Although the right of a child to succession and property be established by proving its legitimacy, such right may be suspended or controlled by various incapacities. Idiotism and Lunacy alone require our immediate notice; for though non-age be another impediment to the exercise of a child’s rights, and the fact may sometimes admit of medical elucidation, yet the instances must be rare, and the question will more properly belong to the head of Criminal responsibility; “Idiocy or not is a question triable by jury”^[484]; “and sometimes by inspection;” it is distinguished in law from madness^[485] & lunacy, being dementia naturalis vel a nativitate^[486], depending generally on a defective organization, whereas madness and lunacy are dementia accidentalis, the former continual, the latter intermittent,^[487] both varying in degree, danger, and resistance to cure, yet both capable of cure or palliation by medical treatment, and pre-eminently subjects of medical jurisprudence.^[488].

An idiot^[489] or natural fool is one that hath had no understanding from his nativity, and is therefore by law, presumed never likely to attain any;^[490] 1st. Blackstone’s Commentaries, c. 1, p. 302. It has been held that an inquisition finding that a person has not had any lucid intervals per spatium octo annorum, was a good finding of idiocy; Prodgers and Phrazier, 3 Mod. Rep. 43, Skinner’s Reports, p. 177, and Lord Donegall’s Case, 2 Vesey’s Reports, p. 408,^[491] contra Prodgers and Phrazier, 1st Vernon’s Reports, p. 12. see 1st Fonblanque’s Treatise of Equity, p. 63; but as a person may not have been mentally incapable a nativitate, and therefore not an idiot, and yet be affected with madness without lucid intervals, and therefore not legally or logically a lunatic; the better general distinction appears to be, whether the party is compos or non compos mentis,^[492] but see 1st Blackstone’s Commentaries, p. 304, 1st Fonblanque’s Treatise of Equity, p. 63, and cases cited there; Lord Hardwick’s Judgment in Ex parte Barnsley, 3d Atkyn’s Reports, 168,^[493] Lord Eldon’s Judgment in Rigeway and Darwin, 8th Vesey’s Reports, 65; Lord Erskine’s Judgment in Ex parte Cranmer; 12th, Vesey’s Reports 445; and Collinson on Lunatics. By which authorities it will appear that the jurisdiction of the Court of Chancery^[494] over the persons and estates of lunatics extends to those who, being of infirm mind by reason of grief, accident, old age, disease or other cause, are incapable of managing their own affairs.^[495]

A person born deaf and dumb is not of necessity an idiot, for he may have received instruction by signs, Dickenson and Blissett, 1st Dicken’s Reports, 268, but if he be also blind, the presumption is that he is an idiot; Lord Coke indeed says that those who become so, being also deaf and dumb, are idiots, Coke’s Littleton, 42; 1st Blackstone’s Commentaries, 304, and they are, so far as the jurisdiction of the Court of Chancery extends; for though they may have some mental faculty it is impossible that they can exercise it for the management and protection of their property.

Habitual drunkenness^[496] will not alone support a commission of lunacy, Cory and Cory, 1st Vesey, Senr. 19, but in Ridgeway and Darwin, 8th Vesey 66, Lord Eldon stated that a commission had been supported on this ground.

Among the legal disabilities under which persons, non compos, labour, one of the most material to the medical adviser is connected with the disposal of property by will,^[497] and it is most peculiarly his duty to observe, as in most cases his situation will enable him to do, whether the testator was or was not of sound mind, memory, and understanding, at the time of making his will; for it can scarcely be necessary to observe, that many, who during the greater part of their lives have been of sound mind, gradually lose their faculties towards its close, and become liable to the impositions, restraints, and in some cases even to duress, accompanied with cruelty of those about them, to the disgrace of humanity, and the injury of their lawful kindred; in such cases the medical attendant alone obtains access, it is to him therefore that the law will look for the detection, exposure, and defeat of frauds. An idiot cannot make a will, but a lunatic may, during a lucid interval; and subsequent lunacy does not operate as a revocation of a will. Forse and Hembling’s case, 4 Co.

If a person be improperly confined under pretence that he is a lunatic, the remedy is by habeas corpus, directing the keeper to bring the party into court; but if it appears on affidavit of some competent person that the party is actually lunatic, and in such a state of mind that he is not fit to be brought into court^[498], and more especially if a commission of lunacy is about to be issued, the court will enlarge the time for the return of the writ according to the nature of the case, (Rex v. Clarke, 3 Burr R. 1363.) And if liberty to have access and inspection of such lunatic be applied for, it must be on behalf of some person who has pretension to demand it, or the Court will reject the request (ibid.)^[499].

But though no commission has issued, the Court of Chancery will interpose, as where the Lord Chancellor stopped a lunatic from being carried out of the jurisdiction of the Court (into Scotland), Lady Marr’s case, cited in Lady Annadale’s case. Amb. 82. The Court also retains some jurisdiction after the death of the lunatic, Ex parte Grimstone, Ambler. 706; Ex parte Armstrong, 3 Bro. Ch. Ca. 238; Fitz-gerald’s Case, 2 Sch. and Lef. 439.^[500].

Formerly the inquiry respecting idiots and lunatics was made by Writs to the Escheator or Sheriff as an officer to enquire of the revenues of the Crown, (F. N. B. p. 531: 1 Collinson, 117: Ex parte Southcote, 2 Ves. 401:) but these being very strict as to the wording, and as no person could be found idiot or lunatic under them, except those who came under the strict definition of either denomination, the Writs have been superseded by Commissions^[501] of a more comprehensive character under the great seal^[502]. These Commissions are directed to five Commissioners,^[503] who, or any three or more of them, are openly to enquire on the oaths of twelve or more good and lawful men, whether the person be or not an idiot, lunatic, or non compos: 1 Collinson, 120. And they have power to issue their warrant to any person to produce the non compos^[504], ib. 143; which, if not obeyed, will be enforced by the Lord Chancellor, and costs decreed, if required against the persons having the custody of the party. Ex parte Southcote, 2 Ves. 401. 405: see also Lord Wenman’s case^[505] ubi supra. The Commissioners have also power to summon witnesses as incident to their office. Ex parte Lund, 6 Ves. 784.^[506]

Where there is any misbehaviour in the execution of a Commission, whether by the Commissioners, or Jury, (Ex parte Roberts, 3 Atk. 6.) the Chancellor will quash it, and direct a new Commission.

If there has been a finding against the king, there may be a melius inquirendum, but this is for the Crown only (3 Atk. 6.), which cannot traverse as the subject can.

The remedy of the subject is by traversing the inquisition, or by bringing the question to an issue at law. The right of traverse has been disputed; Sir John Cutt’s case, Ley. 26. 3 Atk. 6.; and it was held that permission to traverse was a favour granted by the Court, and not a right; ibid. but it is now established to be de jure under the 2 Ed. 6. c. 8. § 6. Ex parte Wragg, and ex parte Ferne, 5 Ves. 450. 832. But the petition of a stranger for this purpose will be dismissed with costs: Ex parte Ward. 6 Ves. 579.

The manner of pleading a traverse is very short, (5 Ves. 452). An idiot must traverse in person. Smithson’s case was on motion to be permitted to traverse by attorney, which was opposed; it was agreed that a traverse was given by 2 Ed. 6, but it must be in propri personÂ: precedents were shown, but there was no case where an idiot had traversed by attorney, though many where a lunatic had: 3 Atk. 7. Vide Stone’s case in Tremaine’s Pleas of the Crown, 653, a precedent of a traverse, and for the doctrine of traversing an inquisition, vide 4 Co. 54. b; (the case of the Commonalty of the Sadlers), and 8 Co. 168. Xaris Storeghtors’ case. Sir T. Jones, 198. Show. 199. Skinner, 45. Moseley, 71. 1 Collinson, 171. But though a lunatic may by permission of the Lord Chancellor traverse by attorney, the better rule is that he attend in person. Amb. 112.

The appeal in lunacy is to the King in Council, and not to the House of Lords. Ex parte Pitt, 3 P. Wms. 108: Rochfort and Ely, 6. Bro. Par. Ca. 329; Sheldon v. Aland, 3 P. Wms. 107.

If the party be found lunatic the next consideration is as to the disposal of his person and estate. “To prevent sinister practices, the next heir is seldom permitted to be this committee of the person; because it is his interest that the party should die. But it hath been said there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic’s life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy. The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the Court of Chancery, and to the Non compos himself if he recovers; or otherwise to his administrators, 1 Bl. Comm. 305. But this rule is not in all cases adhered to, Ex parte Cockayne, 7 Ves. 591: Neal’s case, 2 P. Wms. 544, and ex parte Ludlow, ibid. 635.” The Court will not give the custody of a lunatic to one who may make a gain of it, Lady Cope’s case, Cha. Ca. 239, or allow the committee any thing for his trouble, whether as to the person (In re Annesley. Amb. 78) or as to the estate, 10 Ves. 103.

A stranger may have the custody of a lunatic, Ch. Ca. 239. And where no one could be procured to act as committee of a lunatic, a receiver was appointed with a salary, but nevertheless to be considered and give security as a committee. Ex parte Warren, 10 Ves. 622.

A committee may be removed on sufficient cause, as bankruptcy, but the Court will not change the custody, if the Master finds it proper with regard to the comfort of the lunatic. Ex parte Mildmay, 3 Ves. 2.

Where there are sufficient funds, a liberal application of the property of a lunatic ought to be made, in order to afford him every comfort his situation will admit, Ex parte Baker, 6 Ves. 8. ex parte Chumley, 1 Ves. jun. 296. Dormer’s Case, 2 P. Wms. 265. 3 P. Wms. 104. His comfort, where no creditor complains, is the first object, not the heaping up of riches for his next of kin, ib. The Chancellor will not make an order, even for creditors, the effect of which would be to put the lunatic in a state of absolute want, Ex parte Dikes, 8 Ves. 79; nor unless it is clear that he will have a sufficient maintenance, Ex parte Hastings, 14 Ves. 182.

We are next to consider how a party once found lunatic, can, upon recovery, resume his natural and civil rights;^[507] for this purpose the strongest medical as well as general evidence will be necessary, not only as to absolute recovery, but temporary remissions or lucid intervals, for if a party be once found non compos, the finding is conclusive, till evidence be shown to the contrary, see Hall v. Warren, 9 Ves. 605: Attorn. Gen. v. Parnther, 3 Bro. Ch. Ca. 441: and if as to a lucid interval there must be this severity of proof, much more must the onus of proving an absolute recovery rest with the party seeking to set aside the former finding of a competent tribunal, or even to negative an established presumption;—“When the party has ever been subject to a commission, or to any restraint permitted by law, even a domestic restraint, clearly and plainly upon him in consequence of undisputed insanity, the proof shewing sanity is thrown upon him; on the other hand, where insanity has not been imputed by relations or friends, or even by common law, the proof of insanity, (which does not appear ever to have existed) is thrown upon the other side; which is not to be made out by rambling through the whole life of the party; but must be applied to the particular date of the transaction. A deviation from that rule will produce great uncertainty.” Lord Eldon in White and Wilson, 13 Ves. 88; see also 3 Bro. Ch. Ca. 241. On motion that a recovered lunatic might settle his estate, Lord Keeper North refused the motion, but directed an issue in the Common Pleas to try the fact of the recovery, 1 Vern. 155. so also Lord Eldon in ex parte Holylands, 11 Ves. 10; but the commission may sometimes be superceded on inspection, when it is usual for the physician to attend. 1 Fonb. Tr. Eq. 65. or to make affidavit; but the former mode is the best.

It has been said that there are no degrees of defect of understanding save idiotcy and lunacy, Hume v. Burton, Ridgw. Par. Ca. 211; this may be true as relates to commissions of idiotcy or lunacy, and their consequences, but it is neither legally or medically correct in any more extended sense.

Delirium,^[508] in the ordinary acceptation of the word, is the temporary derangement of intellect consequent on acute disease; it may be distinguished from lunacy or madness by the invariable presence of fever, and it ceases as its exciting causes subside; this therefore operates no permanent incapacity; for though the patient cannot be permitted to do any act, or execute any instrument to bind his property or estate, and would not be held responsible for any crime committed during such temporary alienation of intellect, yet he becomes competent to act, and responsible for his actions as soon as the paroxysm and its consequences are clearly over.

But there is yet another species of mental disorder which, since it does not incapacitate the patient from performing the ordinary duties and offices of life, does not subject him to the inconveniences of commission of lunacy, or exempt him from criminal responsibility; we mean those partial insanities which are marked by peculiar and unaccountable dislikes, fancies, and apprehensions, a mental idiocyncrasy on some one particular subject.^[509]

To take out a commission of lunacy against such a man would be a greater cruelty than to cure him, and yet occasionally some legal interference may be necessary.

When a man suffers under a partial derangement of intellect, and on one point only, it would be unjust to invalidate acts which were totally distinct from, and uninfluenced by, this limited insanity; but if the act done bears a strict and evident reference to the existing mental delusion, we cannot see why the law should not also interpose a limited protection, and still less why Courts of Equity, which, in their ordinary jurisdiction relieve against mistake, should deny their aid in such cases.

Mr. Greenwood was bred to the bar and acted as “Chairman at the Quarter Sessions, but, becoming diseased, and receiving in a fever a draught from the hand of his brother, the delirium taking its ground then, connected itself with that idea; and he considered his brother as having given him a potion, with a view to destroy him^[511]. He recovered in all other respects, but that morbid image never departed; and that idea appeared connected with the will, by which he disinherited his brother. Nevertheless it was considered so necessary to have some precise rule, that, though a verdict had been obtained in the Common Pleas against the will, the judge strongly advised the jury to find the other way, and they did accordingly find in favour of the will. Farther proceedings took place afterwards, and concluded in a compromise.” Lord Eldon ubi supra.

The records of Bedlam and Saint Lukes are full of similar instances of persons insane on only one point; where that point may lead to mischief, it is proper that the party should be placed under restraint; where the aberration is harmless, it would be cruel to add imprisonment to the evil of the disorder, running also the risk of producing an augmentation of the disease; for it may safely be taken as a rule, that persons labouring under limited, will be predisposed to general insanity, and therefore it is at least necessary to watch them minutely, lest some less harmless derangement should seize them at the moment when it is least expected.