Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/807

 ^0. VEEDER: A CENTURY OF JUDICATURE 793 logistic processes along which ordinary minds move. He made no display of learning, like Willes and Blackburn, though his learning was unquestioned. He exhausted the argument from principle, and only in conclusion illustrated it by reference to a few leading cases. His solution of the great case of Ry lands v. Fletcher, 3 E. & I. App. 330, on the " duty of insuring safety," is a typical illustration of his method. Ward v. Hobbs, 4 App. Cas. 19, is one of the rare instances in which he exposed the process by which he reached his conclusion. For a specimen of his skill in ex- position reference may be made to his address to the jury in the celebrated Windham lunacy case: "It may be con- venient to remind you what the precise issue is. You are to decide whether Mr. Windham is incapable of managing his affairs — not whether he is of unsound mind, but whether he is incapable of managing his affairs by reason of un- soundness of mind. The object of making that distinction is plain and simple. There are many cases in which a man may be said to be incapable of managing his affairs. He may be incapable by reason of ignorance, or on account of inexperience and want of peculiar skill, or because of a pref- erence for literary or other pursuits of a kind utterly un- connected with the management of property, or in conse- quence of a ruinous and inveterate habit of gambling. Such a person may justly be said, in a certain sense, to be incapa- ble of managing his affairs, and, indeed, the Roman law made no distinction between unthrifts and idiots. But in England a man cannot be deprived of his personal liberty or his property on the ground of incapacity, until a jury of his countrymen are satisfied, first, that he is incapable of managing his affairs, and, secondly, that his incapacity arises from unsoundness of mind. Moreover, you are to bear in mind that the presumption is in favor of sanity, and that it lies upon those who allege unsoundness to make out and prove their case. I call your attention to the peculiar na- ture of the insanity alleged in the petition against Mr. Windham. It is not an ordinary case of insanity accom- panied by delusions — a case in which the great and critical test of sanity is the absence or presence of hallucinations