A conclusion is here drawn that the establishment of unsoundness necessarily involves, that the extreme degree of imbecility and incapacity of mind does not constitute this unsoundness: that is,—they may exist in the extreme degree, (or citing the words employed,) in any degree WHATEVER, which implies the ne plus ultra, without any resulting UNSOUNDNESS. This is a dictum, which proceeding from your Lordship, the highest authority, is intitled to the utmost deference:—but it is not an
inference from any acknowledged premises, nor established by the intervention of any corroborating argument. The very existence of this intrinsic unsoundness, is "down to the present moment" unproved, and all that can be inferred in this state of the question, is the accredited maxim that
"Nil agit exemplum litem quod lite resolvit."
By the common consent of philosophers and physicians, mental imbecility in the extreme degree is termed idiotcy; and this state may exist "ex nativitate," or supervene at various periods of human life. When a child proceeds from infancy to adolescence, and from that state advances to maturity, with a capacity of acquiring progressively the knowledge which will enable him to conduct himself in society and to manage his affairs,—so that he is viewed as a responsible agent and considered "inter homines homo," such a being is regarded of sound capacity or intellect:—but if in his career from infancy to manhood it is clearly ascertained that education is hopeless,—that the seeds of instruction take "no root, and wither away,"—that he is deficient in the capacity to attain the information requisite to pilot himself
through the world and manage his concerns, such a person would be deemed an idiot, and it might be safely concluded that his intellect was unsound, by wanting those capacities that constitute the sound mind. According to your Lordship's exposition he could not be pronounced unsound, because this word implies "some such state, as is to be contra-distinguished from idiotcy." In order that a definite signification may be affixed to the expression "some such state," it will not, I trust, be deemed indecorous to ask, what particular condition of morbid intellect is to be understood by this "some such state?" The solution of this difficulty would be most acceptable to the practitioners of medicine, and in my own humble opinion of great relief to the jury, who are called upon to "proceed to infer" this state of unsoundness without any other premises than the words "some such state." Although we are distinctly told by your Lordship, that the extreme degree of imbecility or incapacity will not constitute this "some such state" that may be denominated unsoundness; yet I feel highly satisfied with the force and precision by which it is expressed in the words "whatever degree," which if a scale were constructed on which imbecility might be estimated, would imply the ultimate gradation; and
whenever any subject can be regulated by definite quantity, expressed in numbers, it conveys the most certain information. Your Lordship may however judge of the surprize and disappointment I felt when I arrived at the following sentence in the same judgment, "All the cases decide that mere imbecility will not do; that an inability to manage a man's affairs will not do, unless that inability and that incapacity to manage his affairs AMOUNT to evidence that he is of unsound mind, and he must be found to be so."
This, my Lord, is an ample confession that there is a degree of mental weakness that does amount to unsoundness, and in this opinion all philosophers and medical practitioners will unhesitatingly concur: but at the same time this admission wholly upsets the former doctrine, that no degree of imbecility "WHATEVER" can constitute this required unsoundness. In your Lordship's judgment on the Portsmouth petition, delivered the 11th December, 1822, it is stated, "It may be very difficult to draw the line between such weakness, which is the proper object of relief in this court, and such as AMOUNTS to insanity," and in the next sentence, "This is the doctrine of Lord Hardwicke, and I
follow him in saying it is very difficult to draw the line between such weakness which is the proper object of relief in this court, and such as AMOUNTS to insanity." This is a second corroboration of an opinion that destroys the former doctrine. Finally in the "minutes of conference between your Lordship and certain physicians, held on the 7th January, 1823, in the Portsmouth case," there is an endeavour to explain the nature of unsoundness, and of imbecility or weakness;—but it is insufficient to direct the physician to any clue whereby his doubts can be solved, and unfortunately relapses into the original contradictory statement. "The commission which is usually termed a commission of lunacy, and which because it has that name, I observe many persons are extremely misled with respect to the nature of it, and which produced on a former occasion, with respect to this nobleman, a great mass of affidavits, in which they stated he was not an object of a commission of Lunacy.—I say that these words are not much understood.—The law acknowledges the state of idiotcy, and the state of lunacy, which properly understood, is a very different thing from that sort of unsoundness of mind which renders a man incapable of managing his affairs or his
person.—And it has now been long settled, not that a commission of lunacy is to be issued; but that a commission is to issue in the nature of a writ de lunatico inquirendo, and then the object of the commission is perfectly satisfied, if the jury shall find upon satisfactory evidence, that the party is of unsound mind, and incapable of managing his own affairs.—The finding of him incapable of managing his own affairs, is not sufficient to authorize further proceedings, but there must be a finding that he is of unsound mind, and unable to manage his affairs:—incapacity to manage his affairs being considered as evidence of unsound mind:—yet there may be, (and that every man's mind will suggest) instances of incapacity to manage a man's affairs, and yet no unsoundness of mind." That many persons are extremely misled with respect to a commission of lunacy, and too frequently concerning all other subjects, is fully admitted: and it is equally clear that the great mass of affidavits produced in 1814, in favor of Lord Portsmouth's soundness of intellect (for I have attentively perused the whole catalogue) did not go into the investigation of the supposed difference between this hypothetical unsoundness and lunacy; but attested, as far as his
Lordship's conversation and conduct had been the subject of their observation and judgment, that he was not a man labouring under any infirmity, or morbid state of mind, that ought, by any legal restraint, to disqualify him from the management of himself and his affairs. With such opinions I have no concern; they can only be regarded as negative evidence, and cannot operate against manifold overt acts of insanity.