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,

e, 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


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


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


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,



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]


[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.