Lords Sitting of 27 February 1862

MINUTES.
PUBLIC BILLS.—1a Qualification for Offices Abolition; Lunacy Regulation.
2aLaw of Property Amendment.

ITALY.—PROCLAMATION OF COLONEL FANTONI.—QUESTION.
THE EARL OF DERBY: Your Lordships will remember that I gave notice the other night that I should ask a Question of the noble Earl the Foreign Minister respecting the issue of a certain Proclamation in the territory of Naples. The answer that I then received, or rather the statement which the noble Earl the Secretary for Foreign Affairs then made, that he had not himself any knowledge of the document to which I referred, and that he could not obtain any information upon it in the Foreign Office, took me rather by surprise, and renders it necessary for me to alter somewhat the form of the Question which I am about to put. As the noble Earl has now in his possession the paper containing the proclamation, I hope that his answer will be such as will be satisfactory both to your Lordships and to the country. Immediately after quitting the House on Tuesday night, I sent the noble Earl a copy of the paper in which the original Italian proclamation appeared, and also a copy of the French newspaper L'Union into which it was translated. Although I could wish that there was no possibility for doubt as to the authenticity of the proclamation, I am afraid there can be very little question about it. I think I heard upon the evening when I first mentioned this subject a sort of soft and incredulous laugh on the part of some of your Lordships, and I was not surprised at it, because I can well understand that it was difficult to believe in the reality of
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the proclamation. I have a literal translation of the document in question, and with your Lordships' permission I will read it to the House. I may say that, though it is issued by a commandant of a detachment of infantry, it professes to be issued by the direction and under the orders of the Prefect of the province—an officer directly responsible to the Government. It is as follows:—
"Order of the Commandant of the Detachment of the 8th Regiment of Infantry in Lucera.
"In consequence of orders received from the Prefect of this province, with the view of arriving by all the most effective measures at the prompt suppression of brigandage, the undersigned gives notice—
"1. That from henceforth no person shall set foot in the woods of Dragonaro, Sta. Agata, Silva Nera, Gargano, Santa Maria, Pietra, Motta, Volturara, Volturino, Sammarco, Alonza, Carlantino, Macchione di Biccari, Vetruscelle, Case Rotte.
"2. Every proprietor, agent, or farmer, immediately after the publication of this notice, must withdraw from the said woods, all the labourers, shepherds, goatherds, &c, and all the cattle now therein, destroying the hovels and cottages occupied by them, and by the persons engaged in tending them.
"3. No one from henceforth may carry from the villages provisions for the use of the farmsteads, nor may these last possess more of these than may be absolutely necessary for one day's sustenance for the number of persons attached to the said farmsteads.
"4. All persons contravening this order (which shall have full effect two days after its publication) shall be treated, without exception of time, place, or person, as brigands, and as such shot.
"In publishing this order the undersigned intimates to proprietors to give early notice to their dependents, in order that, avoiding as far as possible the application of the above rigorous measures, they may effect the object which the Government proposes to itself; warning all persons at the same time that the measures themselves will be applied with the utmost stringency."
Now, my Lords, I will not insult your Lordships by making a single comment upon the terms of this proclamation. I lay it before you and before the world in all its native atrocity. The only remark that I will make upon it, is that it is a proclamation emanating from a Government which professes to have been accepted by the country of which this district forms a part, unanimously and by the test of universal suffrage, which claims to be recognised as a deliverance from tyranny and oppression, and which has been telling you for months past week by week that it is putting down without difficulty the slight remains of insubordination, disorder, and revolt which prevail in certain districts. I will not inquire into the character of the revolts against the con-

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stituted authority of the country. I will not say whether these revolts arise from political feelings derived in any degree from attachment to the exiled family, I will not say how far their abettors may be governed by less worthy and respect able motives. I think it very likely that they may be something of a mixed character—that they may be political, and there may be something like brigandage in them; and therefore I do not complain that the Government in possession should endeavour by all legitimate means to put an end to such a state of rapine and disorder. But I say proclamations of this tendency are a disgrace to humanity itself. Every mind must revolt against a measure which seeks to pacify a country by desolating a whole district, stripping it of in habitants, cattle, and houses, in point of fact, creating a desert and calling it peace; and which subjects an unoffending peasant only for having in his house more food than is absolutely necessary for the supply of the daily wants of his family, to suffer death without a trial at the hands of a baffled and infuriated soldiery. The document is now in the noble Earl's hands; and I have that confidence in the genuine love of freedom which has always distinguished the noble Earl, that I am quite sure I do not feel more indignant at the tone of the proclamation than the noble Earl himself. Upon former occasions I believe the Emperor of the French has remonstrated in strong terms against the brutal ferocity with which affairs have been conducted in the Neapolitan territory by both parties. In another case, of perhaps much less importance, where, as in this case, civil convulsions are going on, and where we have only diplomatic relations with the Government in actual authority, the noble Earl himself has remonstrated. The noble Earl felt it necessary to remonstrate with the Government of the United States upon the sinking of stone ships at the mouth of a harbour, as an extraordinary and unjustifiable proceeding. But what comparison is there between sinking stone ships at the mouth of a harbour and such atrocities as are set forth and commanded by authority in this proclamation? This country, if it has persevered in a system of non-interference in the affairs of Italy, has, at all events, given to the Italian cause largely of its moral sympathy. It has winked very hard indeed at proceedings which it would be difficult to reconcile with political mo-
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rality; and I think Her Majesty's Government have a legitimate claim to appeal to those in authority in Italy, and to warn the Italian Government against a course of conduct which must be revolting to every man possessed of ordinary humanity. I am satisfied, and I am sure the j noble Earl will agree with me, that a proclamation of such an infamous character must tend more than anything to alienate the sympathies of Europe, by which the Italian cause is supported, and to retard a cause which we know the noble Earl has at heart. I wish to ask, whether the noble Earl has received any information from Sir James Hudson, to whom this proclamation must have been known? I wish to know whether Sir James Hudson has communicated it to the noble Earl, and has expressed any opinion upon it; and, whether Sir James Hudson has taken upon himself to represent, in a friendly way, to the Government of Turin the effect which will be produced upon the feelings of this country by the appearance of such a proclamation? I wish also to ask, as the noble Earl is now in possession of the proclamation, and docs not deny its authenticity, whether he is prepared to call on Sir James Hudson to explain why he has not taken any notice of it (if he has not), and whether the noble Earl will instruct Sir James Hudson at once to represent in the strongest terms to the Government of Italy the feelings with which this Government views such a course to put down revolt; with the assurance, which may fairly be given, that nothing can tend so far as measures of the kind to defeat the object I of a great majority of this country, to obtain for Italy whether united Italy or not—after so many centuries of misgovernment the advantages of a limited and temperate monarchy and constitutional liberties for the people?
EARL RUSSELL: In answering the noble Earl, I will first address myself to I the character of the notification or proclamation which he has brought under your Lordships' notice. I entirely agree with him in all he has said of the character of that proclamation. 1 think nothing can be more cruel, more barbarous, than to issue such a proclamation—involving the innocent with the guilty, spreading desolation over a large district of country, interfering with the pursuits of industry, and making the Government a terror even to all well-disposed inhabitants. I should add, also, that I think such a proclamation

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would be most impolitic. This is not the manner in which a country can be pacified. This is not the manner in which the inhabitants of a district can be conciliated to the rule of the Government which is put over them. But, my Lords, with regard to its authenticity, I must say I have no evidence. At first sight it would seem that no persons would venture to publish in a newspaper circulated at Turin, whatever its politics might be, a document of this nature which was not genuine—a document casting upon the character of the Italian Government an imputation which, if just, would be most calamitous. The newspaper in question is the Armonia. It is a newspaper well known for its strong political and ecclesiastical opposition to the Government, and it is a newspaper which on those subjects has great influence. Perhaps your Lordships will allow me to mention a conversation which I once had with the late Count Cavour, which bears upon this subject. I stated to Count Cavour that an opponent of the Turin Government had said that they laboured under great disadvantages, for while the Liberal newspapers which were guilty of libel were always acquitted, the newspapers which defended the cause of ancient institutions, as they were called—the cause of despotism, or the cause of bigotry as I should call it—in Italy were invariably condemned. That is a charge, I said, which is made against you by your political opponents. Count Cavour said, "It is perfectly true. The newspapers on our side are generally acquitted, and certainly when the Opposition newspapers have been brought before the tribunals, they have generally been condemned. But this unfairness has struck me so much that I have given an order that no Government prosecution shall be issued against those newspapers. They may say exactly what they please. They may libel me as much as they like. I am determined they shall not be prosecuted for anything which they may say." This may, perhaps, in some degree account for the licence to which those newspapers have given themselves up. I have heard of instances in which documents published in those newspapers have been afterwards found not to be genuine, and I trust that this is one of those instances. I am confirmed in that hope by the absence of testimony on the one hand, and by what I have heard in conversation on the other. In the first place, this proclamation,
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which was published on the 19th of February at Turin, has not been noticed by our Minister at Turin in any manner, and has not been noticed by Her Majesty's Consul at Naples, though it would naturally come under his observation. And, in the next place, I have been told that the proclamation bears a strong resemblance, if it be not a literal copy of a proclamation published in 1810 by the then Government of Naples. This, I confess, gives me great reason to doubt the genuineness of the document. For the sake of the Italian Government, and as the noble Earl has said for the sake of humanity, I shall be glad to find that it is not genuine, and that no such notification has been issued by any officer of the King of Italy. There has been, no doubt, in other instances great severity of treatment of those who are brigands, and who are disturbing the southern provinces of Italy. But I must state that the present position of the Government of the King of Italy in the southern provinces is put to a very hard trial. There does not exist, as the noble Earl would seem to imply, any civil war in Italy. The parties who are found committing murders and robberies are parties generally of from ten to twenty persons. They rarely exceed that number, although sometimes perhaps forty or fifty have collected. They come into the country. They occupy these woods. They are attacked by the regular troops of the King of Italy. In some instances they are dispersed, and the country is for a moment freed from them. They fall back into the territories of the Pope. At the frontier of those territories the Italian troops are stopped. These men are disarmed by the French troops who occupy those territories; but these men who have been committing robbery and murder go to the Government of the Pope, are reclothed and rearmed, and in a few days the whole work has to be done over again. Of course, it cannot be expected that the Government of the Pope should have much friendship towards the King of Italy. But, in the common course of conduct between neighbours, it might be supposed that peace would be preserved. These men, as I have said, are not men carrying on civil war. In the time of Francis I. they committed robbery and murder, and took the name of carbonari, or any other name, to cover their designs; at the present they take the name, and I do not think they do much honour to it, of Francis II. I know that the sub-

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jeet has been one of great anxiety to the Government of Italy. Not very long ago I received a communication from Turin stating that Baron Ricasoli, the head of the Italian Administration, had said that though during the winter these robbers and brigands, not finding any very secure refuge, had been put down to a great extent; yet, as they could more easily obtain food and shelter in the spring and summer, it was to be feared that these disturbances would again arise. I must say, however, that the issuing of such proclamations as that which has been quoted is not the way to support the King's authority. While, on the one hand, it is terrible that such a proclamation should be issued—if it really was issued—by any person bearing the honourable scars of regular warfare, and acting under the orders of a regular Government, it is, on the other hand, equally frightful that the cause—for it is said to be a cause—of the dispossessed Sovereigns of Italy should be maintained, not by regular warfare against the King of Italy, but by small bands of brigands let loose from time to time merely in the hope that an argument may be raised against the Government of Italy, so that it may be possible to say, "You see how incapable that Government is of governing according to law, and reducing the country to order," But in spite of all these difficulties I have the greatest confidence that there will be established in Italy a Government combining liberty and order. I confess here, as I have confessed elsewhere, that I have the greatest admiration of the noble attitude of the Italian people. When we compare the conduct of that Government and people with the conduct of other peoples and other assemblies in times of revolution, they have no reason to be ashamed. I think they have shown that they are worthy of the liberty they seek, and I trust that their independence will, before long, be acknowledged by all nations.
THE EARL OF DERBY: The noble Earl has made a very eloquent and impassioned speech, but he omitted altogether to answer any of the questions which I put to him. My object was not to obtain from the noble Earl an expression of opinion with respect to the general conduct of the Italian Government and people, but I want to know whether he received any information respecting this supposed proclamation from Sir James Hudson? On Tuesday last I made the noble Earl acquainted with the existence of this docu-
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ment, and if he entertained any doubt of its genuineness, he might have received a telegraphic communication from Italy upon the subject before this day. But now that the alleged proclamation has been placed before the noble Earl, under a form in which I hardly think that any newspaper would venture to insert it if it were not genuine, with the name of the officer by whom it was understood to be issued, and affording the Government an easy opportunity of contradicting it if it were unfounded, I have to ask the noble Earl whether he has called, or whether he intends to call, on Sir James Hudson to explain why he has not forwarded the document to the Foreign Office; and to ask him further, whether, supposing the document to be authentic, it is his intention, on the part of her Majesty's Government, to address to the Government of Turin those representations which the nature of the case seems to me to demand?
EARL RUSSELL: I thought I had stated that I had received no information on the subject from Sir James Hudson or the consul at Naples with respect to this document, and I stated the reasons why I suspected it was not genuine. The first thing was to ascertain whether it was genuine or not. I did not telegraph to Sir James Hudson until yesterday, and I have not yet had an answer. If I should ascertain, contrary to my expectation, that the document is genuine, I shall then make such communications on the subject as I think are fitting to the Government of the Kingdom of Italy. They must be such communications as we may consider fitting, because the case is not on a level with that of the stone fleet, and I shall hardly notice it otherwise than in the most friendly manner, and for the sake of the Italian Government.
THE EARL OF MALMESBURY: I hope I may be permitted to suggest to the noble Earl that if he finds this document is genuine, and if he also finds that his agents in Turin and in Naples, have not sent it to the Foreign Office, and have not made any representations on their own parts to the Government of Italy, the noble Earl should express his opinion to those agents with respect to their conduct. It is impossible to ascertain in this country what is taking place in Italy. There is so much exaggeration in the statements upon both sides in that coun-

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try that it is impossible for the English people or the English Government to learn what is the absolute truth unless through the faithful report of our own agents in that country.
THE DUKE OF ARGYLL: These homilies, I think, would come very much better after it has been ascertained that the document is genuine. But I have reason to believe that it is not genuine. I happened last night to be in company with an Italian gentleman—as well known in English as in Italian society—who has just come from Turin, and I asked him whether he had seen any proclamation of the sort. He told me that he recollected having heard a short time ago that such a proclamation had appeared in the Armonia newspaper, and that it came to the ears of the Italian Government by that means for the first time. Upon strict inquiry it was found to be an entire falsehood—a rechauffé, in fact, of an old proclamation, published under the Government of Murat, when that Government was engaged in putting down brigandage. I myself passed through Turin within the last few weeks, and I heard there many complaints from various persons of what they considered the extreme laxity of the Italian Government in taking steps to put an end to brigandage. I should regret very much to find that such a proclamation was genuine; but, from the private information which I have received, I sincerely hope that it may be found not to be the case.
THE EARL OF DERBY: It is a great pity that the noble Earl did not communicate his information to the Foreign Secretary.

LUNACY REGULATION BILL.

  BILL PRESENTED. FIRST READING.
  THE LORD CHANCELLOR:—My Lords, I rise to call your Lordships' attention to some matters relating to the Law of Lunacy which appear to me to require revision and also to some defects in the procedure. It continually happens in this country, where our legal system is the growth of ages, imperfections are naturally to be found which are patiently endured until some event occurs which places its defects so flagrantly before us that we set ourselves at once to the duty of remedying them. And that is the case with the subject which I am now about to bring under your Lordships' consideration. We have had a trial in lunacy extending over
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  the unexampled period of thirty-two days. The subject of that inquiry has vindicated his right to be considered sane at an expense, I am credibly informed, of not less than £15,000; and the expense of the parties on the other side, the petitioners, must have equalled if not exceeded that sum. That is an event which unquestionably suggests that the rules which govern trials in lunacy probably require revision and alteration. I say the rules, because I have no ground whatever to blame the professional conduct of those proceedings, still less the manner in which it was directed and presided over by the learned Master in Chancery. There is no officer in the Court over which I preside more able to discharge his duty efficiently than that learned gentleman. Neither can I complain of the conduct of the legal gentlemen who were engaged either for the alleged lunatic or the petitioners. But the vice lies in the system. Our mode of dealing with such subjects is at once cumbrous and incomplete. We have taken a cumbrous machinery, which was originally intended for a different purpose, and have applied it as an instrument of judicial proceedings; and the Master, who is the judge on such occasions, has less authority than he ought to have considering the importance of the questions he frequently has to decide. I will trespass on your Lordships' time for a few moments to state the history of the law, that you may follow more readily the course we propose to adopt. By the law of the country the Sovereign is entitled to the custody of those who are unfortunately bereft of reason. That prerogative of the Crown was declared long ago by a statute passed in the reign of Edward II. In the procedure in cases of lunacy we have retained the old cumbrous jury of twenty-four; we have also retained the practice of traversing; and, altogether, the procedure in these cases is wholly cumbersome, expensive, and ill-adapted to all the exigencies of public justice. I therefore propose, in the first place, in cases of lunacy to substitute for the present commission a writ to one of the Judges in Westminster Hall, directing these cases to be tried precisely in the same manner as any other question of fact, or as a criminal question would be tried, according to the ordinary rules of evidence. That this is the most necessary alteration to be made I think your Lordships will agree when I inform you of what has lately occurred with regard to disputed cases of lunacy.

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  I have here some instances from the most important trials that have recently taken place. I find that in one trial that preceded the last the expenses amounted to £6,941. That was the case of Sir Henry Meux. In the case of Mrs. Cummings, whose insanity was manifested the moment she appeared before the jury, the costs were £2,500. In an antecedent ca9e the expenses were £1,909, of which £250 were the costs of the medical witnesses alone. It is impossible that anything can be more objectionable, as affecting both parties, than the present system. But a mere change of procedure would be of little advantage unless it were accompanied by various other alterations. I now invite your Lordships' attention to the alteration in the mode of taking evidence and the nature of the evidence to be taken. According to the present mode of procedure the examination of the alleged lunatic is generally postponed till after all the other evidence has been given. I propose that, subject to the discretion of the Judge, the lunatic shall be seen and examined by the Judge and jury before they enter on the reception of evidence. This proceeding would in many cases have prevented the necessity of any further evidence being taken at all. He is also to be examined at the close of the proceedings before the jury consult as to their verdict. But there is another cause that lies at the root of much of the expense of these inquiries; that is, the amount of medical testimony adduced, and the different theories of these medical authorities as to insanity. The common course is to produce certain medical witnesses, and they give the jury their own particular theories as to lunacy. Sometimes, in order to support these theories, the inquiry into the insanity of the alleged lunatic extends over his whole past life; in this case a vast amount of evidence is necessarily prepared. For the purpose of checking this investigation, sometimes extending over a whole life, that leads to such an extraordinary expense, I propose, in the first place, to introduce a rule that any testimony given in regard to the acts, conduct, and demeanour of the alleged lunatic shall not be carried back to more than two years before the date of the commission. We have just seen the necessity of such a rule. Those who have attended to the details of the recent trial must have observed the mode of procedure, The case presented to the jury was alleged to be one of what is termed congenital
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  idiotcy. The evidence to support this allegation went back over many years, while the real point at issue was the state of the alleged lunatic's mind at the time of the inquiry, or for a short time antecedent to it. I propose, therefore, to limit such investigations to two years previous to the commission directing proceedings. This is an ample period within which to ascertain the state of the lunatic's mind. But the alteration does not stop there. I object to the judicial attention being so particularly directed to the medical testimony. It is a radical error to deal with these cases as if the subject were to be inquired into physiologically, and not like every other question. If the inquiry were whether the brain is in a state of disease, then it might be right to prosecute the matter as a question of physical science, and to regard it as we regard any other fact in philosophy. But a jury should only receive evidence by which ordinary men can arrive at the fact of the state of mind as they would arrive at any other alleged fact—such evidence as every man can understand. The evidence should he of what has been done or said, to prove conduct or demeanour, and ascertain whether the person is competent or incompetent to manage his own affairs. I beg your Lordships to observe the injurious effect of producing and admitting into inquiries of this kind a description of scientific evidence on which a jury is not competent to form an opinion. The conclusion they ought to arrive at should be unprejudiced by any consideration of scientific testimony respecting which they are incompetent to judge. Such testimony is the proper mode of arriving at a different result—namely, an answer to the question whether there exists bodily disease; but it does not apply to cases where you have to inquire whether the individual has proved himself unfit to be trusted with the government of himself and with the management of his property. The principle of law is wholly in accordance with the view I am now taking. According to that principal, scientific evidence is admitted when the subject is removed from the ordinary sphere and knowledge of common men. But when, the subject is one upon which a man of ordinary understanding is competent to judge you do not open the door for the reception of scientific evidence. I particularly desire, therefore, to introduce into the judicial inquiry affecting lunatics the same rule which prevails at present in

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  all other inquiries—namely, that scientific evidence shall only be admitted in cases where, according to the rule I have described, it may be received. The more you dwell upon this particular part of the subject the more, I think, your Lordships will become convinced of the justice and the propriety of the principle which I have laid down. Remember that you are not at all warranted in coming to a conclusion of this kind, which may involve the liberty and the property of an individual, unless you found that conclusion upon things of which you are convinced as being actually existing and certainly known. But here you have a medical man presented, who tells you that, according to his experience, the existence of cerebral disease is shown by certain bodily symptoms; while another medical man, or half a dozen, meet his theory with a direct negative, and tell you that in their experience the particular symptoms relied on by the former witness as a criterion of mental disease may be easily accounted for in another way, and present no certain indicia of its existence. Between these learned doctors, who is to determine? An inquiry terminating in results little short of those with which you visit a person charged with a serious crime ought to rest upon some more certain basis than this. The only question is—has the individual charged with lunacy said or done such things as show him to be a person whom it is dangerous to leave at large, and to whom the conduct of his affairs and the management of his property ought not to be left? At that conclusion you must arrive upon moral and not upon speculative grounds. The conclusion should be a judicial one, not a conclusion of natural science; but to derive it from the opinions of medical professors is to base it upon mere matter of speculation, instead of upon matter of moral certainty. No one can have attended to the evidence of medical men without observing that all their reasoning upon a subject of this kind is open to palpable objection as being insufficient altogether. If you want to form a general conclusion which shall be applicable to all conditions of men, it ought to be founded upon observation of such a number of cases as will furnish you with sufficient premises for your conclusion. But, according to the statements of those who have written most learnedly upon the subject, it is the habit of medical men to jump to conclusions upon half a dozen
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  instances met with in practice, and upon this limited number of cases they give unqualified opinions. Hence it is that the experience of one medical man does not coincide with that of another, because their theoretical speculations are not conducted on the same principles, and the consequence is contradiction and uncertainty throughout all the medical evidence given in these cases. Now, if I could emancipate lunacy cases from speculative inquiries and evidence of this kind, I think I should place the condition of persons charged with lunacy upon a basis of much greater security than at present, and should rescue the whole of these proceedings from the reproach to which they are subject when the matter is rightly examined. At all events, I submit the subject as one deserving of grave consideration. If your Lordships agree with me that the evidence in these cases ought to be assimilated to that given under ordinary rules of law, I venture to promise that the abuses and enormities which have been found to exist under the present mode of procedure will almost entirely disappear. These are the principal subjects of enactment in the Bill as far as it relates to the form of procedure, and the amended mode of inquiry.
  With regard to its other provisions, they are of an immediately practical nature, and, I hope, will be found to introduce a wholesome remedy for the evils which now exist. Unfortunately, it happens in the case of a great number of judicial proceedings affecting lunatics that the remedy is too costly and too prolonged to be effective, and accordingly the evil often goes unredressed. It appears that, even under the greatly-amended process of the Bill of 1853, no commission of inquiry in lunacy can be had at a less expense than £60, and this in uncontested cases. In a great number of instances the property of the unfortunate subject of the proposed inquiry cannot be obtained by him without an inquiry, and yet this property is so small that it would be nearly exhausted by an application to the Court or by a commission in lunacy. One case now before me is that of a poor man who had saved £96 which he had placed in a savings bank at Bath. It was felt to be an absurd thing to go to the Court for the purpose of obtaining a commission of lunacy, which would certainly eat up £60 out of the £96, and give rise every year to still further expense during the life of

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  the unfortunate lunatic. In another instance property to the amount of £230 could not be obtained for a similar reason; and in all these cases the lunatic is deprived of his property. The Bill therefore proposes to enact that whenever it shall appear, upon satisfactory evidence, that the I property of the lunatic does not exceed £1,000, the Lord Chancellor shall be empowered to effect by a summary order the same object as would have been effected under a commission in lunacy, thus saving the expense which would he otherwise incurred. Then, again, there is the case of criminal lunatics. There are numerous instances in which persons are acquitted on the ground of insanity, and are sent into confinement, but, of course, no pro vision is made as to their property or the business which they may have been carrying on at the time of the accusation against them. I propose to deal with these cases, also, in an equally summary way. I now pass on to a very important subject—that of the visitation of Chancery lunatics, who are under the jurisdiction of the Lord Chancellor. It has been a subject, of anxious consideration to discover in what way we can best secure to the lunatics under the jurisdiction of the Lord Chan cellar the same effective visitation which is enjoyed by those lunatics who were under the superintendence of the Board of Lunacy Commissioners. In a report made by a Committee of the House of Commons it was recommended that the visitation should, in each case, he one and the same, and that the duty of visiting the Chancery lunatics should be added to the other duties of the Lunacy Commissioners. I was very anxious to adopt that recommendation; but upon communication with the noble Earl near me (the Earl of Shaftesbury) I was satisfied that it would not be possible, consistently with an effective discharge of their other duties, for the Commissioners to undertake the visitation of Chancery lunatics. Great care would be requisite in allotting such additional duties to the Lunacy Commissioners, and there might be a possibility of some conflict or difference between the rules usually adopted by them and those prescribed by the Lord Chancellor. Upon consideration, therefore, and after consultation with the noble Earl, I have determined upon the propriety of giving to the Lord Chancellor more extended powers for an effectual visitation of the unfortunate lunatics under his control. No small amount of power
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  will be adequate to enable a complete visitation to be made, and therefore I propose that the Lord Chancellor shall appoint two medical visitors and one legal visitor, who shall devote themselves exclusively to the performance of the duties. It is most essential that each lunatic should be visited at least twice a year, and it is most essential that such visitations should not be made at stated periods which should be previously known and provided for, but the medical and legal visitors should have power and be under the obligation to so time and vary the periods of their visits that every person having charge of lunatics should be always in expectation of them. I think your Lordships will agree with me that with the great body of persons requiring this superintendence we cannot have that duty effectually performed unless the Lord Chancellor shall have under his control at least three persons whose time shall be exclusively devoted to this service, and for whose remuneration a small graduated charge upon the incomes of lunatics would amply provide. I will not fatigue your Lordships upon other details which are in this Bill, which, although less important than those I have already specified, will, I think, be found a salutary amendment of the law. The necessity for these changes is shown by experience, as the existing law was an improvement upon the state of things which previously existed. These alterations are, I believe, greatly required at present, but in no respect so much as in respect to the form of procedure which I have ventured to propose for all contested cases of lunacy—that the ordinary rules and principles of evidence adopted in all other cases should be followed, instead of allowing lunacy cases to be an anomaly in our judicial procedure. I think even that the nature of the subject requires an adherence to the rules of evidence more urgently than in other cases of judicial inquiry. I will not further trespass upon your Lordships, and I trust that the observations I have addressed to you will not be found unacceptable to your Lordships' judgment.
  The noble and learned Lord then presented a Bill to amend the Law relating to Commissioners of Lunacy and the Proceedings under the same, and to provide more effectually for the visiting of Lunatics, and for other Purposes.
  LORD ST. LEONARDSsaid, he must express his satisfaction that the noble and

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  learned Lord had taken up this subject, which undoubtedly was one requiring notice. He had always taken a deep interest in the subject, and wished to make a few observations, although he had not yet seen the Bill. He was glad to hear the noble and learned Lord on the Woolsack speak in favourable terms of the manner in which the late case, which had attracted so much attention, had been tried. No doubt such prolonged proceedings required a remedy; but, upon behalf of his learned Friend who presided at that trial, he felt bound to notice an opinion that had been generally expressed, that he was wrong in not allowing Mr. Windham to be examined immediately after the petitioners had closed their case. There could be no doubt, that had that been done, and if the result had been favourable to the young man, a great part of the enormous expense of the trial would have been saved; but the ground upon which his learned Friend went—and which he (Lord St. Leonards) thought was a proper ground—was, that if the weight of evidence that had been laid before the jury, travelling through the whole of the young man's life, and in many parts telling strongly against him, had been left unanswered, and Mr. Windham had at once been examined, in all probability he would have been found incompetent to manage his affairs. Everybody who read from day to day the evidence in reply must have exclaimed, as he did, "How the petitioners' case is breaking down!" and therefore he thought the learned Master had pursued a perfectly proper course, and one which led to the right result. Whether Mr. Windham was ruined or not was not a matter for the Court; all that it could regard was the due administration of justice. A verdict against him might have saved him from further ruin, but that circumstance could have no weight with the jury who, to save him from ruin, must on their oaths have found him of unsound mind, so as to be incapable of managing himself and his property. His noble and learned Friend had proposed that when a person's sanity was impeached, and a jury was called for, the cases should be tried before a Judge in the ordinary form of procedure. Without wishing to disparage the Masters in Lunacy, he (Lord St. Leonards) could not help thinking that a common law judge, with his experience in the exercise of his functions before juries, and
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  sitting with all the solemnities of a court of justice, would have a greater control over the cause and counsel than any Master in Lunacy, however able. Questions of lunacy were questions of fact, whether the alleged lunatic was not sufficiently sane to take care of his property—and the question should be tried as one of fact. The Bill of 1853 did not require unanimity in the jury, but only that twelve out of the twenty-three should agree, and the majority decided the case. Even by the Bill of 1853 power was given to the Lord Chancellor, if he thought fit, to issue a special commission in any case, directed to any person he chose to select. In ordinary cases the jurisdiction of the Masters was attended with great advantage. The Bill of 1S53 provided for that which had never been provided for before, because, in order to prevent improper trials of lunacy, it required the Lord Chancellor to see the alleged lunatic in any case of doubt; and if the Lord Chancellor believed from his own inspection that the fact of lunacy was beyond all question, he was not compelled to send the case before a jury. Thus, the present law already furnished one great safeguard against useless expense. A case like that of Mr. Windham, where, although the young man had many vicious habits and was addicted to low society, he moved about the world with the ordinary evidence of sanity, but where his family desired that he might be found a lunatic, was obviously a case which would lead to an enormously costly contest, a vast waste of public time, and a great deal of public scandal. If the alleged lunatic in a case of that kind demanded a jury, he could not be refused one; but in nine cases out of ten there was no difficulty, the person concerned being either manifestly subject to delusions or utterly incapable of managing his own affairs. One of the propositions of his noble and learned Friend was somewhat startling—namely, that by which he proposed to limit the inquiry into the capacity or incapacity of the person in question to the period of two years; and this proposition, he ventured to think, would require great consideration—it was very doubtful whether two years would not be too short a period for many purposes. The continuing the inquiry in the case of Mr. Windham from the time of his infancy down to the time when the inquiry took place was an abuse

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  such as ought to be stopped; but in many cases where a man was found insane it was necessarily a question for the jury how far they carried that insanity back. Sometimes the great contest was whether a will was to be supported or destroyed; and in such a case the question was not simply what the jury thought of his state of mind at the time of the inquiry, but what was his state as to sanity six or seven years before, when he made the will. Such a finding, it was true, would not be binding in reference to the property, because afterwards the question might be tried by those having an interest in it but still the finding was a guide to the Lord Chancellor how to deal with the matter. What would require still more consideration was the proposition of his noble and learned Friend that the alleged lunatic should in the first. instance be examined by the Judge before whom and a jury the question of his sanity was to be tried. At present the Lord Chancellor could see the alleged lunatic who demanded a jury, and see whether his was a fit case for inquiry or not so that the Lord Chancellor already had power to prevent the expense of trial being incurred where it was not necessary but the present proposition went so far as to include every case where a man demanded to be tried. It would be a very singular proceeding, if before a Judge and jury had heard a single word of evidence a man who had his liberty, his property, and everything he held dear at stake, should be called into Court, and examined in the manner proposed. It must also be borne in mind that the accusation must be brought forward upon affidavits which satisfied the Lord Chancellor that there was a prima facie case for inquiry so that the accused went to trial marked as a man charged with lunacy upon affidavits. In the case of Mr. Windham there might have been a doubt whether he was simply a young man of vice and folly, living in the worst possible taste; or whether he was insane. The affidavits before the Lord Chancellor would, of course, show all the circumstances but the jury would, at the commencement of the inquiry, know nothing except the charge against the person. He was not giving any decided opinion in reference to this Bill, but only throwing out a few observations which occurred to him upon hearing the matter stated for the first time. His noble and learned
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  Friend proposed to a certain extent to exclude the doctors from giving evidence and he (Lord St. Leonards) agreed that nothing was more dangerous than that I their theoretical opinions should be applied to the given acts and deeds of any I man, and then to try him upon the application of the theory of the medical man to the acts proved. Doctors very often differed; there was opinion upon both sides, as in the case of Mr. Windham, who was said to be almost an idiot upon the evidence of some medical men, whilst others said that they believed him to be sane. It was dangerous to trust to such evidence, and the common law Judges had often told scientific men who ventured to express their theoretical opinions in the witness-box that they were not examined to state their opinions dogmatically, but to give their evidence upon matters of fact for the guidance of the jury. His noble and learned Friend desired to draw a line marking the cases in which this scientific evidence should be received, and those in which it should be excluded; but it would be exceedingly difficult to draw any such line. In the celebrated case of Mrs. Cummings, he himself, when Lord Chancellor, saw her alone, and found her, so far as conversation was concerned, perfectly rational; he told her the expense of having a Commission, and explained the matter to her, and she appeared perfectly to understand it; but when she said that she was determined to traverse the allegation of insanity, he could do nothing but allow the case to go to a jury. His noble and learned Friend, in other parts of the procedure, appeared to contemplate rather an extension than an alteration of the Bill of 1853. He must remind his noble and learned Friend, that if he succeeded in his present effort, he could not expect an eternity of success. The Bill of 1853 had been brought forward during the time the noble Earl (the Earl of Derby) was at the head of the Government; he (Lord St. Leonards) had carried it through after his noble Friend left office. And he congratulated the House that the measure then introduced had proved to be the most perfect scheme of administration in lunacy which had ever existed in this country. His noble and learned Friend proposed certain relief in cases where the capital or income of lunatics was very small but even now the Lord Chancellor had the power of remitting the fees, and of af-

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  fording summary relief where the capital or income was small; therefore the proposal of his noble and learned Friend in this respect was rather an extension of the Act of 1853 than a new rule. With regard also to the visitation of Chancery lunatics, his noble and learned Friend called for an increase in the number of visitors; but already, under the Act of 1853, he had the exact number of visitors he proposed now to have. Of course, if it was necessary that the medical visitors should devote more of their time to the examination of the class of patients called Chancery lunatics, he would be the last man to wish their duties to be perfunctorily and not properly performed. The whole subject was one to which both here and in Ireland he had given much attention, and he could not allow the Bill of his noble and learned Friend to be read a first time without making a few observations. He entirely sympathized in the common object of doing all that could be further done for the amelioration of the unhappy patients themselves and lessening the expense of procedure.
  LORD GRANWORTHsaid, he did not think this a subject which it was possible for their Lordships to discuss adequately—he might say safely—until they had the detailed measure before them. However clearly his noble and learned Friend always stated every case, it was impossible to follow his statement with sufficient accuracy to be able at once to give an impartial opinion on the subject. That being so, it was quite unfit that any noble Lord should commit himself on a matter upon which, when he looked into the Bill in a printed form, he might regret that he had pronounced a decided opinion. He rather agreed with some of the suggestions just made by his noble and learned Friend opposite (Lord St. Leonards). As to medical testimony, he could not think it possible by any enactment to exclude it. How common was this occurrence? During a great portion of the evidence a person appeared to be of perfectly sound mind, but then came a witness familiar with the subject, and before ten sentences were uttered the alleged lunatic was seen to be insane. A non-medical man did not know how to make the patient display his insanity. Medical men did. The danger was, if the trial was presided over by a person not quite competent—and he by no means meant to express such an opinion as to the learned person who had recently
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  presided over a tribunal of this kind—but unless the Judge who presided was very much on his guard, he might allow the jury to give too much weight to the medical testimony, which, nevertheless, must be admissible. His noble and learned Friend proposed that these trials should be presided over in future by one of the ordinary Judges of the land; and, probably, without any disrespect to the Masters in Lunacy, they would be better able to conduct those inquiries. He was very much inclined to concur with his noble and learned Friend that it was desirable prima facie to have some limitation as to the time to which they should carry back these inquiries; but it was impossible to limit the period strictly, or to lay down any absolute rule. There might be a case in which a man might have been insane down to the commencement of the two years, and become sane immediately afterwards; or the object of the inquiry might be to ascertain whether a particular will, three or four years ago, was made by a sane or insane person. The circumstances which had recently happened fully justified his noble and learned Friend in introducing some measure with the view of improving the law; but he was far from thinking that the slightest slur could thereby be intended to his noble and learned Friend opposite or to his Bill of 1853, which was one of the greatest improvements that had ever been introduced into the law on this subject.
  LORD CHELMSFORDsaid, he also was exceedingly glad that his noble and learned Friend had taken the subject in hand; it was, however, one of such difficulty as well as importance that it was impossible properly to enter fully upon the discussion at present. The circumstances connected with a recent trial, the length and expense of that investigation, had naturally called public attention to the state of the law, and his noble and learned Friend had felt it his duty to propose an alteration in it. Now, with regard to the circumstances connected with that inquiry, it did not appear to him that his noble and learned Friend attained any great advantage by changing the tribunal from a Master in Lunacy to one of the Judges of the superior courts. A circumstance, indeed, occurred on the recent inquiry which he could not help regretting, and here he differed in opinion from his noble and learned Friend (Lord St. Leonards),

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  because he always thought that where an inquiry of this kind took place, where a petition was presented and a commission of inquiry was issued, the production of the alleged lunatic was a part of the petitioner's case, and he ought not to be allowed to conclude his case without presenting the alleged lunatic for examination by the jury. His noble and learned Friend said that in the inquiry into the sanity of Mr. Windham, evidence having been given strongly denoting unsoundness of mind, it would have been an unfair thing to produce him immediately after that evidence, because the jury would naturally be prejudiced by it, and would have formed a conclusive opinion against him. But they surely would not have come to a conclusion without having first heard the alleged lunatic's case; and if, on the other hand, their opinion had, at that stage of the examining his numerous witnesses would of case, been in his favour, all the expense have been spared. How could a Judge of a superior court prevent the expense in such a case as that of Windham? He might, no doubt, have more authority over the counsel than the Master in Lunacy, but it was impossible that he could check the amount of evidence to be produced on one side or the other, nor the speeches of counsel. The appointment of such a Judge to deal with the matter would also limit the choice as to the place of inquiry. It was constantly necessary to hold an inquiry at the residence of the alleged lunatic; but if this matter were to be tried by a Judge of the superior courts, it would be difficult for him to find a proper place for him to erect his tribunal. At present, if the inquiry were deemed unsatisfactory, an application might be made to the Lords Justices, who might quash the whole proceedings, and direct a fresh inquiry. There had recently been passed an Act empowering the Judge in equity to inquire into both the law and the fact of the case before him; but that Act was only permissive. It was probable, how ever, that in a very little time they would; have a Bill before them proposing to make it compulsory upon the Judge in equity to decide upon the law and the fact, and, if necessary, to summon a jury in order to effect that object. If such a Bill should, pass into a law, he saw no reason why the Lords Justices, who directed the commission, should not themselves undertake the trial of the important question at issue. If the Lords Justices should try the ques-
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  tion, it would be final, and thus all the expense of a renewed investigation would he prevented. It therefore appeared to him necessary that the Lord Chancellor should consider that point before he moved the second reading of his Bill. He thought it would be difficult to limit the time to which the inquiry was to refer, or the evidence that was to be given by the medical witnesses. It was no unusual thing to see medical men of the highest character giving opinions of a totally different kind; but this was also the case in regard to the evidence of surveyors, the evidence in patent cases, collisions at sea, and other questions of mere opinion. Those points, however, would be the subject of consideration hereafter. He could only say that he was anxious to afford his noble and learned Friend all the assistance in his power to render the Bill as perfect as possible, but it would require the most careful consideration.
  THE LORD CHANCELLORsaid, he deprecated nothing so much as suitors being bandied from one side of Westminster Hall to the other; but he thought that the Lords Justices could not fail to derive an impression from the antecedent inquiry which determined whether there was a primâ facie case, which would render them scarcely the proper tribunal to conduct the subsequent trial. In limiting the nature of the medical evidence, he did not intend to cast any reproach on that profession. He only wished to exclude those loose speculations which were most improperly called testimony, and which ought never to be received as such.
  Bill read 1a.
  House adjourned at a quarter past Seven o'clock, till To-morrow, half-past Ten o'clock.