Lords Sitting of 12 February 1833

MINUTES.
Papers ordered. On the Motion of Lord ELLEN BOROUGH, Accounts of the Foreign Trade with China; and of the Trade of the East-India Company; and by Private India Ships; also a Prospective Estimate of the Finances of India, &c.
Petitions presented. By Lord SUFFIELD, from Walston, for the Abolition of Negro Slavery.—By a NOBLE LORD, from Kirkinner and Serby, for the Better Observance of the Sabbath.

REGULATIONS FOR LUNATICS.
The Order of the Day for a Committee on the Lunatics Regulation Bill was read.
Lord Wynfordsaid, he had a strong objection to the principle of the Bill. He believed it would work mischief instead of good, and that at considerable expense to the very individuals who deserved protection on the score of their misfortunes. It would, in his opinion, prove a heavy burthen on their property. Their Lordships had not before them any facts upon which such a Bill ought to be founded; in truth, no means whatever had been submitted to them of forming an opinion. The Bill had two objects—to amend the mode of issuing commissions of lunacy, and to appoint Commissioners who should look to the proper treatment of the lunatic's person. Whether the Crown at present actually possessed the power vested in it by the first section—of issuing a commission to one individual or not, had been matter of doubt to him yesterday; but upon consideration, he had come to the conclusion that it did, and, consequently, there was no occasion for the first section of the Bill. This Bill proposed

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to take the business connected with the Commissions of Lunacy out of the hands of the Court of Chancery; but he had never heard any complaint of the way in which the Court of Chancery had discharged that duty. Three persons were to be appointed as Commissioners, but how they were to perform their duties did not appear. If the Commissioner—for a feature in the Bill was, that proceedings might be instituted before one Commissioner—who commenced the proceedings was taken ill, a new Commissioner must be appointed, and the whole case begin de novo. The Bill, in fact, went on the assumption that the Court of Chancery neglected its duties, but he (Lord Wynford) had never heard one complaint of the manner in which it exercised its powers. At present, lunatics were referred to the superintendence of a Master in Chancery, and if they were not treated with due care, the Master did not do his duty; for it was his function not only to look to the lunatics property, but see that every comfort possible in his unfortunate condition was afforded to him. The noble Lord then entered into a detailed account of the superiorities of the present over the proposed system. Was it fit that lunatics who had but small property should have a great portion of that property expended by a set of Commissioners, who were to be strewed about the country? By this Bill, three Commissioners, two clerks, and five new officers were to be created, to be paid for either by the State or out of the property of the lunatics, and it was not fitting, in these times of economy and retrenchment, that any new office should be created without showing a necessity for it. No such necessity had been shown in the present case, and therefore the measure was uncalled for; in fact, they were legislating in the dark, without one scintilla of evidence to guide them.
The Earl of Eldondid not mean to oppose the Bill, but to state the result of his experience as Lord Chancellor. The custom of the country ever since Edward 3rd, had been that the Crown had the custody of persons in the condition of lunatics, but the power of the Lord Chancellor over Lunatics did not vest in him by virtue of his office of Lord Chancellor but by a separate commission. Yet it was impossible for the Chancellor to attend personally to all lunatics, and, therefore,
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it became necessary for Masters in Chancery, and other persons, to assist him in such matters, not as Chancellor, but as Commissioner of Lunacy; and he hoped that no Master in that Court would be found who would not give every assistance in his power to the Lord Chancellor in that capacity. He would merely give it as his own humble opinion, that he would much rather that there should be three Commissioners than one; for it was a subject of the very greatest importance into which they had to inquire—namely, the finding out whether a person was of sound mind or not. As the law at present stood, the Court had not the power of ordering out of the estates one farthing of the costs to which an individual might be put in upsetting a Commission of Lunacy after the Jury and Commissioners had found that the person was a lunatic. The Bill was no more than doing by an Act of Parliament, an act which might be done without one; however, if it was persisted in, he would do all in his power to render it as perfect as possible. It was a most difficult thing to point out the best class of men to inquire into such a subject, for they often found that even the medical men who had paid most attention to the matter, very often differed in their opinions upon the same cases.
The Lord Chancellorwould feel the same satisfaction, which he was sure would pervade the minds of their Lordships, at affording every accommodation to the noble Lords who had addressed the House, with respect to the days for which the future stages of the Bill should be fixed. The next stage which was appointed for an early day next week, he had no objection should be then postponed to the same day in the succeeding week. He must take the opportunity of thanking the noble Lord for the pains he had taken on the present occasion, as well as when the Bill was before the House on a former one. But there were one or two things that seemed to have been misapprehended by the noble Lord who had last spoken, and they required that he (the Lord Chancellor) should take that opportunity of correcting those mistakes. The Bill proposed two objects; first, to lessen the general expense of proceedings in lunatic cases, and to improve the machinery for carrying Commissions into effect. The next was one in which he hoped and believed the Bill would be successful: it

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was to amend the treatment of those unfortunate beings, who, according to the old phraseology, were designated as "the Chancellor's idiots." The first object was proposed to be attained by declaring, in the usual terms of Declaratory Acts, that the Crown possessed a power of issuing a Commission to one individual, as well as to more. The noble Lord who last addressed the House, had stated that the Chancellor was not necessarily the person to whom the Commission was directed, or lunatics intrusted, and that the jurisdiction he possessed was derived under a different Commission. This was perfectly correct—so much so, that in ordinary parlance, the Lord Chancellor, or the Lords Commissioners, or the Keeper of the Great Seal, were variously appointed in the same Act under the Sign Manual; but for centuries the practice had been to intrust the custody of those unhappy individuals to the Lord Chancellor. From this had arisen a most fortunate circumstance, namely, that the Lord Chancellor, in whose hands the power was placed, was a total stranger to the questions brought before him. Such being undoubtedly the state of the law, there was no substantial difficulty on that point, nor was there any question whether the jurisdiction alluded to formed part of the Chancellor's ordinary authority. The Bill had as its first object to declare explicitly that the Crown could issue a Commission to one individual. Upon that matter a doubt at present existed. Was it not, therefore, proper to remove the doubt by positive enactment? For if the doubt was well founded, the existing laws were insufficient for their objects—if ill-founded, it was wise to remove it altogether by an express provision in a Declaratory Act. The noble Lord who first addressed the House stated that he had no doubts on the matter; that, beyond all question, the Crown could issue the Commission to any given number of persons; but then he stated a circumstance which directly negatived the inference he wished to draw from his own clear conviction. What had he said? That not twenty-four hours ago, he had not only entertained doubts, but actually been of the opposite opinion—actually thought, not twenty-four hours since, that the Crown did not possess the power. If a person of the noble Lord's powers of reflection, of so much learning and experience—if so considerable a per-
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son as he, not only within the last twenty-four hours entertained doubts, but had been of the opinion directly contrary to that which he held at present, was it not desirable to remove all possibility of doubt? If, peradventure, a person—not the noble Lord, but one similarly circumstanced, who had changed his opinion within twenty-four hours—as soon as the Bill had been withdrawn, in deference to him, should come back to his former opinion, and say: "True, that I thought the Crown possessed the power—that I then had doubts—that again I had no doubts on the matter—still a new view has occurred to my mind, and I have now great doubts upon it, or rather, my conviction is entirely the other way." All this was possible—the thing had almost happened within the last day; and though the noble Lord had no doubts at present, yet others might happen to feel them, and it was accordingly desirable to remedy the inconvenience. In fact, these doubts were entertained by persons of skill, learning, and experience, to such a degree, that they would not recommend him, and in that he (the Chancellor) fully agreed with them, to make the experiment of issuing, under the present law, a Commission directed to a single individual. Every search had been made by himself, and by his noble friend who preceded him in the Court of Chancery (Lord Lyndhurst), and the result of the fullest investigation was, that no one instance could be found of a Commission issued to one individual. His noble and learned friend spoke of precedents; but they must look to what prevailed in practice; and particularly when the prerogative was concerned. And the more general in any case was the exercise of the prerogative, the more strong would be the argument it favour of continuing the practice, and the less disposition there would be to depart from it. He was sure, that whoever might have the duty of advising the Crown—whether it was himself, or if his noble and learned friend should re-assume that office—he was sure that no person who held the Great Seal, would ever advise the issuing of a Commission to one individual, to inquire into cases of lunacy. The result, therefore, would be, that this exercise of the prerogative would be a dead letter. One lawyer would say there was no doubt—another would say there was a doubt—and the result would be, that what his noble

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and learned friend supposed might be the case, would not exist in practice—Commissions to single individuals would never be issued, unless a Declaratory Law like this were passed. He certainly was satisfied, from much experience, that it would, on the whole, be most convenient, that justice would be better done, and at a less expense to the parties, if, like other contested cases, questions of lunacy were tried before the Judges at Westminster. The Commission might be issued to one of them, sitting as at Nisi Prius, with all the facilities for examining evidence, and all the solemnity which belonged to the Judges. His noble friend objected to issuing a Commission to one person because he might die, or be incapacitated before the business was brought to a close. That might happen now. If the death of a Commissioner took place before the inquiry began, of course a Commission would be issued to another person; if the person died after the Commission had been opened, for that, of course, there could be no remedy in a Bill like the present. Perhaps the remedy might be found by putting three names into the Commission, allowing one to act; and should he be incapacitated, the other might go on with the inquiry. The accident his noble and learned friend supposed might happen at any Assize, and the argument of his noble and learned friend, would go to prevent a single Judge from ever sitting. Let, then, the Commission go to three, but let one execute it, and then all accidents would be provided for. One objection of his noble and learned friend (the Earl of Eldon) was applied to words which were not in the Bill when it was first introduced, and which were inserted in it, as he understood, by the suggestion of his noble and learned friend. Yes, the very words were the suggestion of his noble and learned friend, and he agreed with his noble and learned friend, that the Commission should not be limited to Judges alone, but should embrace Judges and others. He felt certainly all the difficulty of uniting Judges with persons not of equal rank and dignity to them, but still the words were the suggestion of his noble and learned friend. With respect to expense and delay, if their Lordships would only refer to what occurred last year, they would find in the spring some interesting cases, which would show the necessity of applying some re-
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medy. Six or seven days had been required to try one issue—aye, even twelve days. One Commission existed for twelve days, for two whole weeks, and it was occupied from ten in the morning to five or six o'clock in the evening, and one day to eleven or twelve at night, before the Commission could be brought to a close, and this without the possibility of imputing blame to any one. Instead of having one Commissioner, there were four or five in the Portsmouth case; he believed there were five Commissioners; and a great step towards making the proceedings less cumbrous—less expensive, would be taken by appointing one Commissioner, while a greater still would be taken by having those proceedings conducted before one of the Judges, with all the authority over the practitioners and counsel which belonged peculiarly to the Judges. He had happened to see cases of lunacy laid before Lord Tenterden, or traverses, and one of these cases, which, before the Commissioners, had occupied eight or ten days, was completely settled in two days, and another at Guildhall was gone through, and settled in one day, to the satisfaction of all parties. In his opinion, then, a great improvement would be made by assimilating the trial of cases of lunacy to the trial of ordinary issues of disputed facts, and such a mode of trial would be for the convenience of all parties. Another objection of his noble and learned friend had been directed against the proposed Board for the management and care of lunatics; and his noble and learned friend said, such an alteration should not be made, without first instituting inquiries into the number of lunatics, where they lived, and various other matters. Now it happened that he had, two years ago, taken steps to obtain that information; and he had moved for a return—which, by the bye, he had never seen, for he possessed the information without having seen it; and in moving for that Return, and when he had broached the subject, as their Lordships might see, by only consulting the Debates, he had then stated that the number of lunatics under the care of the Court of Chancery was about 400, and the amount of their property above 150,000 l; he believed nearer 200,000 l. His noble friend objected, also, to adding to the machinery of the Court of Chancery, and said it would be able to do without

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help; but, unfortunately, the reverse was the fact. Why, said his noble friend, not employ the Masters in Chancery? Why not cause them to visit the Chancery lunatics once a year? There were ten Masters, and 400 lunatics; so that each Master would have forty lunatics under his care; and, without possessing any professional skill, would have to be the medical attendant of forty lunatics, scattered about the country. But, who would do the Master's duty in his absence? It might be said, why should the Master not send persons to see the lunatics? But he had no power to send; he could not give orders to a physician to visit Chancery lunatics; and if he did, who would pay the expense? He did not expect to attain his object by sending a Board travelling about the country, as his noble and learned friend implied; that would be the most expensive plan which could be devised; but by having a Board to correspond with the medical attendants of lunatics, and exercising over them a constant and regular attention, making continual inquiries, he should ensure that care of the lunatic's person which it was necessary to take. He never contemplated sending a Board of three Commissioners, with a Secretary and Clerk, about the country; that would be the most bootless errand for the unhappy lunatics that men could be sent on. Cases came before him sometimes which excited suspicion, and if that suspicion was strengthened into a belief that something was wrong, he could then order inquiries; but there was no means of putting the Master in motion. He could only act when he was put in motion; and there was no means of bringing the matter before him. It happened, too, that those who had the management of the lunatic, the Committee of the person very often might have a direct interest in not taking steps to promote the cure of the patient, and moving to supersede the Commission. Such cases might happen; and it was in vain to say that the Chancellor might attend to them all; for it could only be from some incidental circumstances that they fell under his observation. A Board, to consist of two medical men and one Commissioner, not a medical man, appeared the least expensive, and the safest guard for the good management of lunatics which could be found. His noble friend objected that he was creating offices; but he was not to
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be deterred from his plan by such an objection. He was for abolishing useless offices; he had shown his readiness to do that, by abolishing sinecure offices in the Court of Chancery; but he never would, out of deference to popular clamour—though he did not think that the people objected to useful offices, moderately paid, but to useless offices, immoderately paid—he never would, out of deference to any clamour which was not indeed popular, but which it was, perhaps, hoped to make popular—he never would abstain from recommending the creation of useful offices, in which the work was much, and the pay moderate. Long before he had filled his present situation, and before he had the least hope or chance of coming into office, he had introduced measures into the other House, which had created what he supposed useful offices—the patronage of which he had not disposed of—and having done that then, he would not shrink from doing what he supposed to be his duty now, because his voice might have some influence in filling up the offices to be created. With reference, however, to the Board in question, it would be filled by those who had been pointed out by his predecessor, and he should recommend those gentlemen whom his noble and learned friend had originally intended for the office. with respect to the expense of this Board, he proposed that it should be met by a small per-centage on all the lunatics property in Chancery. It was said to be unjust to make the estate of one lunatic pay for the management of another lunatic; but he thought the wealthy lunatics themselves, should they recover, would be among the first to approve of such a disposition of a small proportion of their property. The noble and learned Lord concluded by moving that the Bill be committed.
Bill went through the Committee.