HC Deb 02 March 1830 vol 22 cc1148-54
Mr. M. A. Taylor

said, he would only trouble the House for a short time upon the Motion of which he had given notice. He hoped hon. Gentlemen would give him credit for being influenced by no motive except the good of the country, and by no view except that of benefitting the public by remedying existing abuses. He begged to be heard. If the House supposed he was going to enter into the original question respecting the custody of lunatics by the Crown, they would find themselves happily mistaken. He would take up the subject upon other grounds, and very briefly. The expense of Commissions of Lunacy had struck the public eye, and affected the public mind forcibly. He would bring forward one or two cases, which would not trench upon the duty of the Commissioners. There was, for instance, the case of Lord Portsmouth. It was dreadful to contemplate the expense that had been incurred in this; it amounted to something about 25,000l. He had conversed with several of the most eminent lawyers upon the subject, and all agreed with him; indeed two of the most celebrated had drawn up the present bill for him. He would next allude to the case of Mr. Davies, and he would say it was really frightful for any man to look upon, who might have one of his family under the jurisdiction of the Chancellor. For he knew from one of the parties that out of a fortune of some 16,000l., which he (Mr. Davies) had made by his industry, he was put to an expense of nearer 4,000l. than 3,000l. He did not think that there was any Member who had not heard of this case; but, if there were, he wished him to examine it before the second reading of the bill. Well, after all this expense, Mr. Davies was found sane; he did not mean to question the sanity of Mr. Davies, but if such a case could be referred to a less expensive tribunal, it would be advantageous. As he before said, he would not enter into the details of the original statutes, which conferred upon the King the power over the person of the lunatic. It was enough to say that the King might grant to the Lord Chancellor his full powers over the lunatic: but then it was necessary that his Lordship should appoint a commission to inquire whether the party were sane or not. This commission was bound to enter into the general question, for the purpose of reporting on it to the Chancellor, three of the commissioners forming a Court. Now there were cases which could be at once decided by these commissioners; but there were others of extreme difficulty, requiring a species of knowledge in which these gentlemen, as Chancery barristers, could not be so well versed. From their want of familiarity with oral evidence, they were not au fait, were not up to, what the nisi prius advocates were about, they were not acquainted with the mode of conducting a viva voce examination. In the next place, he would ask how did this Commission sit? Frequently from ten or eleven in the forenoon to four in the afternoon. The present Chancellor had certainly, much to his credit, diminished the expense by curtailing the jurors of the dinner formerly allowed. But he would take upon himself to say that Mr. Davies's case, which had gone on for week after week, might have been decided by a Judge and Jury in two days. Were they then to suffer this to go on, when they could find another tribunal which might be more happily applied to the conducting of such inquiries? The Judges ought, in his opinion, to be employed in them. Some, he understood, objected, on account of the pressure of business; but there were others, such as the Puisne Barons of the Common Pleas and Exchequer, who had no right to complain of want of leisure. His proposition, therefore, was a very simple one—it was to empower the Lord Chancellor, if he should think it advisable, to inquire by a Jury in his Majesty's Courts of Record into questions of lunacy, in lieu of sending them before a Commission, as at present constituted. His opinion decidedly was, that the Lord Chancellor already possessed the power of sending the question respecting a man's sanity to be tried in any of the Courts of Record, as he might the common issue whether a man was of sane mind when he made his will, although a doubt concerning his sanity might afterwards arise; but the consideration to be entertained was whether, as the statute conferring this power was obsolete, it would not be more prudent to make a new act upon the subject. That was the course pursued in the case of the Earl of Portsmouth, and the result every body was acquainted with. The Bill he proposed to introduce was a very short one, and would only empower the Chancellor to issue a commission to one of the Judges to try the fact whether the person was a lunatic or not, instead of directing it to such gentlemen as were now usually appointed commissioners. At present he knew there was a Jury, but from the rank and situation of the Commissioners, the Jury paid less attention to them than they would do to one of the Judges, and the Commissioners themselves were frequently unacquainted with nisi prius law, so that the consequence was, that the parties were really in the hands of the counsel. He did not think that this system could be continued with any advantage to those who might, be concerned in such transactions. The Commissioners possessed none of that influence which was always attached to the Judge, and could not say with the same confidence of authority, when evidence was tendered to them which they thought improper, that such evidence was inadmissible. In his opinion, no one could look at the case of Mr. Davies without coming to the conclusion to which he had arrived. He was not prepared to say at that moment that the course he recommended should be adopted in all cases. This was not the proper time to discuss that question. He merely proposed to give the Chancellor a certain power, where the exercise of it would be attended with manifest justice to all concerned. He asked permission to introduce a bill which should give the Lord Chancellor the same power to order the question of lunacy to be tried before a judge, that he now possessed to order it to be tried before commissioners. The responsibility attached to the exercise of this power might be placed in the hands of the Chancellor or the Keeper of the Great Seal, who should say whether the trial ought to take place before a judge, upon the consideration of the importance of the case, of the time it was likely to occupy, and other circumstances, on which it might be in his option to adjudicate. He had collected upon this subject all the opinions he could, in order to guide him in forming his own judgment, and he had not found one gentleman who did not think that his object would be well attained by the measure he now proposed. He should be glad to hear any objections that might be made against the measure, in order the more to consider it, and the better to fit it for the purpose for which it was designed. As to that purpose itself, he thought there could be no objection to it, since he was satisfied that no one willingly entertained the idea of supporting a system which was no better than a legal mode of plundering the property of a lunatic. He did not mean to attribute such an evil to the commissioners themselves, for the objection existed to the nature of the tribunal itself, and not to the men of whom it was composed. If that tribunal were changed, and a Judge of a superior court were substituted for these commissioners, he believed it would be seen that a case involving a question of lunacy, like that of the late Lord Teynham, tried a short time since, would be, as that had been, disposed of in three days, and justice would be perfectly attained, instead of occupying a period of three weeks, at a most enormous expense, like that of Mr. Davies. The hon. Member concluded by moving "for leave to bring in a Bill authorising the Lord Chancellor, in all cases where he should think it advisable, to issue his Commission to any one of the Judges of one of the superior Courts of Record at Westminster, empowering him to inquire before a Jury into cases of alleged lunacy, instead of the present Commission issued for that purpose."

The Solicitor General

thought, that in the description which the hon. Member had given, he had taken the exception for the rule, and had supposed that these enormous expenses were incurred in all cases, instead of a very few. He lamented that they should be incurred in any case; but he must say, that in his opinion the hon. Member had over-rated the evil. In admitting that the expense was sometimes very large he must observe that the occasion on which large expenses were incurred ought to be recollected. It was generally a contest between near relations; and when that was the case, every body was aware that they were carried on in a more bitter spirit than contests between any other persons. But besides this, the question to be decided was always one of importance: it was not merely whether a man should be deprived of his civil liberty, but whether he should cease to be treated as a rational creature. For the purpose of proving or denying the imputation of insanity, clouds of witnesses were required, and surely no one could object to expenses incurred to put an end to so terrible a charge as that of insanity. If the system were objectionable, the hon. Member, instead of confining his motion to this particular portion of it, ought to go into a revision of the whole, and not attempt to patch up that which was in itself defective. He thought, considering the great delicacy and difficulty of the subject, that it would be better to leave it to the Chancellor to pronounce on the circumstances of each particular case, and to direct such inquiries to persons conversant with cases of lunacy, instead of submitting them to a mode of inquiry which was subject to all the inconveniences arising from the hurry at nisi prius, to which he should most certainly object. In trials of such a nature, a verdict might be returned that would leave the unhappy person to deplore, during his whole life, the change which the hon. Member had effected. The bill was, besides, needless, for the Chancellor had now the power to name whom he pleased as commissioners on these inquiries, and Lord Chancellor Eldon had often acted upon that power. If he thought that the measure affected the character of the leading persons now usually appointed commissioners, he should certainly oppose it. As to their being often practising barristers, he could assert from his own knowledge, that they would not be wanting in authority if that was conceded to knowledge, though they might if it was only yielded to knowledge when united to judicial rank. The case of Lord Teynham was not to be cited on this occasion; for it was a very different thing, in every respect, to determine after a man's death whether he had been a lunatic, and to decide the question during his life. He thought there was an advantage in a mixed Commission, and there was one objection to making the Judges Commissioners in such cases, namely, that the question of lunacy must by the law be tried in the neighbourhood of the place where the subject of inquiry lived. He wished to see what the bill was, and should reserve his objections, if he had any, to the second reading.

Mr. R. Gordon

believed that no one who remembered the cases of the Earl of Portsmouth and Mr. Davies could doubt that the present system was defective. He should propose to go further than the hon. Member, and inquire into the whole system. He thought that a committee should be appointed to inquire into the mode of conducting these investigations, and the expense attending them. He objected to the great expense in the first steps of such a cause, and he thought these expenses should be investigated, though he admitted that great caution ought to be used before a man was put upon what might be called his trial for lunacy.

Mr. O'Connell

said, he was disposed to defer the discussion till after the Bill had been brought in. The appointment of practising barristers had been referred to as a cause of delay and expense. In one respect it might be so; and if they went further, and no barrister was appointed a judge, then we might hope to get rid of a portion of our present legal expenses, by getting rid of the technicalities which practising barristers were sure to acquire, and the love of which they carried with them to the bench. He agreed with the Solicitor General, that to attack a part, instead of the whole of the system, might prove an aggravation rather than a mitigation of the evil. If it were said that a difficulty existed in the law, requiring the inquiry to be carried on in the immediate neighbourhood of the alleged lunatic, the answer was, that the object of this Bill was to change the law, and of course to get rid of such a difficulty. It was of no use in such a question to talk of the hurry of nisi prius. If there was not a sufficient number of functionaries more might be appointed, though at the same time the emoluments of particular individuals might be diminished. This was a portion of that particular reform, the reform in the law and its administration, which was the most necessary kind of reform in this country, with one exception only, which he could mention.

Sir C. Wetherell

said, that the law had in different ages and times been the subject of attack; but in the direction of this branch of the jurisdiction of his Court, there never had been an impeachment on the honour and integrity or humanity of any Lord Chancellor. He, therefore, for one, would not consent to the revision of a system, against which there never had been any complaint; but he should be glad to discuss the question, whether there might not be some cases in which the Chancellor might, with advantage, submit the decision to a Judge, instead of sending it, as at present, to be adjudicated upon before Commissioners. So far he should have no objection to the Bill, but he would oppose it if it went to effect any diminution of the power of the Great Seal.

Dr. Phillimore

said, the present mode of conducting such inquiries had been successful in its results. None of the decisions of Commissioners and Juries had been reversed.

Mr. M. A. Taylor

, in reply, said he had no intention to intrench on the jurisdiction of the Chancellor, but to substitute what he thought would be a better tribunal than the present for the determination of lunacy cases. The excellent manner in which Lord Teynham's case was tried in three days instead of three weeks, satisfied him that the change he proposed would be a great improvement.

Leave was given to bring in the Bill.