Chapters in the History of the Insane in the British Isles

by Daniel Hack Tuke

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 primâ facie evidence, he issued a writ de idiotâ 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.