§ LORD LYNDHURST
said, that the object which he had in view in moving for the Returns of which he had given notice, was to lay the foundation for extending the provisions of an Act which he had himself brought in in 1842 for the better administration of estates in lunacy, where the proprietors had been found lunatic under a commission. In order that the subject he was about to introduce might be made intelligible, he would beg leave to call, in a few words, the attention of their Lordships to the administration of justice in lunacy previously to the introduction of the Act which he had just mentioned. Before that Act the commission in lunacy was directed to three persons, generally named by the attorney suing out the commission, and residing near the place where the lunatic lived, who were to act as commissioners. As these places were frequently remote and obscure places, it happened not seldom that these commissioners, who were appointed to inquire under the authority of the Great Seal, were but little informed of the duties which they had to discharge. It was, therefore, no wonder that their returns were often set aside on account of irregularity or insufficiency. He had seen a list of such returns, and they amounted in ten years to 60. He did not go so far as to say that in all cases their returns were quashed, but in many cases they were so; and, therefore, it was necessary to have a new commission and a new inquiry by a new jury at the expense of the estate of the lunatic. In addition to this, the commissioners were paid not by salaries, but by fees. Each of them received 5l. a day during the time he was discharging his duty as a commissioner, exclusive of certain fees to which he was entitled. This applied to commissions worked in the country; but the fees which the commissioners received in London were double the amount of the fees received in the country. Thus the commissioners received in the country 20l. a day, and in London 40l. a day. In the case of Lord Portsmouth, which was a London case, the fees paid to the commissioners amounted to no less a sum than 1,070l.; in the case of Mr. Davenport to 500l.; and it was a usual thing for them to amount to some hundred pounds. 349 Besides being paid by fees, the members of the jury which sat in the case were each paid a guinea a day; and the solicitors on each side were remunerated according to the length of the duration of the commission; so that of all the parties engaged in it none were interested in shortening the inquiry or in bringing it to an early termination. Formerly a very great abuse prevailed, to which he put a stop as soon as he became acquainted with it. At the end of each day the parties engaged under the commission assembled at some tavern or in the neighbourhood to partake of an entertainment at the expense of the lunatic—refreshing themselves for their labours at the end of the day, according to the advice of the poet—Tu sapiens finire mementoTristitiam vitæque laboresMolli, Plance, mero.He had objected to the practical application of these lines in cases of lunacy. This expenditure he had already stated, was at the expense of the lunatic, or alleged lunatic. After a verdict was obtained under the commission, the proceedings were transferred to the office of a Master in Chancery, with all the expense, uncertainty, and delay which attended that ancient but worn-out and condemned establishment. By the Act of 1842, which he had introduced, all the business in lunacy was transferred to two Commissioners, named in the Act, who were both gentlemen of great learning and experience. When a commission is to be executed, one of them goes to the spot where the alleged lunatic resides, summons a jury, and presides over the inquiry. After the verdict is found, the Commissioner being on the spot, and surrounded by the relatives and friends of the lunatic, examines them on vivâ, voce evidence, and obtains from them all the materials necessary for conducting and administering the affairs of the lunatic's estate. He also ascertains who is the next of kin to the lunatic, who is his heir at law, what is the extent of his estate, what should be the nature of the allowance made him, and who are fit persons to be committees for his estate and person. All these matters were formerly to be established in the Master's Office upon numerous affidavits, and at great expense to the lunatic's estate; but now the Commissioners have interviews with the relations of the lunatic, and the arrangements are made in a manner agreeable to all the parties who happen to be interested in the estate of the 350 lunatic. Such were the objects of the Act which he introduced. His noble and learned Friend (Lord Cottenham) opposed it; but only upon one ground. He said that it would be impossible to transact all the business in lunacy by two Commissioners. He (Lord Lyndhurst) differed from his noble and learned Friend on that point; and time and experience had since proved that he (Lord Lyndhurst) had formed a correct judgment of the powers of the Commissioners to transact business. Every commission is now executed within a few days from the time at which it is issued. All matters connected with the management of the lunatic's estate are now transacted not in the Master's Office, but in the office of the Commissioners. Except in the first year after the working of the Act, there never were any arrears of business in their office. In that year there certainly was an arrear, in consequence of an immense accumulation of business having been transferred from the Master's Office to theirs; but at the end of that year the arrear was worked off, none had accrued since, and the manner in which the business had been transacted had given satisfaction to all persons in the profession. He should now proceed to explain the alterations and extensions which he meant to propose in the present system on conducting business in lunacy. He had intended to propose them as soon as he had acquired experience of the working of his Bill. He had, however, given up the custody of the Great Seal before he could carry his intentions into effect, and since then everything had remained stationary. Now it was material to call the attention of their Lordships to the expense of managing the estate of a lunatic. In every instance where anything was to be done, an application must be made to the Lord Chancellor, not in his character and capacity of Lord Chancellor, but in his character and capacity of guardian of lunatics, acting under a warrant from the Crown under the signmanual. The Lord Chancellor made an order upon such an application, and a reference was then made to the Commissioner to inquire into the matter. He made his inquiry and report. Another application was then to be made to the Lord Chancellor for the confirmation of the report; and after the report was confirmed, another application to the Lord Chancellor was necessary to obtain an order to carry the report into execution. This circuitous 351 mode of proceeding was attended with great expense. Take, for instance the case in which a lease was to be granted, reserving a rent of 20l. a year. Application must be made to the Lord Chancellor; and what did their Lordships imagine was the average amount of expense necessary to obtain power to grant such a lease? It was about 60l. or 70l., and it would not be less for granting a lease with a reserved rent of 20l. a year. Take also another instance where repairs were to be made. Nothing could be done without application to the Lord Chancellor, and where the repairs only amounted to 50l., there would be a bill of costs to the same amount for obtaining leave to make them. So, with respect to many other things, in administering the estate of the lunatic, in appointing a new committee for his person or for his property, and for varying any former arrangement, and in fact in every variety of circumstance constantly occurring in the administration of every estate, expense must of necessity be incurred. To put an end to such expense, what was it that they recommended? He wished to call the attention of the Lord Chancellor to a mode of proceeding which might put an end to this, somewhat similar to what had been done under the Winding-up Act, and under the Irish Chancery Act of last Session. What he proposed was, that in correspondence with the provisions of those two Acts, an order should be made in the first instance, not by the Lord Chancellor but by the Master in Lunacy—that is, by the Commissioner in Lunacy, for he is known by both names—and that his order should be binding and conclusive on all parties, if it were not appealed from to the Lord Chancellor within a given time —say seven or ten days. In this way an immense saving of expense would be made. He had mentioned the Winding-up Acts and the Irish Chancery Act as authorities for the alterations which he recommended, and he trusted that his noble and learned Friend on the woolsack would consider his proposition. There was also another material point connected with the administration of estates in lunacy. It did not appear to him at all necessary that the commission should actually issue in all cases. In bankruptcy the commission was dispensed with, and the fiat was issued, and had the same effect as the commission. He proposed to follow this precedent—that the commission should be dispensed with, and that the fiat of the Lord Chancellor should 352 have the same effect as the commission. More material still was the expense of the grant of the custody of the personal estate of the lunatic under the Great Seal. It cost 25l. He proposed that that grant should not be continued, but that the order to the Commissioner, to which the Great Seal is affixed, should have the same effect as a grant from the Great Seal, whereby the whole expense would be saved. He came next to a consideration which was of more importance and of considerable difficulty, namely, the time of inquiry into the fact of lunacy by the Commissioner. That time often run to a very great length; for although there might be no question of law in the case, there might be a conflict of evidence as to facts. The mode of proceeding was very simple. The counsel prosecuting the commission opens his case and calls his witnesses. When that is done, the counsel appearing for the lunatic, or the alleged lunatic, also states his case and calls his witnesses. Then the counsel prosecuting the commission makes his reply and comments on the evidence. It is like an ordinary case at assizes. The length to which the inquiry runs arises from the conflict of evidence, and from the number of witnesses on one side or the other. For instance, a number of medical men are called on one side who affirm the lunacy, and this renders it necessary to call a number of medical men on the other side, if there be any who affirm the sanity. He did not know how this part of the inquiry could be shortened. It must he left to the counsel prosecuting the commission to say what witnesses are required to establish his case, and to the counsel on the other side to say what witnesses are necessary to establish the sanity of the alleged lunatic. You could not, then, shorten that part of the inquiry without incurring the risk of doing injustice. There was, however, one consideration to which he wished to call the attention of his noble and learned Friend on the woolsack, as calculated to abridge the extent of the inquiry to a very considerable extent. The inquiry at present is not confined to the period when the commission issues, or to the time when the inquiry is going on— but it may go back for as many years of the alleged lunatic's life as the Commissioner thinks fit to examine into. The inquiry is not limited as to this or that day; but it may run through many years of a man's whole life, and thus may be indefinitely prolonged. What advantage was 353 to be derived from this mode of proceeding was not apparent. Moreover, the finding of the jury upon such an inquiry was not conclusive upon any person who was not a party to it—for instance, if the lunatic has contracted a debt subsequently to the period to which the verdict applied, nothing could prevent a creditor from going into a court of justice to prosecute his claim for it, or from attempting to establish the sanity of the lunatic at the period when he contracted it. The finding of the verdict of lunacy was merely primâ facie evidence against the debt. The result of the first inquiry is not conclusive, and practically no advantage is derived from carrying back the inquiry to a period prior to the issue of the commission. Now supposing, for the sake of argument, that some advantage arose from that mode of procedure, still it was not sufficient to compensate the expense entailed on the estate by the prolongation of the inquiry; and he (Lord Lyndhurst), therefore, submitted it to the consideration of his noble and learned Friend on the woolsack, and of his other noble and learned Friends in that House, whether it was not advisable to abandon this part of the inquiry, or to reduce it within narrow limits, which might either be fixed or left to the discretion of the learned person who conducted the inquiry. There was also another material circumstance connected with the execution of the Commission, to which he wished to draw their Lordships' attention—the question of costs. It sometimes happened that some individual got hold of the lunatic, or the alleged lunatic, and, under the pretence of protecting him, induced him to incur great expense, in order to put the costs of resisting the inquiry into his own pocket. Now, it was difficult to exercise control over conduct of this description; but he proposed that their Lordships should consider whether such a practice could not be checked by investing the Commissioner with a discretionary power to limit the costs as he thought proper, when he saw misconduct of this nature, and to award such an amount of them as would meet the justice of the case. He well knew that an impression had gone abroad that the length of the inquiries in cases of lunacy was intolerable. He had taken some pains to inquire into the facts connected with this point. In the last ten years not more than nineteen out of the great mass of Commissions had occupied more than one day, and not more than five had occupied more than 354 two days; so that the very long inquiries were not the general but the exceptional cases. Their Lordships ought not to suppose that these very prolonged inquiries had reference to matters of lunacy only. Cases of similar length occasionally occurred both in the courts of common law and in those of equity, and they arose from a conflict of evidence. Not a long time ago there was a case of fraud in one of the Courts of Chancery which occupied that Court for fifteen days. It was decided in that Court, and afterwards went before the Lords Justices on appeal, where it again occupied the same time. He had had some experience in the cases of which he spoke. [Lord BROUGHAM: Small v. Attwood.] In one case a commission of lunacy had issued, and only three or four hours were 'necessary to establish unsoundness of mind against the lunatic. Some time afterwards the case came before him as Lord Chancellor, when it was sought to set aside the Commission, on the ground that the lunatic had recovered his senses; and on this point there was a great conflict of evidence. Witnesses were brought from Paris to establish the sanity of the lunatic. He had also been examined by several medical men in Paris, who upon affidavits declared him to be sane. A similar inquiry was therefore instituted by medical men in England. Some of them declared the lunatic sane; others gave contrary evidence. The case was conducted before him as Lord Chancellor by his noble and learned Friend opposite (Lord Truro), for Mr. Dyce Sombre, with his usual ability. There was no waste of time; there were no irrelevant topics introduced; but there was a great conflict of evidence. The inquiry was long, and he was ultimately of opinion that the sanity of Mr. Dyce Sombre was not established. After he had made up his mind on the subject he had a long conversation upon different topics with the lunatic, who appeared perfectly sane for some time, and he (Lord Lyndhurst) did not know what to make of the matter; but afterwards, Mr. Dyce Sombre) got excited, and said that he had been offered a Peerage by a certain nobleman on condition that he would not expose overtures which had been made to him by ladies of high rank and station. By-and-by the lunatic got more and more excited, and said there was no doubt of the fact. He (Lord Lyndhurst) asked him the name of the nobleman who had waited upon him; but he replied that the communication had been a confidential one, and 355 that he could not venture to divulge it. As a matter of curiosity, he (Lord Lyndhurst) then asked the lunatic who the ladies were; but the reply was—that this was a point of honour, and could not he disclosed; he still, however, adhered to the same story. Afterwards another application was made before Lord Cottenham to supersede the Commission, and the proceedings extended to the same length as before, the result being that that noble Lord refused the application upon the evidence which came before him. In the early part of the inquiry, before the issuing of the Commission, that gentleman had sent a challenge to the Archbishop of Canterbury. He said to him, "You must give me satisfaction. Meet me in Hyde Park. I shall expect to see you on a white charger. I myself shall meet you on a black charger." This happened at an early part of the inquiry, the jury were satisfied of his insanity, but after two years he was supposed to have recovered his senses, and an application was made for a supersedeas. He mentioned all these facts to show, that where there was a conflict of evidence like that which existed in the instance to which he had alluded, the case must be thoroughly heard, and that all that could be done to abridge such proceedings was to check the counsel from going into irrelevant matter. Another point to which he would call the attention of their Lordships was that of the jury. At present a jury of twenty-four were summoned; they were somewhat of the character of a grand jury, for it was sufficient if a majority of them agreed. In nineteen cases out of twenty there was no defence, and he could not understand why in these cases any jury should be summoned at all. He should propose, that after notice had been given as to the time of executing the Commission, unless a notice was served at the office that a jury was required to be summoned, he should propose that no jury should be summoned, but that the Commissioner or Master in Lunacy should by himself decide the question. He thought, also, as the course of proceeding was different now from what it was formerly, that less than twenty-four jurymen should be summoned in the cases that were defended. What the precise number ought to be, he should not at that moment determine; that would be a subject for future inquiry. A noble and learned Friend of his had suggested that it would be better not to have a jury at all, but to leave the question as to the sanity of the lunatic to 356 be decided, even in a contested case, by the learned person who should preside at the inquisition. Now, to such a course he (Lord Lyndhurst) must confess he had a strong objection. He thought that before you dispossessed a man of his property and restrained his person, the alleged lunatic had a right to have the question of his sanity decided by a jury. This proceeding insured publicity, it insured proper investigation, it was a great protection to the lunatic, and he should be extremely sorry to see, in these disputed cases, a jury altogether dispensed with. There was another objection which might be urged to this suggestion. Upon no subject were so many different fancies and theories entertained as on the question what constituted unsoundness of mind. In a disputed case of sanity there were sometimes six medical gentlemen on the one side affirming the sanity, and six on the contrary declaring the insanity, of the alleged lunatic; and there would be a danger that the presiding officer might have a fancy, or theory, or some opinion on the subject, peculiar to himself. It would not be safe, therefore, in his opinion, to trust a decision in such a case to any single person; but the point should be submitted to the judgment of men of plain understanding, empanelled in the form of a jury. It had been further suggested that it would be better to do away with these inquiries before a commission altogether, and let the question be decided by a Judge and jury at assizes or in London, according to the locality of the alleged lunatic. He did not know, however, that this would be an improvement in the system, even if the suggestion were practicable; and he was clearly of opinion that it would not be practicable. In the first place, it was absolutely necessary, upon an investigation of this kind, that the Judge and jury should see the lunatic. Usually they examined him, putting questions with a view to test his soundness of mind, and the result of that examination very often decided the whole issue of the inquiry. Now, how was this to be done at the assizes? It constantly happened that the lunatic could not be removed; his removal was very often attended with great pain; and there was this further objection, that the noise and excitement occasioned by the assizes would very materially increase the malady under which the subject of the inquiry laboured. At present the inquiries of a commission were generally carried on in the immediate 357 neighbourhood of the lunatic. It was often a matter of importance to examine the house in which he lived, the circumstances under which he was locally placed, what were his domestic habits, and all the details of his mode of living. How could a Judge and jury examine into all these details? The witnesses now, moreover, were usually examined on the spot on which they resided, and they were enabled to return to their ordinary occupations without trouble or much expense; but if the inquiry took place before a Judge at the assizes, all these witnesses must be removed to considerable distances from home, and the expense to the estate would be enormous. The inquiries at assizes, moreover, were not always very short. No Judge acted with more decision than the Lord Chief Justice in keeping counsel strictly within the line of their duty, and preventing them from wasting the time of the Court; but on an inquiry of this kind before his noble and learned Friend, concerning a disputed will, a case lasted for several days. His noble and learned Friend (Lord Campbell),with a perseverance and strength of mind peculiar to himself, sat for seventeen hours on the first day, for eighteen hours on the second day, and for fourteen hours on the three other days, almost destroying the jury, who were not equal in vigour to his noble and learned Friend, before the verdict was pronounced. He said, therefore, that, in the first place, as far as he could see, there would be no advantage in changing the tribunal, and, in the next place, he believed it would be found impracticable and injurious, occasioning great expense to the lunatic, and narrowing also the means of investigation. Another point of considerable importance was as to the right of the alleged lunatic to a new traverse. The question was whether after a jury of 12, or more, had pronounced a person to be of unsound mind, he should have a right to carry the case before another jury, in order to vindicate his state of mind. On this point Lord Hardwicke and Lord Thurlow considered that the right was permissive, and at the discretion of the Court; while Lord Rosslyn and Lord Eldon were of a different opinion, and thought the alleged lunatic possessed an absolute right of traverse. Lord Cottenham decided according to the latter view, that it was an absolute right; and within two days from this time the; same question had been again argued before the noble and learned Lord who now 358 occupied the woolsack and the Lords Justices, and they had pronounced an opinion corresponding with that given by Lord Cottenham. Although in the case before Lord Cottenham, he was satisfied with the propriety of the verdict, yet, on seeing the lunatic, he felt he was bound to give him leave to traverse; and the same course had been adoptod by his noble and learned Friend on the woolsack. Now the reasons for allowing the ordinary traverse in the old times were quite apparent; but those reasons appeared to him no longer to exist. This inquiry under a commission was formerly an inquiry to entitle the Crown to the custody of the person and estate of the lunatic; and it was originally entirely an ex parte proceeding, in which the lunatic had no right to appear and protect himself by counsel, but was a mere passive instrument. That form of inquiry, however, no longer existed; the lunatic now had regular notice before the commission was opened; he had a right to attend in order to contest the evidence; and, in fact, it was like an ordinary trial at the assizes. There seemed, therefore, now no reason whatever why, after the decision of the commission against the lunatic, he should have a right to carry the question before another tribunal, where it would be submitted to the decision of another jury. He therefore proposed to extinguish the absolute right of the lunatic to traverse, and indeed it was a question with him whether any other sort of traverse should be allowed. It might be left to the Lord Chancellor for the time being to exercise such discretion as he thought proper in such cases, for the purpose of preventing anything injurious to the lunatic, either by ordering a new trial, or by any other way he might think fit. He should propose, therefore, that traverse be altogether disallowed as a matter of right. He had now made the observations and suggestions he wished to make with reference to the Acts of 1842 which he had introduced; and he would now say a single word with respect to the Act of 1845. If a person were confined in a licensed House under the certificate of a medical man, and continued in it for a month, one of the Commissioners, or the Master in Lunacy, might examine him, and ascertain whether he was of unsound mind; and if so, he would have a right to assume all: the authority now exercised under commission, for the purpose of administering the estate of the lunatic. What he pro- 359 posed was, that the powers given by this Act should correspond with the powers given under a commission of lunacy. This was a subject to which he wished to call the attention of his noble and learned Friend. He would conclude by stating that he knew his noble and learned Friend, the Lord Chancellor, was so anxious to introduce, as far as possible, perfection in every department of the administration of justice under his control, that he might safely leave the case in his hands. He (Lord Lyndhurst) was desirous of consulting and co-operating with him, for the purpose of carrying into effect as many of the suggestions he had made as he thought could be adopted consistently with the security of the lunatic and the advantage of the public. He should conclude by moving for various returns relating to the cost of a Commission in Lunacy and various other proceedings in Lunacy; to the amount of fees paid in various named cases; and to the duration of inquiries under Commissions.
The LORD CHANCELLOR
said, he had not been at all aware of the particular topics which would be introduced by the noble and learned Lord who had just addressed their Lordships; and although he had, of course, given the deepest attention to the statement he had made, yet it could not be expected that he should commit himself at once to any of the numerous suggestions for the amendment of the existing law which had been made by his noble and learned Friend. At the same time, he had no difficulty in saying that there were very few of those suggestions which did not appear to him to be worthy of very serious consideration. The great object to effect in lunacy proceedings was, in the first place, to secure a sufficient maintenance for the lunatic, which sometimes was the last thing thought of; and, in the next place, to save the lunatic's estate from great expense; and any measure which proposed to carry out that twofold view could not fail to be very useful. Their Lordships were deeply indebted to his noble and learned Friend, not only for the manner in which he had introduced the subject to which he had just called attention, but for the new tribunal in cases of lunacy which had been introduced by him in 1842, and which had been found to work admirably well; and the existence of that tribunal would enable their Lordships to carry into effect any future improvements with more facility. The speech of his noble and learned Friend had opened 360 many and serious considerations. The great thing to accomplish now was to discourage the vast expense under commissions of lunacy. At present those commissions seemed to be issued, and maintained, and worked with a view to expense, and to the benefit of everybody but the lunatic; and the last thing thought of in many cases was the maintenance of the lunatic himself. Most of the propositions of his noble and learned Friend might, it appeared to him, speaking on the moment, be readily adopted, and some of them were of very great importance. He agreed with him that it would be undesirable to abolish altogether trial by jury in cases of disputed lunacy—to say that they would take away the liberty and estate of the subject without the benefit of a jury was quite impossible; but this, he thought, was perfectly clear, that there were a great many cases, where there was no question as to the insanity, in which such a trial was an idle waste of money, at the expense of the lunatic himself whom you were seeking to protect. You protected him by this trial, indeed, but it was at the expense of his property; and you left him without the means of maintenance by a measure which was not of the slightest benefit to him. This was especially true as regarded lunatics possessed of small property; in which case every care ought to be taken to avoid unnecessary expense. Under the last Act, the detention of a party in an asylum was considered as showing primâ facie that he was property a subject for the care of the Great Seal. That principle might certainly be extended—not to cases where the party was desirous of having a jury, but to the majority of cases, where no witnesses were examined, where the party was manifestly insane, utterly incompetent to take care of himself, and had very small property, hardly sufficient for his maintenance. In such cases the party ought not to be compelled to bear expensive litigation, the summoning of a jury, the examination of witnesses, and all the steps aptly and very properly applied to men of large means. If the Legislature provided for the safety of lunatics of small estate, they must take care to avoid expense in the way pointed out. The question of traverse was one of very great difficulty. It was proposed, as he understood, that the Lord Chancellor for the time being, or any person holding the sign-manual or warrant from the Crown, should have perfect discretion in regard to applications to traverse; and he was to decide 361 whether or not there was to be a new trial. Now, he thought there were objections to such a proposal. Take the case which had just been decided—that of Mrs. Cumming. It occupied the attention of a jury for sixteen days; and if the Lord Chancellor, or other person empowered, was to exercise a discretion in the way pointed out, he would necessarily have to go through all the evidence taken before the jury, and the whole of that evidence must be copied for the counsel and the court, for the purpose of making the application; and, after occupying as many days before the Lord Chancellor as it did before a jury, if it should be at last decided that the case was a doubtful one, the whole case must be sent to another jury, to be tried over again. There were very few cases—certainly not the one in question—in which the alleged lunatic's property would bear that expense. The question was open to all sorts of difficulty. It had been suggested that there might be a trial at nisi prius. Now, there was nothing he should more object to, in general cases, than to the trial of a question of sanity at nisi prius: and, as to the appearance of lunatics at Assizes to be examined by the Judge and jury, which was absolutely necessary—he never know it neglected, and it ought never to be neglected—it was likely, setting aside the inconvenience and expense of the proceeding, to have a most injurious influence in exciting and irritating the minds of those alleged to be insane. His noble and learned Friend had not overstated his (the Lord Chancellor's) anxiety to perfect the administration of justice. There was no man more anxious than he was to save expense to the lunatic's estate, while at the same time sufficient protection was afforded to the lunatic himself; and when he was in another place he had devoted much attention to this particular subject. He had inspected himself a large number of the lunatic asylums; he had examined all the details, and he believed that his labour had not been thrown away. He could not, however, promise to enter at present into the large field of inquiry into which the noble and learned Lord had invited him; although he should be ready to do so as soon as he had disposed of that other question of law reform relating to the Court of Chancery. He repeated that it would be impossible for him to answer at once all the demands made upon his time; and it would be therefore necessary to reserve for the present the consideration of this subject. He would, however, at 362 some future time, cordially join his noble and learned Friend in the endeavour to effect some satisfactory improvement in the present administration of justice in lunacy.
§ LORD LYNDHURST
said, that with regard to the traverse, according to the present system it was necessary to go through the same forms and the same examinations as were incumbent upon the original trial. In applications for new trials in the Common Law Courts, they were never granted unless at the recommendation of the Judge who presided at the trial at nisi prius.
I fully concur in the expediency and importance of reviewing the present course of judicial proceedings in matters of Lunacy, as I am convinced that that course requires and will admit of considerable improvement. I have had several communications with different officers connected with the administration of the law in that department, and I perceive that several of my noble and learned Friend's remarks apply to matters and suggestions which I have brought under his attention; and although I do not think the present occasion is the best calculated to lead to a satisfactory investigation of the merits of those suggestions, I beg your Lordships' permission to make a few observations upon that part of my noble and learned Friend's speech which referred to the suggestion of dispensing with the holding of inquisitions in lunacy as at present practised; but I hope that at some future opportunity the subject will receive considerate attention. The manner in which my noble and learned Friend has referred to the suggestions which I brought to his attention, does not appear to me calculated to convey an accurate impression of their nature and effect; and in order to do justice to them, it will be necessary to advert to the present course of proceeding to which those suggestions apply. Your Lordships have heard that application for commissions of lunacy are made to the Lord Chancellor, supported by affidavits affirming the lunacy; and if the affidavits present reasonable grounds for the proceeding, the commission issues as of course, unless a caveat shall have been entered, that is, unless notice shall have been given that the issuing of the commission is opposed. In the latter case, affidavits are usually produced in explanation or contradiction of those made in support of the application; and the matter is discussed before the 363 Lord Chancellor, generally at considerable length, with several counsel on each side, and of course at a great expense. The discussion generally terminates by the Lord Chancellor directing the alleged lunatic to be visited by one or more physicians, approved by him, and whose report greatly influences the decision whether a commission shall issue. The next step, after the commission has issued, is the summoning a jury before the Master in Lunacy, when the fact of lunacy is investigated upon vivâ voce examination of witnesses. In uncontested cases this inquiry rarely occupies more than one meeting. The lunacy is, I may say, universally found by the jury; after which, the ordinary proceedings follow, of appointing committees and arranging the future management of the lunatic and his estate. The cost of the proceeding up to the taking this inquisition in such uncontested cases is about 200l. Upon taking the inquisition in contested cases, the witnesses, in support of the alleged lunacy and against it, are examined vivâ voce before the Master and jury; generally, two counsel appear on each side, and sometimes more; the inquiry lasts two or three days, and very frequently much longer, and the expense attending the inquiry is very considerable, amounting often to several hundreds of pounds. This, your Lordships will observe, is the second lengthened inquiry as to the fact of lunacy. The verdict in contested as in uncontested lunacies is almost invariably in support of the lunacy. But, notwithstanding these two decisions, it is competent to the advisers of the lunatic still further to contest the lunacy by what is called a traverse, that is, by denying the correctness of the previous verdict; and, in such case, a third inquiry takes place upon a trial at nisi prius before a Common Law Judge and jury. Such trials seldom fail to occupy a considerable time, numerous witnesses are examined, and a very great expense incurred. Upon this occasion, as upon the inquisition, the alleged lunatic may be examined by the Court and jury. A personal examination generally does take place before the Master, and sometimes, but rarely, at nisi prius.
In considering the expediency of continuing this course of proceeding—that is, first a contest before the commission issues, upon conflicting affidavits, whether a primâ facie case of lunacy is established; secondly, after the commission has issued, the taking the inquisition before the jury 364 and Master; and, thirdly, the trial of the traverse—it is a material fact that during the last forty years there is not a single instance of the verdict upon the trial of the traverse jury being contrary to the verdict upon the inquisition.
To apply these facts to the suggestions adverted to, your Lordships should know that the average number of commissions annually issued is forty; the proportion contested is, upon the average, five. One of my suggestions has been, that in the thirty-five uncontested cases, the inquisition should be dispensed with, and the expense thereby saved, the amount of which, upon small estates, bears very heavily. In such cases the proceeding is ex parte, the evidence is always all on one side, and the result invariably in affirmance of the lunacy. Against this suggestion my noble and learned Friend, and some other noble Lords, exclaim that it will not be a safe or wise proceeding to allow a person to be restrained and dispossessed of his property without the alleged lunacy being decided by a jury. This objection does not seem very consistent with my noble and learned Friend's previous statement, that in nineteen cases out of twenty it is questionable whether there should be a jury at all, and that he should propose, that after notice that the commission was to be executed, there should be no jury summoned unless some one required it. This proposition comprises the full extent of danger which the objection to my suggestion presumes to exist. But in such, in truth, uncontested cases, the commission is prosecuted by the friends of the alleged lunatic, no one objecting; and I do not perceive upon whom the notice would be served, and by whom the requisition for the jury should be made; and, as the matter at present proceeds, the alleged lunatic derives no protection whatever from the proceeding, the only evidence heard being that which may be produced by those prosecuting the commission; and, practically, no publicity attends such inquiries. Further, the objection is made in forgetfulness of the actual state of the law, because, as the law now is, individuals may be dispossessed of their property, and their persons restrained, without the verdict of a jury. I allude to the statute of 8 & 9 Vict., c. 100, s. 95. By that Act, alleged lunatics may be confined upon certain certificates, and after twelve months' detention the Lord Chancellor may, upon the report of the Master in Lunacy of the fact of the 365 lunacy, appoint committees of such person. That statute has been extensively acted upon, and the only complaint that I have ever heard respecting it, has been that it does not go far enough, inasmuch as the power of the Lord Chancellor extends only over the application of the income of the lunatic's estate.
I, therefore, feel persuaded that the suggestion of the expediency of dispensing with the inquisition in the case of uncontested lunacies, is well deserving of consideration.
In cases of contested lunacies, I think the suggestion is entitled to still greater weight, as, in such cases, the inquisition is as useless, and more mischievous than in others. It occasions great expense, and concludes nothing. The sugguestion is, that if a primâ facie case is made for the commission to issue, and the alleged lunatic is advised still further to contest the lunacy, that it should be competent for him so to do without the intermediate inquisition upon an issue to be directed by the Court, such issue to be tried in the same form as the traverse is now tried. I have not heard, either to-night or at any other time, any remark tending in the least degree to prove that the slightest benefit in such cases results from the inquisition. I could not very distinctly collect my noble and learned Friend's meaning; but, as far as I understood his position, it was, that instead of the alleged lunatic having the opportunity of contesting the fact of lunacy upon a trial in open court at nisi prius, the conclusive inquiry upon the fact should take place before the Master in Lunacy, whether with or without a jury. Now it appears to me that my noble and learned Friend adopts the suggestion of having but one inquiry, but he prefers that which seems to me to be the less satisfactory mode of inquiry. The verdict of a jury upon a trial in the ordinary open court of justice of the country, before one of the superior Judges, and a jury impanelled in the ordinary nay, will ever be received with more respect and satisfaction than an inquiry before the Master as suggested. But the substance of my suggestion Is, that there should not be two inquiries. Take either the one or the other, whichever may be thought best; but the two inquiries tend to unnecessary expense; and I repeat that the fact that during forty years the verdict has been the same way upon both inquiries, is by no means unimportant. The injury to the 366 estate by the delay, by the trial of the traverse, is not limited to the mere expense. But the uncertainty whether in the result the lunacy will be established, always occasions loss and inconvenience in the collection and management of the estate.
The objection that it would be improper to restrain the liberty, or interfere with the property, of an alleged lunatic, without affording him the protection of a verdict, does not seem sanctioned by the Legislature, as the statute of 8 & 9 Vict., cap. 100, allows such restraint and interference without any such protection. In truth, the inquisition seems to have originated from considerations which no longer dictate the same caution, or require attention. By very old law, the Crown was entitled to the benefit of the incomes of all idiots, the idiot being maintained, and it was the duty of the escheators, upon behalf of the Crown. to inquire after and take possession of what the Crown was entitled to; but as the title of the Crown always depended upon matter of record, the escheators held inquisition in order to ascertain by a verdict the fact of the idiocy, and the nature and description of the property of which the idiot was possessed, and of which it had become the duty of the escheator or sheriff, on behalf of the Crown, to take possession. By this proceeding the title of the Crown was manifested by the record founded upon the verdict of a jury, and a seizure upon behalf of the Crown, upon an unfounded pretence of lunacy, was prevented.
In the case of lunacy, the Crown was also authorised to take possession of the property of a lunatic, but without having any beneficial interest in it, the Crown being only trustee, and liable to account; but for the same reason that no title could be asserted upon behalf of the Crown, except upon matter of record, the inquisition was held.
In the present state of society, the proceedings in relation to idiots and lunatics never emanate from the Crown, but invariably from the family or friends, and the reason for the inquisition no longer exists. If any case should arise in which proceedings should be taken by the Crown, the existing course of proceeding may remain.
I would further observe, that the same reasons do not continue to exist which formerly might be urged for the double inquiry before a jury. According to the theory of the law, the first opportunity which the alleged lunatic has the power by 367 right of contesting the fact of lunacy, is upon the trial of the traverse. The inquisition is, in contemplation of law, an exparte proceeding, upon which the party has no right to be heard. In practice, however, the party is allowed to appear and contest the fact of lunacy, if he thinks fit, but he is not hound to do so. I do not, therefore, suggest that the lunatic shall be deprived of that mode of contesting the lunacy, to which he is now by law-entitled; but only to dispense with the intermediate proceeding, which is binding and conclusive upon nobody. Another, and what appears to be one of the most important points in lunacy requiring consideration, is, the comparatively great expense which the proceedings cast upon the poorer estates of lunatics.
I cannot here omit to remark upon the great benefit conferred upon the public by my noble and learned Friend in the Act which he procured to be passed in the year 1842, and by the consequent orders. The effect of that statute has been most beneficial in diminishing expense, and also by facilitating proceedings.
By recent alterations all the officers in the lunacy jurisdiction are paid by salary, and all fees are paid into the suitors' fund, which fund bears the expense of administering the jurisdiction. That expense amounts to 7,000l. a year, and the fees barely equal that amount. There are 497 lunatics' estates under the jurisdiction of the Great Seal. The aggregate income of those estates is 317,493l. Of those—
The mode which has been suggested for relieving the small estates, will be by abolishing all fees of the nature of those now paid; and the expenses of administering the jurisdiction should be raised by a percentage, varying according to the amount of the income, making the estates bear an expense more in proportion to the benefit derived from the protection of the Court, than at present takes place, the fees paid by large and small estates being now the same. I am aware that there are objections against this plan; but if the object of relieving the small estates be as desirable 368 to be obtained as I estimate it to be, I doubt if any more just and practicable plan can be suggested.
A year A year. 100 are under £ 100 27 are under £1,500 112 200 7 2,000 57 300 14 3,000 46 400 9 4,000 31 600 4 5,000 13 700 3 6,000 16 800 2 7,000 23 1,000 3 upwards of 7,000
As it appeared to me that my noble and learned Friend had not placed the suggestions made to him upon which he remarked, in the light in which they ought to be viewed, I have troubled your Lordships with this explanation; and I have only to repeat that I think the whole subject of the administration of lunacy is of great interest and importance, but I much fear that some of the evils which attend it are unavoidable. So far as concerns the practical administration, nothing can be more satisfactory than that which depends upon the Masters in Lunacy, with regard to whom I may affirm that the opinion of the Judges and practitioners is uniform, that these duties are discharged with the utmost intelligence, discrimination, and diligence. I have no doubt the subject will receive the efficient consideration of my noble and learned Friend upon the woolsack, and of my noble and learned Friend who has again brought the subject under the notice of your Lordships; and I should be much gratified should it be in my power to afford any assistance in the endeavours of my noble and learned Friends to improve the administration of justice in this department.
§ On Question, agreed to; Returns ordered.