Chapters in the History of the Insane in the British Isles

by Daniel Hack Tuke

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 £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 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 £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.