§ Order of the Day for the Second Reading read.
§ Moved, That the Bill be now read 2a.
§ LORD CHELMSFORD
said, he trusted he should be permitted to trespass on their Lordships for a short time whilst he stated the strong objections which he entertained to the provisions of the Bill. His noble and learned Friend remarked with much truth the other night, in introducing the Bill, that a defective state of the law was frequently allowed to remain unremedied until some extraordinary case arose which brought the evil into prominence; and the noble and learned Lord then alluded to the late Windham inquiry, which had excited so strong public feeling and which, he said, rendered it desirable that some change should be made in the existing law of lunacy. But he (Lord Chelmsford) was anxious that, in yielding to that public demand, their Lordships should carefully consider every step which they took, and should not commit themselves to hasty and ill advised legislation. The circumstances which seemed to attract most public attention and to provoke most comment in that case were the enormous length of the proceedings and their consequent expense. For the purpose of preventing the recurrence of such evils in future, it was proposed by this Bill that for the future all jury trials should be taken before one of the Judges of the superior courts instead of before a Master in Lunacy. He had very considerable doubt whether it would be practicable to adopt such a course, or whether, if adopted, it 1283 would provide a remedy for the alleged evil. Now that some time had elapsed since the close of the Windham case, he believed it was generally acknowledged that there was not the slightest complaint to be made against the manner in which his learned Friend the Master in Lunacy conducted that inquiry under the very trying circumstances which surrounded the case. He had read the summing up, which was clear, able, and impartial, and which defined the limits of the inquiry in a manner which, if it could be equalled, could not be excelled, by any one of the Judges of the superior courts. What advantage was expected to result from the substitution of a Judge for a Master in Lunacy? In the case to which he had been referring the speeches of counsel occupied eight days, and the evidence the remainder of the time, with the exception of a few hours, which were taken up by the summing-up of the Master. Undoubtedly, a Judge of one of the superior courts might have a moral influence over counsel which might check the length of their speeches and prevent the production of trivial evidence; but he very much doubted whether in an inquiry of so delicate a nature as one in Lunacy any Judge would venture to interfere with the discretion of counsel or to express prematurely any opinion as to whether evidence already offered was sufficient or not. He believed that the substitution of a Judge in all cases would, be impracticable. In the metropolis it might be possible to obtain the attendance of a Judge; but the majority of cases occurred in the country, and how was it possible for a Judge of Westminster Hall to go down into the country for the purpose of conducting an inquiry? Was he to go, attended with all his paraphernalia, to the residence of the lunatic or to some neighbouring tavern, and there hold his court with all pomp and circumstance; or was he to go with no train accompanying him except his own judicial character? If he went in the former style, there would be a wholly idle and unnecessary parade; if in the latter, he would be only the Master under a higher title, and without the practical experience which the Masters necessarily possessed. If the Master in Lunacy was to be superseded, why not require the Lord Chancellor or the Lords Justices to preside at the investigations of this description? The noble and learned Lord upon the Woolsack said that the same idea had occurred to him, but he 1284 was apprehensive that the minds of these Judges might be biassed by their having had the affidavits before them. If there was any weight in that objection, however, it would apply to every criminal trial in the country, because the Judges were always supplied with the depositions. He ventured to ask whether any change of this kind was really required at all? We had an admirable code of Lunacy law which was passed in the year 1853, for which we were indebted to his noble and learned Friend (Lord St. Leonards), and which had produced an immense amount of advantage to persons who stood in need of its interposition, without harrowing the feelings of their families. He did not hesitate to say that that statute had worked most efficiently. He had inquired specially as to the subject of Commissions of Lunacy, and had ascertained that since the Act came into operation on the 28th of October, 1853, down to that day 561 commissions had been issued, of which only twenty had been tried by juries—or scarce so many as three in the year. The beneficial effects of the law were shown by the 541 cases in which no jury was required, but in which the necessary protection had been thrown around the unhappy subjects of these inquiries without the feelings of any of the parties or relatives being harrowed by publicity. Let the House imagine the social evil and suffering which was in those cases veiled from the eye of the public. Was it desirable with a rash and hasty hand to touch a system which had been productive of such beneficial effects? It might be said, however, that this measure did not apply to the 541 private cases, but only to the few public trials. He might answer that if the cases were so few, there was the less necessity for an alteration; but he believed that the Bill would tend greatly to increase the number of inquiries by jury. It was a very common characteristic of insane persons to have a very exalted idea of their own importance; and if they learnt that the Legislature had thought it necessary to provide that one of the Judges of the Superior Courts should consider their cases, he had no doubt many of them would prefer the notoriety of a trial before a Superior Judge to the secrecy of a quiet and unpretending inquiry before a Master in Lunacy. No necessity had been shown for this change; no proof had been adduced that the Masters in Lunacy had not 1285 discharged their duties faithfully and efficiently; and therefore he entreated their Lordships not to sanction an interference with the present system. The seventh section of the Bill gave the Judge a discretionary power as to the stage of the proceedings at which the alleged lunatic should he examined, and whether it should be in public or private. As that was the present law, he saw no necessity for its re-enactment, unless it were for the sake of adding a provision, that if the alleged lunatic were examined in private, he should be at liberty to demand a public examination as well. The object of that additional provision was doubtless that the public might stand by and see fair play; but he apprehended it would lead to the most fearful consequences. It was a very common form of insanity for a person of the most delicate mind to become possessed with the most obscene imaginations, which he uttered not only without shame, but with a sort of pride. It was also by no means rare for a lunatic to conceive the deepest hatred to those who had formerly been dearest to them, and to attribute the most abominable crimes to other people. Was it right, then, that a madman should be entitled to insist upon appearing in a public court and pouring forth a torrent of blasphemy, obscenity, or defamation? He recollected a case in which a military gentleman entertained the most dangerous delusions; he was of an educated and elegant mind, but he was led by insanity to intersperse letters full of exquisite criticism on art, and just comments on topics of the day, with obscene ribaldry concerning the highest person in the land. Would it be safe or decent to allow persons with these imaginations and feelings, with no sense of the impropriety of their conduct or expressions, glorying in the display of their observations, and insisting on making a public exhibition of themselves to be examined in public? At present inquiries of that kind were conducted with the utmost delicacy and tenderness, and every effort was made to soothe the mind of the alleged lunatic; but the very excitement of a public examination would be likely to touch the particular string to which all his hallucinations responded and to aggravate his insanity. He was satisfied that the provision would be attended with the most mischievous effects, and he hoped it would not pass. He objected also to the third clause, by which an inquiry 1286 into the state of mind of the alleged lunatic was to be confined to a period of two years before the date of the commission, because, in various cases, it would be scarcely practicable. It might, for instance, preclude an inquiry into the condition of a born idiot. Why was the clause of the existing Act to be repealed which gave the Lord Chancellor power to direct an inquiry as to how long the alleged lunatic had been of unsound mind, or whether he was insane at a specified time? He knew a case in which a person who was afterwards found to be a lunatic executed a deed by which he disposed of all his property in favour of the son of his attorney. On that fact being mentioned in the petition for a commission, the Lord Chancellor directed an inquiry to take place as to the man's state of mind anterior to the time when the deed was executed. The result was that the jury found that the person had been insane from a time anterior to the date of the deed. The matter came back to Chancery; but the parties compromised upon the persons in possession being let down gently with respect to the rents which they had received. Why was the provision of the law, permitting inquiries to be carried back to any particular incident, to be limited by a clause, the exception in which was larger than the clause itself, because the Judge before whom the commission was executed was to have power, if he should think fit, to direct inquiries beyond this arbitrary rule? Wherever an arbitrary line was drawn it would be sure to exclude evidence of the utmost importance lying on the other side of it; and he therefore submitted that a limit, subject to be overruled by the Judge or Master, was extremely mischievous, and at the same time wholly unnecessary. With regard to the other provision in the same clause, which excluded the opinions or conclusions of medical practitioners, with the same qualification, that if the Judge thought fit, their opinions might be taken, it seemed to him that these cases were peculiarly fitted for testimony of this description, and that in every case the Judge would admit it, with a due caution to the jury not to pay attention to the conclusions if they were of opinion that the grounds upon which those conclusions were based were insufficient. There was another clause which, if he had not entirely misconstrued the words, would considerably enlarge the jurisdiction of the 1287 Lord Chancellor in these cases. Under the Roman law where a person exhibited prodigality or proneness to waste his estate the Prætor interposed and appointed tutors or curators to manage the property. In Scotland there was a similar power of intervention. But in this country the law had never so far interfered with the free agency of individuals, and any man might go to utter ruin, unchecked, unless his acts manifested unsoundness of mind. There was some misapprehension with regard to the extent of the power of the Chancellor in these cases. People were apt to suppose that absolute insanity must he proved in order to warrant the issue of a commission; but the law had been clearly stated by Lord Lyndhurst in 1827, quoting as an authority the decision of Lord Eldon in 1802, in these words—It is not necessary to go back to old authorities to know how the law is now to be administered. It has been clearly expressed by Lord Eldon in 'Ridgway v. Dawson.' 'I have reason,' says Lord Eldon, 'to believe that the Court did not in Lord Hardwicke's time grant Commissions of Lunacy in such cases as those in which they have since been granted. Of late the question has not been whether the party is absolutely insane, but the Court has felt authorized to issue Commissions, provided that it has been made out that the party is unable to act as a prudent man in the management of himself and his affairs.' This law, as stated by Lord Eldon, has been acted on for years in the view of the Legislature. The Legisture has not thought fit to interfere, and therefore I take the law to be as it was then expounded.The law, as so laid down by Lord Lyndhurst, applied to cases short of insanity; but they must be cases of unsoundness of mind, and extravagance or follies which indicated imbecility would not be sufficient unless the imbecility amounted to unsoundness of mind. The interpretation clause said the Act should apply to any person, imbecile or lunatic, whether with or without lucid intervals. He need not stop to criticise the expression, beyond remarking that a lunatic was a person who had lucid intervals. The clause proceeded to refer to any person "of such imbecility or loss of mind as to be incapable of managing his affairs." The term "loss of mind" was entirely new to the law. He hardly knew the meaning of it. If it were a translation of amentia as distinguished from dementia, it did not apply to imbecility, which was mere weakness, and not loss of mind. The fifth section referred to every inquisition whereby a per- 1288 son, should be found to be incompetent, from unsoundness or imbecility of mind, for the management of himself or his affairs. The words "unsoundness" and "imbecility" were not words denoting the same state of mind; they were terms denoting different states of mind; and if they read the interpretation clause with that section, either the fifth section adopted the law as it stood, which was unnecessary, or it enlarged the bounds of the present law, and was therefore dangerous. Under the existing law no person, however extravagant, foolish, or prodigal, could be made the subject of a Commission of Lunacy, unless his acts were such as to lead a jury to the conclusion that he was of unsound mind, and a verdict founded on imbecility or weakness of mind only would be set aside as contrary to law. In very many cases the jurors would hesitate very long before bringing in a verdict of unsoundness of mind, when the evidence of early extravagance and prodigality might be such as to compel them to come to a verdict of weakness of mind; and, as he understood the clause, by a verdict of that kind the subject of the inquiry might be condemned to lose his free agency and the management of his own affairs, and to be detained in a life-long bondage. These were matters of perilous importance; and he should be glad to hear that that was not his noble and learned Friend's proposal; but if it was not, the Bill would require very great alteration. He had gone through the matter with a very earnest anxiety that their Lordships should understand his objections. He hoped his noble and learned Friend would consent to remove from the Bill in Committee the proposals to which he had taken objection; but if that course were not taken, and the Committee should pass the clauses, he should probably feel it necessary, should he find that the views which he had expressed met with any very general assent from their Lordships, to endeavour to secure their rejection at a future stage.
§ THE EARL OF SHAFTESBURY
said, that it would be presumptuous in him to enter on the legal bearings of this question after it had been handled by so many noble and learned Lords who had held the high office of Lord Chancellor; but, having had considerable experience of the working of the present law, he might, perhaps, be allowed to express an opinion with reference to certain of the provisions 1289 contained in the Bill. He highly approved that clause which provided that the Judge and jury should be brought into contact as soon as possible with the person whose stale of mind they were to inquire into. That was stated to be the law already, but it ought to be the practice and to be made compulsory in all cases. All the experience which he had had convinced him that before any evidence was taken the parties who were to judge ought to be brought into communication with the alleged lunatic, to see, and hear, and examine him; and having then ascertained by inquiry the principal points of the alleged delusion, they might take such evidence as was necessary to determine the question whether he should be detained or not. After such an interview they would understand the evidence much more clearly and readily, and would come to a much more satisfactory and safe conclusion. He hoped that would be made the invariable rule hereafter, and he was convinced that it would supersede, not the necessity—for there never had been any such necessity—but the practice of hearing long and laboured speeches from counsel, and would thus lead to the saving of much time and money. He also approved the limitation of the time over which the inquiry was to extend to two years. The question which the Judge and jury had to decide was one of fact—whether the man before them was insane or not at the period of the inquiry; and if he were proved to have been mad more than two years before, it would by no means establish the fact of his madness now. Nothing which he had done antecedently could amount to proof enough to justify the jury in declaring him insane at the present moment, and to take from him the charge of his property. It was necessary that they should go back; but it might be asked why should that limit be taken? No doubt two years was an arbitrary period, but so must any other period be which was fixed. In cases where there was no sort of doubt as to a man's madness, of course there was no necessity to go back at all; but in doubtful cases it was necessary to go back for some time, to see whether his conduct had been regular or not during that time. If up to the time of the inquiry they found that his conduct had been regular, the conclusion must be that very unusually strong and clear evidence was required to prove the unsoundness of the patient's mind. In most cases the 1290 period of two years would be quite sufficient for this purpose; but to go travelling back over a long period to scrape together all the foolish things said and done by a man in his early days—all the little acts of misconduct which might indicate a certain amount of alienation of mind, but which time, improved health, or the influence of religion might have altogether removed, was an absurd and cruel practice. There was one form of insanity which would require more attention, and his noble and learned Friend (Lord Chelmsford) had truly said that in these cases the limitation must depend very much upon the character of the person whose sanity was under investigation; that in which the patient had given signs of some tendency to self-destruction, or the destruction of others. That was monomania—the most terrible of all kinds of insanity, and this kind of monomania might remain latent for many years. A patient might appear to be of the most gentle mien; he might have every single thing which would recommend him to those about him, and bring them to the conclusion that he ought to be discharged; and yet suddenly, without the slightest premonitory symptom, it would break out again in the fiercest form. A case had occurred not long ago within his own experience. There was a patient—a barrister—confined in one of the asylums which he was in the habit of visiting, whose disease took the form of a tendency to self-destruction. He had been confined there for five years, and his demeanour was so gentle and amiable that he won, over the hearts and judgment of every one around him. At last it was determined that he should have a trial—that is, that he should be allowed to go out for a short time to see whether change of air and scene might not have a beneficial effect on him. He had passed a great part of his time in reading and writing, and one day he requested that a desk which he had at home might be written for. The desk was sent and given to him, and in the course of a few hours he was found poisoned. He knew that five years before he had secreted poison in the desk, and he took it the moment it arrived, only just leaving himself time to write a note, in which he said that no one was to be surprised at what bad happened—that no extraordinary circumstances or events had induced him to do this, but that he had long contemplated the necessity of it. In such cases as this 1291 the period of two years would certainly not be sufficient. Then another point was that of the medical evidence. He did not know that medical gentlemen—he said it with all respect—unless they had made insanity their special study, were more qualified to judge of the soundness or unsoundness of mind of a person, than any person of common sense and practical knowledge of the world. Mere opinions and scientific speculations ought no longer to be adduced in the courts as testimony. Whatever evidence was given by a medical man should be facts, and judgment based on those facts. From his own experience of many years on the Commission of Lunacy he could affirm that medical men who had not made the subject a special study were as ignorant of mental disease as any one who observed it for the first time. It was to facts, and facts alone, they must look. He thought it a monstrous thing that a medical man should infer, because a person had a cast in his eye, or a particular-shaped head, that he must be insane, when, in fact, he commits no mad act at all. In every case medical men could be brought forward who would give contrary opinions on the same premises. Facts observed by himself ought to be the basis of the evidence of the medical man. He maintained that persons of common sense, conversant with the world, and having a practical knowledge of mankind, if brought into the presence of an alleged lunatic, would find out, in a short time, whether he was, or was not, capable of managing his own affairs. He perfectly well recollected an instance that showed how little many eminent medical men were acquainted with what was going on in the world, and how they formed an opinion and came to a conclusion without any foundation in fact. When discussing the question of the sanity or insanity of a lady, he (the Earl of Shaftesbury) strongly maintained that she was perfectly sane and capable of managing herself and her affairs; a medical man of great eminence took him aside, and said, "Are you aware, my Lord, that she subscribes to the Society for the Conversion of the Jews?" Had that medical gentleman been acquainted with what was going on in the world, he would have known that hundreds and thousands of persons of the most sane and solid description were doing the same thing. In the case of another, a young married lady, it was argued that 1292 she must be insane because she was in the habit of wearing a dagger at her side, and the dagger was produced. He told the lady that one of the charges against her was that she wore a dagger. "Dear me," she said, "if I am insane for that reason, nine-tenths of the ladies in Paris are insane too, for they do the same." He took the dagger to a shop in London and inquired into the matter. He was told that they had sold seventy of the same sort within a few days; that wearing them had become a fashion in Paris, and was becoming the fashion in England. Yet, a person calling himself a mad doctor said the lady must be insane, because she wore a dagger. That a medical man should be allowed to be in court, hear all the evidence, and on that be allowed to state the conclusion to which he had himself come, he thought was a vicious practice. He did not believe that the opinions of medical men, founded on evidence they had heard, was evidence at all; but it was likely to produce a very serious effect on the Master, the jury, or the Judge. It was a wrong method. Could anything be more remarkable than the discord that existed between all these doctors on the subject of insanity? They did not agree among themselves, they were perpetually at variance with each other, and they would find the strongest, most discordant, and dangerous opinions given by medical men. He thought the noble and learned Lord on the Woolsack had done well in requiring the medical testimony to be founded on facts, and providing that general scientific conclusions shall not be received as evidence. He had also done well and most humanely in what he proposed respecting the management of the property of lunatics. That system was begun in 1853 by the noble and learned Lord (Lord St. Leonards) when he was Lord Chancellor, who had done great things for the happiness and comfort of the poor lunatic. Amongst other things the Act directed, that where the property of the lunatic was under £ 500, it should be brought under the protection of the Court of Chancery, to be applied for the benefit of the lunatic. That was seven years ago; it was now time to advance somewhat further, and by the present Bill it was proposed to apply, in a summary manner, property to the amount of £ 1,000, or an income of £ 50 per annum, for the benefit of the lunatic, without making it necessary that the patient 1293 should have been declared lunatic by an inquisition. It was impossible that such an inquiry could take place at a less cost than £ 70, and £ 70 out of £ 1,000 was a grievous infliction. He hoped it would be made possible for some person to be appointed by the Lord Chancellor to stand in the place of the lunatic, to manage his property. If a small tradesman, whose profits did not exceed 15 s. or 20 s. a week, were confined as a lunatic, his property and business went to ruin because there was no one to administer them. If a proper person were appointed to stand in the shoes of the lunatic, it would tend very much to assist his remedial treatment in the asylum. It was proposed to have two medical visitors in addition to the legal visitors. He hoped those visitors would be required to visit every lunatic four times a year. Due visitation was not only of beneficial effect to the patients, but to the keepers of asylums. These were the principal provisions of the Bill. There might be some legal difficulties connected with it, some of which the noble and learned Lord (Lord Chelmsford) had pointed out. Upon these he did not feel competent to enter; but though the Bill was not perfect, yet he ventured to say that under its provisions this wretched and unhappy class would be better treated and cared for than the same class in any part of the inhabited globe.
THE LORD CHANCELLOR
My Lords, When I introduced this Bill, I stated that it deserved your Lordships' most attentive consideration. I am not at all surprised, therefore, that it has been criticised by my noble and learned Friend (Lord Chelmsford). But I now beg your patient attention while I call your Lordships back again to the subject, while I endeavour to answer the objections he has made. The noble and learned Lord first dwelt on the impropriety and the want of any necessity of sending an inquiry of this nature before one of the Judges of the land. But can your Lordships imagine any issue or any inquiry more important to the unfortunate subject of it than an inquiry into his sanity? And if these important cases are tried in a private room, before persons of an inferior grade, there is an anomaly of which we have no example and no justification. But I am surprised at the shortness of the memory of the noble Earl (the Earl of Derby) and of my noble and learned Friend, the latter of whom criticised the Bill and the former cheered the criticism.
1294 For myself I claim no merit for the proposal, that where a jury is demanded the inquiry shall take place before a Judge; because, in a Bill which I now hold in my hand, and which in March, 1859, was presented to the House of Commons by Sir Hugh Cairns, then Solicitor General, and Mr. Secretary Sotheron-Estcourt, the same proposal is contained. Now, I presume that the Bill received the attention of the noble Earl, and also received some consideration from my noble and learned Friend who was then Lord Chancellor. No doubt the interval of time may have led to a change of opinion; but, at all events, such a provision was then considered by them, and then thought most desirable; and being glad to find my own opinion backed by such high authority, I introduced this provision into the present Bill. But I will now meet the objections which my noble and learned Friend has unwittingly raised against his own measure, being apparently desirous of finding grounds for opposing mine. First, he says there would be a difficulty in having an inquiry of this kind before one of the Judges, because it ought to take place near the residence of the lunatic. But in all the cases which have occurred for the last twenty years where a jury was demanded, it has constantly happened, not where the lunatic was some poor unfortunate wretch shut up in an asylum or confined to his bed, but they were cases in which there was a doubt about the lunacy, and where the person in question moved about unrestrained, and was able to attend the commission. Such was the case of Mr. Windham, of the aged woman Mrs. Gumming, of Sir Henry Meux, and of Lord Portsmouth; and I believe that all the great trials which should have been con ducted under the superintendence and authority of a superior tribunal have been cases of this description. "But then," says my noble and learned Friend, "why not send the commission to be tried by the Lords Justices or by the Lord Chancellor?" But my noble and learned Friend forgets that where this trial takes place the Judge who will issue the writ, and will have the discretionary power as to a new inquiry, is to be either the Lord Chancellor or those who represent him—namely, the Lords Justices. Then he says, "Why alter a system which works so well?" Now, in my noble Friend's eulogy of the measure of 1853 I entirely concur, but experience points out that it 1295 is necessary to superadd something to that measure. Is it not a scandal to the administration of justice that in one recent case the expenses of the parties amounted, without the least reason, to some £ 30,000; that in the case of Sir Henry Meux they amounted to between £ 7,000 and £ 8,000, while in that of Mrs. Cumming they were so great as to absorb nearly one-third of her property? Do not these instances carry with them the conviction that there are great defects in the system, and that it is impossible to permit the system to continue? Now, I by no means detract from the great merit of the Bill of my noble and learned Friend (Lord St. Leonards), when I say that something has still to be done in the same direction. No work is perfect in the first instance, and the work of reform will never become idle, because it will be rendered necessary again from time to time, as experience shows other means of remedying defects, and other defects which require remedying. My hon. and learned Friend was particularly eloquent upon the great evil which he said might result from the clause enacting that the lunatic, if he requires it, shall be examined in public. But what is the principle of our law? Why does the law require that there shall be a jury? Because of the great and overwhelming importance to the unfortunate subject of the inquiry. You do not deprive of his liberty a man accused of an ordinary crime unless you give him an open trial. But has not experience proved the necessity of an open inquiry in cases where, sometimes from mistake, sometimes possibly from sinister motives, charges of lunacy are made? Then my noble and learned Friend said, "The lunatic may give vent in open court to obscenity, blasphemy, or ribaldry." But will there not be guardians of public decency? Would the jury want any other proof than would be afforded by such an exhibition? Is there no power in such a case to remove persons from the court, and thus prevent any outrage upon public decency? That is an imaginary evil conjured up by my noble and learned Friend. Then he objects to the proposal that the inquiry shall be limited to a definite period, and he finds fault with the limit of two years. But what you want to ascertain is the condition of mind at the time of the inquiry. You have no right to say that because a man was insane on the 1st of January, 1862, he must be insane on the 1st of March, 1296 The Bill gives an interval for inquiring whether or not there be a chronic malady, because it is not right that you should condemn as insane a man who is only suffering from the delirium of a fever. The objection is made in forgetfulness of the origin of the law. This is one of the instances in which an evil practice had crept in through following a precedent without observing the reasons for its original introduction. I said, when introducing this measure, that the present system was modelled upon the old commission set on foot for the purpose of ascertaining the rights of the Crown. In such cases it was proper and necessary to carry back the inquiry, and ascertain what those rights were at a certain period perhaps long since passed; but to carry back the inquiry into the insanity of persons as is done at present, is only to do that which may do injustice to third persons. Thus in the case of Sir Henry Meux the great contest was whether the lunacy should be fixed at a particular period, so as to upset a Will under which certain parties to the inquiry were entitled. But the principle of English law does not allow an absent man—and a man who is interested in such a Will may be regarded as an absent man—to be affected by a judicial or a quasi-judicial proceeding. The only object of inquiry with regard to the past is for the purpose of ascertaining what is the nature and character of the insanity—whether it is merely a temporary affection, or whether it permanently disables the lunatic from controlling himself and from managing his own property. But then my noble and learned Friend says that the inquiry ought to be regulated by the nature of the lunacy. That is rather a bold remark in the face of recent experience. What was the vice of the late inquiry? First of all medical men were put into the witness box to show that it was a case of congenital idiotcy, and then evidence was adduced of all the actions of the supposed lunatic from his cradle. It is through having regard to the nature of the alleged lunacy that the mischievous practice has been introduced of carrying back the inquiry in this manner. My noble and learned Friend seemed to imagine that there was peculiarity in the law respecting idiotcy; but in their results idiotcy and lunacy are precisely the same. Originally there was a difference, but it has long since disappeared. The next objection is 1297 that the discretionary power of the Judge to admit medical evidence will annul and destroy the whole effect of the provision. Now, I repeat that the introduction of medical opinions and medical theories into this subject has proceeded upon the vicious principle of considering insanity as a disease; whereas the law regards it as a fact which can be ascertained by the evidence in like manner as any other fact. Therefore we impannel a jury of ordinary men, and call upon them to try the question by proof of the habits, the demeanour, the conversation, and the acts of the alleged lunatic. But if you begin by telling them this is a most peculiar question, lying within the province of medical men, then undoubtedly they will consider that it is a matter removed out of the ordinary sphere of their knowledge, and that they must accept the opinions of others in order to come to a determination upon it. Now, just let me call your Lordships' attention to the manner in which medical men are influenced in coming to a decision. I shall quote from a book of great authority, and I think your Lordships will see that to commit an issue of this kind to be determined by the testimony of men influenced by such considerations is a great mistake and a great cause of injustice. The writer; in question, a man of great experience and eminence, says—A principal characteristic of some patients is a peculiar want of harmony in the expression of the features; in others a fixed expression of some intense emotion, and a twitching of the orbicularis or other facial muscles is not uncommon.That my Lords, is a fearful announcement for those who are afflicted with a nervous peculiarity. "In a great many cases of chronic mania the hair becomes harsh and bristly." I would recommend all persons to lay in a stock of Macassar oil to avoid the danger here pointed out: "the skin of the scalp becomes loose, and medical men should never omit to examine the ears, and if they discover a shrivelled ear, it tells an undeniable tale of profound mental disease; altogether the effect of mania, and, indeed, of all forms of insanity is to stamp upon the patient a remarkable degree of ugliness." That is a very dreadful announcement for plain men; but let not the ugly man hope to escape the conclusion by clothing his face with a smile of goodnature, because nothing "is a surer proof of insanity than a pleasing smile always present." Now, my Lords, are 1298 these trifling rules to be allowed to prevail upon inquiries of such moment? The noble and learned Lord went on to observe, and to a certain extent correctly, that, according to the wording of one particular clause, in which "or" has been misprinted for "and," there would be an alteration of the present law. Now, although I disclaim any such intention at the time of introducing the Bill, yet I do avow my intention to suggest to your Lordships in Committee one alteration. It is true that the language of Lord Eldon in one case went somewhat beyond the point; it is true that imbecility not amounting to unsoundness of mind will not warrant the conclusion of lunacy, or justify a jury in finding lunacy. That that should be the law has always been a subject of regret, and Lord Eldon himself expressed that feeling. But Lord Erskine called attention to the subject as long ago as 1806, when he said—I think there ought to be an Act of Parliament, not from any defect in the jurisdiction, but on the immense moment that the Lord Chancellor should not assume an authority that does not belong to him by the ancient jurisdiction, and that may press sorely on the liberty of the subject; on the other hand, feeling, as Lord Eldon appears strongly to have felt, that persons who are above all others entitled to protection ought not to go unprotected. Another ground is this—a man may have passed a great and illustrious life, and by the course of nature his faculties may decay, so that he may not be fit either to govern himself or his affairs. It is unseemly that he should be put on the footing of a lunatic, and that a commission should issue in the ordinary course which may affect the families of such i persons in other times. It is supposed, and that opinion has gone forth very generally, that this unhappy disease runs into the posterity, and thence arises a grievous dilemma, that either such a person must be deprived of protection. altogether, or in future time that distress to his family should be the consequence. Why should not a man be entitled to protection in this second state of infancy as well as the first? The whole prerogative is this—that it falls to the King to take care of those who cannot take care of themselves.It is my intention, my Lords, to propose to invest the Lord Chancellor with jurisdiction to provide for the case of persons who are in the second stage of childhood by surrounding them with the necessary protection without the necessity of issuing a commission of lunacy. I will not trouble your Lordships upon other points at present, but I may state that it is my intention to persevere with this Bill if your Lordships should be pleased to give it a second reading. I shall cheerfully accept 1299 every suggestion for its amendment; but those things which I think are vital and cardinal points, and are absolutely required for the amendment of the law, I shall certainly not give up in any important particular. Therefore, my noble and learned Friend will have; an opportunity, if he desires it, of throwing out this Bill altogether, thereby inflicting, as I should think, a very grave injury upon the public interests.
§ THE EARL OF DERBY
My Lords, I should not presume, in the presence of so many of your Lordships who are so much more competent to do so, to enter upon a discussion of the details of a Bill upon this important and delicate subject. Neither am I disposed to discuss the provision which is not included in the Bill of the noble and learned Lord, but which he has just announced his intention of introducing. I will only say that it appears to me that it is an extension of existing powers which will require serious and deliberate consideration, and is one which ought not to be introduced without having received the most careful inquiry. I should not have intruded myself upon your Lordships now had it not been for a direct appeal to myself and my noble and learned Friend—who having already spoken cannot again address you—an appeal which was made to us in reference to a matter personally concerning ourselves. I certainly have heard with surprise that an incidental cheer which I ventured to give to the statement of my noble and learned Friend should have brought down upon us an attack from the noble and learned Lord upon the Woolsack—couched indeed in very polite terms, but charging us with shortness of memory and gross inconsistency in objecting to a provision in the Bill which was identical with a provision introduced into the Bill that was brought forward in 1859 by the Solicitor General of a Government of which we happen to have been Members. The noble and learned Lord, I believe, did not trust to his memory, but had in his hand the Bill to which he referred. I had not that Bill in my hand, but in consequence of the statement of the noble and learned Lord I thought it right to refer to it and to see what its provisions were. The objection that my noble and learned Friend took to the Bill was that the substitution of a Judge of the superior courts for a Master in Lunacy was in all cases a matter of doubtful expediency and 1300 of doubtful advantage, and that there were cases in which it would be found not only inconvenient but absolutely impracticable. He pointed out very clearly the circumstances under which it would be found impossible to obtain the advantage—if it were ah advantage—of the presidency of a Judge of the superior courts. The noble and learned Lord on the Woolsack thinks it extraordinary that we should raise this objection—the Bill, he says, from which he borrowed this provision, having been introduced by the Government with which I was connected. I presume the noble and learned Lord had the Bill of Sir Hugh Cairns in his hands when he made that statement; if he had not, I am afraid I shall be obliged to retort upon him the shortness of memory which he has charged upon us. If he had the Bill before him, I cannot understand in what way, with his acuteness; of intellect, the noble and learned Lord has fallen into so grave an error. I shall read to the House the clauses in these two Bills respectively. The Bill of the noble and learned Lord provides that—Every Commission of Lunacy which directs the Inquisition thereon to be made by the Oath of a Jury shall he addressed to one or more of the Judges of Her Majesty's Courts of Queen's Bench, Common Pleas; or Exchequer, and the Judge, or one of the Judges, to whom such Commission shall be so addressed, shall make the Inquisition thereby directed, and shall return the same into the High Court of Chancery.That provision the noble and learned Lord says is identical with the one introduced by Sir Hugh Cairns. The provision contained in the Bill of my noble and learned Friend was in the following terms:—A Commission in the nature of a writ de lunatico inquirendo may, in any case in which the inquiry shall be opposed by the alleged lunatic, and with a view to the ultimate saving of litigation and expense, if it shall be considered expedient, be issued under the Great Seal, addressed to any of the Judges of Her Majesty's Courts of Queen's Bench, Common Pleas, or Exchequer, directing them to make, by a Jury, the Inquisition to be therein mentioned.The Bill of Sir Hugh Cairns provides that, in particular cases, where a saving of expense may occur, or where, from other circumstances, it may be deemed expedient, it shall be competent for the Lord Chancellor to issue a writ to any of the Judges. The Lord Chancellor, from the Woolsack, tells us that provision is identical with one requiring that every 1301 case shall be referred to Judges of the superior courts. I rose, not for the purpose of vindicating the memory of my noble and learned Friend, nor yet of vindicating myself from any charge of inconsistency, but simply to point out that the ablest and acutest minds may be misled if they do not very carefully consider and compare together the propositions of two Acts which they declare to be identical, and from the supposed identity of which they are led to make attacks on those happening to differ from them in opinion.
THE LORD CHANCELLOR
The noble Lord does not seem to be aware that no jury trial can be had except where the lunatic demands it. The Bill is not intended to alter the law in this respect, but directs that where according to the existing law a jury trial is to be had, it shall be had in the manner which seems most suitable.
§ LORD CHELMSFORD
In all cases.
THE LORD CHANCELLOR
In all cases of jury trial. This misapprehension only shows how the acutest minds may be misled by imperfect information.
§ THE EARL OF DERBY
With all due respect to the noble and learned Lord, I cannot conceive that "shall in all cases" can be identical with "cases in which it may be thought expedient." One renders it imperative on the Court of Chancery to send every case before a Judge of a superior court. The Bill of Sir Hugh Cairns says that in particular eases, where it is thought expedient, it may be sent. And my noble and learned Friend has actually pointed out that in certain cases the difficulties in the way of such a reference would be insuperable.
§ LORD ST. LEONARDS
said, it was evident that the phrase "in all cases," appearing in the Bill, must be subject to explanation and qualification. There were other points which required revision, such for instance as clause five, which provided that "every inquisition whereby any person shall be found to be incompetent from unsoundness or imbecility of mind to manage himself and his affairs shall have the same force as an inquisition finding a person to be a lunatic." The meaning of the noble and learned Lord must clearly have been "unsoundness and imbecility of mind." [The LORD CHANCELLOR assented.] But the same mistake recurred in other passages; and if these were not rectified, a very dangerous 1302 weapon would be put into the hands of the Court of Chancery. It would, in fact, be armed with a jurisdiction which the law of England had always renounced, and he might say denounced. He did not think it possible that their Lordships should agree to the section of this Bill which provided that in every case of lunacy the inquiry should be confined to the time at which it took place, and that no evidence should be admitted of circumstances which occurred more than two years before. By the Act of 1853, section 47, it was provided that the inquiry should be confined to the state of mind of the alleged lunatic at the time it took place, unless the Lord Chancellor should direct to the contrary; and therefore the object sought by his noble and learned Friend upon the Woolsack might be obtained without any new law whatever. Their Lordships had already heard that of 561 Commissions which had been tried since the passing of the Act of 1853 only twenty had been tried with the aid of a jury. Of those twenty cases, eleven occupied only one day each; three, two days; one, three days; three, five days; one, nine days; and another (that of Mr. Windham), thirty-one days. Nothing was more desirable when a considerable event occurred, which seemed to render necessary some important change of the law, than to abstain from immediate action, and to wait until the passions of the moment had cooled down—for the moment when you could more calmly look at the result and effect of that event; and he was not convinced that their Lordships were now so competent to judge of the effect of Mr. Windham's inquiry as they would be some few months hence. Such an inquiry, affecting as it did the free enjoyment of life by a person who had been accustomed to the utmost liberty of action, was really a question of life and death, and the mode in which it should be conducted ought not to be lightly or hastily determined. He had always understood that it was one of the first principles of the lunacy law that the question whether a man was of unsound mind should be tried at his mansion, wherever it was situate, or at his last place of abode. That requirement was made as a protection to the alleged lunatic; but it would be withdrawn if such cases were to be tried in a superior court. He agreed with his noble and learned Friend near him in regard to the objectionable character of 1303 the clause which limited the inquiry into the state of mind of the alleged lunatic to the two years previous to the commission. As to the restriction on the medical evidence, it was, often said, sarcastically, that doctors differed; but so did other professional men. Differences of opinion arose from the general infirmity of the human mind; but in the case of medical evidence in courts of law the difference was sometimes more apparent than real, and arose from the ingenuity of the lawyers in confusing witnesses or distorting what was said. As the law at present stood, the person who conducted the inquiry could examine the lunatic once, twice, or more frequently; but by this Bill he would be directed to examine the alleged lunatic at the commencement of the inquiry, and unless there was another direction that would be taken to be the proper course. But he denied that it was the proper course. He could conceive nothing more injurious than that the alleged lunatic should be called before Judge and jury in the first instance, and be tried, in fact, upon the affidavits upon which the commission issued, before any case was established against him. He did not approve the proposal to give the alleged lunatic the imperative right to be examined in public. His noble and learned Friend (Lord Chelmsford) had well described what would be the effect in many instances, and he entirely concurred that such an examination could do no good, and might do great harm to the alleged lunatic. He would not trouble their Lordships upon other points of detail with regard to the visitors, which would be better discussed in a Committee; but, with every respect for the present registrar, who was a most competent and excellent officer, he objected to his practising as a solicitor, as he was of opinion that his whole time might be employed advantageously in assisting the Lord Chancellor on many occasions, when, speaking from experience, the Lord Chancellor must feel the want of such assistance. The noble and learned Lord then thanked their Lordships who, sitting on either side of the House, had expressed favourable opinions of the measure of 1853.
§ LORD CRANWORTH
rose, not to prolong the discussion, but to clear up a doubt which had been cast upon a portion of the subject by the unfortunate wording of some of the clauses of this Bill. By the present law, although there was a power to issue 1304 a special commission, the power was never exercised, and all Commissions were directed to the Master. The Master then gave notice to the alleged lunatic of the commission, and informed him that if he pleased he could have his case investigated by a jury. It appeared that in 541 cases out of 561 no such desire had been expressed. The words in the Bill were that every commission should follow the form in the schedule, or, in other words, that every commission should be tried by a jury. His noble and learned Friend on the Woolsack had explained that the in tention was that whenever a commission was to be tried by a jury, but not otherwise, certain proceedings should take place. The Bill would require alterations in Committee to make it consistent with that meaning. He concurred in opinion that those cases should be tried by one of the Judges of the. superior courts, and that the proposed change would be a great improvement. At the same time, it would be very objectionable to say that all cases must be tried by a jury, and it would be extremely inconvenient that they, should be so tried, unless some special circumstances required it. He would suggest, whether it would not be better to say that the jury cases should be tried, by one of the superior Judges or by the Lords Justices. That would be a far better mode of putting an end to the present enormous expense than any enactment as to what might and what might not be given in evidence. He could not agree with the proposal to limit the time over which the inquiry should extend to two years. It might be necessary to show that certain symptoms now manifested by the alleged lunatic had at some previous period been followed by severe lunacy; and to shut out evidence of that sort would be to defeat the objects of the inquiry. Neither could he agree that it was either reasonable or safe to shut out medical testimony because there were some medical men who entertained very wild theories on the subject. Lunatics not under the care of the Great Seal could not be shut up without a certificate from two medical men, and it was a most extraordinary thing to shut out that kind of testimony in the more important cases. If the cases were to be tried by the superior Judges, it might be safely left to them to say what weight should be attached to that testimony. By this he did not mean in any way to reflect on the manner in which the recent inquiry and other in- 1305 quiries had been conducted by the learned Masters, though, with all deference to them, he was bound to say that they could not have the same authority over the counsel as a Judge of the superior court from his position must have.
THE LORD CHANCELLOR
pointed out that by a recent Act the certificate of the medical men must state, not only their opinion of the man's insanity, but the facts on which they had formed that opinion.
§ Motion agreed to; Bill read 2a accordingly; and committed to a Committee of the Whole House on Friday, the 21st instant.
§ House adjourned at Eight o'clock, to Thursday next, half-past Ten o'clock.