The opinion of the Court was delivered by

There are cases in which deliberate opinions of great lawyers, or even the dicta of such men, seem to impose a restraint to investigation on certain subjects; and if these have been often cited as authority down to near our own time, the difficulty to be surmounted appears greater. Lord Coke, from his situation in life, had probably little intercourse with what occurs often to those who mingle much in society, and possibly, I may say probably, had never seen or never examined an idiot lunatic, or one non compos mentis, in his life; and though no doubt treatises on those subjects existed, we do not know what they were. We know much has been written on mental insanity; that the subject has employed the most eminent physicians, jurists and philosophers ; that we have theories and the histories of those disorders of the mind by those who have had opportunities of observing the subjects of such disorders for many years ; yet we find no treatise of the age in which Sir Edward Coice lived, quoted or even noticed.

On all subjects relating to rights of property, I admit his authority; but the subject before us is not the rights of idiots, lunatics, or of persons of unsound mind: it is his definition of what disordered state of the faculties constituted a person designated by those words; a matter more of medical than judicial cognizance. He says, “ An idiot or fool natural, is one who from his nativity, by a perpetual infirmity, is non compos mentis." Certainly it was not intended to leave this as a definition of idiocy. Another ancient and great authority, Fitzherbert, defines an idiot to be “one who from his birth cannot count or number twenty pence, or tell who his father or mother is, or how old he is;” “ if he have sufficient understanding to know and understand his letters, or to read by teaching and information of another man, then he is not an idiot.” Of this Lord Tentekden has said, “ It is contrary to common sense; for as to knowing the letters of the alphabet, or reading what is set before him, a child of three years old may do that.” 2. A person who was of good and sound memory, and by sickness, grief or other accident, wholly loses his *461memory and understanding. 3. A lunatic, lunaticus, who sometimes has understanding and sometimes not, qui gaudet lucidis iniervnllis, and therefore is called non. compos mentis so long as he has not understanding. The words “ wholly lost his memory and understanding,” and the expression attributed to Lord Hardwicke in 3 Atk. 173, being non compos mentis, of unsound mind, are certain terms in law, and import a total deprivation of sense; and these expressions, adopted by Judge Kennedy in delivering the opinion of this court in quashing the inquisition in Beaumont’s case (1 Wharton 55), were quoted and relied on by the counsel of the traverser in this case. Although Atkyns is an elegant and generally a correct reporter, yet it must be recollected that in his day the Chancellor did not write his own opinions and give them to the reporter, and that the expression may not have been used by the Chancellor. But if it was used, it proves little. The words “of unsound mind” had been used in the returns on inquests, and were omitted in that case; and for this cause the inquisition was quashed, and that weakness of understanding, as expressed, was not equivalent, was decided. The words non compos mentis, or unsound mind, were held necessary in point of form, and nothing, more: for in the same book (page 184) we find an inquisition on the same person, stated to have been found on the same evidence, but in form stating Barnsley to be of unsound mind and incapable of managing his estate, was affirmed. And more: the same Lord Hardwicke refused to allow it to be traversed, because two inquests had found the same way; for, said he, although the first was quashed for want of form, it was substantially the same finding.

It has happened that the argument of counsel adopted by the court, and carrying conviction in itself, is quoted as law. In the defence of Hatfield, Mr. Erskine, speaking of the total deprivation of memory and understanding, as put by Lord Coke, says: “ If this was intended 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 relation towards others; that if a husband, he should not know he was married; if a father, that he should not know his children; nor know the road to his own house nor his property in it; then no such madness ever existed in the world. It is idiocy alone, which places a man in such a helpless condition.” He afterwards admits that in delirium a person may not be able to know any person or thing. “ In all the cases which have filled Westminster Hall with the most complicated considerations, the lunatics and other insane persons who have been the subject of them, have not only had memory in my sense of the expression— 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 *462remarkable for subtlety and acuteness. Defects in their reasonings have seldom been traceable. The disease consisted in the delusive sources of thought; all their deductions within the scope of the malady being founded on the immovable assumption of matters as realities, either without any foundation whatever, or so distorted and. disfigured by fancy as to be nearly the same thing as their creation.” He then related a case tried in that very house before one of the judges then present, of an indictment by an insane person of his own brother and the keeper of an hospital, for false imprisonment. Mr. Erskine had not been informed as to the nature of the insanity; and after the witness had detailed his story, cross-examined him for more than an hour, and left no means untried which his knowledge or his experience could suggest; and when the jury and judge and audience were satisfied that it was a most flagrant case of oppression and injustice, Dr. Syms, who had attended the patient, came in and stated to the counsel the nature of the malady, on which Erskine, with great apparent humility, begged forgiveness for his rudeness, as he had not known the witness. Immediately the insane replied, with great gravity, “ I forgive you — I am the Christ;” and the trial ended.

Most of the judges on this bench knew a member of the bar of considerable legal acquirements, and those rather solid and substantial than showy or superficial. For some considerable time those near him saw a change, but it did not attract general attention ; he attended to his property and profession carefully and constantly, and no want of skill or knowledge was discovered. At length his abuse in words of his wife and friends raised doubts as to his sanity; his increasing violence and threats and attempts removed all doubt, and his friends took him to the Pennsylvania Hospital. When there he became quiet and apparently composed. He insisted on his sanity, had the managers and physicians called together, and after many examinations and consultations was discharged as of sound mind. It was soon discovered that he was still deranged. He however took great care of his property. At length he charged one and another with robbing him. His insanity became dangerous, and strict confinement absolutely necessary, and he continued in that state, or growing worse, till he died. So far from having lost all memory and power of understanding, perhaps both memory and reasoning power were increased. I personally knew another person, a farmer, of good character and understanding. His insanity first showed itself by groundless charges of attempts to kill him by his wife and children. He went armed, slept with arms near him and in his bed; then threatened them and some neighbours. He was taken also to the same hospital. At length he demanded his liberty; sent for a most respectable gentleman in the city, who, having property near where he lived, knew him, and had heard of his insanity and the *463nature of it. I do not know the particulars, but he acknowledged he had been wrong and violent, and after several examinations was discharged as of sound mind. Yet, alas, it was a sad mistake; he continued deranged. The objects of his delusion changed; his habits and manners and appearance changed; his conversation, especially on his profession of a farmer, was sensible and instructive, and he could relate distinctly his practice and the results for years. He never showed much of the tiger, but much cunning. He at length rambled often, or rather travelled on a good horse, from home; sometimes stayed a week at a place; always paid his bill; but would, when he became intimate with any person, show his concealed weapons and give obscure hints. At length he sunk into fatuity and died.

All treatises on insanity and most reports of trials relating to insane persons, show that a total loss of reason and memory is unknown to courts and physicians, unless in cases of delirium from disease or absolute frenzy; and yet commissions of unsound mind are constantly found, and deeds and wills avoided for insanity. Lord Hale, so far as I know, was the first judge who said and wrote, “ There may be a partial insanity of mind, and a total insanity. The former is either in respect to things quoad hoc vel illud insanire, to be mad as to this or that subject. Some persons that have a competent use of reason in respect to some subjects, are yet under a particular dementia in respect to some particular discourses, subjects or applications.” Now we find that the nature and cause and cure of insanity have in a much greater degree engaged the attention of the benevolent and learned, both in the medical and juridical departments; and if the unbroken current of opinion of both physicians and courts, for more than half a century, has been, that a person is deranged, is non compos mentis, or of unsound mind, though -not totally deprived of memory and understanding, but is only partially so deprived or on particular subjects, it would be strange if we should reject and disregard all the lights of science and experience, and all the current and weight of judicial decision in ecclesiastical, civil and criminal courts, from the time of Lord Hale to the present day, and all this from a reverence for Coke and Fitzherbert, on a matter rather medical than legal or judicial.

To give a definition of insanity is admitted to have been found impracticable: and so also to give a description of the different kinds of insanity; because the several varieties pass into each other more imperceptibly and more frequently than insanity changes into healthy and sound mind.- But all writers and jurists agree, that an immovable delusion as to facts past or present is not merely a symptom of insanity, but is in fact insanity or the effect of an unsoundness of mind. A man may have many absurd and unfounded opinions and belief as to matters and facts which never existed and do not now exist, but reason and demon*464stration and examination as to the present' existence and state of visible and tangible substances, will correct these opinions and belief in a sane mind — but not so if the mind is deranged. The false impression is proof equally against the strongest reasoning, the clearest proof, and against actual inspection. The unhappy being will rather believe that his eye or his touch deceives him as to objects before him, than that his illusion is any thing but reality, and this while on every other subject you cannot discover any thing amiss in his faculties.

I knew a man of more than ordinary strength of mind, of information, of the strictest integrity, and so far as man could judge, devoutly and steadily and for many years religious. In the wilderness, with a surveying party, he was attacked by an intermittent fever. There was no physician and none of the comforts to be had in a well-furnished house with a wife and family. His disorder changed to a regular ague, with distinct intermissions and chills and fever, and he set out very feeble for home on horseback. There was for a long distance from him neither carriage nor carriage road, and the houses vrere cabins and not very near to each other. On his way home, in more than one case, he had no house for twelve or more miles. He reached home exhausted by a journey of several days. The care of his family and attendance of an excellent physician soon removed his fever, but he was seized with the idea that his property was all gone, that he was involved in debt, &c. &c. As soon as I heard of this I went to his house, and was constantly with him for' some days. He would converse as usual for hours, but a slight cause, or no cause discernible by me, brought on a recurrence of the dreadful illusion. I knew his property in general, and I knew that he kept a regular account of his receipts and expenditures. I had recourse tojiis books. The accounts of every hireling, male and female, were settled to within a short period. His bank book showed a large balance in his favour; and a sum advanced to a storekeeper a few months previous, was not taken up by his orders and the purchases of his family. I took off the balances on a sheet of paper, and at the same time he did the same on another sheet. Our additions and subtractions agreed, and showed a balance in bank, after paying every debt, of more than $1000. While I was putting away the books he was walking about the room. A friend came into the house, and to my astonishment and horror he told that person I had been endeavoring to impose on him by showing false books and a false abstract from them. Now every letter and figure in those books was written by himself, and his abstract and mine agreed exactly. Within a week, notwithstanding the utmost care and watchfulness of his friends, he was buried. I have referred to this melancholy case as another instance of the unconquerable nature of the false perception or delusion under which the unhappy subjects labour; and for another reason; have not *465medical men and others relied too much, or looked too much, to injuries to the head ? Did not this case commence with the want of the comforts and attention to which he had been accustomed, increased by his great debility ? Though not directly in point of time connected with the delirium which often occurs during the fever or a severe fit of ague, yet may it not have been the consequence of it? May not the want of every thing he had been accustomed to, have started his peculiar insanity ?

We have now so many treatises on insanity, its causes, its nature, the evidence of its existence, &c., by medical men, treatises in which the law on the subject has been collected and digested, that I shall not copy from what is in every good law library; and I. have no theory of my own to advance; nor shall I enter into the question whether, under our own Act of Assembly of 1836, the courts have power to interfere in cases of great imbecility of mind, though that delusion, which is either the cause or the effect, and certainly is the concomitant of most cases of insanity, does not exist. It is admitted by the counsel on both sides, that the statement of the facts testified to as proofs of insanity is correct and not exaggerated. I shall here insert that part of the charge and the answers to the points proposed by the counsel, and the concluding remarks of this learned and able charge, and merely say there was no error and that the judgment is affirmed.

Judgment affirmed.