deed be ashamed if I were to say any thing of the rule in the abstract by which he is to be judged, which I did not honestly feel; and I am sorry, therefore, that the subject is so difficult to handle with brevity and precision. Indeed, if it could be brought to a clear and simple criterion, which could admit of a dry admission or contradiction, there might be very little difference, perhaps none at all, between the Attorney-General and myself, upon the principles which ought to govern your verdict; but this is not possible, and I am, therefore, under the necessity of submitting to you, and to the Judges, for their direction (and at greater length than I wish,) how I understand this difficult and momentous subject.

The law, as it regards this most unfortunate infirmity of the human mind, like the law in all its branches, aims at the utmost degree of precision; but there are some subjects, as I have just observed to you, and the present is one of them, upon which it is extremely difficult to be precise. The general principle is clear, but the application is most difficult.

It is agreed by all jurists, and is established by the law of this, and every other country, that it is the REASON OF MAN which makes him accountable for his actions; and that the deprivation of reason acquits him of crime. This principle is indisputable; yet so fearfully and wonderfully are we made, so infinitely subtle is the spiritual part of our being, so difficult is it to trace with accuracy the effect of diseased intellect upon human action, that I may appeal to all who hear me, whether there are any causes more difficult, or which, indeed, so often confound the learning of the Judges themselves, as when insanity, or the effects and consequences of insanity, become the subjects of legal consideration and judgment. I shall pursue the subject as the Attorney General has properly discussed it. I shall consider insanity, as it annuls a man's dominion over property; as it dissolves his contracts and other acts, which otherwise would be binding; and as it takes away his responsibility for crimes. If I could draw the line in a moment between these two views of the subject, I am sure the Judges will do me the justice to believe, that I would fairly and candidly do so; but great difficulties press upon my mind, which oblige me to take a different

course.

I agree with the Attorney General, that the law, in neither civil nor criminal cases, will measure the degrees of men's understandings; and that a weak man, however much below the ordinary standard of human intellect, is not only respon

sible for crimes, but is bound by his contracts, and may exercise dominion over his property. Sir Joseph Jekyll, in the Duchess of Cleveland's case, took the clear legal distinction, when he said, "The law will not measure the sizes of "men's capacities, so as they be COMPOS MENTIS."

Lord Coke, in speaking of the expression NON COMPOS MENTIS, says, "Many times, as here, the Latin word expres 66 ses the true sense, and calleth him not amens, demens, furio"sus, lunaticus, fatuus, stultus, or the like, for non compos "mentis is the most sure and legal." He then says, " Non

compos mentis is of four sorts: first, ideota, which, from “his nativity, by a perpetual infirmity, is NON COMPOS MEN66 TIS; secondly, he that by sickness, grief, or other accident, "wholly loses his memory and understanding; third, a lunatic "that hath sometimes his understanding, and sometimes not; "aliquando gaudet lucidis intervallis; and therefore he " is called non compos mentis so long as he hath not under"standing."

But notwithstanding the precision with which this great author points out the different kinds of this unhappy malady, the nature of his work, in this part of it, did not open to any illustration which it can now be useful to consider. In his Fourth Institute he is more particular; but the admirable work of Lord Chief Justice Hale, in which he refers to Lord Coke's Pleas of the Crown, renders all other authorities unnecessary.

.66

Lord Hale says, "There is a partial insanity of mind, and (6 a total insanity. The former is either in respect to things, "quoad hoc vel illud insanire. Some persons, that have a competent use of reason in respect of some subjects, are 66 yet under a particular dementia in respect of some parti"cular discourses, subjects, or applications: or else it is "partial in respect of degrees; and this is the condition of very many, especially melancholy persons, who for the most part discover their defect in excessive fears and "griefs, and yet are not wholly destitute of the use of rea66 son; and this partial insanity seems not to excuse them in "the committing of any offence for its matter capital; for " doubtless most persons, that are felons of themselves and "others, are under a degree of partial insanity, when they "commit these offences. It is very difficult to define the in"visible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and con"sidered both by Judge and Jury, lest on the one side there be 66 a kind of inhumanity towards the defects of human nature;

❝or, on the other side, too great an indulgence given to great "crimes."

Nothing, Gentlemen, can be more accurately nor more humanely expressed; but the application of the rule is often most difficult. I am bound, besides, to admit that there is a wide distinction between civil and criminal cases.-If, in the former, a man appears, upon the evidence, to be non compos mentis, the law avoids his act, though it cannot be traced or connected with the morbid imagination which constitutes his disease, and which may be extremely partial in its influence upon conduct; but to deliver a man from responsability for crimes, above all, for crimes of great atrocity and wickedness, I am by no means prepared to apply this rule however well established, when property only is concerned.

In the very recent instance of Mr. Greenwood (which must be fresh in his Lordship's recollection,) the rule in civil cases was considered to be settled. That gentleman, whilst insane, took up an idea that a most affectionate brother had administered poison to him.-Indeed, it was the prominent feature of his insanity.In a few months he recovered his senses. He returned to his profession as an advocate; was sound and eminent in his practice, and in all respects a most intelligent and useful member of society; but he could never dislodge from his mind the morbid delusion which disturbed it; and under the pressure, no doubt, of that diseased prepossession, he disinherited his brother. The cause to avoid this will was tried here. We are not now upon the evidence, but upon the principle adopted as the law. The Noble and Learned Judge, who presides upon this trial, and who presided upon that, told the Jury, that if they believed Mr. Greenwood, when he made the will, to have been insane, the will could not be supported, whether it had disinherited his brother, or not; that the act, no doubt, strongly confirmed the existence of the false idea which, if believed by the Jury to amount to madness, would equally have affected his testament, if the brother, instead of being disinherited, had been in his grave; and that, on the other hand, if the unfounded notion did. not amount to madness, its influence could not vacate the devise. This principle of law appears to be sound and reasonable, as it applies to civil cases, from the extreme difficulty of tracing with precision the secret mo

*

N. B. The Jury found for the will; but after a contrary verdict in the Common Pleas, a compromise took place.

tions of a mind, deprived by disease of its soundness and strength.

Whenever, therefore, a person may be considered non compos mentis, all his civil acts are void, whether they can be referred, or not, to the morbid impulse of his malady, or even though, to all visible appearances, totally separated from it; but I agree with Mr. Justice Tracey, that it is not every man of an idle, frantic appearance and behaviour, who is to be considered as a lunatic, either as it regards obligations or erimes; but that he must appear to the Jury to be non compos mentis, in the legal acceptation of the term; and that, not at any anterior period, which can have no bearing upon any case whatsoever, but at the moment when the contract was entered into, or the crime committed.

The Attorney General, standing undoubtedly upon the most revered authorities of the law, has laid it down, that to protect a man from criminal responsibility, there must be a TOTAL deprivation of memory and understanding. I admit that this is the very expression used, both by Lord Coke and by Lord Hale; but the true interpretation of it deserves the utmost attention and consideration of the Court. If a TOTAL deprivation of memory was intended by these great lawyers to be taken in the literal sense of the words :if it was meant, that, to protect a man from punishment, he must be in such a state of prostrated intellect, as not to know his name, nor his condition, nor his relation towards others that if a husband, he should not know he was married; or, if a father, could not remember that he had children; nor know the road to his house, nor his property in it-then no such madness ever existed in the world. It is IDEOCY alone which places a man in this helpless condition; where, from an original mal-organization, there is the human frame alone without the human capacity; and which, indeed, meets the very definition of Lord Hale himself, when, referring to Fitzherbert, he says: "Ide"6 ocy or fatuity à nativitate, vel dementia naturalis, is such a "one as described by Fitzherbert, who knows not to tell 66 twenty shillings, nor knows his own age, or who was his "father." But in all the cases which have filled Westminster Hall with the most complicated considerations-the lunatics, and other insane persons who have been the subjects of them, have not only had memory, in my sense of the expres sion--they have not only had the most perfect knowledge and recollection of all the relations they stood in towards others, and of the acts and circumstances of their lives, but have, in general, been remarkable for subtlety and acuteness. Defects

in their reasonings have seldom been traceable-the disease consisting in the delusive sources of thought:-all their deductions within the scope of the malady, being founded upon the immoveable assumption of matters as realities, either without any foundation whatsoever, or so distorted and disfigured by fancy, as to be almost nearly the same thing as their creation. It is true, indeed, that in some, perhaps in many cases, the human mind is stormed in its citadel, and laid prostrate under the stroke of frenzy; these unhappy sufferers, however, are not so much considered, by physicians, as maniacs; but to be in a state of delirium as from fever. There, indeed, all the ideas are overwhelmed-for reason is not merely disturbed, but driven wholly from her seat.-Such unhappy patients are unconscious, therefore, except at short intervals, even of external objects; or, at least, are wholly incapable of considering their relations. Such persons, and such persons alone (except ideots), are wholly deprived of their UNDERSTANDINGS, in the Attorney General's seeming sense of that expression. But these cases are not only extremely rare, but never can become the subjects of judicial difficulty. There can be but one judgment concerning them. In other cases, Reason is not driven from her seat, but distraction sits down upon it along with her, holds her, trembling, upon it, and frightens her from her propriety. Such patients are victims to delusions of the most alarming description, which so overpower the faculties, and usurp so firmly the place of realities, as not to be dislodged and shaken by the organs of perception and sense in such cases the images frequently vary, but in the same subject are generally of the same terrific character. Here too, no judicial difficulties can present themselves; for who could balance upon the judgment to be pronounced in cases of such extreme disease? Another class, branching out into almost infinite subdivisions, under which, indeed, the former, and every case of insanity may be classed, is, where the delusions are not of that frightful character-but infinitely various, and often extremely circumscribed; yet where imagination (within the bounds of the malady) still holds the most uncontrollable dominion over reality and fact: and these are the cases which frequently mock the wisdom of the wisest in judicial trials; because such persons often reason with a subtlety which puts in the shade the ordinary conceptions of mankind: their conclusions are just, and frequently profound; but the premises from which they reason, WITHIN THE RANGE OF THE MALADY, are uniformly false :not false from any defect of knowledge or judgment; but, be