COLEGATE D. OWINGS' CASE. 379

It is the special duty of the State to take care of those who
suffer under any natural infirmity which incapacitates them from
taking care of themselves. And, therefore, to adopt a maxim
which in its operation casts them out from the protection of the
law, of which they stand so much in need, and leaves them to be
stripped of their property by the most palpable fraud, appears to,
be exceedingly unjust and cruel. The reason of this maxim does,
in effect, declare, that the unfortunate are to be left unprotected,
because they are unfortunate; that no care is to be taken of an
innocent lunatic, because, being a lunatic, he knows not what he
does, and cannot take care of himself. While on the other hand,
it virtually proclaims, that iniquity shall be protected, and that the
defrauder shall be allowed to profit by his own wrong, and to enjoy
his plunder in perfect security.

It is said, that " if the common law had given a writ of non
compos mentis to him who has recovered his memory after aliena-
tion, certainly the law would have given him remedy for the main-
tenance of himself, his wife, children and family, although he
recovered not his memory but continued non compos mentis." (s) I
do not clearly see the force of this inference; but it would seem,
from what is said, that because a man cannot have a deed set aside

microscopic eye; and hence many things arrest their attention, which escape the
notice of physicians.—(Rush on the Mind, 158.) Shakspeare has been frequently
referred to by writers on the subject of mental disorder.—(Conolly Ind. Inst. 319;
Coop. Med. Jur. 291; 1 Paris and Fonb. 316, note.) Justinian quotes a passage from
Homer to illustrate the nature of a donation mortis cauw, (lib. 2, tit. 7, s. 1,) and
Lord Coke allows, that to cite verses standeth well with the gravitie of our lawyers.
(Co. Litt. 237.) I shall therefore feel myself justified in placing among the references
some extracts from the poets, by way of illustration and in support of what I have
said, in the text:

-"Poor Ophelia,

Divided from herself and her fair judgment,

Without the which, we are pictures, or mere beasts." Hamlet, act 4, s. 5,
"If Hamlet from himself be ta'en away,
And, when he's not himself, does wrong Laertes,
Then Hamlet does it not, Hamlet denies it.
Who does it then'? His madness." Hamlet, act 5, s. 2

By the statute of 33 Hen. 8, c. 20, a person who had, while sane, committed high
treason, and after became mad, might be tried in his absence, without making his
personal appearance, &c. From which it may be inferred, that by a legal appearance
at the trial, in criminal cases, is meant the actual presence of the mind as well as the
body; thus recognising the position, that in a state of insanity the mind has left the
body, and cannot be brought before the court with it.—4 Blac. Com. 25,

(s) Beverley's Case, 4 Co. 124.