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Our Chancery Lunatics





Of the relations of lunatics to that Court which Dickens 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 practitioners 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 hoary 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 assumed 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) passed 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 petitioned to inquire into an alleged idiot or
lunatic's condition, the petition 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 asserted in the petition.[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 cumbrous, 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 title 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 petition 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
petition 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 assembled, 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 petition 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 documents 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 petition 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
petition 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 L500 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 mass 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 petition, 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 L1000 in value or L50 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
L1500 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 classes, 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 class. 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
constitution," 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
L22,000, an amount which goes far to cover the cost, not only of the
Masters and Registrar, but also the Visitors; viz. Masters in Lunacy,
L12,805; Registrar, L2,216; Visitors, L8,317; total, L23,339.[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 cumque foedo 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 existit, ita quod regimini sui ipsius terrarum,
tenementorum, bonorum, et catallorum suorum non sufficit." "Si A. fatuus
et idiota sit, sicut pradictum 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
existit, 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 extiterit
... 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.





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