[210] Dr. William Orange.

[211] _Journal of the Statistical Society_, vol. x.x.xviii. (Guy).

Appendix K II.

[212] For detailed account of the French law, which in some particulars may require greater safeguards, see article by the author, "Mental Experts and Criminal Responsibility," _Journal of Mental Science_, edited by Dr. D. Hack Tuke and Dr. George H. Savage, April, 1882. For more information respecting criminal lunatics, see Appendix L.

CHAPTER VII.

OUR CHANCERY LUNATICS.

Of the relations of lunatics to that Court which d.i.c.kens describes as having its decaying houses and its blighted lands in every shire, its worn-out lunatic in every mad-house, and its dead in every churchyard, we must briefly speak, and in many respects speak favourably. It may have been true that "the Court of Chancery gives to moneyed might the means abundantly of wearying out the right; so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its pract.i.tioners who would not give--who does not often give--the warning, 'Suffer any wrong that can be done you, rather than come here!'" But whatever this "most pestilent of h.o.a.ry sinners" may have been in the past, it has, through its Lord Chancellor's Visitors, performed its duty towards its "worn-out lunatics," not only "in every mad-house," but in many a home in which they enjoy as much liberty as possible, while the property of which they are incompetent to take charge, is carefully administered by the Lord Chancellor. In his Address at the eighth section of the International Congress, Dr. Lockhart Robertson pointed out that 34.6 per cent. of the Chancery lunatics are treated in private dwellings. Hence 65.4 per cent.

are in asylums--a striking contrast to 94 per cent. of private patients in asylums under the Lunacy Commissioners. Dr. Robertson concludes that some 30 per cent. of these are, therefore, in asylums needlessly, and hence wrongly. The fact is important, and will attract, it is to be hoped, more attention than hitherto, although I can hardly see that it follows that all these patients referred to are "wrongly confined," or would be better elsewhere. I would, however, reiterate what has been insisted upon in a former chapter, that, essential as asylums are, a large number of patients may be comfortably placed under other and less restrictive conditions.

By what steps we have arrived at our present, on the whole, satisfactory if incomplete, legislation for the protection of the property of the insane, is an inquiry by no means unprofitable and uninteresting, and I propose in a short chapter to trace them rapidly, with a brief reference to successive Acts of Parliament.[213]

It is needful to premise that Blackstone's definition of an idiot was "that he is one who hath had no understanding from his nativity, and therefore is by law presumed never likely to attain any." "He is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters." From such a condition the law clearly distinguished the lunatic, or _non compos mentis_, who is "one who hath had understanding, but by disease, grief, or other accident hath lost the use of his reason." The lunatic was a.s.sumed to have lucid intervals, these depending frequently, it was supposed, upon the change of the moon. Others who became insane--or, as it was expressed, "under frenzies"--were also comprised under the term _non compos mentis_.

The law varied in accordance with these distinctions, the charge of the lunatic being intrusted to the king, and the custody of the idiot and his lands vested in the feudal lord, though eventually, in consequence of flagrant abuses, it was transferred to the Crown in the reign of Edward I. by an Act now lost, which was confirmed by Edward II., 1324.

This marks the earliest Act extant (17 Edward II., c. 9) pa.s.sed for the benefit of mentally affected persons. The words run:--"The king shall have the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries, of whose fee soever the lands be holden. And after the death of such idiots he shall render them to the right heirs; so that by such idiots no alienation shall be made, nor shall their heirs be disinherited."[214]

The same Act legislates for lunatics--those who before time had had their wit and memory. "The king shall provide, when any happen to fail of his wit, as there are many having lucid intervals, that their lands and tenements shall be safely kept without waste and destruction, and that they and their household shall live and be maintained completely from the issues of the same; and the residue beyond their reasonable sustentation shall be kept to their use, to be delivered unto them when they recover their right mind; so that such lands and tenements shall in no wise within the time aforesaid be aliened; nor shall the king take anything to his own use. And if the party die in such estate, then the residue shall be distributed for his soul by the advice of the ordinary."[215]

The necessity had arisen in early times of deciding upon sufficient evidence whether a man were or were not an idiot, and the old common law required trial by jury. If twelve men found him to be a pure idiot, the profits of his lands and person were granted to some one by the Crown, having sufficient interest to obtain them. The king, of course, derived some revenue from this source. A common expression used long after the custom had died out, "begging a man for a fool," indicated the character of this unjust law. In James I.'s reign Parliament discussed the question of investing the custody of the idiot in his relations, allowing an equivalent to the Crown for its loss, but nothing was done.

It is said[216] that this law was rarely abused, because of the comparative rarity of a jury finding a man a pure idiot, that is to say, one from his birth, the verdict generally involving _non compos mentis_ only, and therefore reserving the property of the lunatic for himself entire until his recovery, and in the event of his death, for his heirs, in accordance with the statute of Edward II. already given.

Recurring to the appointment of a jury, in order to trace the course of legislation subsequently to the present time, it should be observed that the Lord Chancellor was pet.i.tioned to inquire into an alleged idiot or lunatic's condition, the pet.i.tion being reported by affidavits; and if satisfied of the _prima facie_ evidence, he issued a writ _de idiota_ or _lunatico inquirendo_ to the escheator or sheriff of his county to try the case by jury. The form of this writ was various. It surmised that an idiot or fatuous person existed, one who had not sufficient power to govern himself, his lands, tenements, goods, or cattle, and ordered inquiry to be made whether such was really the fact, and if so, whether at another time; if the latter, at what time, and by what means; if there were lucid intervals; and who was his next heir, and his age.[217]

In another form it is surmised that a certain person is so impotent and _non compos mentis_ that he is unable to take care of himself or his goods, and inquiry is simply directed to the point whether he is an idiot and _non compos_, as a.s.serted in the pet.i.tion.[218]

And in another writ the escheator or sheriff is to inquire whether the person in regard to whom the writ is issued has been a pure idiot from his birth to the present time; whether through misfortune, or in any other manner, the patient afterwards fell into this infirmity; and if so, through what particular misfortune or other cause it happened, and at what age.[219]

If a jury found a man to be an idiot, he had the right to appeal, and to appear in person or by deputy in the Court of Chancery, and pray to be examined there or before the king and his Council at Westminster. Should this fresh examination fail to prove him an idiot, the former verdict before the sheriff was declared void.

In more recent times three Commissioners appointed by the Lord Chancellor issued a writ _de lunatico inquirendo_. The jury found whether the person was or was not insane, and the Lord Chancellor received the verdict through the above Commissioners. In time this course was found inconvenient and c.u.mbrous, and in the reign of William IV. (stat. 3 and 4, c. 36, s. 1), in the year 1833, the Lord Chancellor was authorized to cause commissions "to be addressed to any one or more persons to make inquisitions thereon, and return the same into the Court of Chancery, with the same power as was before possessed by three or more Commissioners in such Commission named."[220]

By stat. 5 and 6 Vict., c. 84, the Lord Chancellor was authorized to appoint two barristers called "the Commissioners in Lunacy," to whom all writs _de lunatico inquirendo_ were to be addressed, and who should perform the duties then performed by Commissioners named in commissions in the writ. In 1845 the t.i.tle was changed from Commissioners to "Masters in Lunacy" (8 and 9 Vict. c. 100). It was previously the practice to refer all matters connected with the person and estates of the lunatic, after he was found so under commission, to the ordinary Masters in Chancery. These were transferred to the new Masters in Lunacy. All inquisitions were still held before a jury.

It will be seen, then, that although formerly, when a person was found to be an idiot or a lunatic, he was placed under a committee appointed by the king, in the course of time objection was taken to this course on account of the suspicion of partiality attaching to his appointment, and the king transferred his right to the Lord Chancellor.[221]

These Acts direct proceedings for a commission to be taken as follows:--The pet.i.tion for a commission, duly supported by medical and other affidavits, is to be lodged with the Secretary of Lunatics, for the Lord Chancellor's inspection. If satisfactory and unopposed, the pet.i.tion is endorsed and the commission issues. If a _caveat_ is entered, liberty is given to attend and to oppose it, and the inquiry is held in the most convenient place. A jury of twenty-four persons is summoned to determine the case, by the sheriff, instructed by the Master in Lunacy. The jury and the Master being a.s.sembled, and the former sworn, the Master in Lunacy is to explain to the jury what they have to try; and if the person is found to be a lunatic, the time at which he became so, and whether he has lucid intervals. After counsel have been heard, and the alleged lunatic examined, the Master is to sum up, and the verdict, which must be concurred in by twelve, is then given.

The inquisition is now filled up and signed by the twelve jurymen, the Master annexing a duplicate copy to the commission; and they are endorsed with the words, "The execution of this commission appears by the inquisition hereunto annexed."[222]

Then, next in order of legislation comes the Act of 1853 (16 and 17 Vict., c. 70). Certain clauses in the Act of 1842, by which the Lord Chancellor exercised jurisdiction on account of the expense involved in a commission, were repealed, having been found to work inconveniently.

Under the new Act an inquisition was held, in unopposed cases, before a Master alone in by far the larger proportion of cases. A pet.i.tion was to be presented by any relative, and in special cases by a stranger, supported by medical and other evidence, along with an affidavit of notice having been given to the lunatic, calling his attention to the provision of the Act under which he could demand a jury. If no such demand was made, the doc.u.ments were to be submitted to the Lord Chancellor or the lords justices, who directed an inquiry, if they saw no reason for further evidence. If the demand, on the contrary, was made, the pet.i.tion was to be set down for hearing in open court, when an inquiry was either ordered or dismissed; in the former case, before a jury or without one, at the court's discretion. In the event of the pet.i.tion being unopposed, the order made by the Lord Chancellor for inquiry was to be directed to a Master in Lunacy, and conducted as nearly as possible as if there were a jury, the lunatic being seen in every case. Master Barlow has related one exception in which he could not see the lunatic (a lady) without breaking through the door; a solicitor appeared on her behalf, and Mr. Barlow tried to make him produce his client, but being told that serious risk of her jumping out of the window would be incurred, the attempt was wisely abandoned. When such an inquiry was completed and the commission signed, the Master in Lunacy was to ascertain certain particulars, as the committees of the person and estate which the family proposed to appoint, the amount of the property, etc. A report was then to be made to the Lord Chancellor certifying these particulars. The Chancery Visitors were to undertake the supervision of the lunatic, these consisting of two medical men (as previously), a lawyer, and nominally the two Masters _ex officio_. The visitation was only annual. The salary of the medical and legal Visitors was not more than 500 per annum, as they were not, as now, obliged to relinquish practice.

Reference has been made in the fourth chapter to the important Select Committee of 1859-60. This Committee not only collected evidence in regard to "the Care and Treatment of Lunatics," but also in regard to the protection of their property. A ma.s.s of interesting evidence was given, including a statement of the working of the law at that time by Master Barlow. Proof was not wanting that some reforms were required, and the outcome of this inquiry was "The Lunacy Regulation Act" of 1862 (25 and 26 Vict., c. 86), a statute to be construed as part of "The Lunacy Regulation Act" of 1853, to which we have already referred.

The only novel points in the Act of 1862 which we shall mention here are these: That when the Lord Chancellor, entrusted under the previous Act, orders an inquiry before a jury, he may direct the trial to take place in one of the superior courts of common law at Westminster, the verdict having the same force as an inquisition under a commission of lunacy returned into the Court of Chancery; that in an inquiry before a Master without a jury, it shall be lawful for the alleged lunatic, upon the hearing of any pet.i.tion, to demand an inquiry by a jury, the demand having the same effect as if made by notice filed with the registrar in accordance with the previous Act; that the inquiry should be confined to the question whether the subject of the inquiry was at the time of such inquiry of unsound mind, and incapable of managing himself or his affairs, no evidence as to anything said or done by such person, or as to his demeanor or state of mind at any time more than two years before, being receivable as a proof of insanity, unless the judge or Master shall direct otherwise; that to save the property of lunatics, when of small amount, from ruinous expense, the Lord Chancellor, if satisfied by the report of a Master or the Commissioners in Lunacy or otherwise, that any person is of unsound mind and incapable of managing his affairs, may, when the lunatic does not oppose the application, and his property does not exceed 1000 in value or 50 per annum, apply it for his benefit in a summary manner without directing any inquiry under a commission of lunacy; that the Lord Chancellor may apply the property of persons acquitted on the ground of insanity for their benefit; that Chancery lunatics should be visited four times a year by one of the Visitors, the interval between such visits not exceeding four months, with the exception of those in public or private asylums or hospitals, who need not be visited oftener than once a year; that the Visitor shall report once in six months to the Lord Chancellor the number of visits made, the number of patients seen, and the number of miles travelled; an annual report being made to Parliament thereof, together with a return of sums received for travelling or other expenses; that the sections of the former Act in regard to visitation being repealed, two medical and one legal Visitor shall be appointed, with salaries of 1500 each and a superannuation allowance.

In practice, it may be said that, in the first instance, the Court endeavours to satisfy itself that in the event of an inquiry, it is for the benefit of the alleged lunatic, and that there is a fair probability that the verdict will find him of unsound mind and incapable of managing himself or his affairs, by ordering him to be examined by a medical man, or by making a personal examination.

It seems strange that, notwithstanding these various Acts, and especially that of 1862, there should still be occasion for improvement in providing for the care of the property of insane persons. Yet so it is; and one of the Lord Chancellor's Visitors, Dr. Lockhart Robertson, has so recently as 1881 stated that "the important requisite of a cheap and speedy method of placing the property of lunatics under the guardianship of the Lord Chancellor has yet to be attained," and he quoted Master Barlow's evidence before the Dillwyn Committee of 1877: "I am a great advocate for a great reform in lunacy (Chancery) proceedings; I would facilitate the business of the procedure in the office and shorten it in such a way as to reduce the costs." Various important suggestions will be found in the evidence given before the above Committee by the present Visitors and an ex-Visitor, Dr. Bucknill, who has also, in his brochure on "The Care of the Insane, and their Legal Control," advocated radical changes in the official management of the insane. In addition to the establishment of State asylums for the upper and middle cla.s.ses, he proposes that two central lunacy authorities should administer the laws, severally relating to the rich and the poor.

The present Board of Commissioners would cease to exist; the Lord Chancellor, under the Royal prerogative, would preside over the former--the non-pauper--and the Local Government Board would exercise authority over the entire pauper cla.s.s. By this means the existing system, under which the Chancery lunatics are cared for, "rooted," as Dr. Bucknill points out, "in the foundations of the English const.i.tution," would be greatly extended, and "the present entanglement of authorities, always costly and sometimes conflicting," would cease.

It remains to be seen whether these proposals can or will be carried out, and if so, whether they will prove as beneficial in practice as they are doubtless attractively harmonious and symmetrical in theory.

It remains to add the number of Chancery lunatics in England and Wales at the present time, namely 992, who were thus distributed on January 1, 1881:--

-----------------------------------------+-----+-----+------ Location. | M. | F. |Total.

-----------------------------------------+-----+-----+------ County and borough asylums | 22 | 10 | 32 Registered hospitals | 102 | 66 | 168 Metropolitan licensed houses | 123 | 119 | 242 Provincial | 104 | 82 | 186 Naval and military and East India Asylums| 2 | -- | 2 Criminal asylums | 3 | -- | 3 Private single patients | 55 | 80 | 135 +-----+-----+------ | 411 | 357 | 768 Residing in charge of their committees | -- | -- | 224 | | +------ Total | | | 992 -----------------------------------------+-----+-----+------

The percentages on the incomes of Chancery lunatics amounts to about 22,000, an amount which goes far to cover the cost, not only of the Masters and Registrar, but also the Visitors; viz. Masters in Lunacy, 12,805; Registrar, 2,216; Visitors, 8,317; total, 23,339.[223]

FOOTNOTES:

[213] Free use has been made of Shelford's "Law concerning Lunatics, etc.," and Elmer's "Practice in Lunacy," 1877.

[214] "Rex habet custodiam terrarum fatuorum naturalium, capiendo exitus earundem sine vasto et destructione et inveniet eis necessaria sua de cujus c.u.mque fdo terre ille fuerint; et post mortem eorum reddat eas (eam) rectis haeredibus ita quod nullatenus per eosdem fatuos alienentur vel (nec quod) eorum haeredes exheredentur."

[215] "Item habet providere (Rex providebit) quando aliquis qui prius habuit (habuerit) memoriam et intellectum non fuerit compos mentis suae, sicut quidam sunt per lucida intervalla quod terre et tenementa eorumdem (ejusdem) salvo custodiantur sine vasto et destructione, et quod ipse et familia sua de exitibus eorundem vivant et sustineantur competenter; et residuum ultra sustentationem eorundem rationabilem custodiatur ad opus ipsorum liberandum eis (eisdem) quando memoriam recuperaverint. Ita quod predicte terre et tenementa infra praedictum tempus non nullatemus alienentur nec Rex de exitibus aliquid percipiat ad opus suum; et si obievit in tale statu tunc illud residuum distribuatur pro anima per consilium ordinariorum (ordinarii)" (see Shelford, p. 624).

[216] Blackstone, vol. i. p. 304 (edit. 1783).

[217] "Fatuus et idiota exist.i.t, ita quod regimini sui ipsius terrarum, tenementorum, bonorum, et catallorum suorum non sufficit." "Si A. fatuus et idiota sit, sicut praedictum est, necne; et si sit, tunc utrum a nativitate sua, aut ab alio tempore; et si ab alio tempore, tunc a quo tempore; qualiter et quomodo; et si lucidis gaudeat intervallis ... et quis propinquoir haeres ejus sit, et cujus aetatis."

[218] "Quia A. idiota, et adio impotens ac mentis suae non compos exist.i.t, quod regimini sui ipsius, terrarum, vel aliorum bonorum non sufficit." "Si idiota sit, et mentis suae non compos, sicut praedictum est, necne."

[219] "A nativitatis suae tempore semper hactenus purus idiota ext.i.terit ... an per infortunium vel alio modo in hujus modi infirmitatem postea inciderit; ... an si per infortunium vel alio modo, tunc per quod infortunium, et qualiter, et quomodo, et cujus aetatis fuerit."

[220] Shelford, p. 94.

[221] Blackstone, vol. iii. p. 427.

[222] Shelford, p. 122.

[223] See Appendix M.

CHAPTER VIII.