HC Deb 20 May 1862 vol 166 cc1974-88

Order for Second Reading read.


in moving the second reading of the Bill, which had come down from the House of Lords, said, that the Bill related almost exclusively, to Chancery lunatics. One object of the measure was to amend the mode of procedure in Commissions of Lunacy issued by the Lord Chancellor, so as not to exhaust the whole of the property of a lunatic or alleged lunatic in the expenses incidental to the Commission. The Bill also gave the Lord Chancellor additional power to apply properties of small amount for the benefit of lunatics, when satisfied that there was foundation for the allegation of lunacy; and the third object was to provide for the more effectual visitation of Chancery lunatics. There was also a clause which would enable the Lord Chancellor to make provision for criminal lunatics. The Bill was, in fact, an Amendment of the Act of 1853, introduced and passed by Lord St. Leonards when he held the office of Lord Chancellor, and which introduced most valuable alterations in the law of lunacy; and the two latter objects had already been the subject of Bills introduced into that House by the hon. and learned Member for Belfast (Sir H. Cairns). The necessity for the first part of the pre sent Bill had been suggested by the recent case of Mr. Windham, which had attracted public attention in consequence of the length of time it lasted, and the enor- mous expense which had been incurred in the inquiry. The third clause provided that the inquiry should be limited to the state of mind of the alleged lunatic at the time when the inquiry was instituted. It also enacted that no evidence should be received in proof of insanity as to anything done or said by such person, or as to his demeanour or state of mind at any time being more than two years before the time of the inquiry, unless the Judge should otherwise direct. The third limitation of this clause was intended to exclude the merely speculative views and opinions of medical men; and it provided that the opinion of the medical practitioner should not be admissible as evidence of insanity. As to the first of these provisions, it was desirable to bear in mind what the state of the law now is. Prior to the year 1858 the inquiry was not limited in point of time. The inquiry was directed not merely to the state of mind at the time, but the jury were called on to state the period from which that lunacy should date. The 47th section of the Act of 1853 provided that the inquiry should not be carried back, unless directed by the Lord Chancellor. That was a great improvement of the law. But he thought this should be altered so as not to leave this discretion to the Lord Chancellor. The reason for going back was to ascertain whether the validity of a will or a marriage would be affected by the lunacy: but by admitting these collateral subjects of inquiry, the parties whose rights would be affected by it would be greatly multi plied, while no final decision could be obtained with regard to them. These matters could be ascertained by other modes, and it was now thought better to propose that in all cases the inquiry should be as to the state of mind at the time of the inquiry. The second alteration was as to the period beyond which no evidence should be given, and that, it was thought, should be two years. This, however, might be extended at the discretion of the Judge, if he should think it necessary, to meet particular cases; such as where the character of certain symptoms might have an important bearing on the inquiry, if proved to have exist ed at a former period, and to have developed themselves subsequently into confirmed insanity. The third point touched upon a question which had occasioned, and would probably still occasion, considerable difference of opinion—the exclusion of mere speculative theories of medical men, were which often given in inquiries of this kind, and which tended to confuse rather than enlighten a jury; but it was by no means intended to exclude medical evidence. On the contrary, where a medical man had been long in attendance on an alleged lunatic, and spoke to what he had himself seen, his evidence was exceedingly important. The object of those inquiries was to judge of the acts, habits, demeanour, and conversation of the alleged lunatics; and if medical men were permitted to give their opinions as to the structure of the head, the expression of the eye, or any particular malformation, irrespective of acts done or words spoken, it would tend rather to mislead the jury than to guide them to a right conclusion. He was glad to find the following statement in the Journal of Mental Science for April with reference to this provision of the Bill:— At the first blush of this we were inclined to feel professional vanity not a little wounded, but we are bound to ask, not whether the provision is flattering, but whether it is calculated to promote the public interests by rendering judicial proceedings more certain and simple. The broad position taken by the Lord Chancellor is, that in inquisitions of lunacy the question mooted is the existence or non-existence of certain states of mind as a matter of common observation; it is not whether these states of mind are or are not conditions of disease, but whether it is a fact that they exist, and he maintains that the proof of this fact must depend on that kind of evidence which appeals to the understanding, and which gains the belief of common men unlearned in the subtleties of physiology or metaphysics. The plain expression of an empirical knowledge of observed facts relating to the mind of an alleged lunatic is the very thing which the provision contained in the Lord Chancellor's Bill aims to substitute for those speculative views and theoretical opinions which have in lunacy trials been the cause of so much waste of public time and patience, and of so much discredit to our profession. To a certain extent this provision of the Bill was already in force. A case was tried by Lord Campbell in 1850 at the Stafford Assizes, in which the validity of a will was disputed. The then Solicitor General appeared for the plaintiff, and Drs. Monro, "Winslow, and Conolly were brought down as witnesses. Dr. Monro, being put into the witness-box, was asked whether, having heard the evidence which had been given, he could say that the testator was sane or insane. Lord Campbell would not permit the question to be answered. He said he would not allow a medical man to be placed in the position of a jury. In many cases the opinions of the medical men were contradictory, and tended rather to perplex than to elucidate the subject of inquiry, and it was therefore proposed to exclude altogether mere opinion, not founded on personal knowledge of facts of which the jury could judge. There was another important change with regard to procedure. Under the Act of 1853 a jury was impannelled only in cases in which a demand for a jury was made by the alleged lunatic. The results of the Act of 1853 had been satisfactory in two respects: in the first place, it withdrew many cases from a publicity which was often very painful to the families of the persons afflicted; and, secondly, it had induced persons to apply for commissions of inquiry who otherwise would have shrunk from doing so. How the Act had worked in that respect would be shown by the following figures:—During the five years preceding the Act of 1853 the number of inquisitions was 196; during the five years which followed the Act they rose to 358; and although the option of demanding a jury was given, out of the 358 inquisitions there were only 21 in which juries had been impannelled. It might be thought therefore, that it would not be necessary to alter the law. But some of the cases in which a jury was impannelled were of great importance, from the magnitude of the interests at stake. Counsel of the greatest eminence were employed in them, and it was thought desirable in such cases that a Judge of one of the Courts at Westminster should preside, in order that the inquiry might be conducted in a manner that would be most satisfactory to the public. No imputation whatever was thrown on the manner in which the Masters in Lunacy had conducted those inquiries; but it was obvious that it would be advantageous that those cases should be pre sided over by one of the superior Judges, Counsel would be more likely to attend to suggestions coming from such a quarter, evidence foreign to the case would be rejected, the inquiry would be shortened, and satisfaction would be more generally given. The present Bill, then, would enable the Lord Chancellor to send those cases before a superior Judge instead of a Master in Lunacy. An objection had been made that the Judges were so fully employed that they would have no time for such inquiries. But when it was considered that' in five years only twenty-one of those cases had occurred, it would, he thought, be found perfectly practicable to obtain the services of one of the superior Judges, There was another provision in the Bill, which would take away the absolute right of traverse in all cases which might have been heard by a jury, leaving it, however, in the power of the Lord Chancellor to grant a new trial if he thought proper. 'Under the present state of the law the right of traverse had been exercised without the slightest benefit to the lunatic and at great expense. The Bill also proposed that after the case had been opened there should be an opportunity of examining the alleged lunatic, and that a similar examination might take place at the close. It was very generally considered, that had the examination of the alleged lunatic in a recent trial taken place at an earlier period, it would have tended to shorten the case. It was also provided that it should be at the discretion of the Judge whether the examination should be conducted in public or in private, because it was felt there were cases in which public feeling and public decency might be shocked by an examination with open doors. What he had said thus far related to procedure. The second object of the Bill was to extend the power of the Lord Chancellor, so as to enable him to deal with small properties of the value of £1,000, or of £50 per annum, without having recourse to a commission. The third object of the Bill had reference to the visitation of Chancery lunatics. In the Committee appointed to inquire into the law affecting lunatics, no point was more clearly established than that an immense improvement in the care of lunatics resulted from proper and regular visitations; but he was sorry to say that the law did not extend to Chancery lunatics the same protection that it afforded to other classes of lunatics. The visitors were under the obligation to visit the Chancery lunatics only once a year, and the interval between the visitations was not fixed. The number of lunatics under the care of the Court was about 650, and their incomes amounted in the aggregate to about £350,000. About 300 of the lunatics were in licensed houses, and the remaining 350 resided in their own houses, or were placed with their relatives, or with persons selected by the latter. Their places of residence were therefore scattered all over England. By the present Bill the visitation would be altered. The recommendation of the Committee before which Lord Shaftesbury and other members of the Lunacy Board were examined, was that the visitation of Chancery lunatics should be intrusted to that Board, the Lord Chancellor retaining full authority as to their property. The Lord Chancellor was willing to adopt this recommendation, and only abstained, from doing so in con sequence of the strong objections raised to it by the Board itself. It was therefore proposed, that in addition to the legal visitors, who are to be retained, two medical visitors should be appointed, who should be withdrawn entirely from their profession. It would be obligatory on these visitors to visit this class of lunatics at least four times in the year, and such visits were to be so regulated as that the interval between the visits to each lunatic should in no case exceed six months. If the House agreed to this proposal, these unfortunate persons would be looked after in a more efficient way than they hitherto had been, and every precaution taken for securing them the greatest amount of comfort that could be extended to persons in their condition. He had now explained the general purport of the measure, and he apprehended that there would be no objection to the second reading.


said, he did not rise to offer any opposition to the Bill, in the greater part of the provisions of which he fully concurred. With respect to the visitation of lunatics, and the mode of dealing with small properties, it would be extremely useful; and he regarded the proposed change, by which the inquiries before a jury respecting lunacy were to be made by an issue to one of the Superior Courts of common law, as a great improvement. It was impossible to find fault with the way in which the officers before whom these investigations had hitherto taken place had conducted the inquiries; but, as the Secretary of State remarked, there was one conclusive reason for the change—because, after an expensive trial before a Master in Lunacy, and a decision establishing lunacy, the lunatic might the very next day traverse the finding; and then that traverse would have to be tried by a Judge of the Superior Courts. Therefore the proposition embodied in the present Bill was calculated to save time and expense. There were one or two points in respect to which he thought the Bill needed revision, and which he should mention in the hope that the Government would reconsider the propositions which they made. The Bill, for instance, provided that no evidence should be taken as to anything which might have occurred more than two years previous to the institution of an inquiry under its operation. Now, he felt assured that in ninety-nine cases out of 100 it would not be found necessary to go further back; but there were, nevertheless, very serious objections to defining the time to so sharp a limit. What magic, he should like to know, lay in a period of two years? What, moreover, would be likely to be the result of fixing upon it as the boundary beyond which the inquiry must not extend? The House was well aware that in many cases the friends of a person who was supposed to be afflicted with the infirmity with which the Bill proposed to deal, were very unwilling, till the last moment, to take steps which would make that infirmity the subject of a public investigation; but under the operation of the provision to which he was referring, they would be led, perhaps, to precipitate an inquiry which might be very properly and conveniently delayed, under the apprehension that unless that inquiry were instituted within two years they would be debarred from adducing certain evidence as to the state of mind of the alleged lunatic. He might further observe, that although, technically, inquiries such as those of which he was speaking were not conclusive, yet that, practically, it rarely occurred that when once a verdict establishing the sanity of any one had, after a full and satisfactory inquiry before a jury, been established, the state of mind of that person was subsequently challenged. If, however, the time within which the scope of the inquiry should be confined were fixed as proposed, the result might in many instances be that on the death of the alleged lunatic a controversy would take place with respect to his will, when those who opposed it would be, perhaps, induced to renew litigation on the question of the sanity of the testator, in dealing with which question there would be no limit as to the time over which the evidence might extend. If, however, evidence on the original inquiry had not been limited, but had been allowed to spread over any length of time, they would hardly deem it expedient to take that course. The provision as it stood, therefore, left open, in his opinion, a door for future litigation. It would, under those circumstances, he thought, be better to leave the law in that particular respect as it stood. He wished, in the next place, briefly to advert to the clause in the Bill which set forth that "the opinion of no medical practitioner was to be admissible as evidence of the insanity of any person." Now, he quite concurred in the view that the evidence of a medical man who had never previously seen or examined the alleged lunatic was worth very little. The late Lord Chancellor had, he might add, re fused to admit such speculative evidence in a well-known case; so that an Act of Parliament was not necessary to effect its exclusion. The real operation of the clause in question would therefore be to prevent a medical man who had known and examined the alleged lunatic, and was perfectly well acquainted with his appearance and demeanour, from giving any opinion as to his sanity or insanity, while every cab-driver or crossing-sweeper who had ever known or listened to him would be admissible as a witness in the case. This appeared to him to be a great anomaly. He for one had no prejudice in favour of the testimony of those who were known as "experts," but he thought it wrong that the medical practitioner should, under the circumstances which he had mentioned, be the only person whose evidence would not be received. He wished also to point out how great the anomaly would be of allowing any amount of evidence, so far as related to the time over which it was spread and the persons by whom it was given, to be taken before the tribunal under the authority of which the commission in lunacy was issued, while, in both respects, a certain limit was assigned when the commission was issued and the case came before a jury. He should merely refer, in conclusion, to the provision contained in the Bill for the appointment of a shorthand-writer to take down the evidence adduced in the investigations in question, and the reception of his notes as evidence, with the view of "saving time and expense." Now, if the making of such an appointment were calculated to save time and expense, why was such a course not adopted in every instance of a trial before a jury? The fact was, that the employment of a shorthand-writer was calculated to effect no such saving, because, when a witness was being examined, the opposing counsel, as well as the presiding Judge, had to take down notes of the evidence, and the witness had frequently to be requested not to speak too rapidly, or to cease speaking at a particu- lar point, in order to admit of their doing so. If, on the other hand, the Judge were to depend on the shorthand-writer's notes, then he would be obliged to adjourn the Court until they were transcribed, before he could deliver his charge to the jury. Unless, therefore, all the parties who were obliged to take down the evidence were able to write shorthand, no saving of time would be effected. He had merely mentioned these objections to the Bill as it stood in the hope that the Government would take them into consideration before it went into Committee.


agreed with the Committee which inquired into the subject that there was no reason why Chancery Commissioners should be appointed at considerable expense to pay rare visits to Chancery lunatics, when every other lunatic in the kingdom was visited much more frequently by persons who were well acquainted with all the circumstances of each individual case, and who were much more competent to the work than any Chancery visitors that could be selected. The only reason that could be alleged for the appointment of Chancery Commissioners was, that the ordinary Commissioners in Lunacy might not be able so conveniently among themselves to arrange for the supervision of Chancery lunatics, in case there should be an interference on the part of some Chancery authority. He could not understand, however, why there should be any interference on the part of the Chancery authorities, or why Chancery lunatics should not be visited by the same persons who took charge of every other class of lunatics in the kingdom. The present Bill was, no doubt, a great improvement upon the existing law, and he was not prepared to oppose the second reading; but he should probably think it right in Committee to propose another method of supervising Chancery lunatics. He gave his cordial assent to that part of the Bill which extended the existing provisions for applying the property of Chancery lunatics more conveniently for their comfort, and he should be glad to see those clauses passed into law. The only other part of the measure upon which he wished to make one or two observations was the way in which it was proposed to deal with those alleged lunatics against whom commissions might be issued, and the mode of inquiry into the state of their mind. Per- haps he was going to state an opinion which, with many persons, would not be very popular, as regarded the care which ought to be taken before persons who possessed property were put under restraint; but he had thought a good deal on the subject. There were nearly 40,000 persons subject to the lunacy laws in this country. A vast number of those persons were put under care and treatment without any injurious publicity, not by any expensive inquiry, but by, proper certificates to the effect that the cases were such as required confinement. The law as it originally stood with respect to Chancery lunatics was that in all cases there should be, not only an inquisition, but a jury. Many persons hesitated about the alteration of the law upon that point; but no jury was now empannelled to try such cases, except in the few instances where the alleged lunatics might desire it, or their friends on their behalf. And what was the result? Instead of every case being made public, much to the detriment of the alleged, lunatics and their relatives, only a very few were tried by juries, and no complaints were urged either by the lunatics themselves or by any person on their behalf against the new system. The alteration of the law, therefore, had answered its purpose. But he was sorry to say that the few trials which did take place before juries were struggles, not for the benefit of the alleged lunatics, but because there were different views taken by those who wished to have the management of their persons and their property. He believed, indeed, that there was little advantage in having a jury at all, and he was sure that the Lord Chancellor himself was the person who ought to decide whether the alleged lunatic should be put under care and treatment or not, unless it struck his mind that there should be a fuller inquiry than he could give to the case. The only reason why Chancery lunatics were more likely to be confined improperly than other persons was that they possessed property which their friends desired to get hold of. That was a good ground for affording them additional protection; but granting, for the sake of argument, that there should be a jury trial in the majority of cases, why should the matter be transferred to another tribunal? The whole case was before the Lord Chancellor, and if it was necessary to have a jury, why could the Lord Chancellor not have it then and there? Why go to another court at all? The whole of that part of the Bill was merely a provision for encouraging struggles and increasing expense. As to the few instances where there was a necessity for having a jury—the number did not exceed three in every seventy—the Lord Chanceller or the Lords Justices ought to conduct the inquiry, publicly or privately, as the case might be. It might be said that this was not a usual proceeding in the Court of Chancery; but he contended that the Lord Chancellor or the Lords Justices could try such cases quite as well as any court of law. The effect of the alteration he suggested would be to diminish the number of cases sent to a jury for inquiry, instead of increasing them, which would be the result of transferring them to another tribunal. Supposing, however, that the cases were to be sent to another tribunal, then he agreed in all the observations of his hon. and learned Friend the Member for Belfast (Sir H. Cairns). He could not conceive why the evidence should be limited to two years before the commencement of the inquiry. In many cases it might be only fair to the alleged lunatic that the state of his mind should be shown to have been strong and firm anterior to the period stipulated in the Bill; because the circumstances under which his mind had given way might have been merely casual, and the fact that throughout all the earlier part of his life he had never been afflicted with mental disease was a strong argument in his favour against the necessity of declaring him to be incapable of managing himself and his affairs. On the other hand, there could be no doubt that when a person was afflicted in this manner, and had evinced, on former occasions a tendency to commit dangerous acts, it would be detrimental both to him and to society to exclude evidence of these facts, which showed that the malady under which he was suffering was not a casual aberration of mind, but rather a repetition of a state which he had exhibited before. With respect to the exclusion of the opinion of medical men, he could not understand how such a provision could have found its way into the Bill, except upon the supposition that it was simply intended to prevent doctors from saying, after they had heard the evidence of others, "From what we have heard in court, we think the alleged lunatic is (or is not) of unsound mind." Of course, such evidence as that never ought to be admitted. It had, unfortunately, been admitted too often lately; but it had been excluded by the ruling of Lord Campbell, and there was no necessity for any alteration of the law in that respect. Such being the provisions of the Bill, thinking, as he did, that juries ought to be resorted to as little as possible, he hoped that the few eases where inquiry was necessary would be determined by the Lord Chancellor or the Lords Justices, instead of being sent to a different tribunal. He hoped the right hon. Gentleman would apply his mind to the points he had mentioned, and endeavour to devise some means of removing the objections to some parts of the Bill.


said, that he regarded many parts of the Bill with approval, but as to some points he concurred in the opinion of the hon. and learned Member for Belfast (Sir Hugh Cairns.) He objected to the clause which limited the inquiry to a period of two years; and he could not understand why the opinions of medical men should be excluded whilst the opinions of all other persons were admitted in evidence. He hoped that the Government would modify these parts of the Bill. He must express his surprise at hearing his right hon. Friend (Mr. Walpole) say that there ought to be even the possibility of a man being treated as a lunatic without his having the option of going before a jury; for though it was perfectly true that out of 328 cases of lunacy there were only twenty-one in which juries were required, still it was impossible to compute how many more charges of lunacy there would have been if the alleged lunatics had no power to demand a jury. No man, in his opinion, should be confined as a lunatic until the question of his sanity or insanity had been decided by a jury. The advantage of the right to demand a jury was shown forcibly in the Windham case; for if there had been no power to demand a jury, that gentleman would, no doubt, have been treated as a lunatic for the whole or a large portion of his life. There was a case, some years ago, in Wales, where a man's family combined to charge him with lunacy; but the jury were unanimously of opinion that he was of perfectly sound mind, and he had managed himself and his affairs ever since; though, but for having a jury, there might have been this monstrous injustice that the man would have been treated as of unsound mind. He entirely agreed with having only twelve instead of twenty-three jurors, and that the trial should be before one of the Judges of the Superior Courts. Many parts of the Bill, he thought, were admirable; but others would, no doubt, require much modification.


hoped that in Committee that part of the Bill which related to the visitation of Chancery lunatics would be amended. It had been proved before the Committee, that when a person visiting Chancery lunatics saw something that he thought it would be beneficial to the lunatic to mention, such was the machinery of the Court of Chancery that the statement was struck out of his report as impertinent, he not having been directed to ask any questions upon that particular point. He hoped, therefore, the visitors would have full power to report anything which they considered it was for the advantage of the lunatic to make known, whether the Chancery people thought the information impertinent or not. He also thought the period of six months should be changed, as, although it was intended that the visitation should take place four times a year, yet if the visitors went at the beginning of one period of six months, and at the end of the succeeding period, there would be only two visits a year. In the Bill, as it stood, medical evidence was to be excluded; but if that provision were maintained, a greater anomaly than any which now existed would occur; because, while medical evidence would be excluded in the cases of Chancery lunatics, the number of whom was comparatively small, the great muss of lunatics, not Chancery lunatics—some 29.000 in number—were confined upon medical certificates alone. The opinions of medical men who had not seen the lunatic, but only heard the evidence of witnesses concerning him, ought not to be admitted; but medical men in their certificates were required to state the facts which had led them to their conclusions; and it was absurd, that while lunacy was regarded as a disease, the medical man who had seen and examined the patient should not be allowed to express his opinion in reference to symptoms which a non-medical man would not have observed.


said, that as there would be an opportunity for full discussion upon details in Committee, he would only notice one or two points that had been raised that evening. Objection had been taken to the limitation of the inquiry into the state of mind and conduct of the alleged lunatic to two years. The object of that limitation was to devise a remedy for an existing evil. At present, the inquiry was directed into the state of mind of the alleged lunatic without any limit of time—it might ex tend over a man's whole life, and in the Windham case did go back more than twenty years. In order to provide a remedy for this state of things, some limit must be fixed; and though there was no particular charm in two years, that period would, he believed, give sufficient scope for the evidence. As to the opinions of medical men, what was proposed was not so much a change in the law as an authoritative exposition of the law as it already was, so as to make it accord with the general rule of evidence, which excluded mere opinion, except in cases where persons of ordinary knowledge and intelligence could not come to a proper decision without the guidance of experts. Medical men were now called upon to give their opinions upon the state of mind of an individual at a given time; but, after hearing evidence, persons of ordinary intelligence were capable of arriving at a just conclusion for themselves upon such a point. Judicial practice had not been very harmonious or decisive upon this point, but upon principle he thought that such evidence ought to be excluded. It was said that the Commissioners in Lunacy ought to be substituted for the visitors under the Lord Chancellor, but the Com missioners had stated their inability to undertake the duty, and he thought it was not desirable to force duties upon them, considering that, to a great extent, their services were given gratuitously to the country.


approved generally of this Bill, which introduced a great improvement in the law, but he was opposed to the third clause, regarding the limitation of the inquiry. The limit of two years was a monstrous interference with the rule of evidence. Surely the question of the sanity or the insanity of a Chancery lunatic was as much a question of fact as the competency of a testator to execute a will, or the question whether a man's state of mind was such as to make him accountable for a murder. In such cases even the fact that a man's father was a lunatic might be material. He did not think that the Judges would like the discretionary power which was given them in this matter, which would necessarily lead to a difference in the practice of the courts.

Bill read 2o, and committed for Thursday, 5th June.

House adjourned at half after Eight o'clock.