the individual were either an idiot ex nativitate, or a lunatic, in Coke's meaning of the term, and, in consequence thereof, incapable of governing himself and managing his worldly affairs. The injustice of leaving beyond the protection of the law, that larger class of insane, who, though neither idiots nor lunatics, labor under more or less mental derangement, led to a change in the form of the writ, by which the phrase unsound mind was used for the purpose of embracing all others, who were considered proper objects of a commission. What is the precise meaning of this term, it is not easy to gather from the observations of various high legal authorities who have attempted to fix its meaning. It seems to be agreed, that it is not idiocy, nor lunacy, nor imbecility, but beyond this all unanimity is at an end. Lord Hardwicke held, that unsoundness of mind did not mean mere weakness of mind, but a depravity of reason or a want of it. Lord Eldon once referred to the case of a person advanced in years, "whose mind was the mind of a child," and observed, that, "it was, therefore, in that sense, imbecility and inability to manage his affairs, which constituted unsoundness of mind." The same high authority had observed, on a previous occasion, that "the court had thought itself authorized to issue the commission de lunatico inquirendo, provided it is made out, that the party is unable to act with any proper and provident management; liable to be robbed by any one; under that imbecility of mind, not strictly insanity, but as to the mischief, calling for as much protection as actual insanity." Mr. Amos, late professor of Medical Jurisprudence in the London University, has said, that "the term unsoundness of mind, 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." 4 Whatever it may signify, it has always been insisted on, that the return of the commission must state the

1 Ex Parte Barnsley, 3 Atkyns's Reports, 168.

2 Haslam: Medical Jurisprudence as it relates to Insanity, 336.

+ London Medical Gazette, Vol. 8, p.

19.

incapacity or inability of the party to manage his affairs, to be evidence of its existence, in order that the party may have the protection of the law. If the jury are unwilling, from what they see, to infer the presence of a mental condition, to which the highest dignitaries of the law have declined fixing a precise, intelligible meaning, then the inquisition is quashed. The feelings of dread and disgust, with which madness has been generally contemplated, have often deterred juries, acting under a commission, from returning a verdict of unsound mind, which has become equivalent to insanity; either from a disinclination to embarrass the family with an odious distinction, or because the individual was not really unsound in the popular acceptation of the term, though his mental faculties might have been so far enfeebled by old age, or sickness, or congenital causes, as to render him absolutely incapable of conducting himself or his affairs, a fact which they have sometimes returned. These attempts to change the ordinary course have never succeeded, the court having in every case required the verdict to be in the words of the inquisition, or in equipollent words. "It is settled," says Lord Eldon, "that if the jury find merely the incapacity of the party to manage his affairs, and will not infer from that and other circumstances unsoundness of mind, though the party may live where he is exposed to ruin every instant, yet upon that finding the commission cannot go The consequence is, that the afflicted party must either forego the protection of the law, or fix upon his family a sort of stigma of the most disagreeable and onerous description. When it is considered how many are the cases, where individuals are incapacitated from managing their affairs, simply from that impairment of the mind so common in old age, or mere defect of memory, the other powers remaining sound, it is a little surprising, that no effectual measures have been taken, to render the operation of the law less imperfect and unequal. It is not easy to see the ground of the extreme repugnance displayed by the English

on."1

119 Vesey's Reports, 286.

courts, towards any return that does not assert the mental unsoundness of the affected party, unless it may be some obstacle thereby thrown in the course of the subsequent proceedings. The object of the commission is, to ascertain whether or not the party in question is incapable, by reason of mental infirmities, of governing himself and managing his affairs; and if they so find him, it certainly is irrelevant to any useful purpose, to connect this inability as an effect with any particular kind of insanity, whether expressed in common or technical language. Indeed, to require a jury to infer explicitly unsoundness of mind from inability to manage affairs, which is of itself sufficient evidence of all the mental unsoundness that is required for practical purposes, and reject their return if they do not, would seem exceedingly puerile, were it not strictly professional. In ex parte Cranmer,' where the jury pronounced the party in their verdict, 66 so far debilitated in his mind as to be incapable of the general management of his affairs," Lord Chancellor Erskine gives some reasons for finding fault with the terms of the verdict, and directing the inquisition to be quashed. "The verdict," he says, "does not state distinctly, that he is incapable; but that he is so far debilitated in his mind, that he is not equal to the general management of his affairs." The very word incapable, it is true, is not used, but the words "not equal" are surely of equivalent meaning; and it is not easy to conceive, how a clearer or stronger idea of a person's incapacity can be conveyed, than to pronounce him "not equal to the management of his affairs." "How can I tell," he asks, "what is 'so far debilitated in his mind that he is not equal to the general management of his affairs?"" He certainly could not tell the precise quantity of mind left, but even if the party had been returned non compos and therefore unequal to the management of his affairs, it is not quite obvious, how any more definite notion on this point would have been conveyed.2

1 12 Vesey's Reports, 406.

2 In a recent case, the inquisition was quashed by Lord Lyndhurst, because the verdict of the jury said too much, instead of too little, viz.: "that

§ 6. The business of the jury in these cases is, to ascertain whether the individual is mentally capable of managing his affairs; and this is a duty, which, generally speaking, they are able to perform with tolerable correctness. But what can be more irrelevant to the object in view, or more remote from the ordinary circle of their reflections, than the additional duty of deciding whether his mental impairment has gone far enough, to bear being designated by the technical phraseology, unsoundness of mind? When it is recollected, too, that the members of these juries are mostly uneducated men, and but few of them at all acquainted with the force of legal or medical distinctions, it cannot be supposed, that such a return is always the recorded opinion of unbiased, understanding minds. Indeed, the inconvenience and injustice of this proceeding have been so strongly felt, as to have led to the repeated expression of a wish, that its defects were remedied by the action of the legislature. That it should still continue in a country, where it is linked in with a system, whose foundations are in the very constitution of the government, is perhaps not strange; but, that it should be used in some of our own States which are untrammelled by such considerations, is certainly an anomaly in legislation.

§ 7. This is not the only instance where the principles of common sense and common justice, which ought to regulate the legal relations of the insane, have, with astonishing inconsistency, been strangely disregarded in the maxims of the common law. While theoretically it requires that contracts, to be valid, should spring from a free and deliberate consent, it refuses to suffer the party himself to avoid them on the plea of lunacy, in accordance with an ancient maxim, that no man of full age shall be allowed to disable or stultify himself; though at the same time, it does allow his heirs, or other persons interested, to avail themselves of this privilege.1

the party was not a lunatic, but partly from paralysis and partly from old age, his memory was so much impaired, as to render him incompetent to the management of his affairs, and consequently that he was of unsound mind, and had been so for two years." In Re Holmes, 4 Russel's Chancery Reports, 182. 1 2 Blackstone, 295.

Thus, a person who recovers from a temporary insanity before the return of an inquisition, has no remedy at law or in equity for the most ruinous contracts that he may have entered into while in that condition, except on the ground of fraud, though, after his death, his heirs may have them set aside by establishing the fact of lunacy alone. Well may a distinguished jurist exclaim, that "it is matter of wonder and humiliation, how so absurd and mischievous a maxim could have found its way into any system of jurisprudence, professing to act on civilized beings." It arose, no doubt, in part, from erroneous notions of the nature of insanity, and partly from apprehensions, not well founded, of the consequences, that might follow the admission of the plea of lunacy in avoidance of contracts. Within a few years, however, the English courts have almost entirely disregarded the ancient maxim, and in this country, it has long since lost its authority altogether. Indeed, there now seems to be a strong disposition to run to the opposite extreme. We cannot but think that the ends of justice would be better obtained, if no general rule at all were adopted, and every case decided on its own merits. Where the insanity of one of the parties is perfectly well known to the other, or might have been so by the exercise of ordinary sagacity, a contract between them, except for the necessaries of life or comforts and luxuries suitable to his wealth or station, should obviously be held invalid, because the insahe party is deprived by the act of providence of his natural share of discernment and foresight. It often happens, however, that a person's insanity is not generally known and is not very apparent, and, in such cases, if it can be proved, that the contract is a fair and reasonable one on the face of it, and was entered into in perfect honesty and good faith, he certainly should not be permitted to stultify himself,

1 Story, Commentaries on Equity Jurisprudence, § 225.

2 Bagster v. Earl Portsmouth, Chitty on Contracts, 256; Gates v. Boen, 2 Strick. 1104.

8 3 Day, 90, Webster v. Woodward; 15 Johns. 503, Rice v. Peet; 5 Pick. 431, Mitchell v. Kingman.