considered in law an idiot, or a person of unsound mind (). Persons born deaf, dumb, and blind, are looked upon by the law as in the same state with idiots (m); for, the senses being the only inlets of knowledge, and these most important inlets being closed, all ideas and associations belonging to them are totally excluded from their minds.

But persons deprived of only one or two senses, and who can express their meaning by writing or signs, are not incapacitated on that account (n). A man deaf and dumb from his birth, is in presumption of law an idiot, and the rather because he has no possibility to understand what is forbidden by law to be done, or under what penalties; but if it can appear that he has the use of understanding, which many of that condition discover by signs to a very great (i) Fitz. N. B. 583, ed. 1652. (k) Ball v. Mannin, 1 Dow, P. .C. new Ser. 392; S. C. 3 Bligh, new Ser. 1.

(1) Lord Ely's case, 1 Ridg. P. C. 522. See 2 Eq. Cas. Abr. 581.

(m) Co. Litt. 42. b.
(n) Elliot's case, Carter, 53.

measure, then he may be tried and suffer judgment and execution, though great caution is to be used therein (0).

A person born deaf and dumb having attained the age of twenty-one years, applied to the Court of Chancery for possession of her real estate, and to have an assignment of her chattel estate; and the Lord Chancellor having put questions to her in writing, to which she gave sensible answers in writing, the same was ordered accordingly (p).

Lunatic is a technical term, coined in ignorant times, and is derived from the Latin word luna, in respect of lucid intervals which lunatics are usually in the enjoyment of, quia lucidis intervallis gaudent; or in consequence of a notion formerly prevalent, that the moon has an influence upon mental disorders (g). The term signifies, in its legal acceptation, one who has had understanding, but, by disease, grief, or other accident, hath lost the use of his reason. A lunatic is properly one that hath had lucid intervals, sometimes enjoying his senses, and sometimes not (r).

It is singular, that the term "Lunaticus," which, though derived from a vulgar error, gives the title to the modern proceeding by commission, and is the only specific description of afflicted persons contained in it, is not to be found in any form of the old writ (s), nor in the statute de prærogativá regis.

The words unsound mind, and unsound memory, have been adopted in several statutes, and sometimes indiscriminately used to signify, not only lunacy, which is a periodical mad

(o) 1 Hale's P. C. p. 34; see 1 to Encyc. Britt.; Stew. Phil. Vol. 3, Russ. on Crimes, p. 7, note (f).

The judicious and humane means adopted in modern times for educating persons born deaf and dumb, have been attended with eminent success, and furnished them with many ways of profitable occupation, and endowed them with many of the privileges and consequent responsibility of rational and moral agents. See the interesting article " Deaf and Dumb," in Vol. 3 of Supplement

p. 401.

(p) Dickenson v. Blisset, 1 Dick. 268.

(q) 3 Atk. 174; Hale's P. C. 31. See Du Cange's Glossary, tit. “Lunaticus," and an elegant Latin treatise De imperio solis ac lunæ in humana corpora, et morbis inde oriundis, by the late Dr. Mead.

(r) 4 Co. 123; 1 Bl. Comm. 304. (s) Reg. Brev. 266; see 12 Ves. 450, 2nd ed. note (11).

ness, but also a permanent adventitious insanity as distinguished from idiotcy (t).

The term unsound mind seems to have been used in those statutes, and by Lord Hardwicke, in the same sense as insane; but a greater latitude appears to have been given to the meaning of those words by Lord Eldon, who said that they imported that the party was in some such state as was contra-distinguished from idiotcy and from lunacy, and yet such as made him a proper subject of a commission to inquire of idiocy and lunacy (u).

And accordingly, if a jury find a party to be of unsound mind, and incapable of managing his affairs, it is held a sufficient finding to support a commission of lunacy.

It is to be lamented, that the original meaning of the term "unsound mind" should have been departed from, and that so much latitude and uncertainty should have been given to it as are implied by the words of Lord Eldon, last quotedFor 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 for inquiry as will open a door to invade the liberty of the subject and the rights of property.

It was held by Lord Redesdale that the words “non sane memory" used in the Irish statute, 7 Geo. 2, c. 14, include every sort of person of such description, whether idiot or lunatic, or incapable of managing himself or his affairs (v).

The terms used in several modern acts of Parliament to signify persons under mental disabilities are-idiot, lunatic, and of unsound mind.

The term lunatic only is used in the statutes of 11 G. 4 & 1 W. 4, cc. 60, 65; but, by the second section of each of those acts, containing rules for the interpretation of certain words employed in them, it is declared, that the word lunatic shall extend to any idiot, or person of unsound mind, or incapable of managing his affairs.

(t) Lord Ely's case, 1 Ridg. Parl. Cas. 518; 3 Atk. 171; 39 & 40 Geo. 3, c. 94; 43 Geo. 3, c. 75; 6

Geo. 4, c. 74; 7 Geo. 4, c. 57, s. 73.

(u) In re the Earl of Portsmouth, 22nd April, 1815; see post, c. iv. s. 2, (v) Carew v. Johnston, 2 Sch. & Lef. 280.

It may be proper to remark in this place, that, in the subsequent part of this work, the term lunatic is frequently used in the comprehensive sense given it by those statutes.

The term partial insanity imports that a person is insane on one or more particular subjects only, and sane in other respects (w).

As the term imbecility of mind often occurs in discussions respecting soundness of mind, and is intimately connected with this branch of the subject, the following judicious remarks of Sir John Nicholl (x) are deserving attention. He observed-"That, in order to arrive at the true meaning of 'imbecility of mind,' we may resort to what the law describes as perfect capacity, which is most correctly found in the form of pleadings used in the Ecclesiastical Courts, in the averment in support of a will, that the testator 'was of sound mind, memory, and understanding-talked and discoursed rationally and sensibly, and was fully capable of any rational act requiring thought, judgment, and reflection.' Here is the legal standard.

66

Imbecility and weakness of mind may exist in different degrees between the limits of absolute idiotcy on the one hand, and of perfect capacity on the other. When the law uses the terms, 'mind, memory, understanding, thought, judgment, reflection,' it must not be supposed that they are quite synonymous; that each means precisely the same thing. By no means: they are separate faculties, though nearly connected with and graduating into each other; and one or more of these faculties may be defective in a greater or less degree, while the others remain perfect in the individual.

"Locke (y), speaking of idiots, says, Those who cannot distinguish, compare, and abstract, would hardly be able to understand and make use of language, or judge, or reason to any tolerable degree; but only a little and imperfectly about things present, and very familiar to their senses.

(w) 1 Hale's P. C. 30; Greenwood's case, 13 Ves. 89; 3 Br. C. C. Dew v. Clarke, 1 Add. 274;

vii. sect. 6.

(x) 1 Hagg. Eccl. Rep. 401. (y) Essay on the Human Understanding, Book 2, ch. 11, sect. 12

444;
S. C. 3 Add. 79; Heath v. Watts,
Pr. 1798. Del 1800. See postek & 13.

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