Volume 1

Wharton and Stille's medical jurisprudence.

  • Francis Wharton
Date:
1873
Catalogue details

Licence: Public Domain Mark

Credit: Wharton and Stille's medical jurisprudence. Source: Wellcome Collection.

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    Court of Chancery for his own protection. Chancellor Kent decided that the deed was valid under the circumstances; yet that ‘the bill does not appear to have been filed vexatiously, but rather to obtain, for greater caution, the opinion of the court on a point which had been left quite doubtful in many of the books, and which had never received any discussion here.’ The Chancellor observes: ‘Upon the finding of the jury under the commission, in nature of a writ de lunatico in- quirendo, I refused to appoint a committee, and adjudged that the defendant was not to be deemed an idiot from the mere circumstance of being born deaf and dumb. This is a clear, settled rule, and numerous instances have occurred in which such afflicted persons have demonstrably shown that they were intelligent and capable of intellectual and moral cultivation.’ This is quite a safe assertion, even in this country, in 1820, the date of this case. After citing conflicting cases and authori¬ ties, for which we refer our readers to the volume of reports, the learned and able Chancellor goes on to say: ‘Perhaps, after all, the presumption, in the first instance, is, that every such person is incompetent. It is reasonable presumption, in order to insure protection and prevent fraud, and is founded on the notorious fact that the want of hearing and speech ex¬ ceedingly cramps the powers and limits the range of the mind. The failure of the organs necessary for general intercourse and communion with mankind oppresses the understanding; affigat humo divince particulam aurce. A special examination, to repel the inference of mental imbecility, seems always to have been required; and this presumption was all that was intended by the civil law, according to the construction of the ecclesias¬ tical courts ; for a person born deaf and dumb was allowed to make a will, if it appeared upon sufficient proof that he had the requisite understanding and desire. I am satisfied that the plaintiff is justly to he exempted from the charge of a groundless and vexatious inquiry; and the course is not to punish the prosecutor of a charge of lunacy with costs, if the prosecution has been conducted in good faith and upon proba¬ ble grounds. I shall, therefore, dismiss the bill without costs.’ “ The effect of this decision seems to be that a deaf-mute from
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