§ The EARL OF DERBY
My Lords, I have given notice to the noble and learned Lord on the Woolsack that I would afford him an opportunity, at the meeting of the House this evening, of setting either himself or me right with regard to a statement made by the noble and learned Lord on the last occasion your Lordships were assembled. Your Lordships, perhaps, may recollect that on that occasion I found myself called on to vindicate my noble and learned Friend near me (Lord Chelmsford) and myself from a charge brought against us by the noble and learned Lord on the Woolsack, either of inconsistency or of great shortness of memory, in objecting to a clause contained in the Bill of Her Majesty's present Government, when we had given our support to a similar clause contained in the Bill introduced by my hon. and learned Friend Sir Hugh Cairns. I thought I showed conclusively that these two clauses were entirely different, although in pari materiâ, and therefore that we were perfectly consistent in opposing one and in supporting the other. I cannot give a better proof of the broad distinction between them than by stating that it is my intention, when your Lordships go into Committee on the Lunacy Regulation Bill, to move the substitution of the clause of Sir Hugh Cairns' Bill for that which appears in this Bill. In the answer which the noble and learned Lord gave he said that he was rather surprised that I should not have been aware that no inquiry before a jury could be had except on the demand I of the alleged lunatic, and accompanied I that statement with a rather sarcastic ob- 1407 serration about noble Lords speaking upon imperfect information. With great respect to him, I have to say, in the first instance, that the answer was wholly irrelevant to the point at issue, which was a comparison between two clauses in, pari materiâ, both referring to cases where a trial by jury was to be held, and both referring to the Judge who was to preside over the jury. The difference between the two clauses was, that in one instance it was required that in all cases the Judge who presided should be a Judge of one of the superior courts, and in the other it was permitted that in exceptional cases he might be so. Therefore, to, say that the law did not allow a trial by jury, except upon the demand of the alleged lunatic, was no answer, and had nothing whatever to do with the point at issue between us. I did not, upon a point of law venture to enter into a controversy with so high an authority as the noble and learned Lord. It was impossible for me to suppose that he could be speaking, as he represented me to have done, upon imperfect information; but I cannot help thinking that upon reflection the noble and learned Lord will think it right to qualify the statement which he then made with regard to the law; and, if he will permit me for a very few moments, I will state to him the grounds upon which I think that that statement of his was not a correct representation of the law. The noble and learned Lord's statement was that in no case could a trial by jury be held in a case of alleged lunacy, except upon the demand of the alleged lunatic himself. I turn to the Act of 1853, and, in the first place, I venture to say that, apart from any demand by the alleged lunatic, the Lord Chancellor has a perfect and indisputable right to direct that any case whatever that he shall think fit and expedient shall be tried before a jury, without any reference to the alleged lunatic. The 42nd section of the 16th and 17th of the Queen, cap. 70, states, that where the alleged lunatic does not demand an inquiry before a jury, and it appears to the Lord Chancellor upon consideration of the evidence adduced before him on the petition for inquiry, and of the circumstances of the case so far as they are before him, to be unnecessary or inexpedient that the inquiry should be before a jury, and he accordingly does not in his order for the inquiry direct the return of a jury, then it shall take place before a Master in Lunacy. This clause refers to cases 1408 in which the lunatic has not applied for a trial before a jury, and the words "where the Lord Chancellor does not deem it expedient to direct a trial by jury" would be absolute nonsense, and absolutely useless, unless the Lord Chancellor had the power to direct a trial by jury irrespective of the demand of the alleged lunatic. Then, turning to the 44th clause, I find that even where the Lord Chancellor has not seen it necessary to direct an inquiry by jury, the Master in Lunacy who is conducting the investigation may, whenever he thinks fit, stop the trial, and on his mere motion direct that a jury should be summoned, and that the case should be tried before them. Then there is a third case, where the alleged lunatic is not within the jurisdiction, in which the inquiry—not may, but shall be before a jury. Thus there are three cases in which, without any reference to the demand of the lunatic, a jury may be had. In one case the power is vested in the Lord Chancellor, and in another in the Master hearing the case, while in the third the trial must be by jury, although there may be no demand on the part of the alleged lunatic. I thought it necessary to bring this subject before your Lordships, because I feel quite certain that, after what I have said, the noble and learned Lord will perceive that he, perhaps hastily, committed himself upon a question of very considerable importance. It is of importance that your Lordships should receive every legal opinion which may come from the Woolsack with implicit confidence that it is an authentic exposition of the law. I think it, therefore, most desirable that the noble and learned Lord should have an opportunity of explaining any misapprehension which may have taken place, if there has been any; or, if not, of fairly stating that in a hasty debate he had given a representation of the law which, upon further inquiry, he finds to be inaccurate.
THE LORD CHANCELLOR
My Lords, I am indebted to the noble Earl for his courtesy in giving me notice of his present question, or rather, of his intended speech to your Lordships; but I am sorry to say that that notice came to me during the morning, when I was engaged in the duty of hearing appeals, and the interval which has elapsed since your Lordships rose has been almost wholly occupied by interviews with persons having business with me as Lord Chancellor. I must, therefore, answer the noble Earl upon the 1409 information which I previously possessed, I am sorry to find that the noble Earl entertains some feeling of irritation at the recollection of what passed the other evening. I can only express my regret if any word fell from me which was calculated to give rise to any feeling of vexation or of offence in the mind of the noble Earl. I must, in justice to myself, say that I find constant appeals made to the duty of the Lord Chancellor to expound the law, but that I also find a constant disposition on the part of those who are desirous of obtaining his expositions to question their accuracy. Now, what occurred was this. You must recollect precisely the matter on which we were speaking. I had been charged—or rather, I will not use that expression charged, but in the speech made by the noble and learned Lord (Lord Chelmsford), in opposition to the Bill, the proposition to try a commission of lunacy before one of the Judges of Westminster Hall was denominated a thing impracticable, a thing absurd.
THE LORD CHANCELLOR
It was denominated a thing impracticable, because it was said that the inquiry must always be at the residence of the lunatic.
§ LORD CHELMSFORD
No, no. I am sure that the noble and learned Lord does not wish to misrepresent me. I never said anything of the kind. What I said was, that in a great variety of cases—country cases—the inquiry must take place at the residence of the lunatic; and that in those cases it would be impracticable to send one of the Judges of the superior courts down to visit the lunatic for the purpose of the inquiry.
THE LORD CHANCELLOR
I do not wish to fix upon the noble and learned Lord any particular expression, though I might appeal to the memory of your Lordships on that subject. Let that pass. The noble and learned Lord certainly spoke of the proposition as one which had nothing to recommend it. He certainly represented it as a proposition that no reasonable man would bring forward. Then, I desired in good humour, not with any disposition to be sarcastic, but very humbly to remind the noble and learned Lord, and the noble Earl who cheered him, of what they might have forgotten—namely, that the proposition was one of their own. [The Earl of DERBY seemed about to interpose an observation.] The noble Earl will probably curb 1410 his ardour and allow me to be heard without interruption. The proposition to try commissions before a Judge of a superior court is a point that was contained in a Bill of the noble Earl's late Government.
§ THE EARL OF DERBY
I am very sorry to interrupt the noble and learned Lord, but I am bound to prevent his going further when he is stating that which is not quite accurate. The point at issue between us was whether it was practicable in all cases, where a jury was demanded, to have the trial compulsorily before a superior Judge of the land. To that proposition my noble and learned Friend objected, and that proposition, I assert, is not to be found in the Bill of Sir Hugh Cairns.
THE LORD CHANCELLOR
I must repeat again, even at the risk of being a third time interrupted—a third time interrupted—I am very sorry that the observations I am making are felt so much that noble Lords cannot sit still—now, my Lords, I repeat again that what I said was, that the proposition to try commissions before a Judge of the land was taken from the Bill of the noble Earl's Government. The noble Earl immediately fastened upon me a representation which I had never made, and, most acute in such things, he converted my words into a statement that the provision in my Bill was identical with the provision of Sir Hugh Cairns' Bill, and that he has repeated now. I said no such thing; but, dealing with the idea of substituting a Judge of the land for a Master in Lunacy—a most desirable thing—I said that the idea was to be found in the Bill of the noble Earl's Government. The noble Earl immediately fastened on me the representation that the provision of the one Bill was identical with that of the other; and that gave rise to the immediate subject of the present conversation. The noble Earl said, "But your Bill provides that in all cases the commission shall go to one of the Judges, and Sir Hugh Cairns' Bill provided only that the commission might go to a Judge in any case where the inquiry should be opposed by the alleged lunatic." My observation upon that was that my clause related to precisely the same case; and that was perfectly correct. The clause in Sir Hugh Cairns' Bill ran thus—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, 1411 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.In my Bill the clause is as follows:—Every commission of lunacy which directs the inquisition thereon to be made by the oath of a jury shall be 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.The distinction attempted to be drawn was that the clause I have introduced applies to every commission, whereas the clause of Sir Hugh Cairns applied only to some commissions in particular. [The Earl of DERBY: Hear, hear!] To that I answered that my clause related to a commission issued on the requisition of the lunatic, and that, therefore, substantially the two clauses were the same. The noble Earl now says that is incorrect, as a commission might issue directed to the Master to hold an inquisition by jury where the lunatic did not demand it. As the law stands, the commission is generally directed to a Master; but if he finds he requires a jury for his own guidance, he can have one without an order. The House will observe that the 6th section of my Bill and the 12th of Sir Hugh Cairns' both apply to the case where there is a commission directed by the Lord Chancellor, which is the same thing as an order. Now, the result is, that whenever a commission is issued it must be in consequence of the alleged lunatic demanding a jury; but wherever the Master thinks fit to have a jury he may have it without an order and without a commission. To that representation I entirely adhere. To a slight extent, however, my answer was inaccurate. In that very rare case, of which, in all my experience, I recollect only one instance, when the alleged lunatic is abroad, the commission may direct a jury without an application from him. Therefore I think, under all the circumstances, it was unnecessary to bring this matter before the House; but, at the same time, I am happy to have the opportunity of avowing the slight inaccuracy into which I fell, and to that extent my noble Friends are entitled to their ovation.
§ LORD CHELMSFORD
considered that it was of the highest importance, that the law laid down upon this subject should be perfectly correct. Unwilling as was the 1412 noble and learned Lord to admit the least inaccuracy on any subject, he was compelled to confess that the statement he had made the other evening was not perfectly correct; but he contended that the noble and learned Lord was much more incorrect than he was ready to admit, for his statement was this—that there would be no jury summoned in cases of alleged lunacy, unless upon the demand of the alleged lunatic. He was satisfied at the time that the noble and learned Lord was incorrect; but as he felt bound not to make any statement of the law to that House without being perfectly sure of his ground, he did not attempt to correct the noble and learned Lord. But they had now the Act before them, and they saw that the noble and learned Lord was perfectly incorrect in the statements he made. There were no less than three cases in which a jury might be summoned without the demand of the lunatic. First, where the alleged lunatic demanded an inquiry before a jury, the Lord Chancellor was to direct the return of one, unless he was satisfied from personal examination that the alleged lunatic was incompetent to demand one. Secondly, where the alleged lunatic did not demand a jury, and where the Lord Chancellor was satisfied that he was not mentally competent to demand a jury, the Lord Chancellor might direct the investigation of the subject before the Master, with or without a jury; and lastly, in all cases where the lunatic was out of the jurisdiction of the Court, a jury would be summoned. The noble and learned Lord said he was incorrect in only one of these cases, but he (Lord Chelmsford) contended that the noble and learned Lord was incorrect in all the three.
THE LORD CHANCELLOR
repeated, that practically the provision in regard to a commission issued on the requisition of the alleged lunatic was common to his Bill and that of Sir Hugh Cairns. He did not think it necessary further to allude to the points to which the noble and learned Lord had referred.
§ LORD CRANWORTH
observed, that for five of the eight years during which the Act had been passed he had had the honour of holding the Great Seal. During those eight years, in only twenty cases had juries been applied for. His impression was that during the five years over which his experience extended there never was an order issued for a jury except on the application of the lunatic. Therefore, though his 1413 noble and learned Friend on the Woolsack might be slightly wrong in point of theory, he was perfectly right as to the almost invariable and universal practice.