§ House in Committee (according to Order).
§ Clauses 1 and 2 agreed to, with verbal amendments.
§ Clause 3 (Nature and Limit of Inquiry under Commissions of Lunacy).
§ Numerous alterations in the clause were proposed and agreed to, the most important of which was the substitution of "time of inquiry" for "date of the commission."
§ On the Words of the Clause relating to the Medical Evidence,
§ LORD ST. LEONARDS
said, he could not approve of the 3rd section of the Bill. The Act of 16 & 17 Vict., sec. 47, carefully confined the inquiry as to the lunacy to the time of the inquiry: he had thus confined the inquiry because it had been usual unnecessarily to carry back the inquiry; but power was carefully preserved for the Lord Chancellor to carry back, under special circumstances, the inquiry as he might see fit. The first part of Section 3 was therefore mere repetition, and is open to the objection, that whilst Section 47 of the Act of 1853 is to remain unrepealed, this Section 3 in the Bill does not give to the Lord Chancellor the power which is reserved to him by the existing Act. But Section 47 does not limit the time to which the evidence may be given; nor is it wise to do so, for evidence prior to two years—the limit in the Bill—may be most important, and ought not to be excluded. It may be required in order to show that a delusion under which the lunatic labours is really founded upon what actually took place more than two years ago, and thus take from it the character of lunacy. The case mentioned by a noble Lord (Lord Shaftesbury) a previous evening of a barrister, who, after five years' quiet conduct in an asylum, was partially released, and sent to his house for his writing-desk, and in two hours after he received it was found dead from poison, shows that he was always 1938 intent on self-destruction, and remembered that he had concealed poison five years before in his desk. Evidence of his former condition could not properly have been shut out upon a later inquiry. Many other instances might be given. The objection to the clause was not obviated by the words "unless the Judge or Master shall otherwise direct," for the parties would not know till the trial what evidence would be received. The exclusion of the opinion of medical practitioners, as evidence of insanity, is altogether inadmissible as it stands. The law sufficiently excludes their opinions, simply as such; but this enactment, whilst, of course, it would not exclude their evidence of facts, would prevent them from stating how far, in their opinion, those facts were evidence of insanity. Their abstract opinions ought not to govern; but their opinions of facts within their own knowledge—for example, where they have visited, and observed, and talked with the alleged lunatic—are entitled to great weight; for, generally speaking, they are men of science, who have dedicated their lives to the treatment of mental disease. Upon these grounds he altogether objected to Section 3.
§ THE EARL OF SHAFTESBURY
observed, that they must be careful, in altering the clause, not to exclude medical testimony altogether. He understood that the object of the Lord Chancellor was to limit the evidence of medical witnesses to matters of fact; and to check those speculative flights in which they were apt to indulge. He believed that end might be attained by the insertion of words so as to make the clause read thus:—"Nor shall the opinion or conclusion of any medical practitioner, unless founded wholly or in part on facts indicating insanity observed by himself, be admissible in proof of the insanity of the alleged lunatic."
§ Amendment moved, to leave out after "practitioner," and insert "unless founded wholly or in part upon facts indicating insanity observed by himself."
§ LORD CRANWORTH
thought the words very objectionable. Medical men might sometimes indulge in wild speculations, but those speculations would be counteracted by the good sense of the Judge who directed the jury. The medical attendant on an alleged lunatic might say that he had known him all his life; that he was a capricious boy; that he was a capricious man; but that the strange conduct deposed to was quite consistent 1939 with sanity. Another medical practitioner might say that he had attended, him, and that his conduct proved him to be perfectly insane. Between those two opinions the jury, under the direction of the Judge, would have to decide. But if the proposed Amendment were agreed to, the effect might be to exclude evidence Which, in the opinion of the Judge, was material to the issue. The provision would introduce a principle for which there was no precedent in any other branch of the law. Medical testimony was received on the most delicate questions in every other branch of legal inquiry. In criminal procedure a man died, and the question was whether his death was from poison or natural causes. Again, in testamentary inquiries a man who had made a will died some years afterwards, and the question was raised between the heir-at-law and devisee, whether the testator was of sound mind at the time Medical evidence was often conflicting, and might mislead; but it was a short way of cutting the knot to say it should not be listened to at all, and that a Judge of a superior court should be guided by this legislation as to what was revelant, and not by the ordinary rules of law.
§ Motion (by leave of the Committee) withdrawn.
§ Further Amendments made.
§ Question proposed, that the Clause, as amended; stand part of the Bill.
§ LORD CHELMSFORD,
who had given notice to move the omission of Clauses 3, 5, and 7, said, he rose to move the first Amendment of which he had given notice, the omission of the third clause. He was apprehensive that their Lordships would be led to consider that this was a mere question of words and immaterial clauses instead of one, as he conceived, of very great importance. They were legislating confessedly under circumstances of pressure, arising from a late proceeding under a commission of lunacy. The extraordinary length of that trial, the nature of the evidence given, the contradictory character of the medical testimony, conspired to raise in the public mind a feeling that the law was defective and required amendment. He was always apprehensive that when the Legislature yielded too easily to a demand for an alteration of the law there was danger lest they might be hurried into some legislation which they might afterwards regret. He was not afraid to say, notwithstanding all the objections which had been made, 1940 that he believed that the law of 1853, for which they were indebted to the noble and learned Lord (Lord; St. Leonards) worked exceedingly well, and answered almost every object that could be desired. It was a matter worthy of notice that since the passing of that Act, which came into operation in October, 1853, there had been no less that 561 commissions of lunacy issued, out of which 20 only had been determined by juries; 12 of these 20 Were settled in less than a day, and the rest, with two or three exceptions, in a very short time. No fewer than 541 of these commissions had, therefore, been decided without; the intervention of a jury, and merely by the judgment exercised by the Master on evidence brought privately and quietly before him. Nothing could be of more interest than these facts, for they showed how much the feelings of many families had been spared, whilst the necessary protection had been afforded to the unfortunate objects of the inquiries. But the proceedings to which he had adverted had made the public anxious that some means should be devised by which, if possible, the length of such inquiries might be restricted. In order, therefore, to meet the wishes of the public in this respect, the third clause of this Bill was proposed. It contained two provisions, which it was assumed would have the desired effect. The first of these provisions was to the effect that evidence as to anything done or said by a person who was the subject of an inquiry, or as to his demeanour or state of mind, at any time being more than two years from the time of the inquiry, should not be received; the second provision was that the opinion of a medical practitioner should not be admissible as evidence of insanity. He thought he should be able to satisfy their Lordships that both these provisions were exceedingly objectionable. Seeing that the 47th clause of the Act of 1853 was not repealed, he could not see the necessity for the first portion of the clause now proposed. He did not think that this clause was necessary while the 47th clause of that Act was retained. That clause presented this advantage, that it gave the Lord Chancellor power, under special circumstances, to direct that the inquiry should be carried back either indefinitely or to a specified time. This power was extremely useful, because, supposing that the alleged lunatic had executed a deed at a particular 1941 date, the Lord Chancellor could direct the inquiry to be carried back to a period embracing the date of the deed, so as to be furnished, by the verdict of the jury, with the means of deciding upon its validity. He quite agreed that the 47th section directed that the inquiry should be confined to the question whether or not the party was of unsound mind at the time of the inquiry; but still it did not limit the period as to which evidence could be given; and to determine the question of insanity at the time of the inquiry it might be necessary to take a very wide range. If it were a case of acute mania, of course it would be sufficient to produce the person before the jury, and the state of his mind would be at once determined; but where it was a case of chronic insanity, the growth of years, and in which there might have been lucid intervals, how could they limit an inquiry by an arbitrary line, drawn at any particular point? In the case of delusions which had been long kept down by the soothing care and attention of the family, but which in the end broke out, and a commission was issued, it would be necessary to go back to a distant period to show the existence of these delusions, and the continuance of them down to the time in question. In considering this matter their Lordships might be too apt to look only on one side. It was proposed to prevent the petitioner from giving evidence of what took place before the commencement of the two years; but would they preclude the alleged lunatic from doing so? This might be fatal to the interests and to the happiness of the party charged with lunacy. Suppose a case of evidence of alleged delusions within the limited period, but the alleged lunatic were able to establish by proof of facts prior to the two years that the supposed delusions were not merely the creations of his imagination, but were founded upon circumstances actually occurring; surely it could not be intended to exclude evidence of this kind? It might be answered that the Judge would direct when such evidence should be given; but then the evidence might not be known by him to be necessary until the whole case of the petitioner had been gone through; and if the alleged lunatic were to give evidence extending beyond the period of two years, the petitioner must of course be allowed some opportunity of rebutting it. Another consideration was this—their 1942 Lordships were well aware of the extreme reluctance of families to resort to a commission of lunacy; but if the inquiry should be limited to two years, and the relatives knew that they would be shut out from important evidence if they did not proceed, they would feel themselves in many cases compelled, however reluctantly, at once to obtain the commission, and thus the number of these painful cases would be materially increased. It was said that this was not an absolute and peremptory rule, for the Judge, whenever he thought it expedient, might direct that the evidence should be extended beyond the period of two years. But was it intended that the Judge should receive this as a general rule laid down for himself, or was he to consider it as a rule that was subject to exception in every case in which he chose to exercise his discretion? If the latter was intended—if this was to be a perfectly flexible rule—then it was utterly unnecessary, because in every case the Judge would, in a delicate inquiry of this kind, feel compelled to submit himself to the discretion of the counsel conducting the case. If, however, it was to be a rigid rule laid down for the Judge, which he was to break through only upon extraordinary occasions, then it would be productive, not only of very great mischief, but of the greatest possible hardship and injury to the unhappy parties who would be subject to its influence. He could not help thinking that the only possible effect of this limit of two years would be to embarrass the Judge by fettering his discretion, and compelling him to confine himself within the limit, unless he was almost forced by the peculiar circumstances of the case to cross the line; and wherever this arbitrary line was drawn they were sure to be in danger of excluding evidence of a most important character. He also contended that the provision was not necessary, as was proved by the 561 cases of lunacy which he had referred to as having been tried under the existing law. Their Lordships would further observe that this clause was not confined to cases of trial by a jury only, and that the Master, in the cases which were disposed of by him, would feel himself equally fettered by it. Now as regarded that part of the clause which referred to the exclusion of medical testimony, he was not clear upon the wording of the clause, whether it was intended to exclude medical evidence generally, or only medical evidence 1943 not founded upon some ascertained facts; and he thought that this should be stated more exactly. His own opinion was that there was considerable doubt how far the mere opinion of a medical man, not founded upon ascertained facts, was evidence. He knew that upon Commissions of Lunacy it had been considered that a medical man who had not seen the alleged lunatic, but who had heard the evidence from beginning to end might be asked, "Having heard the whole of the facts, what is your opinion? He could not help thinking, however, that that evidence was highly objectionable, for the question, whether the facts established one conclusion or another, was what the jury was to determine; and to ask a medical witness a sweeping question of this kind seemed to be to put him in the position which the jurymen alone should occupy. The question how far medical evidence should be allowed to go was dealt with in the case of M'Naghten, who was tried and acquitted upon the ground of insanity. Their Lordships asked the Judges this question—Can a medical man, conversant with the disease of; insanity, who never saw the prisoner previously to the trial, but who was present during the whole of the trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of committing the crime, or whether he knew he Was acting contrary to law, or was under a delusion?And the Judges answered—We think that a medical man under the circumstances supposed cannot in strictness be asked his opinion, because upon the truth of the facts depends that upon which the jury is to decide; the question is not merely one of science, but became such only when the facts were not disputed. It may be convenient to allow the question to be put in that general form, though it cannot be insisted upon as a matter of right.Such evidence, therefore, was scarcely, if at all, admissible. He had himself had some experience in cases of this kind, and he was not aware of a single case of evidence of this kind being given where the medical man had not examined the alleged lunatic himself. His evidence was generally founded upon questions he had himself put to the alleged lunatic and the answers given; so that his evidence was as to facts and his own conclusions founded upon them. If the clause was meant to exclude evidence of that kind, he thought that it would be highly prejudicial, by breaking in upon a course of evidence which had always been considered to be of the highest importance; though he should be glad to see medical men prevented from 1944 stating mere opinions without stating the facts which led to their conclusions. What he had already said only referred to inquiries where the alleged lunatic was still living; but were they to refuse to receive the evidence of medical men where the. question, in cases of disputed wills for instance, was as to the sanity of a dead man, and to which cases the answer of the Judges in M'Naghten's case would not apply? The vast majority of cases decided by the Master, without the assistance of a jury, were decided to a great extent upon the evidence of medical men, and he thought that it would be impossible altogether to exclude evidence of this kind For these reasons he would move the omission of the clause.
§ Amendment moved, to leave out Clause 3, as amended.
§ LORD CRANWORTH
said, he entertained the strongest objection to any enactment altogether excluding medical testimony, which was often of the very greatest assistance in such an inquiry. He quite agreed as to the necessity of abridging these inquiries, for he believed that these investigations had been sometimes carried back to an unnecessary extent. But he thought that a real and sufficient control would be exercised over this tendency in similar inquiries if the trial of the case were intrusted to one of the Judges of the superior Courts. By a word or a look a Judge was in the habit of saying to counsel, "Are you not carrying this to an unnecessary extent?" During many years' experience as a common law Judge he had never seen counsel resist a suggestion of that kind. All this might, therefore, safely be trusted to the Judge, in the same way as in the ordinary trial of a common issue before the Judges of the Superior Courts; and he felt convinced that the Judges would take care that the inquiry was kept within proper limits, irrespective of any legislation on the subject.
THE LORD CHANCELLOR
said, he hoped he should be able to satisfy their Lordships that the present clause was absolutely requisite to bring back the course of procedure in these cases to the rule and standard of reason and common sense. He admitted, that in addition to other proofs of the necessity of bringing a Bill before Parliament for the purposes for which it was proposed, his attention had been thoroughly arrested by the enormities that took place on a recent trial. He would admit the wisdom of being exceed- 1945 ingly cautious in not hurrying on legislation under the pressure of a particular case. But after examining most carefully that, as well as other cases, for the purpose, of eliciting what were the vices of the present system, of which just complaint had been made, he came to the conclusion that there were two evils and two anomalies. One was, that there was no limit to an investigation in a question of insanity; so that when the point was whether the unfortunate subject of the inquiry was or was not insane at some particular time, the inquiry might be carried back so as to admit proof of what he said and did during an indefinite period. He thought that no man could be expected to come prepared to rebut testimony given with regard to something in his conduct fifteen or twenty years ago. He would take the evidence of the first witness in the recent case to which he had alluded. It was not necessary to mention names, but the witness was a man of considerable eminence in his profession. This gentleman was asked when he became acquainted with the alleged lunatic. He replied that he knew him when he was four years of age. Being asked what he observed at that time, he said his opinion was that he was of infirm mental organization, and that this was congenital. He then used the following expression:—He has always shown evidence of congenital mischief, such as I should have expected to ripen into idiotcy in after-age.The jury were told what was the mental condition of a boy of four years old, and the speculative conclusion of the medical man thereon. The witness was asked whether there was anything in the shape of the boy's head that assisted him in coming to a conclusion, and he replied that the head was larger in proportion to the the face than it ought to have been—"his forehead was not in due proportion to the back part of his head." So that the shape of the boy's head of four years of age was actually gravely taken as a legitimate indication of what his mental state was when he was twenty-four years of age, and a surgical judgment was arrived at from the fact that the forehead in infancy was not in due proportion to the back part of the head. Then the witness was asked, "Have you had much experience with reference to persons whose minds are not sound with regard to their laughing? Have you listened to laughing so as to form a judgment?" The answer 1946 was, "I know a laugh that is the laugh of an imbecile from the laugh of those who are not so." Now, was it reasonable to go back twenty years with such inquiries? Was it reasonable to have a judgment taken on an issue so framed as to depend on the shape of the head at four years old, and the laugh being that of an imbecile? What could be more dangerous? He, therefore, desired to lay down two rules to govern these inquiries, and bring them within the standard of sense and reason. He had been told that this clause excluded medical testimony in these inquiries; but it did no such thing. He did not exclude the evidence of what a witness might have himself seen, heard, arid observed. What he wished to exclude was the evidence of speculation, fancy, and idle theory, not warranted by any inductive reasoning founded on facts. For instance, was it an opinion or a fact, that was stated in the evidence in the case he had quoted, that the head of this child of four years old measured 22½ inches, when the standard of sanity required that it should be 22 inches and no more? What was it that the law wanted to ascertain? It wanted to come to a moral conclusion, and not to ascertain whether a man was a maniac or a monomaniac—whether he suffered from dementia or amentia, melancholia, or mania combined with fatuity, or any of the hundred and one definitions of mental disease given in the vocabulary on insanity. The law wished to arrive at this practical conclusion—whether a man had the capacity to govern himself and his affairs. Whom had the law made the judges of that? The law had made the judges of that fact a jury of common men. They were to take the facts and to derive their conclusions from those facts. He could not better illustrate this than by the sensible answer of two physicians to a sensible question put to them in the same case. The question was of this nature, "Do you concur with me that in cases of this description it is a matter of evidence and a question of degree?" The answer was, "Yes, a matter of evidence and a question of degree." Again, "Then, are experienced laymen as well able to form a satisfactory opinion on this subject as any medical gentleman?" Answer, "I think a case like this speaks for itself. I think laymen or men of the world are quite as competent as myself to come to a right conclusion, having all the facts of the case before them." If a physician were to tell 1947 a jury that a man did so and so, and so and so, and that therefore he thought that man mad the production of the physician would he a mere piece of supererogation; because, if the conclusion at which he had arrived were from antecedent facts, it was for the jury; and when the conclusion he drew was nothing but an inference from facts, which facts he gave in evidence, it was the business of the jury to arrive at a conclusion from those facts. He quite admitted that a medical witness might be a more accurate and acute observer than others; but what he wanted to exclude was evidence of opinion without the production of the facts upon which the opinion was founded, that such a man had a diseased brain, that that disease of the brain accounted for this or that fact, and that therefore the man was mad. In such a case the conclusion that the brain was diseased was arrived at by the medical man from particular grounds known only to himself, upon which the jury, therefore, could found no judgment, and as to which there was no satisfactory standard laid down by the experts themselves so as to secure unanimity of opinion in the profession. In a case in which half a dozen medical witnesses could be had on each side, there might not, perhaps, be so much danger of wrong to the patient; but in the case of an unfortunate man who could not procure medical testimony, the joint opinion of two doctors—if two could be got to agree to a conclusion—would be sufficient to have the subject of their inquiry confined on speculative theories. Noble and learned Lords who had had experience in lunacy oases would easily call to mind instances in which medical men would be liable to fail, and in which lawyers would fail when they came to depend on medical testimony. In the law there were terms which were annexed to certain ideas and certain conclusions; but when they came to the medical vocabulary they found different notions and different conclusions attached to the same terms. It frequently happened that medical men used particular phrases and terms known in law, and to which the law attached certain conclusions of fact; while in reality those phrases and terms were used with different meanings by different medical men. He would illustrate that by what had occurred in a case in which medical men were called on to define lunacy. Half a dozen medical gentlemen gave their opinions that there was no lunacy, because they attached 1948 to lunacy the existence of delirium or delusion, which they did not find in the case in question; but half a dozen other professional gentlemen, however, regarded lunacy as incapacity of the persons to manage themselves or their affairs; and as the person, the subject of the inquiry, had shown herself incapable of taking care of her affaire, they said it was a clear case of lunacy. In another case an inquiry took place at an expense of £3,472. It lasted five days and the result was that the Commissioner and jury went to see the alleged lunatic at the end of the inquiry, and returned with the conclusion that it was a clear case of insanity. In another case, half a dozen medical witnesses went to see the subject of the inquiry, and the evidence given by one was that the decay of mental power might be set down as part due to mania and part to paralysis; and that if the paralysis had occurred without mania, the probability was that he should have found her mind in a state of decay without delusions. The doctor adduced as proof of the patient's insanity that she could not tell him how much £100 a year was a week. But on cross-examination the counsel asked him, in his turn, if he could tell, and the learned doctor was observed to hesitate. Said the counsel, "Don't be nervous, how much is it?" Said the doctor, "I decline to state." Said the counsel, "Is it that you will not, or that you cannot tell?" Said the doctor, "I decline to answer." Nevertheless this medical gentleman covered his retreat with a cloud of "sesquipedalia verba," and said, "I should call the case a mixture of chronic mania and dementia; or. speaking in popular language, a mixture of fatuity and mania in a mind which had previously been sound." Another learned physician examined the same lady, no doubt with great cleverness, and thought he would try her knowledge of law. He therefore asked her several questions about the constitution; but when similar questions were addressed to him by counsel, he himself betrayed considerable uncertainty and hesitation. This was the way in which these inquiries had been abused, until the very idea of a mad doctor's examination had become a by-word. These were matters arising from the vices of the present system, and the humble attempt which he was now making had for its object to discover where the abuses and the causes of error lay which had rendered such inquiries generally odious, and the 1949 examination by mad doctors little better than a farce. With regard to the limit proposed to be put to the time of inquiry, it had been objected to the provisions of this clause that they introduced a novelty unknown in any other branch of legal inquiry. The effort was, undoubtedly, a novelty; but if it were sanctioned by their Lordships, it would go far to take out the evil by the roots, and prevent the recurrence of scenes which were a reproach to the courts of this country. Why should they wander over the life of a man to ascertain his state of mind at a particular period, when the sole question was whether the man was mad to-day? It was easy to see how the practice had arisen. In former times the point was to find when the title of the crown to the custody of the lunatic accrued, and it was necessary, therefore, to travel back in order to know what claim the sovereign had to the rents and profits of the sufferer's estate? But when the question was merely as to the man's present state of mind, nothing could be more cruel or unjust than to embark upon an inquiry into his conduct during the last ten years. It was, moreover, unjust as affecting third parties. The justice of English law, and of every law, held as a maxim that the conclusions to which a court of justice might come were binding only upon the litigants, and that because they alone were the only persons who had been represented, and had had an opportunity of being heard. Nothing obviously could be less in accordance with the principles of equity and right than to allow the decision of a commission of lunacy, acting upon mere ex parte evidence, to set aside deeds executed some time before, and affecting persons who had not been allowed to interfere in the inquiry. To revert to the question of the medical evidence, the opinions of medical men with regard to the state of mind of an alleged lunatic were perfectly different from the evidence given as to post-mortem examinations at criminal trials. In the latter case they had before them a dead body; they were dealing with the particular state of the tissues, the coatings of the stomach, or an analysis of its contents, and they came to their conclusions upon actual facts. If there were any process by which, in the case of a lunatic, a man's skull could be out into, and the different coats and linings of the brain exposed, so as to exhibit whether they were too much gorged or the circulation impeded, there 1950 might be something in the plan. But medical science had not yet attained that pitch of development, and medical men imagined external things to be the indices of things unseen. They therefore made issues hardly less important than those of life and death depend on evidence which after all amounted to no more than an uncertain guess. On this point, though referring to proceedings of a more ordinary character, he would quote to their Lordships the opinion of an eminent commentator on the law of evidence—a man who died much too early for the profession he adorned—Mr. J. W. Smith. Mr. Smith said—The opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment on it without assistance—in other words, where the matter so far partakes of the nature of a science as to require a course of previous habit or study in order to the attainment of knowledge with regard to it. It does not seem to be contended that the opinion of witnesses can or ought to be received where the inquiry is into a subject-matter the nature of which is not such as to require any peculiar method or study in order to qualify persons to understand it.Now, was that the case in questions of soundness or unsoundness of minds? Was any such aid necessary to enable a jury to say whether a thing said or done was consistent with reason? Was it indispensable that persons should have studied in the School of Medicine, listened to lectures, and walked the hospitals, in order to form a conclusion whether a man was or was not a lunatic? Yet by the existing law that was the very absurdity they were daily committing. Men were denied the power of forming a moral judgment as, to facts upon which every man of rational understanding was competent to form an opinion, and as to which every member 01 the jury was bound to decide; and they were forced to adopt, instead of their own moral conclusions, which they were perfectly able to form, and which it was their duty to form, the speculative views of members of the medical profession. Was that consistent with law or reason? He perfectly agreed with the noble and learned Lord near him, that the law of evidence ought to exclude these speculative opinions; but practically it did not do so, for an evil habit had grown up into a precedent with judges and juries of assuming that insanity was a physical disease and not a subject of moral inquiry, and therefore that they were bound to accept medical 1951 testimony in reference to it. But the facts relating to the physical condition of a morbid brain were very obscure; even medical men sometimes fell into egregious errors—they never made allowance for peculiars idiosyncrasies. A celebrated Scotch judge administered justice for many years with great skill and knowledge of the law: after his death, which took place suddenly, a post-mortem examination was held, when it was proved that he had been subject to extensive softening of the brain, and that it had been going on for several years. If he had not been misinformed, something similar, though not perhaps to as great an extent, happened recently in the case of one of our own Judges, who died suddenly, and who, it was then found, had been suffering for years under the same malady. The only safe ground on which to proceed was the evidence of the words and facts, conduct, and demeanour, of the alleged lunatic. But then it was said, "Why do you limit the terms of the inquiry?" To which he would reply, "How can you form a judgment upon a man's state now, from what he said or did five years ago?" He granted, however, that a retrospective inquiry might sometimes be useful to the alleged lunatic himself. There might be cases in which a man might account for loss of memory by a reference to an accident. In defence of a man's sanity he would allow the inquiry to be carried back; but he saw no reason why it should be extended to the whole of a man's life in order to come to a conclusion which ought to be founded upon his state at the time. He, therefore, hoped that their Lordships would retain this clause.
§ THE EARL OF SHAFTESBURY
agreed that it was both cruel and unjust to ramble over a man's past life when the sole question was whether or not he was mad at the present time; but he wished to explain that when the other evening he expressed the opinion that it was unnecessary to carry back the inquiry into a man's sanity for more than two years, he expressly excepted cases in which the existence of homicidal manias was alleged. In other cases you had only to deal with the present state of mind of the individual, and he therefore did not see why the investigation should be extended beyond that period. That seemed to be the opinion of Lord Eldon, because in a case which was tried before him that noble and learned Lord Said, "Where insanity has not previously 1952 existed, proof of insanity is not to be made out by rambling through the whole life of the party, but must be applied to a particular date." He confessed he had been very much astonished to hear the observations of the noble and learned Lord (Lord Cran worth), for the law already required in the certificate a recital of acts Which had to be observed by the medical men themselves. Formerly a general expression of belief in the person's insanity was sufficient, and he had known a lady consigned to an asylum on a certificate which actually ran as follows: "'She has certain impressions with respect to certain persons which are not accurate or true." Since then an Act—and a most necessary Act it was—had been passed requiring the mention of facts observed by the two certifying doctors themselves before a person could be deprived of his liberty and he thought that the same rule ought to be insisted upon before they allowed him to be deprived of the management, of his affairs.
§ LORD CRANWORTH
agreed that the Legislature had very properly required the certifying medical men to detail facts observed by themselves, in a certificate on which alone, without any public inquiry, it was proposed to confine a person in an asylum; but he believed that this was the first instance when evidence which, ex hypothesi, was material to enable the jury to come to correct conclusions, was sought to be excluded by law.
§ On Question, Whether the said Clause shall stand part of the Bill, their Lordships divided:—Contents 38; Not Contents 26: Majority 12.1953
|Westbury, L. (L. Chancellor.)||Torrington, V.|
|Saint Albans, D.||Belper, L.|
|Somerset, D.||Camoys, L.|
|Ailesbury, M.||Dartrey, L. (L . Cremorne.)|
|De Tabley, L.|
|Airlie, E.||Foley, L. [Teller.]|
|Albemarle, E.||Hunsdon, L. (V. Falk land.)|
|De Grey, E.|
|Ducie, E.||Keane, L.|
|Granville, E.||Leigh, L.|
|Russell, E.||Lyveden, L.|
|Saint Germans, E.||Manners, L.|
|Shaftesbury, E.||Methuen, L.|
|Spencer, E.||Overstone, L.|
|Ponsonby, L. (E. Bessborough.) [Teller.]|
|Rivers, L.||Skene, L. (E. Fife.)|
|Sandys, L.||Suffield, L.|
|Sefton, L. (E. Sefton.)||Sundridge, L. (D. Argyll.)|
|Buckingham and Chandos, D.||Dungannon, V.|
|Marlborough, D.||Abinger, L.|
|Bath, M. [Teller.]||Colchester, L.|
|Exeter, M.||Colville of Culross, L. [Teller.]|
|Salisbury, M.||Cranworth, L.|
|De Ros, L.|
|Amherst, E.||Grantley, L.|
|De La Warr, E.||Kingsdown, L.|
|Derby, E.||Redesdale, L.|
|Devon, E.||Rollo, L.|
|Lanesborough, E.||Saltoun, L.|
|Malmesbury, E.||Wynford, L.|
§ Resolved in the affirmative.
§ Clauses 4, 5, and 6, severally read, and disagreed to.
§ Clauses, "Inquiries before a Jury to be made by means of an Issue to one of the Superior Courts of Common Law;" "Reference in other Acts to Inquisition to apply to Verdict on Issue,"—moved and agreed to.
§ Further Amendments made; the Report thereof to be received on Thursday next; and Bill to be printed as amended (No. 40).
§ House adjourned at half-past Eight o'clock, till To-morrow a quarter before Five o'clock.