[BILL NO. 76.] COMMITTEE. (Hansard, 14 July 1862)

MR. MONTAGUE SMITH
said, he rose to move the Amendments of which he had given notice. While he was ready to admit that the Bill introduced great improvements into the law—as, for example, the provision which enacted that inquiries as to the sanity of individuals should henceforward be conducted before a Judge of the Superior Courts, instead of before a Commissioner—he was surprised to find inserted in it two provisions which would act as absolute barriers to the discovery of truth. He alluded to the provisions that certain evidence to be given on the inquiry as to the sanity of any person should not be carried back for a period of more than two years from the date of the inquiry, unless the Judge should otherwise direct, and that the opinions of medical men should be inadmissible as evidence. The former of these provisions would operate most injuriously in cases in which the alleged lunatic had lucid intervals, or was alleged to be subject to delusions. With respect to the exclusion of medical opinion, if medical evidence was shut out, juries would be left entirely in the dark; and, to be consistent, medical and scientific evidence must be excluded upon all inquiries whatever. At present no person could be confined in a lunatic asylum without the certificates of two medical men, and in criminal cases medical evidence frequently formed the chief materials for the decision of juries. Although the inquiry into a man's sanity was by the Bill to be limited to two years, yet in all other inquiries relating to his transactions no such limit would exist. It was said that medical evidence was conflicting, and perplexed juries; but, to be consistent in acting upon that objection, medical testimony must be rejected in all legal proceedings whatever. Then it was said that medical witnesses were sometimes partisans rather than witnesses. That, unfortunately, was too frequently the case; but he contended that the very contradictions of medical men threw a great deal of light on the subject under investigation, and they had no right to shut out the truth because 322 medical men differed in opinion. The argument that the present system led to abuses was not tenable, because if it were allowed to prevail, they might as well object to the liberty of speech and of the press, both of which were at times undoubtedly abused. The opinion of the medical profession was against the proposed exclusion, and so was also the opinion of the Bar. These provisions were, no doubt, introduced in consequence of the scandal of a recent case, but it was unsafe to legislate upon an individual case. He thought these provisions marred a Bill, which otherwise would be a great improvement upon the present law. The discretionary power which was given to the Judge, to admit evidence as to circumstances beyond the limit of two years, would be very mischievous in effect. Pie would rather absolutely limit an inquiry to a definite period, than impose upon a Judge the exercise of such a discretion "Unless the Judge shall otherwise direct"—what was to guide the judge? He must go into a preliminary inquiry, in order to ascertain whether the evidence was relevant and admissible, and thus open a door to continual controversy. The tendency of all modern legislation had been to remove artificial barriers to the admissibility of evidence, and it was a backward step to impose these restrictions. He had discussed the Amendments he proposed together, as many general observations applied equally to both, but in point of form he must move them separately. He should move the omission of all the words between "affairs" and "nor" in line 21.

§ SIR GEORGE GREY
said, he believed that the provision was intended to prevent the great expense and scandal which were incurred by carrying inquiries of this sort back to the infancy of the alleged lunatic, and through circumstances which had no material bearing upon the question, whether, at the moment of the investigation, he was competent to manage his own affairs. He quite admitted that the clause had been introduced in consequence of an individual case; but he asked whether it was reasonable that evidence should be given of childish acts committed many years ago, as a proof of lunacy at the time when the inquiry was made. As a general rule, it was surely enough to con- 323 sider whether within the last two years the alleged lunatic had behaved himself rationally. In cases where it was supposed that anterior events might illustrate the question, a discretionary power was vested in the Judge to admit evidence concerning them. He was glad to find that the hon. Member approved the principle that those inquiries should take place before a superior Judge.

MR. HENLEY
said, he doubted whether the proposed restriction would be consistent with justice. If the alleged lunatic had been insane before, the circumstances leading to his second attack might have been very similar to those which had preceded his first. It was obvious that the evidence establishing these facts would be much more impressive if evidence could be given to show that the same kind of symptoms had been followed by an outbreak. No doubt, it was of great importance that no unnecessary time should be consumed in these investigations. He was afraid, however, that the provision would not promote that end, because it would give rise to preliminary discussions as to what was admissible evidence. How was a Judge to know, until he wag acquainted with the evidence offered, whether it ought to be received? Either witnesses would be collected from distant parts of the country, in uncertainty whether their testimony would be admitted, or the inquiry would be delayed until they were brought together after the court had agreed to hear what they had to say. The difficulties to which he had referred would show the error of legislation on a single case. He would vote against the provision.

§ MR. COLLIER
said, he heartily approved of the principle of the Bill. It was certainly a solecism to allow issues involving such great questions to be tried before an inferior Judge. Nobody would ever have thought of allowing a will cause to be heard except before a superior Judge; and why should the ability of a man to dispose of his property in his lifetime be tried before a Judge of lower rank? He thought it desirable to put some limit to the inquiry, in order to prevent the enormous costs which were generally incurred in lunacy cases. As the costs, whatever the result, usually came out of the estate, there was a great temptation to bring a host of witnesses to speak to immaterial facts. In ordinary cases a limit of two years would not be prejudicial, and in exceptional cases the Judge might, at his discretion, permit 324 the inquiry to be extended. In his opinion it was a salutary provision, and he should with confidence support it.

§ MR. MALINS
said, he could conceive cases where it would be necessary to go back beyond two years. No doubt they were practically asked to legislate upon a particular case, and he admitted that in that case (Mr. Windham's) the inquiry was needlessly extended into matters alleged to have occurred ten or twenty years before; but that was no reason why they should lay down a rule that nothing should be inquired into of a date beyond two years preceding the inquiry. He should support the Amendment.

§ MR. BUTT
said, that to legislate on the particular case of Mr. Windham would be to illustrate the maxim that hard cases made bad law. He had had some experience in lunacy inquiries, and he only recollected one instance in which evidence of acts prior to two years before the date of the inquiry was not of vital importance. He had the strongest objection to the limitation; and as to the proviso, "unless the Judge should otherwise order," the discretion, even of an eminent Judge, often meant caprice. He could understand a general enactment that in all cases where sanity was in question, the evidence should be restricted to a period of two years; but it would be an anomaly in the English law to say that the limit should apply in lunacy inquiries and not upon issues in civil and criminal cases, where the state of a man's mind when he did a particular act came incidentally in question. It was new to provide that what would be evidence in one case would not be evidence in another, and it seemed strange to allow evidence to prove sanity without any limit in the same case in which no evidence beyond two years in proof of insanity could be given.

THE ATTORNEY GENERAL
said, he hoped that the Committee would not adopt the Amendment. The hon. and learned Gentleman (Mr. M. Smith) complained that the Bill, as it stood, would exclude evidence which might lead to the elucidation of truth; and though limitations of that kind might occasionally have that effect, the case before them was just one of those where obvious advantage was obtained by breaking through a general rule. It had been found that these matters had a tendency to run to greater lengths and to become more comprehensive than the requirements and justice 325 of the case demanded, and the proposal was intended to cure that evil. It was a mistake to suppose that it was a result of the Windham inquiry, although that case was an extraordinary instance of the length to which these cases might extend. There was no particular charm in the term of two years, but it was a convenient term to fix; and if it should appear in the course of the inquiry that evidence ought to be taken beyond that limit, it would always be in the power of the Judge to receive it. There was no analogy between trials of that kind and cases of criminal lunacy, or of wills disputed on the ground of lunacy, because the question to be decided in these trials was, whether the alleged lunatic was compos mentis or not at the time of the inquiry.

§ MR. BOVILL
said, he thought that great mischief would arise from limiting the inquiry to two years, and in civil cases great additional expense would be occasioned from the adoption of the clause. Would the Home Secretary be satisfied to discharge any of the criminal lunatics now in Bedlam, because they had shown no signs of mental aberration during the last two years? That would be a most dangerous course; and how were they to determine the existing state of a man's mind except with reference to facts and circumstances which might have occurred long antecedent to the inquiry—facts, which in cases of doubt and difficulty, frequently ranged over the greater part of a man's lifetime, or, at all events, for many years before the inquiry was instituted? In cases of nicety, it became of extreme importance to trace the origin of delusions and so to determine whether they were delusions or not. Were they to exclude the fact of a man having been in a lunatic asylum for some years prior to the date of the inquiry? Whatever might be said on the score of expense, he was of opinion that the better plan would certainly be to strike out the clause, and leave the matter to the discretion of the Judge who was to conduct the inquiry.

§ MR. J. POWELL
said, he thought it would be found that in most cases there would be no reason whatever for extending the inquiry beyond two years. If it should happen that a case of difficulty arose, and it were clear that there were anterior facts which would throw light upon the state of mind of the subject of the inquiry, then it would be competent to the Court to allow additional evidence to 326 be brought forward. But as he did not suppose that there would be any difficulty in the working of the clause, he would support it.

MR. MONTAGUE SMITH
observed, in reply, that he felt so strongly on the subject, that he would divide the Committee upon it.

§ SIR GEORGE BOWYER
said, there appeared to be some confusion as to the different purposes in regard to which Sanity was made a subject of inquiry. In criminal cases the question was, whether at the time the act was committed the person was capable of distinguishing between right and wrong. With reference to the execution of an instrument the question was, whether he was capable of knowing what he was about at the time of executing it. And the third case was, whether a person was or was not capable of managing his own affairs. There appeared to him to be a great deal of good sense in a limitation as to time, whether two years was fixed upon or not, because a man might be put to an expense which would amount to a confiscation of his property if the inquiry were permitted to range over, perhaps, the whole period of his life.

§ MR. M'MAHON
said, he was of opinion, that as the inquiry was to take place before a superior Judge, there was no occasion for the limitation proposed by the clause.

§ MR. BUTT
said, he would then move an Amendment, to the effect that the Judge should be bound to receive all the evidence which in the course of the inquiry should be found to be material and relevant to the issue, although it extended over a longer period than two years.

THE ATTORNEY GENERAL
said, he must oppose the Amendment.

MR. MONTAGUE SMITH
said, he then proposed the omission from the clause of the following words:—"nor shall the opinion of any medical practitioner be admissible as evidence of the insanity of such person." He objected to the exclusion of the evidence of medical men, who were best able to form a judgment on the case as to the insanity of a 327 person, while it would be perfectly admissible as to the sanity of the individual.

THE ATTORNEY GENERAL
said, the operation of the clause would not, practically speaking, be to exclude the evidence of medical men who had seen, examined, or conversed with an alleged lunatic, but rather to shut out medical testimony of a merely speculative and theoretical character. The result of medical evidence, as produced under the existing law, was, owing to the conflict of opinion amongst the witnesses, calculated to perplex the jury rather than otherwise. Such evidence was therefore useless, while it was very expensive; and the words to which the hon. and learned Gentleman objected would put an end to a practical grievance.

§ SIR HUGH CAIRNS
said, that he was perfectly perplexed by the explanation of the hon. and learned Gentleman. The hon. and learned Gentleman had stated that the clause was never meant to exclude the evidence of a medical witness who had seen or examined the person as to whose state of mind inquiry was instituted, so that it must therefore be understood as excluding only the evidence of medical men by whom he had never been seen or examined. But the fact was that the law as it stood excluded such testimony for all practical purposes, so that the Committee need not be under any apprehensions on that score. In the absence, then, of any definite information on the subject, he must assume that the clause was meant to operate against the admissibility of any medical evidence whatever in cases of insanity. Now, what, he should like to know, would the effect of such an enactment be? It would, at all events, leave un remedied the anomaly, that while medical evidence would not be allowed before a jury, the certificate of a medical man would be held sufficient to procure the confinement of a person for alleged unsoundness of mind; so that, while professional opinion was allowed in the one instance to prevail, it was to have no weight whatever in the other. More than that, the testimony of a crossing-sweeper or a cab-driver was to be admissible under the operation of the clause, while that of the only person who would, perhaps, be able to give a sensible answer on the subject of inquiry, 328 would be set aside. Such a proposal the medical profession looked upon as a gross insult to their body, as had been demonstrated by a petition to the House praying it not to pass the clause. Would it not be better to say, if any doubt as to the law were supposed to exist, that the opinion of a medical practitioner who had not seen or examined the subject of the inquiry should not be admissible as evidence of his State of mind?

THE SOLICITOR GENERAL
said, that the question was as to the proper mode of carrying out an object which they all agreed in thinking desirable. The Lord Chancellor had expressly stated in the other House that the clause had not been framed to exclude medical testimony—that it did not shut out the evidence of what a medical man had himself seen and observed, but only his speculative opinion upon certain assumed facts. If the words of the clause were allowed to stand, other words might be appended which would prevent any misunderstanding. Some words like the following, for example, might be added:—"Unless such opinion be founded on the nature and character of any symptoms of mental disease which such medical practitioner has himself witnessed by attending and examining such person." At present a medical man was told what had been stated by other witnesses and in affidavits and he was allowed to give his opinion as to a variety of facts that had not fallen under his personal observation.

§ SIR HUGH CAIRNS
said, he would defy either of his hon. and learned Friends the Attorney and Solicitor General to show that medical men had ever been allowed to give evidence as to the conclusions they would draw from facts stated by other witnesses or in affidavits. That was the province of the jury alone. The Windham case had often been referred to as an example of a great abuse; but in that case evidence of the kind struck at by the clause had been offered, objected to, and excluded. The same thing occurred in a well-known case over which the late Lord Chancellor presided, and also in a criminal trial in which the late Baron Alderson sat as judge.

§ MR. BUTT
said, it had been decided by the House of Lords that a scientific witness might be asked what, assuming such and such evidence to be true, was his opinion as a scientific man or expert upon that evidence. He thought that on referring to the third section the Attorney 329 General would find that it only limited the evidence to be given at a preliminary inquiry, and not on the traverse. Surely it would be an anomaly to conduct the preliminary inquiry and the traverse by different rules of evidence; and, in order to avoid it, he would prefer that the inquiry should be conducted in accordance with the rules of common law as to evidence.

§ MR. MALINS
said, that if the object of the clause under consideration was to exclude all scientific evidence, that ought to be done under another form. Why was a medical man, who of all persons in the world had the best opportunity for observation in such cases, to be excluded? Such exclusion was in contradiction to all the principles of administration of justice, and he hoped the Committee would strike out that part of the clause.

THE ATTORNEY GENERAL
said, he found that there was some ambiguity in the words to which the hon. and learned Gentleman the Member for Youghal (Mr. Butt) had drawn attention, and the question raised by the hon. and learned Gentleman should be considered. He thought the hon. and learned Gentleman the Member for Belfast (Sir Hugh Cairns) was not warranted in saying that under no circumstances was a medical man who had not examined nor seen the alleged lunatic allowed to give evidence in the case. The opinion of the judges in the well-known case cited by his hon. and learned Friend the Solicitor General was against the form of question put to a medical man under such circumstances, and not against the examination of such a witness; which form they said might sometimes be convenient, though it could not be insisted on as a matter of right. It had been said that the opinion of a medical man who had not seen the alleged lunatic was not admissible. He held, on the contrary, that provided the questions were put in a certain form, they were clearly admissible.

§ SIR HUGH CAIRNS
said, no doubt a medical man might fairly be asked, "Supposing a person thinks himself a china teapot, what is your opinion as to the state of his mind?" Such evidence was admissible, and he objected to the clause, because it pointed in the contrary direction. In the case of an inquiry into the sanity of a testator, it was impossible that the person could be brought before the Court. The result of the Bill would be to introduce half-a-dozen different modes 330 of investigation and half-a-dozen kinds of evidence.

§ MR. ROLT
said, he hoped the Committee would cautiously abstain from interfering with the rules of evidence, which were founded on common sense, and were universal in their application. One of those rules was that experts might be asked their opinion upon undisputed facts. The clause proposed to introduce an exception to that general rule. He saw no reason for such interference, and thought the Committee would do well to leave the law as it stood.

§ MR. J. POWELL
said, he was of opinion that the clause was not calculated to remedy the evil which it was intended to meet. The evil complained of was the great delay, expense, and inconvenience which arose from calling great numbers of medical men as witnesses. It appeared to him that the simple remedy would be to allow the professional witnesses to be nominated by the Court.

MR. HENLEY
suggested, that as the hon. and learned Solicitor General had stated that the words as they stood did not express the real intention of the Lord Chancellor, they should be expunged; and that new words, calculated to remove the inconvenience alleged to exist, should be printed, and reserved for further discussion. There were close upon 30,000 people at present under confinement on the ground of lunacy. All these persons were shut up upon the certificates of medical men. He hoped the Government would take care that they were not put under restraint upon opinions which would not be admitted in the case of richer patients.

§ MR. BOVILL
said, he did not understand why they should exclude from the consideration of a jury the evidence of those on whose testimony the Secretary of State and the Lord Chancellor were accustomed to rely in deciding questions affecting the sanity or insanity of individuals and the protection of the public. He should oppose the proviso suggested by the hon. and learned Solicitor General, because it would exclude everything in the nature of evidence given by medical men which was not founded on their actual observation.

THE SOLICITOR GENERAL
contended that care should be taken that no opinion was given in evidence which was founded on mere information which medical witnesses received from other 331 people. He thought the words proposed were sufficient for the purpose, and it was not necessary to have them printed. Nobody could misunderstand them. They were these— Nor shall the opinion of any medical practitioner be admissible in evidence on the sanity of any person unless such opinion shall be founded on the existence and character of any symptom of mental disease which he may have himself observed while examining or attending such persons.

§ MR. WHITESIDE
said, he thought the proviso a bad one. It was always dangerous to legislate in reference to a particular case, which they were now doing.

§ MR. BUTT
said, he always found that medical witnesses qualified the results of their own observation by what they might have heard to have been the previous history of the patient's case, and a variety of other circumstances.

MR. MONTAGUE SMITH
said, he thought it would be better to omit from the clause the words suggested by the hon. and learned Solicitor General. The right course of proceeding would be, if there was any inconvenience in the existing mode of taking medical evidence, to bring in a Bill defining how such evidence should be taken, and make the same rule applicable to all cases. He objected to such exceptional legislation.

§ SIR HUGH CAIRNS
said, he trusted the Government would give the Committee an opportunity of seeing the words they proposed to add to the clause. If those words were found satisfactory on examination, there might, probably, be no question as to the words now under discussion. He hoped that progress would be reported.

§ MR. WALPOLE
said, it was admitted that the clause was not right as it stood, and the words suggested by the hon. and learned Solicitor General to be added would, he thought, introduce greater ambiguity than ever. If they wanted to make the law uniform, consistent, and intelligible, they ought not to create two different rules—the one applicable to one class of persons placed under restraint, the other applicable to another. The Committee ought to have time to consider the qualification which the Government proposed to insert at the end of the clause.

§ SIR GEORGE GREY
said, the division might be taken on the retention of the words in the clause; and if the Com- 332 mittee agreed to retain them, his hon. and learned Friend would not press his additional words until they had been printed.

MR. HENLEY
said, he wished to inquire whether the trial would take place in London, or a Judge be sent down to any place in the country where an alleged lunatic resided to take the trial?

THE ATTORNEY GENERAL
said, that as the trial would be before one of the Judges of the Superior Courts, the trial would take place in the Court, in Westminster in which the Judge presided, or the Lord Chancellor might direct that the trial should take place on the circuit in the spring or summer.

MR. HENLEY
said, he desired some more decided information upon the point. These questions could not wait six months for a decision, and it would be a very serious thing to bring witnesses up from Northumberland or Cornwall to London.

THE ATTORNEY GENERAL
said, he would undertake that the matter should be considered before the report.

§ MR. WALPOLE
said, that the new process would be more expensive than the old one; because if the Lord Chancellor, or the Lords Justices who represented him, differed from the Court which tried the issue, there might be a new inquiry. Why should not the Lord Chancellor himself try the whole case?

THE SOLICITOR GENERAL
said, that his right hon. Friend seemed to desire the abolition of trial by jury in these cases. [Mr. WALPOLE: No, no!] Under the Bill there would be no more trials than under the existing law.

§ SIR HUGH CAIRNS
said, the clause provided for the appointment of shorthand writers to take notes of the proceedings in lunacy, and he wished to express his opi- 333 nion, that the adoption of such a course would not save time or expense.

§ MR. ROLT
said, he thought that the existing practice of the Judge taking down the pith of the evidence was the best that could be adopted.

THE ATTORNEY GENERAL
observed, that the clause was permissive only, so that a shorthand writer would be appointed only where such assistance was thought necessary.