Johnson v. Moore's Heirs

11 Ky. 371 | Ky. Ct. App. | 1822

Lead Opinion

Opinion of the Court.

THIS is an appeal from an order of the county court of Scott, refusing to record the last will and testament of George Moore, dated the 11th of April, 1822. The two subscribing witnesses, who are intelligent and are admitted to be respectable, depose, that the testator at the execution of the will, appeared to be sick and low, but in his right mind; indeed, more so than they had seen him for a long time, and that to the best of their apprehension and belief, of a disposing mind and memory, and they detail strong facts and circumstances and sayings of the testator at the time, corroborating that belief. Others who attended him during his illness, strongly prove the same facts. It appears, that about 24 or 25 years since, he had a severe fever which brought him very low, so much so, that his recovery was extraordinary ; that about fifteen or twenty years since, he became addicted to intoxication, which grew upon him in all its stages from occasional intemperance, to habitual drunkenness ; and for about five years next before his death his drunkenness was nearly without intermission ; and for two or three years still more excessive, so as to disable him from travelling occasionally, and for some months before his death entirely or nearly confined him ; at times he would appear somewhat free from the effects of intoxication, and would be feeble and in active at those moments. He died on the 29th of April after this will was made ; and about the last of February or first of March, was visited by a physician, who candidly apprised him that his case was a hopeless one, and advised him to arrange his temporal affairs and think of eternity. Whether he drank spiritous liquors to excess, during this last confinement the testimony is somewhat contradictory. Some supposing that the irritability of his stomach was so great that spirits or any other fluid would not remain in it; others that he then drank in large quantities. We have no hesitation in saying that the weight of testimony goes to shew that he did not drink to any great excess at that time, or at least constantly so; and that for a great portion of the time, he did appear to retain sufficient intellect to dispose of his estate by will; and such appears to have been his situation, by the testimony of the subscribing witnesses, at the making of the will; and we should have no hesitation in admitting it to record, were it not for the following facts and circumstances. He had no wife or children, but had two or three brothers who reside in this country. He had owned some slaves, all of whom were dead or sold before his death, except one female, who lived with him, as was supposed, in a state of concubinage, and possessed considerable influence over him. Her he had emancipated by a written instrument, recorded, to take effect at his death. During his extreme illness, which took place about 25 years since, he was a great portion of the time in a state of complete derangement, talked wildly about his immense stores of wealth, and conceived an antipathy against his brothers, contending that they designed to destroy or injure him, although they attended him constantly in his illness. Of this antipathy he appears not to have been entirely free, during his life, at all times. He was extremely passionate and irritable in his temper, but more so when intoxicated, and frequently became the sport of boys and others, who, for their wanton amusement, delighted in irritating him. He tenaciously retained his property, and was cautious in his dealings. But still, when irritated or inebriated, he would relapse into the same paroxyisms of insanity, which appeared in his former sickness, manifested by his extravagant and false boasting of his immense stores of wealth, and his great hostility to his brothers and their families.—There is but one period at which he appears to have been entirely divested of this, and that was in 1820, when he executed a will giving to his female slave $1500, and to others some small legacies beside, and the rest of his estate he devised to these relatives. But afterwards, in October 1821, he caused another will to be made disinheriting his relations. This appears to be the chief object of making this last named will. For although he could specially direct the writer to do this, he could not name, after giving a portion to his female slave, any other devisees, but left the place for their names blank. Neither could he fix upon any executor, and for that name left a blank also. And thus he executed the paper and deposited it with the writer, where it remained till his death. We are, therefore, satisfied that on this point, we mean that of hostility to his brothers without cause, he was subject to a species of derangement, which affected him there and no where else, except with regard to his assertions of his extraordinary wealth. As in one point only, except when under the influence of intoxication, he was subject to a peculiar species of derangement which cannot be explained but by the existence of the fact, unless we could measure and scrutinize the mind, we have no hesitation in saying he was competent to do any act, which was not subject to be influenced by that derangement, and that he might be the subject of responsibility both civilly and criminally, for any act which was not influenced or induced by it, and if the persons as to whom his mind was disordered, were strangers, and could not be supposed by the ties of natural affection to be the objects of his bounty, we should have no difficulty in sustaining this will. But this is not the case. To them, it might be supposed, or to some of them, he would have given his estate. Once in 1820, he did make that sound and rational disposition.-From that he departed afterwards, and made them the objects of hatred and disgust. And at the time of making his last will now in contest, he labored strongly under the effects of this disorder of mind; for when he was enquired of by one of the subscribing witnesses, why he had pretemitted his relations, he became instantly irritated, and declared that they had endeavoured to get his estate before his death, and that he had declared war against all the Moores. For this disaffection towards them, there never appeared to be the slightest cause, but the contrary ; and the reasons for it, when assigned by himself, were futile and groundless. He cannot, therefore, he accounted a free agent in making his will, so far as his relatives are concerned, although free as to the rest of the world. But however free he may have been as to other objects, the conclusion is irresistable that this peculiar defect of intellect, did influence his acts in making his will, and for this cause it ought not to be sustained. To this we may add, that there are strong circumstanees inducing a belief that the present devisees, or one of them, saw the advantage that might be taken of this unnatural and unfounded aversion to his relatives, and made use of it to insinuate himself as the sole friend who ought to stand in their stead, and who did supplant them without their interference in the matter to oppose it, and became himself the writer of the will. It is not only his groundless hatred or malice to his brethren, that ought to affect the will, but also, his fears of them which he expressed during his last illness, conceiving that they were attempting to get away his estate before his decease, or that they were lying in wait to shoot him, while on other subjects he spoke rationally. All which are strong evidences of a derangement in one department in his mind, unaccountable indeed, hut directly influencing and operating upon the act which is now claimed as the final disposition of his estate.

Order affirmed.

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Rehearing

The following petition for a re-hearing was presented by.

Mr. Breckinridge :

Believing, as we do, that the rights of our client have not received the sanction and consummation to which he is legally entitled; and, after a most patient and respectful consideration, of the reasoning employed in the opinion of the court, having arrived at the conclusion, that it sanctions, by its high and controlling authority, a principle that is alike repugnant to philosophy and law ; we have felt it a duty, too imperious to forego, shortly, but frankly, to state the grounds on which you are asked to new model your decision.

Johnson claims the estate of Moore by devise. The county court of Scott refused to record the will, alleging that at the time of its execution, the testator was insane. This court, speaking of the period of his last confinement, says, “ For a great portion of the time, he did appear to retain sufficient intellect to dispose of his estate by will, and such appears to be his situation, by the testimony of the subscribing witnesses, at the making of the will ; and we should have no hesitation in admitting it to record, if it were not for the following facts and circumstances.”

It is the singularly perplexing misfortune of the appellant, to be condemned to endure all the hardships consequent on an erroneous opinion, which he has triumphantly refuted.

How feeble a remnant of intellect has been adjudged sufficient to sustain a bequest ; how imperative is the rule, that insanity, when relied on as a disqualification, must be demonstrably established ; and with what pertinacity the rigor of law and the benevolence of reason, guard the privileges of suspended madness, the following references may briefly, but aptly illustrate : 4 Bibb 244, 5 Johnson 158-9 and the cases there cited, 1 Hen. and Mun. 476, and the case of Watts vs. Bullock, &c. at the last April term of this court; 6 Cruise, ch. 2, p. 14 ; Bacon’s Abr. title Idiots and Lunatics, p. 89, and Coke’s Reports, 4th book, p. 125.

That George Moore was not insane, you have distinctly admitted and affirmed. But suppose him to have been a madman ; the concession that his will was composed during a lucid interval, is equally unreserved. It is obvious, therefore, that he labored under neither a general nor particular incapacity, arising from a deficiency of understanding, to distribute his property.

When the court declines regarding the wishes of such a testator, it must be in consideration of some peculiar and minor disqualification, which, under the attending circumstances of the case, shall be thought sufficiently strong to counteract the pretensions to devised an estate, arising from the undoubted possession and habitual exercise of general mental sanity. Hence it would result, that a man may be a free agent in disposing of his estate in all possible ways, except one ; and as relates to every member of the human family, except one. He may be the wisest of mankind, on all topics of human intelligence, one only excepted, concerning which he is absolutely insane; and such may be the rigor of his destiny, that after a life of exalted dignity and usefulness, through the whole course of which he had sedulously devoted his talents, his learning and his wealth, to consummate the glories which enamored and fed some master passion, the favored disposition by which he vainly hoped to perpetuate his fame and diffuse the blessings of his munificence, may be received as the mysterious, but convincing evidence of his imbecility ; and the very act in which he gloried most, be construed to divest him of all the glories of the mind. Fatal and interminable must be the injuries arising from the successful inculcation of a doctrine, which shall teach us that the splendid reveries of genius furnish but a gilded name for madness, and that every rude vagary or vagabond passion may triumph with impunity over the citadel of the mind.

The facts and circumstances stated in the opinion are—(See the opinion.)

Under this view of the case, the court says, “ we are therefore satisfied, that upon this point, we mean that of hostility to his brothers without cause, he was subject to a species of derangement, which affected him there, and no where else, except with regard to his assertions of his extraordinary wealth.” The exact nature of this novel and extraordinary species of derangement, is not unfolded. Indeed, in the next sentence it is declared, that it “ cannot be explained, but by the existence of the fact, unless we could measure and scrutinize the mind;" and as this operation, however desirable, is obviously impracticable, in the conclusion of the opinion, where this hostility and its consequences are spoken of, as “ evidences of a derangement in one department of his mind,” that derangement is pronounced “ unaccountable,” though “ directly influencing and operating on the act which is now claimed as the final disposition of his estate.” It is, however, declared by the court, that the testator might properly have been the " subject of responsibility, both civilly and criminally,” for any act not induced by this particular species of derangement ; " and that if the persons as to whom his mind was disordered, were strangers, who could not be supposed, by the ties of natural affection, to be the objects of his bounty, we should have no difficulty in sustaining this will.”

What is the scope of this argument? George Moore was the subject of civil and criminal responsibility, for his conduct in society ; he was free from the influence of any general derangement or insanity of mind, which might have prevented him from disposing of his estate by will, among any of his fellow creatures ; but he made a will, by which he disinherited his relations, whom he had long hated. It is natural, that a man should love his relations. No satisfactory reason appears to the court, why Moore disliked his. He hated them, therefore, without a cause, and this unnatural hostility is evidence of his insanity on that particular subject, and consequently, of his incapacity to make a special devise of his property to a friend. This is not common insanity, but a peculiar species of derangement, admitted to be inexplicable and unaccountable, but which proves itself.

That he hated his relations without a cause, is a gratuitous assumption. It is affirmed that it is natural for a man to love his brother. Let it be conceded in argument, however untrue, that fraternal affection is a spontaneous and discriminating instinct of nature, and not the production of association and habit. Now, it is equally true, that man is a rational and intelligent being; that his conduct is regulated by motives, which his heart inspires, and his mind controls. Surely, then, in the instance where the causes of my hatred to my brother are unknown, and the existence of this unexplained dislike, is the sole ground on which to question the soundness of my understanding, it is more rational to infer that I have cause for hatred, than that I am insane.

The deprivation of reason is the most awful calamity that can afflict the innocent. No misfortune, not induced by crime, is half so terrible. Insanity, therefore, is never to be presumed. He who makes the accusation, must establish it by proof; and no man should be disfranchised, degraded, banished from all participation in the proud concerns of life, and disrobed of Heaven’s most common bounty, by any grade of conviction, less inflexible and conclusive than that which would deprive him of the privilege of existence. In the present case, what is the nature of the accusation and the proof? The charge is insanity ; the proof, that an inveterate miser, in his moments of intoxication, magnifies his wealth, in disregard of truth, and a vindictive misanthrope, in violation of the common charities of life, nurses the sentiments of animosity and distrust against those who expect to profit by his death. This is a statement most unfavorable to our client ; but we concede every advantage it may include, and ask to be informed of the character of his offence. Indubitably, not insanity ; yet his heirs at law very gravely contest the validity of his will, because he was blind to their merits. In the course of descents, they would have inherited his fortune. He thought them unworthy of it, and gave it to others. This opinion of their unworthiness, they modestly urge as an irresistible argument to support their charge ; and the court is required to test the sanity of A. by an estimate of the unknown virtues and vices of B. His hatred was unnatural ; and consequently, withholding his estate from the objects of that hatred, was an act of insanity. Withholding his estate from the future enjoyment of his kindred, was an act of insanity, because it proceeded from an unnatural hatred. This argument of the circle, proves nothing but the sterility of the subject it is employed to support. George Moore may have been selfish, capricious and unamiable—an unkind brother and an implacable enemy. Perhaps the humble being, on whom his death conferred freedom and competency, was the only mourner that shed a tear upon his grave. It is not our employment to vindicate his name ; but who will rebuke an expression of indignation against the rapacity of men, who seek to defame the memory of one, on the spoils of whose industry and superior skill, they would gladly fatten ; whose will they impugn for lack of reason, and with desperate inconsistency rely upon the instrument they reject, as furnishing arguments to destroy itself.

But this is a peculiar species of derangement ; not general and diffusive, but particular and partial ; a derangement, not extending to the whole structure of the mind, but confined to " one department” only.

The mind of man is an unit. Its individuality and indivisibility are essential and inherent qualities. Judgment occupies the altar in the temple of the understanding, and all her moral and intellectual worshippers furnish their subsidiary offerings, merely to enrich and adorn her fane. One by one, let them successively retire, and steal away their gifts ; solitude may reign in all its devotional solemnity, where enrapturing pæans ascended even now. Those walls, which were so lately hung with the exquisite productions of a thousand arts, are revealed in the naked simplicity of their strength ; but the pillars of the edifice, “ unadorned and nobly plain,” and lasting as the adamant on which they stand, shall uphold the trophies of eternal truth, and the presiding deity still inhabit his neglected shrine.

The mind has but one department, and that is as capacious as the universe. Memory alone, is not the mind ; imagination is not the mind ; the moral sense is not the mind. Strip an individual of them all, and his mind remains. Nay, the reasoning powers are supposed to be invigorated by the decay of fancy ; and it is by the comparisons of reason, that the judgment is instructed. Whence is derived the aliment of the mind? It is said through the senses. Does a defect in one or more of the senses, or even an original deprivation, or casual destruction of one or more of them, evince a corresponding diminution of intellect? By no means. So far as it can be effected without the destruction of organic life, let every member be amputated, which can be employed as a messenger to the senses; are the intellectual faculties extinguished or weakened? Cannot the subject of these corporeal deprivations invent, reason, decide? Does he not love and hate, think and act, and by study and reflection strengthen and expand all his moral and intellectual faculties? Has his judgment, the prolific and perpetuating principle of virility in the mind, been emasculated in this havoc of the senses? No ; secure in her secret and impregnable fortress, the mind asks no other auxiliaries, than the heart and the brain. Innate and indestructible, while these remain sound, she sheds her bright and undiminished ray over the shattered fragments of her earthly tabernacle, irradiates the gloom of death, and lights up eternity by the inspiring halo of her radiant beams. And can this imperial attribute of immortality be subjugated at will by every petty frailty which flesh is heir to? Shall the master principle, the all-controlling intelligence, which animates, and guides, and enobles this compounded being we call man, tamely follow in the captive train of every foul lust and every iniquitous vice, each rash hope or distempered fancy, that may chance to invade its rightful inheritance? Our vices are the ligitimate progeny of the fall. Look at the heart of man ; it is an untamed wilderness, in which the seeds of error spontaneously germinate, and rankly flourish ; while truth, and virtue, and charity, and love, are plants whose stinted growth and withered foliage betray their exotic origin. Such is the denunciation of Almighty wrath; and well might it be, when the hour of final retribution shall come, if the heirs of eternal vengeance could plead the enormity of their aggravated and unnatural crimes, in mitigation of their doom. But such a plea can never, injustice, be admitted, either here or hereafter. To us, it is incomprehensible, how a being, wearing our common nature and gifted with its common endowments, who is admitted to retain all his intellectual faculties; who, in the direction of his private affairs, his general intercourse with society, and his meditations on a life to come, acts and reasons with aptness and propriety, can, in contradiction to all these fair appearances, in truth and in fact, be insane. Yet, such is the hard belief, imposed by the advocates for partial madness. The subject of such a charge may, though accurately delineated in the above picture, be triumphantly convicted, because be prefers the laws of Lycurgus to those of Solon, in the disposition of his children, or amid the perplexities of abstraction, imagines he has demonstrated the concavity of the poles.

We estimate the character of a man by the uniform tenor of his life; and although there are particular acts of moral turpitude, the commission of which, would be decisive of his infamy, and stamp an indelible stigma on his reputation ; yet, in the absence of these, if his virtues predominate, we call him good. And so must it be in reference to the character of his understanding. We mark his acts, we listen to his discourse, and ask ourselves, if, on the general survey, we have observed irregularities of thought, and departures of conduct from the standard of reason, which authorise us to distrust the equipoise of his mind. And although there are sentiments so foreign from our nature, and acts so abhorrent to right reason, that the expression of the one, or the commission of the other, cannot fail to carry conviction to every dispassionate observer, that the unhappy wretch who employs them is bereft of sense ; yet, in the absence of evidences, unequivocal as these, we cannot hesitate to admit the mental sanity of him, who exhibits an ordinary exercise of reason, in the common concerns of life.

It is not our design to enlarge the limits of this appeal to the sound discretion of a court, by the senseless jargon of metaphysical disputation ; far less, to canvass the respective merits of the varying and conflicting systems of the schools, which profess to disclose the causes, characteristics, grades and effects of mental maladies. From the days of Hippocrates to those of Rush, what has been added, on this interesting and awful inquiry, to the stock of human knowledge, but a succession of short lived theories, founded on conjecture, and ending in the establishment of constructive madness ! We appeal to the common sense and justice of mankind, to decide, if the doctrine we advance, sanctioned as it is by immemorial acquiescence, is not the only one that is intelligible in theory, or that can be rendered safe in practice.

Whither will this novel doctrine of constructive madness lead us? Fortunately, by proving too much, the repugnance of its conclusion obviates the error of its argument. Let it be conceded, that there is such a malady as partial derangement, so denominated, to characterise and identify an insulated disease that lurks from detection in a single train of thought; and that the existence of such a disease of the mind, is demonstrable, from the manifestation of passions, opinions and acts, in oppugnation to the general sentiments and habits of the race, and which reason reprobates, as inconsistent with the order and fitness of nature. Now, we invite the attention of the court, to the following illustrations and proofs : The sexual appetite is stimulated by the strongest and most universal passion of our nature. The great and undistinguished mass of the human family, are driven by a more insatiate and resistless frenzy, to gratify its cravings, and experience a more pleasurable enjoyment in its gratification, than are observed to attend the operation of any other impulse to action; yet there are those—to their eternal shame be it spoken—in whom a long career of moral debasement has so polluted, without eradicating, their natural inclinations, that, insensible to the enchanting smiles of beauty, and uninspired by the magic embrace of mutual desire, they seek after the depraved indulgence of their foul and unnatural lusts, in an intercourse with the forbidden sex; or, descending one grade lower in the scale of turpitude, sport their manhood in brutal rivalship with the courser and the boar. Are these the fit subjects of an asylum, or of a dungeon?

In what age or clime, was the practice of connubial rites between the parent and the child, ever attempted or allowed? Yet the sacred historian, in recording the lamentable incest, contrived by the virgin daughters of Lot, regards it as an act, not of madness, but of lust.

Jealousy, which often originates in excess of love, inflicts on its object the most cruel sufferings. How unnatural! It is a despicable passion, which dishonors manhood and petrifies the heart; but who would provoke the derision of mankind, by assuming it as a symptom of insanity?

The opinions of men are as various as the subjects on which they are employed, and as inconstant as their changing interests and humors. Here, the dangerous application of the new theory is most apparent. How arduous and impracticable would be the task of classifying, with strict and authoritative precision, the numberless opinions of men, which are, and which are not, conformable to reason and nature! Here, a field, absolutely boundless, lies open to our inquiries. We dare not enter it. In reference, however to the plausibility of suspicions, induced by a wanton disregard of the opinions of the world, we may be permitted to remark, that the theory we are combatting is itself obnoxious to all the anathemas which our adversaries have denounced against the act of the proscribed testator. It is wholly destitute of that universality of acceptance, which is made a test of truth. It is opposed to the common notions which have prevailed ; and if the reasoning employed in this opinion be entitled to respect, it is at war with the very frame and constitution of our nature. Among those who adopt it, where is the man who pretends that it is explicable? And how many can be found, whose coincidence of faith might sanction knowledge that cometh not by sight? It is true, that the opposing counsel has attempted an explication of this intellectual phenomenon, by the aid of an illustration, as beautiful as it is delusive. He has likened the mind to the majectic pine of the mountain, and told us, that, as the lightning of heaven, attracted by its loftiest twig, is conducted along the continuous branches, until it reaches the trunk, by which it is safely discharged into the earth ; so, partial madness, in its effects on the understanding, by following (if we may be allowed the expression) the grain of a particular faculty of the mind, leaves all the others unimpaired. Is it true, that the electric fluid, when it does not shiver, does not harm the tree? Let the question be answered by those who are best acquainted with the subtle and pervasive qualities of this irresistible agent. They will tell you, that when your mountains shall have been robbed of the pride of their forests, to be transplanted on the mountain wave of the ocean, the towering mast, which rises amid the storm, long despoiled of its strength, shall mock the hopes of the confiding mariner, and in the hour of peril, precipitating his preparations of safety into the deep, will leave his bark a prey to the tempest and to chance. Thus it is with the stroke of madness. When it falls upon the mind, it affects it as a whole. The lightnings of heaven may dismantle the proud monarch of the woods of his luxuriant and spreading boughs; but the oak of a thousand years, still rears his venerable shaft towards the clouds, and glories in his strength. The storms of adversity, long beating against the mind, leave ravages more cruel than the desolations of time. The sensibilities of the heart may lose their delicacy, and the eloquence of its sympathies become dumb forever. Memory, like the neglected magnet, may waste its powers of retention, and the images of fancy return only in dreams. Even the faculties of perception may become blunted, and the prejudices of confirmed error may lead to occasional acts of meanness or of guilt. But while judgment, enfeebled, not diseased, sways the sceptre of the mind, she can never be dethroned by a rebellion in the ranks of the whole rabble of its prejudices, meannesses and faults.

If falsehood and ingratitude, a spirit of uncompromising selfishness, and a disregard of the kindred ties of blood, can strip an individual of the rights of free agency, the more execrable the offence, the more convincing is the proof of madness. The parricide is insane ; because the perpetration of his unnatural and atrocious deed, arms all mankind against the monster. In this frightful catalogue, omit not the juster claims of the boastful atheist, who, with demoniac malice, denies his God. The constitution of the land, indeed, forbids it; but its sanctions are not more holy than the constitution of nature. Nay, entire nations may swell our roll. There yet exists a people, (who were never deficient in the wisdom of the times,) once selected by Jehovah as a favored host; redeemed from the thraldom of Egyptian bondage, by the signal and stupendous manifestations of his power, they walked with him through the deep, heard him on Mount Sinai, and were fed, during their wanderings, from his bounteous hand ; but when they reached the promised land, they remembered not his counsels, and obeyed not his commands. The prophets whom he sent to testify by miracles, the sure credentials of power from above, they stoned ; and, as the last fell effort of their rage, waged war against heaven, and crucified the Saviour of the world. Yet, during seventeen centuries of suffering and of exile, this extraordinary band has not expiated the consequences of that act, which, to this hour, is punished by unerring justice as a crime. Neither heaven nor earth has estimated the madness of men by the commission cf deeds, either unnatural or vile.

As the testator grew in years, he became more confirmed in habits of intemperance; and his hatred of the family kept pace with his increasing love for that wealth, which they seemed destined to enjoy. Why this hatred, it is not for us to explain. The causes which gave it birth, may have been concealed from motives of pity or of pride. Perhaps it may have originated in that ungenerous principle of our nature, which makes us most implacably the enemies of those whom we have injured most. Family dissections often originate in trivial incidents; but the ire of a brother, when once kindled, is inexorable.

The masculine and ingenious speech of Mr. Erskine, in the King’s Bench, for James Hadfield, was quoted and relied on, at the trial of this case. We are willing to stake the success of the present application, on the conclusion, that the issue of that trial, and the tendency of the cases therein cited, when fairly construed, support our argument. Let it be distinctly understood, what we admit and what we deny. We admit that insanity may be, and generally is, occasional ; that its subject may have, and generally has, lucid intervals, of days, of months, and sometimes of years ; that a deranged man may sometimes craftily and successfully elude the attacks of his distemper, and evade its detection by strangers ; but when the fit is on him, the force of the delusion subdues the mind. We deny, that insanity, which is the reverse of reason, by a special, particular and exclusive operation on any one faculty of the understanding, can disease and derange that faculty, so as to destroy its rational tendencies, and supersede its natural uses, without in the slightest degree, affecting the health and reason of the residue of the mind, any more than the operations of the yellow fever can be exclusively confined to the nose or the toe, without affecting the residue of the body. We deny, that in a mental conflict between rational and insane faculties, where the latter is single, feeble, and of obscure station in the appointment of the understanding, its victory over the combined and formidable array of its numerous and powerful assailants, can be more rationally anticipated, than the defeat of a large and valiant army, by a solitary consumptive foe; or, that it is less absurd to contend, that one discoloured ray of insanity can dim the effulgence of that flood of light, which reason sheds on the determinations of the will, than to affirm of the two numerals, ten and a thousand, that the former is the greatest.

In the speech just referred to, the learned advocate properly remarks, that “ 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.” We adopt this rule, and contend that its application to the opinions and conduct of Hadfield, brings his case completely within our admission. His barbarous and infatuated attempt upon the life of his infant child ; his preposterous and imbecile attack upon the person of the king; his jumbled plans of benevolence and death, and his fixed intent to be destroyed for the redemption of the human race, a determination to which he seems to have been driven by a spirit of fanaticism operating on a frenzied brain, permanently weakened by the injuries of force, all designate him as a miserable victim of insanity, the delusions of whose madness had subdued his reason. He was not the subject, either of moral or judicial responsibility ; for “ the deprivation of reason acquits of crime.” With still less propriety can it be contended, that the case of the unfortunate gentleman who was confined in the Huxton mad house, was one of partial derangement. What remnant of reason can be left to him, who, uninfluenced by habits of profanity or a blasphemous intent, usurps the throne of Jehovah, and dispenses pardon as the anointed Christ! Wood’s case, as related by Lord Mansfield, does not militate against us ; for what more does it prove, than that in the intervals of insanity, reason resumes her empire in the mind, and that, in these intervals, what his Lordship, more wittily than wisely, calls “the extraordinary subtlety and cunning of madmen,” enables them, as we have already remarked, sometimes to elude the causes which accelerate its recurrence, and to evade the detection of the most catechetical ingenuity. During the absence of the delusion, returning reason illumines the intellectual faculties, and the disease, for a time, ceases to exist. Even in these occasional intervals of mental quietude and revived intelligence, “like angels’ visits, few and far between,” the unrelenting spirit of paradox would sacrifice the peace and dignity of the understanding, to the pride of consistency ; and, in contradiction to the most convincing suggestions of charity and appearance, insist that the subtle enemy is not wholly banished; that it circulates unfelt, through some secret and remote vein, imbibing fresh poison, to be diffused through the whole arterial system ; or that it reposes, unobserved, under some dormant rubbish of the mind, to wake from its slumbers with renovated strength; while the cunning madman, with most provoking obstinacy, conceals the tokens of a malady which he neither sees nor feels, and furnishes a living refutation of the narrow doctrines of an irrational and proscribing heresy.

These are our views, hastily expressed, on the very perplexing question which involves the discriminating grades of mental derangement ; and we verily believe, that all the apparent contradictions, and curious phenomena, which embarrass the controversy, may be satisfactorily reconciled and explained, by a minute comparison of the effects which are produced by the occasional visitations of general insanity, with the consequences of that which is alleged to be particular; and by a just discrimination between those acts that are prompted by the delusions of the mind, and such as originate in the depravity of the heart.

In the conclusion of these observations, it may not be impertinent to the intent of the discussion, to remark, that this is a question purely of legal privilege, and totally disconnected from the obligations of moral duty. Where I intrude not upon the rights and privileges of others, I have a right, however unenviable, to play the fool. I may scatter the inheritance that I received from my ancestors, and which is due to my children, among the basest of mankind. I may sanction, by my opinions, immorality and irreligion ; dedicate my talents to the perversion of truth, and bequeath my dying example, as a last encouragement to every species of private vice. For the reformation of such excesses, no adequate correctives can be found, but in the early inculcations of a well ordered education, and the rigid censorship of an enlightened and religious public opinion. They are evils which cannot be eradicated by the operation of law, without endangering the fundamental rights and interests of the state. It is better that partial mischiefs should be endured, than that new and equivocal remedies should, be applied, which, by enlarging the circle of discretionary power, multiplies the occasions of injustice and oppression. Against such consequences, we are satisfied, that the members of this honorable court will be found among the first to enter their solemn protest, as the conservators of constitutional freedom, and the votaries of civil liberty.

Note—The preceding remarks embrace so much of the petition for a re-hearing, only, as involves the question of occasional or partial insanity. It was contended, that the decision was not warranted by the testimony; and that if Moore were deranged on the subject of his kindred, consistency required the court to pronounce him deranged, also, on the subject of the payment of his debts, &c. wherein his conduct was equally inexplicable. These are topics, however, affecting the present case merely, and, therefore, not calculated to illustrate the principle established by the decision.

J. CABELL BRECKINRIDGE,

Counsel for Appellant.

The following is the response of the counsel for the appellees, to the petition for a re-hearing, excepting what related to the particular facts of the case.

A proper respect for the feelings and wishes of clients, who are ignorant of judicial proceedings, demands a response to the elaborate petition for a re-hearing, which has been presented, and which the time allowed by the court since the last term, has enabled the counsel for the appellants to prepare.^* But, in attempting a response during the term, and when the interest of our clients requires no delay, it must be the production of an occasional hour, snatched from regular duties to others.

This will was resisted by us, on these general grounds : That a will, to be valid, must be the voluntary act of the testator, and the result of his reasoning faculties; and that this will was, on the contrary, the production of a mind deranged on the subject of his relations and his estate, or of the undue and fraudulent influence of the devisees ; or, as we believed, that it was the result of both these causes combined.

The opinion of the court has, from the evidence, decided, that for the first cause we alleged, the writing offered was not the will of the testator; and then, in substance, states that there are strong grounds to believe that the principal devisee had availed himself of the state of the testator’s mind, to prepare a will in his own favor.

In the argument of the cause, we had contended, that there was a species of derangement, which we termed partial derangement, and which influenced the person subject to this, disease, whenever the mind was brought to think on some particular subject or subjects. In advancing this doctrine, we did not dream that we were advancing any thing new ; we suspected not that it was a novel doctrine, and we protest against being considered the inventors of it. We can safely say it is as old as our earliest inquiries into, or observations on the diseases of the mind ; and our limited reading has not enabled us to discover when this doctrine was new, much less its author.

But this doctrine is not only treated as novel, and denounced as fraught with at least half of the evils of Pandora’s box ; but the mind is pronounced “ an unit,” and its “individuality and indivisibility” are asserted to be essential and inherent qualities. Now, without pausing to examine the truth of the premises thus laid down, let us see how the appellant’s counsel dispose of the great class of acknowledged cases, in which reason and insanity manifest themselves in the same person. If we understand them, they admit madness with lucid intervals ; but they contend that when such a person has a lucid interval, he is in possession of his whole mind ; when not, that he is wholly insane. And in relation to the cases we cited in argument,^* they admit, that when the mind is dwelling upon the subject, it is wholly occupied with it, and is entirely deranged; that the person so situated is a madman; but when not thinking on it, he has a lucid interval, and the mind is wholly free. Be it so; we see nothing in this doctrine to dispute about. They call these cases, madness and lucid intervals ; we call them cases of partial derangement. We had supposed, those who were operated upon by time, without regard to subject, were properly designated lunatics, or persons having lucid intervals ; and that those who were affected by a subject, without regard to time, were more properly designated by the term partial derangement. Now, except this, we see no substantial difference between the doctrines, as to the diseases of the mind admitted by our opponents, and those advanced by us. We have no choice which phrase the court adopts.

The petition for a re hearing, in speaking of this part of the subject, to give plausibility to the string of mischiefs foreboded, seems to consider the doctrine we contend for, and which was adopted by the court, as justifying an inference of partial insanity, for matters of opinion, hatred, &c. Nothing was further from our view. We contended, and, with due deference to the opinions of our opponents, clearly showed by proof, that for some time before the date of the will, whenever George Moore began to think or speak of his brothers and nephews, and his estate, he became wholly and totally wild, incoherent, and incapable of the exercise of reason, so long as his mind was on that subject.

It cannot be necessary for us to travel over a detail of the evidence.

It is with some propriety said in the petition for a re-hearing, that the proof of Moore’s refusal to pay his taxes, when he had money in his house, is as strong an instance of insanity, as those given by the court. Were this true to the full, it would only prove that the court made an unnecessary concession, in stating that Moore had a disposing mind as to most subjects. It was his capacity of mind to make a will, only, that was in question ; and beyond that question, we beg leave not to travel at present.

It is never to be expected, and we suppose not proper, in a cause turning on facts, to spread on the record all the circumstantial evidence, which conduces to satify the mind of the court. In this case, the court certainly have not attempted it. The circumstantial evidence of that witness, which, to our minds, was the most irresistible of any, is neither recited in the opinion of the court, nor noticed by the petition for a re-hearing. We allude to the evidence of Col. Rhodes Thompson, when detailing Moore’s conduct when he was called on to write his will, a day or two after the date of the will now offered. * * * * * *

The court very properly decline going into a detail of the evidence of undue influence; because, on the first point, it was satisfactorily shown, that Moore was previously insane for some few years, and which we contend was a general insanity. There was a partial recovery of the use of his mind. The recovery was but partial ; the mind never regained its balance, when dwelling on his brothers, their families, and his estate. * * * * * *

The court, in the opinion rendered, speak of George Moore’s hostility to his brothers " without cause.” This, the petition for a re-hearing says, is a “ gratuitous assumption.” Now, we say, that either the notes of evidence taken by the petitioners do not contain a faithful narrative of that evidence, or this is a gratuitous imputation against the opinion ; for such evidence was certainly given by one or more witnesses, on an examination to that point. * * * * *

HARDIN AND MILLER,

for Appellees.

To which Mr. Haggin replied as follows :

ON the part of the appellant, it has been said, that the doctrine of insanity on particular subjects, and sane to every other purpose, was new in theory and of dangerous tendency. Certainly, it is novel in the science of jurisprudence ; for all the cases and writers to which reference has been had, are of recent date. And of dangerous tendency it must be, because of the difficulty experienced by the most skilful, in defining its symptoms and qualities, and the consequent latitude for the exercise of judicial discretion. We would, to be sure, hope that the just judge, whose mind was devoted to the attainment of right, incapable of extrinsic influence, would always arrive at the same result, duly modified by the circumstances; and that injury would not arise, by the unqualified submission of every case to the pleasure of the judge. But, by the present effort, in the highest court in our country, by one of the ablest members of its bar, to enlist prejudices hostile to truth, by allusions and insinuations derogatory to one of the parties, justified by nothing in proof, we are awfully admonished, that indeed there is danger in the adoption of theories unsusceptible of a distinct or rational test.

It will not be denied, that if Moore, at the time of making his will, labored under a derangement of intellect, which rendered him inadequate to the ordinary transactions of life ; or, if he experienced extreme mental debility, peculiarly subjecting him to influence from others, and the appellant, taking advantage of his condition, fraudulently obtained this instrument disinheriting the heir at law, it should be avoided. Further than this they cannot yield.

The opinion pronounced, negatives a general incompetency ; nor does it assert that there was that kind of imbecility and influence, which would defeat an ordinary act, or cancel the will in controversy. But the conclusion, destructive to that instrument, is predicated upon an absolute incapacity as relates to this particular subject. Thus understanding the opinion of the court, the counsel have combatted the position of partial insanity ; contending, that although some topics may be more immediately calculated to excite the latent malady than others, still, under the prevalence of the disorder, the mind was incapable of an effective agency upon any subject. How successful they have been in this, is with the court. They profess no talent for metaphysical disquisitions; but would venture the suggestion, that the deranged mother, whose malady, in its origin, seems to have been intimately connected with her infant, which was therefore her aversion, reflected rationally on no subject, whilst it was in her presence. And they will express their sympathy for the poor fellow, who, under the influence of the faculty, was condemned to the mad-house, because he corresponded with his fair, in cherry juice, and who, for aught that appears, was capable of every act in life, with all the responsibilities of mortality; who, in relation to the particular subject of his derangement, seems to have been as capable of loving, and communicating his passion, and enjoying its reciprocation, as any other man.

But the gentlemen consider it very immaterial, whether this disease of the mind be of the character we suppose, or that expressed in the opinion. At least, we gain this advantage: The more diffuse the effects of the malady, the more frequently will it display itself, and the more easy for the appellants to counteract the attempt to establish it. Moore lived, agreeably to the effort of our adversaries, about twenty years in the same neighborhood, during all the time laboring under a state of derangement on the subject of his relations, who were numerous, and with whom he came into contact almost every day. How frequently, then, must the paroxysms of madness occur, and how many thousand conclusive evidences must he have given of the loss of mind ; yet, how few and how slight they are, as detailed in proof; how equivocal in their character, and how greatly outweighed by opposing proofs and opinions!

If Moore labored under other mental affliction, than an irascible temper, and that produced by intoxication, the recurrence of the disease was rare indeed, with intervals so great, that the presumption should be in favor of a composed mind, at any given period. He was certainly often reconciled with his relations, and often at variance with them ; but he reasoned correctly from the premises assumed, to wit, that they treated him badly, and cared only for his property. The premises are not shown to he false, and are in life much more frequent and probable than insanity. They ought to be disproved.

Suppose this, however, a case of confirmed malady, with intervals, and that the presumption should be, that the premises assumed by Moore were false; still he did enjoy lucid hours, and the proof is certainly conclusively in favor of the rational exercise and command of his mental powers, at the time the will was executed.

JAMES HAGGIN.

But, on the 30th of October 1822, the petition was overruled.

* The court, at the previous term, on the motion of the counsel for the appellants, suspended the opinion, to enable them to prepare a petition for a re-hearing.

* The counsel for the appellees, in the argument of the cause, to show that the mind might, and often was, deranged on certain subjects, read several cases from medical books, and also the cases referred to in Erskine’s celebrated argument in defence of Hadfield, who was prosecuted for attempting to assassinate the king.