Chapter XXIII: Act 1837: (In re Blewitt, 1880, 5 P.D. 116) (8)

The futility of seeking for accurate figures bearing on the relative
number of lunatics in other countries is illustrated by the tables set
forth in a report by the United States Census Bureau. They show that
the number of registered lunatics in 1903 was 150,151; in 1890,
74,028; and in 1880, 40,942. An attempt was made in 1890 to estimate
the number of insane persons outside of hospitals, which was stated to
be 32,457. In 1903 no such attempt was made, as it was admitted that
so many sources of fallacy existed as to render it useless. Thus the
mere statement that of every 100,000 of the population (calculated at
80,000,000) 186.2 were registered as insane is of no value.

BIBLIOGRAPHY.--The following are systematic works: Bucknill and Tuke,
_Psychological Medicine_ (4th edition, 1879); Griesinger, _On Mental
Diseases_ (New Sydenham Society, 1867); Maudsley, _The Pathology of
Mind_ (1895); Bevan Lewis, _A Text-Book of Mental Diseases_ (1899);
Clouston, _Clinical Lectures on Mental Diseases_ (1892); Kraepelin,
_Psychiatrie_ (1893); Krafft-Ebing, _Lehrbuch der Psychiatrie_ (1893);
Regis, _A Practical Manual of Mental Medicine_ (London, 1895); Magnan,
_Leçons cliniques sur les maladies mentales_ (1897); Mendil,
_Leitfaden der Psychiatrie_ (1902); Mercier, _A Text-Book of Insanity_
(1902); Lewis C. Bruce, _Studies in Clinical Psychiatry_ (1906);
Macpherson, _Mental Affections_ (1899); Brower-Bannister, _Practical
Manual of Insanity_ (1902); Ford Robertson, _Text-Book of Pathology in
Relation to Mental Diseases_ (1900). (J. B. T.; J. Mn.; L. C. B.)

II. LEGAL ASPECTS

The effect of insanity upon responsibility and civil capacity has been recognized at an early period in every system of law.

_Roman Law._--In the Roman jurisprudence its consequences were very fully developed, and the provisions and terminology of that system have largely affected the subsequent legal treatment of the subject. Its leading principles were simple and well marked. The insane person having no intelligent will, and being thus incapable of consent or voluntary action, could acquire no right and incur no responsibility by his own acts (see Sohm's _Inst. Roman Law_, 3rd ed. pp. 216, 217, 219); his person and property were placed after inquiry by the magistrate under the control of a curator, who was empowered and bound to manage the property of the lunatic on his behalf (Sohm, p. 513; Hunter, _Roman Law_, pp. 732-735). The different terms by which the insane were known, such as _demens_, _furiosus_, _fatuus_, although no doubt signifying different types of insanity, did not in Roman law infer any difference of legal treatment. They were popular names, which all denoted the complete deprivation of reason.

_Medieval Law._--During the middle ages the insane were little protected. Their legal acts were annulled, and their property placed under control, but little or no attempt was made to supervise their personal treatment. In England the wardship of idiots and lunatics, which was annexed before the reign of Edward II. to the king's prerogative, had regard chiefly to the control of their lands and estates, and was only gradually elaborated into the systematic control of their persons and property now exercised under the jurisdiction in lunacy. Those whose means were insignificant were left to the care of their relations or to charity. In criminal law the plea of insanity was unavailing except in extreme cases. About the beginning of the 19th century a very considerable change commenced. The public attention was strongly attracted to the miserable condition of the insane incarcerated in asylums without any efficient check or inspection; and at the same time the medical knowledge of insanity entered on a new phase. The possibility and advantages of a better treatment of insanity were illustrated by eminent physicians, Philippe Pinel in France, H. Tuke in England, Bond, B. Rush and I. Ray in the United States; its physical origin became generally accepted; its mental phenomena were more carefully observed, and its relation was established to other mental conditions.

_Modern Law._--From this period we date the commencement of legislation such as that known in England as the Lunacy Acts, which aimed at the regulation and control of all constraint applied to the insane. Hitherto, the criteria of insanity had been very rude, and the evidence was generally of a loose and popular character; but, whenever it was fully recognized that insanity was a disease with which physicians who had studied the subject were peculiarly conversant, expert evidence obtained increased importance, and from this time became prominent in every case. The newer medical views of insanity were thus brought into contact with the old narrow conception of the law courts, and a controversy arose in the field of criminal law which in England, at least, still continues.

_Relations between Insanity and Law._--The fact of insanity may operate in law--(1) by excluding responsibility for crime; (2) by invalidating legal acts; (3) by affording ground for depriving the insane person by a legal process of the control of his person and property; or (4) by affording ground for putting him under restraint.

_Legal Terminology._--Before proceeding, however, to deal with these matters in succession, it may be desirable to say something with regard to the chief legal terms respecting persons suffering under mental disabilities. The subject is now of less importance than formerly, because the modern tendency of the law is to determine the capacity or responsibility of a person alleged to be insane by considering it with reference to the particular matter or class of matters which brings his mental condition _sub judice_. But the literature of the law of lunacy cannot be clearly understood unless the distinctions between the different terms employed to describe the insane are kept in view. The term _non compos mentis_ is as old as the statute _De praerogativa regis_ (1325), and is used sometimes, as in that statute, to indicate a species contrasted with idiot, sometimes (e.g. in Co. Litt. 246 (b)) as a genus, and afterwards, chiefly in statutes relating to the insane, in connexion with the terms "idiot" and "lunatic" as a word _ejusdem generis_. The word "idiot" (Gr. [Greek: idios], a private person, one who does not hold any public office, and [Greek: idiôtês], an ignorant and illiterate person) appears in the statute _De praerogativa regis as fatuus naturalis_, and it is placed in contradistinction to _non compos mentis_. The "idiot" is defined by Sir E. Coke (4 Rep. 124 (b)) as one who from his nativity, by a perpetual infirmity, is non compos mentis, and Sir M. Hale (_Pleas of the Crown_, i. 29) describes idiocy as "fatuity a _nativitate vel dementia naturalis_." In early times various artificial criteria of idiocy were suggested. Fitzherbert's test was the capacity of the alleged idiot to count twenty pence, or tell his age, or who were his father and mother (_De natura brevium_, 233). Swinburne proposed as a criterion of capacity, inter alia, to measure a yard of cloth or name the days in the week (_Testaments_, 42). Hale propounded the sounder view that "idiocy or not is a question of fact triable by jury and sometimes by inspection" (_Pleas of the Crown_, i. 29). The legal incidents of idiocy were at one time distinct in an important particular from those of lunacy. Under the statute _De praerogativa regis_ the king was to have the rents and profits of an idiot's lands to his own use during the life of the idiot, subject merely to an obligation to provide him with necessaries. In the case of the lunatic the king was a trustee, holding his lands and tenements for his benefit and that of his family. It was on account of this difference in the legal consequences of the two states that on inquisitions distinct writs, one _de idiota inquirendo_, the other _de lunatico inquirendo_, were framed for each of them. But juries avoided finding a verdict of idiocy wherever they could, and the writ _de idiota inquirendo_ fell into desuetude. A further blow was struck at the distinction when it came to be recognized even by the legislature (see the Idiots Act 1886) that idiots are capable of being educated and trained, and it was practically abolished when the Lunacy Regulation Act 1862, in a provision reproduced in substance in the Lunacy Act 1890, limited the evidence admissible in proof of unsoundness of mind on an inquisition (without special leave of the Master trying the case) to a period of two years before the date of the inquiry, and raised a uniform issue, viz. the state of mind of the alleged lunatic at the time when the inquisition is held.

The term "lunatic," derived from the Latin _luna_ in consequence of the notion that the moon had an influence on mental disorders,[1] does not appear in the statute-book till the time of Henry VIII. (1541). Coke defines a lunatic as a "person who has sometimes his understanding and sometimes not, _qui gaudet lucidis intervallis_, and therefore he is called _non compos mentis_ so long as he has not understanding" (Co. Litt. 247 (a), 4 Rep. 124 (b)). Hale defines "lunacy" as "interpolated" (i.e. intermittent) _dementia accidentalis vel adventitia_, whether total or (a description, it will be observed, of "partial insanity") _quoad hoc vel illud_ (_Pleas of the Crown_, i. 29). In modern times, the word "lunacy" has lost its former precise signification. It is employed sometimes in the strict sense, sometimes in contradistinction to "idiocy" or "imbecility"; once at least--viz. in the Lunacy Act 1890--as including "idiot"; and frequently in conjunction with the vague terms "unsound mind" (non-sane memory) and "insane." Section 116 of the Lunacy Act 1890 has by implication extended the meaning of the term lunacy so as to include for certain purposes the incapacity of a person to manage his affairs through mental infirmity arising from disease or age. "Imbecility" is a state of mental weakness "between the limits of absolute idiocy on the one hand and of perfect capacity on the other" (see 1 Haggard, _Eccles. Rep._ p. 401).

Macnaughton's Case.

1. _The Criminal Responsibility of the Insane._--The law as to the criminal responsibility of the insane has pursued in England a curious course of development. The views of Coke and Hale give the best exposition of it in the 17th century. Both were agreed that in criminal causes the act and wrong of a madman shall not be imputed to him; both distinguished, although in different language, between _dementia naturalis_ (or a _nativitate_) and _dementia accidentalis_ or _adventitia_; and the main points in which the writings of Hale mark an advance on those of Coke are in the elaboration by the former of the doctrine of "partial insanity," and his adoption of the level of understanding of a child of fourteen years of age as the test of responsibility in criminal cases (_Pleas of the Crown_, i. 29, 30; and see Co. 4 _Rep._ 124 (b)). In the 18th century a test, still more unsatisfactory than this "child of fourteen" theory, with its identification of "healthy immaturity" with "diseased maturity" (Steph. _Hist. Crim. Law_, ii. 150), was prescribed. On the trial of Edward Arnold in 1723 for firing at and wounding Lord Onslow, Mr Justice Tracy told the jury that "a prisoner, in order to be acquitted on the ground of insanity, must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or wild beast." In the beginning of the 19th century a fresh statement of the test of criminal responsibility in mental disease was attempted. On the trial of Hadfield for shooting at George III. in Drury Lane Theatre on 15th May 1800, Lord Chief Justice Kenyon charged the jury in the following terms: "If a man is in a deranged state of mind at the time, he is not criminally answerable for his acts; but the material part of the case is whether at the very time when the act was committed the man's mind was sane." The practical effect of this ruling, had it been followed, would have been to make the question of the amenability of persons alleged to be insane to the criminal law very much one of fact, to be answered by juries according to the particular circumstances of each case, and without being aided or embarrassed by any rigid external standard. But in 1812, on the trial of Bellingham for the murder of Mr Perceval, the First Lord of the Treasury, Sir James Mansfield propounded yet another criterion of criminal responsibility in mental disease, viz. whether a prisoner has, at the time of committing an offence, a sufficient degree of capacity to distinguish between good and evil. The objection to this doctrine consisted in the fact, to which the writings of Continental and American jurists soon afterwards began to give prominence, that there are very many lunatics whose general ideas on the subject of right and wrong are quite unexceptionable, but who are yet unable, in consequence of delusions, to perceive the wrongness of particular acts. Sir James Mansfield's statement of the law was discredited in the case (4 _State Tri._ (n.s.) 847; 10 Cl. and Fin. 200) of Daniel Macnaughton, who was tried in March 1843, before Chief Justice Tindal, Mr Justice Williams and Mr Justice Coleridge, for the murder of Mr Drummond, the private secretary of Sir Robert Peel. Mr (afterwards Lord Chief Justice) Cockburn, who defended the prisoner, used Hale's doctrine of partial insanity as the foundation of the defence, and secured an acquittal, Chief Justice Tindal telling the jury that the question was whether Macnaughton was capable of distinguishing right from wrong _with respect to the act with which he stood charged_. This judicial approval of the doctrine of partial insanity formed the subject of an animated debate in the House of Lords, and in the end certain questions were put by that House to the judges, and answered by Chief Justice Tindal on behalf of all his colleagues except Mr Justice Maule, who gave independent replies. The answers to those questions are commonly called "The Rules in Macnaughton's case," and they still nominally contain the law of England as to the criminal responsibility of the insane. The points affirmed by the Rules that must be noted here are the propositions that knowledge of the nature and quality of the particular criminal act, at the time of its commission, is the test of criminal responsibility, and that delusion is a valid exculpatory plea, when, and only when, the fancies of the insane person, if they had been facts, would have been so. The Rules in Macnaughton's case are open to serious criticism. They ignore, at least on a literal interpretation, those forms of mental disease which may, for the present purpose, be roughly grouped under the heading "moral insanity," and in which the moral faculties are more obviously deranged than the mental--the affections and the will, rather than the reason, being apparently disordered. The test propounded with reference to delusions has also been strenuously attacked by medical writers, and especially by Dr Maudsley in his work on _Responsibility in Mental Disease_, on the ground that it first assumes a man to have a delusion in regard to a particular subject, and then expects and requires him to reason sanely upon it. It may be pointed out, however, that in thus localizing the range of the immunity which insane delusion confers, the criminal law is merely following the course which, _mutatis mutandis_, the civil law has, with general acceptance, adopted in questions as to the contractual and testamentary capacity of the insane.

The Rules in Macnaughton's case have, as regards moral insanity, undergone considerable modification. Soon after they were laid down, Sir (then Mr) James Fitz-James Stephen, in an article in the _Juridical Papers_, i. 67, on the policy of maintaining the existing law as to the criminal responsibility of the insane, foreshadowed the view which he subsequently propounded in his _History of the Criminal Law_, ii. 163, that no man who was deprived by mental disease of the power of passing a fairly rational judgment on the moral character of an act could be said to "know" its nature and quality within the meaning of the Rules; and it has in recent years been found possible in practice so to manipulate the test of the criminal responsibility which they prescribed as to afford protection to the accused in the by no means infrequent cases of insanity which in its literal interpretation it would leave without excuse.

In Scotland the Rules in Macnaughton's case are recognized, but, as in England, there is a tendency among judges to adopt a generous construction of them. Mental unsoundness insufficient to bar trial, or to exempt from punishment, may still, it is said, be present in a degree which is regarded as reducing the offence from a higher to a lower category,--a doctrine first practically applied in Scotland, it is believed, in 1867 by Lord Deas; and the fact that a prisoner is of weak or ill-regulated mind is often urged with success as a plea in mitigation of punishment. The Indian Penal Code (Act XLV. of 1860, § 84) expressly adopts the English test of criminal responsibility, but the qualifications noted in the case of Scotland have received some measure of judicial acceptance (see Mayne, _Crim. Law Ind._, 3rd ed., pp. 403-419; Nelson, _Ind. Pen. Code_, 3rd ed., pp. 135 et seq.). The Rules in Macnaughton's case have also been adopted in substance in those colonies which have codified the criminal law. The following typical references may be given: 55 and 56 Vict. (Can.) c. 29, § 11; 57 Vict. (N.Z.), No. 56 of 1893, § 23; No. 101 of 1888 (St Lucia), § 50; No. 5 of 1876 (Gold Coast), § 49 (b); No. 2 of 1883, art. 77 (Ceylon); No. 4 of 1871, art. 84 (Straits Settlements). On the other hand, a departure towards a recognition of "moral insanity" is made by the Queensland Criminal Code (No. 9 of 1899), § 27 of which provides that "a person is not criminally responsible for an act" if at the time of doing it "he is in such a state of mental disease ... as to deprive him ... of capacity to control his actions": and the law has been defined in the same sense in the Cape of Good Hope in the case of _Queen_ v. _Hay_ (1899, 16 S.C.R. 290). The Rules were rapidly reproduced in the United States, but the modern trend of American judicial opinion is adverse to them (see Clevenger, _Med. Jur. of Ins._ p. 125; _Parsons_ v. _State_ (1887) 81 Ala. 577). On the Continent of Europe moral insanity and irresistible impulse are freely recognized as exculpatory pleas (see the French _Code Penal_, § 64; Belgian _Code Penal_, § 71; German _Penal Code_, § 51; Italian _Penal Code_, §§ 46, 47).

Not only is insanity at the time of the commission of an offence a valid exculpatory plea, but supervening insanity stays the action of the criminal law at every stage from arrest up to punishment. High treason was formerly an exception, but the statute making it so (33 Hen. VIII. c. 20) was repealed in the time of Philip and Mary. The Home Secretary has power, under the Criminal Lunatics Act 1884 to order by warrant the removal of a prisoner, certified to be insane, to a lunatic asylum, before[2] trial or after trial, whether under sentence of death or not. Prisoners dealt with under these provisions are styled "Secretary of State's lunatics." On the other hand, a prisoner who on arraignment appears, or is found by the jury to be unfit to plead, or who is found "guilty but insane" at the time of committing the offence--a verdict substituted by the Trial of Lunatics Act 1883 for the old verdict of "acquitted on the ground of insanity," in the hope that the formal conviction recorded in the new finding might have a deterrent effect on the mentally unstable--is committed to a criminal lunatic asylum by the order of the judge trying the case, to be detained there "during the king's pleasure." Lunatics of this class are called "king's pleasure lunatics." There was no doubt at common law as to the power of the courts to order the detention of criminal lunatics in safe custody, but, prior to 1800, the practice was varying and uncertain. On the acquittal of Hadfield, however, in that year for the attempted murder of George III., a question arose as to the provision which was to be made for his detention, and the Criminal Lunatics Act 1800, part of which is still in force, was passed to affirm the law on the subject.

The Criminal Lunatics Act contains provisions similar to those of the Lunacy Act 1890, as to the discharge (conditional or absolute) and transfer of criminal lunatics and the detention of persons becoming pauper lunatics. The expenses of the maintenance of criminal lunatics are defrayed out of moneys provided by Parliament (Crim. Luns. Act 1884, and Hansard, 3rd series, vol. ccxc. p. 75; 139 Com. Jo. pp. 336, 340, 344). The Lunatics' Removal (India) Act 1851 provides for the removal to a criminal lunatic asylum in Great Britain of persons found guilty of crimes and offences in India, and acquitted on the ground of insanity. Similar provisions with regard to colonial criminal lunatics are contained in the Colonial Prisoners' Removal Act 1884; and the policy of this statute has been followed by No 5. of 1894 (New South Wales), and Ordin. No. 2 of 1895 (Falkland Islands). Indian law (see Act V. of 1898, §§ 464-475) and the laws of the colonies (the Cape Act No. 1 of 1897 is a typical example) as to the trial of lunatics are similar to the English. In Scotland all the criminal lunatics, except those who may have been removed to the ordinary asylums or have been discharged, are confined in the Criminal Asylum established at Perth in connexion with H.M.'s General Prison, and regulated by special acts (23 & 24 Vict. c. 105, and 40 & 41 Vict. c. 53). Provision similar to the English has been made for prisoners found insane as a bar to trial, or acquitted on the ground of insanity or becoming insane in confinement. In New York, Michigan and other American states there are criminal lunatic asylums. Elsewhere insane criminals are apparently detained in state prisons, &c. The statutory rules as to the maintenance of criminal lunatic asylums, the treatment of the criminal insane, and the plea of insanity in criminal courts in America, closely resemble English practice. The only special point in Continental law calling for notice is the system by which official experts report for the guidance of the tribunals on questions of alleged criminal irresponsibility (see, e.g., the German _Code of Penal Procedure_, § 293, and cp. § 81).

2. _Insanity and Civil Capacity._--The law as to the civil capacity of the insane was for some time influenced in Great Britain by the view propounded by Lord Brougham in 1848 in the case of _Waring_ v. _Waring_, and by Sir J. P. Wilde in a later case, raising the question of the validity of a marriage, that, as the mind is one and indivisible, the least disorder of its faculties was fatal to civil capacity. In the leading case of _Banks_ v. _Goodfellow_ in 1870, the court of queen's bench, in an elaborate judgment delivered by Chief Justice Cockburn, disapproved of this doctrine, and in effect laid down the principle that the question of capacity must be considered with strict reference to the act which has to be or has been done. Thus a certain degree of unsoundness of mind is not now, in the absence of undue influence, a bar to the formation of a valid marriage, if the party whose capacity is in question knew at the time of the marriage the nature of the engagement entered into (but see 51 Geo. III. c. 37 as to the marriage of lunatics so found by inquisition). Again, a man whose mind is affected may make a valid will, if he possesses at the time of executing it a memory sufficiently active to recall the nature and extent of his property, the persons who have claims upon his bounty, and a judgment and will sufficiently free from the influence of morbid ideas or external control to determine the relative strength of those claims. So far has this rule been carried, that in 1893 probate was granted of the will of a lady who was a Chancery lunatic at the date of its execution, and died without the inquisition having been superseded. (_Roe_ v. _Nix_, 1893, P. 55.) It is also now settled that the simple contract of a lunatic is voidable and not void, and is binding upon him, unless he can show that at the time of making it he was, to the knowledge of the other party, so insane as not to know what he was about. (_Imperial Loan Co._ v. _Stone_, 1892, 1 Q.B. 599.) The test established by _Banks_ v. _Goodfellow_ is applied also in a number of minor points in which civil capacity comes into question, e.g. competency of the insane as witnesses. The law implies, on the part of a lunatic, whether so found or not, an obligation to pay a reasonable price for "necessaries" supplied to him; and the term "necessaries" means goods suitable to his condition in life and to his actual requirements at the time of sale and delivery (Sale of Goods Act 1893).

The question of the liability of an insane person for tort appears still to be undecided (see Pollock on _Torts_, 7th ed. p. 53; Clerk and Lindsell on _Torts_, 2nd ed. pp. 39, 40; _Law Quart. Rev._ vol. xiii. p. 325). Supervening insanity is no bar to proceedings by or against a lunatic husband or wife for divorce or separation for previous matrimonial offences. It does not avoid a marriage nor constitute _per se_ a ground either for divorce or for judicial separation. But cruelty does not cease to be a cause of suit if it proceeds from disorderly affections or want of moral control falling short of positive insanity; and possibly even cruelty springing from intermittent or recurrent insanity might be held a ground for judicial separation, since in such case the party offended against cannot obtain protection by securing the permanent confinement of the offending spouse. Whether insanity at the time when an alleged matrimonial offence was committed is a bar to a suit for divorce or separation is an open question; and in any event, in order that it may be so, the insanity must be of such a character as to have prevented the insane party from knowing the nature and consequences of the act at the time of its commission. The laws of Scotland, Ireland, India (see, e.g., Act IX. of 1872, § 12), the colonies and the United States are substantially identical with English law on the subject of the civil capacity of the insane. The German Civil Code (§ 1569) recognizes the lunacy of a spouse as a ground for divorce, but only where the malady continues during at least three years of the union, and has reached such a pitch that intellectual intercourse between the spouses is impossible, and that every prospect of a restoration of such association is excluded. If one of the spouses obtains a divorce on the ground of the lunacy of the other the former has to allow alimony, just as a husband declared to be the sole guilty party in a divorce suit would have to do (§§ 1585, 1578).

3. _The Jurisdiction in Lunacy._--In order to effect a change in the status of persons alleged to be of unsound mind, and to bring their persons and property under control, the aid of the jurisdiction in lunacy must be invoked. Under the unrepealed statute _De Praerogativa Regis_ (1325) the care and custody of lunatics belong to the Crown. But the Crown has, at least since the 16th century, exercised this branch of the prerogative by delegates, and principally through the Lord Chancellor--not as head of the Court of Chancery, but as the representative and delegate of the sovereign. Under the Lunacy Acts 1890 and 1891, the jurisdiction in lunacy is exercised first by the Lord Chancellor and such of the Lords Justices and other judges as may be invested with it by the sign-manual; and, secondly, by the two Masters in Lunacy, appointed by the Lord Chancellor, from members of the bar of at least ten years' standing, whose duties include the holding of inquisitions and summary inquiries, and the making of most of the consequential orders dealing with the persons and estates of lunatics. County court judges may also exercise a limited jurisdiction in lunacy in the case of lunatics as to whom a reception order has been made, if their entire property is under £200 in value, and no relative or friend is willing to undertake the management of it; in partnership cases where the assets do not exceed £500; and upon application by the guardians of any union for payment of expenses incurred by them in relation to any lunatic.

Persons of unsound mind are brought under the jurisdiction in lunacy either by an inquisition _de lunatico inquirendo_, or, in certain cases which will be adverted to below, by proceedings instituted under § 116 of the Lunacy Act 1890, which is now the great practice section in the Lunacy Office. Prior to 1853 a special commission was issued to the Masters in each alleged case of lunacy. But by the Lunacy Regulation Act of that year a general commission was directed to the Masters, empowering them to proceed in each case in which the Lord Chancellor by order required an inquisition to be held. This procedure is still in force. A special commission would now be issued only where both Masters were personally interested in the subject of the inquiry, or for some other similar reason. An inquisition is ordered by the judge in lunacy (a term which does not, for this purpose, at present include the Masters, although this is one of the points in regard to which a change in the law has been suggested, on the petition generally of a near relative of the alleged lunatic). The inquiry is held before one of the Masters, and a jury may be summoned if the alleged lunatic, being within the jurisdiction, demands it, unless the judge is satisfied that he is not competent to form and express such a wish; and even in that case the Master has power to direct trial by jury if he thinks fit on consideration of the evidence. Where the alleged lunatic is not within the jurisdiction the trial must be by jury; and the judge in lunacy may direct this mode of trial to be adopted in any case whatever.

A few points of general interest in connexion with inquisitions must be noted. In practice thirty-four jurors are summoned by the sheriff, and not more than twenty-four are empanelled. Twelve at least must concur in the verdict. Counsel for the petitioner ought to act in the judicial spirit expected from counsel for the prosecution in criminal cases. The issue to be determined on an inquisition is "whether or not the alleged lunatic is at the time of the inquisition of unsound mind, and incapable of managing himself and his affairs" (a special verdict may, however, be found that the lunatic is capable of managing himself, although not his affairs, and that he is not dangerous to others); and without the direction of the person holding the inquisition, no evidence as to the lunatic's conduct at any time being more than two years before the inquisition is to be receivable. This limitation, both of the issue and of the evidence, was imposed with a view to preventing the recurrence of such cases as that of Mr Windham in 1861-1862, when the inquiry ranged over the whole life of an alleged lunatic, forty-eight witnesses being examined on behalf of the petitioners and ninety-one on behalf of the respondents, while the hearing lasted for thirty-four days. For the purpose of assisting the Master or jury in arriving at a decision, provision is made for the personal examination of the alleged lunatic by them on oath or otherwise, and either in open court or in private, as may be directed. The proceedings on inquisition are open to the public. When a person has been found lunatic by inquisition he becomes subject to the jurisdiction in lunacy, and remains so (unless he succeeds in setting aside the verdict by a "traverse"--a proceeding which ultimately comes before, and is determined by, the King's Bench Division in London or at the assizes) until his recovery, when the inquisition may be put an end to by a procedure technically known as "supersedeas," or by his death. The results of the inquisition are worked out in the Lunacy Office. The control of the estate, and, except where he was found incapable of managing his property only, of the person of the lunatic is entrusted to committees of the estate and person, who are appointed by, and accountable to, the Master in Lunacy, and whose legal position corresponds roughly with that of the tutors and curators of the civil law. The committee of the estate in particular exercises over the property of the lunatic, with the sanction or by the order of the Master, very wide powers of management and administration, including the raising of money by sale, charge or otherwise, to pay the lunatic's debts, or provide for his past or future maintenance, charges for permanent improvements, the sale of any property belonging to the lunatic, the execution of powers vested in him and the performance of contracts relating to property.

The alternative method of bringing a person of unsound mind under lunacy jurisdiction was created by § 116 of the Lunacy Act 1890. The effect of that section briefly is to enable the Master, on a summons being taken out in his chambers and heard before him, to apply the powers of management and administration summarized in the last preceding paragraph, without any inquisition, to the following classes of cases: lunatics not so found by inquisition, for the protection or administration of whose property any order was made under earlier acts; every person lawfully detained, within the jurisdiction of the English courts, as a lunatic, though not so found by inquisition; persons not coming within the foregoing categories who are "through mental infirmity arising from disease or age" incapable of managing their affairs; persons of unsound mind whose property does not exceed £2000 in value, or does not yield an annual income of more than £100; and criminal lunatics continuing insane and under confinement.

In Scotland the insane are brought under the jurisdiction in lunacy by alternative methods, similar to the English inquisition and summary procedure, viz. "cognition," the trial taking place before the Lord President of the Court of Session, or any judge of that court to whom he may remit it, and a jury of twelve--see 31 & 32 Vict. c. 100, and Act of Sederunt of 3rd December 1868--and an application to the Junior Lord Ordinary of the Court of Session or (43 & 44 Vict. c. 4, § 4) to the Sheriff Court, when the estate in question does not exceed £100 a year, for the appointment of a _curator bonis_ or judicial factor.

The powers of the Lord Chancellor of Ireland with regard to lunatics are generally similar to those of the English Chancellor (see the Lunacy Regulations (Ireland) Act 1871, 34 & 35 Vict. c. 22, and the Lunacy (Ireland) Act 1901, 1 Ed. VII. c. 17; also Colles on _The Lunacy Regulation (Ireland) Act_.

The main feature of the French system is the provision made by the Civil Code (arts. 489-512) for the interdiction of an insane person by the Tribunal of First Instance, with a right of appeal to the Court of Appeal, after a preliminary inquiry and a report by a family council (arts. 407, 408), consisting of six blood relatives in as near a degree of relationship to the lunatic as possible, or, in default of such relatives, of six relatives by marriage. The family council is presided over by the _Juge de Paix_ of the district in which the lunatic is domiciled. This system is also in force in Mauritius.

There are provisions, it may be noted, in Scots law for the interdiction of lunatics, either voluntarily or judicially (see Bell's _Principles_, § 2123). The German Civil Code provides for insane persons being made subject to guardianship (_vormundung_), on conditions similar to those of Scots and French law (see Civil Code, §§ 6, 104 (1896, 1906), 645-679). In the United States the fundamental procedure is an inquisition conducted on practically the same lines as in England. (Cf. Indiana, _Rev. Stats._ (1894) §§ 2715 et seq.; Missouri, Annot. Code (1892) §§ 2835 et seq.; New Mexico, _General Laws_ (1880) c. 74 §§ 1 et seq.).

4. _Asylum Administration._--Asylum administration in England is now regulated by the Lunacy Acts 1890 and 1891. Receptacles for the insane are divisible into the following classes: (i.) Institutions for lunatics, including asylums, registered hospitals and licensed houses. The asylums are provided by counties or boroughs, or by union of counties or boroughs. Registered hospitals are hospitals holding certificates of registration from the Commissioners in Lunacy, where lunatics are received and supported wholly or partially by voluntary contributions or charitable bequests, or by applying the excess of the payments of some patients towards the maintenance of others. Licensed houses are houses licensed by the Commissioners, or, beyond their immediate jurisdiction, by justices; (ii.) Workhouses--see article POOR LAW; (iii.) Houses in which patients are boarded out; (iv.) Private houses (unlicensed) in which not more than a single patient may be received. A person, not being a pauper or a lunatic so found by inquisition, cannot, in ordinary cases, be received and detained as a lunatic in any institution for the insane, except under a "reception order" made by a county court judge or stipendiary magistrate or specially appointed justice of the peace. The order is made on a petition presented by a relative or friend of the alleged lunatic, and supported by two medical certificates, and after a private hearing by the judicial authority. The detention of a lunatic is, however, justifiable at common law, if necessary for his safety or that of others; and the Lunacy Act 1890, borrowing from the lunacy law of Scotland, provides for the reception of a lunatic not a pauper into an asylum, where it is expedient for his welfare or the public safety that he should be confined without delay, upon an "urgency order," made if possible by a near relative and accompanied by one medical certificate. The urgency order only justifies detention for seven days (the curtailment of this period to four days is proposed), and before the expiration of that period the ordinary procedure must be followed. "Summary reception orders" may be made by justices otherwise than on petition. There are four classes of cases in which such orders may be made, viz.: (i.) lunatics (not paupers and not wandering at large) who are not under proper care and control, or are cruelly treated or neglected; (ii.) resident pauper lunatics; (iii.) lunatics, whether pauper or not, wandering at large; (iv.) lunatics in workhouses. (As to pauper lunatics generally, see article POOR LAW.) A lunatic may also be received into an institution under an order by the Commissioners in Lunacy; and a lunatic so found by inquisition under an order signed by the committee of his person.

The chief features of English asylum administration requiring notice are these. Mechanical restraint is to be applied only when necessary for surgical or medical purposes, or in order to prevent the lunatic from injuring himself or others. The privacy of the correspondence of lunatics with the Lord Chancellor, the Commissioners in Lunacy, &c., is secured. Provision is made for regular visits to patients by their relatives and friends. The employment of males for the custody of females is, except on occasions of urgency, prohibited. Pauper lunatics may be boarded out with relatives and friends. Elaborate provision is made for the official visitation of every class of receptacle for the insane. The duties of visitation are divided between the Commissioners in Lunacy, the Chancery Visitors and various other visitors and visiting committees. There are ten Commissioners in Lunacy--four unpaid and six paid, three of the latter being barristers of not less than five years' standing at the date of appointment, and three medical. The Commissioners in Lunacy, who are appointed by the Lord Chancellor, visit every class of lunatics except persons so found by inquisition. These are visited by the Chancery Visitors. There are three Chancery Visitors, two medical and one legal (a barrister of at least five years' standing at the date of his appointment), who are appointed and removable by the Lord Chancellor. The Chancery Visitors (together with the Master in Lunacy) form a Board, and have offices in the Royal Courts of Justice. In addition to these two classes of visitors, every asylum has a Visiting Committee of not less than seven members, appointed by the local authority; and the justices of every county and quarter-sessions borough not within the immediate jurisdiction of the Commissioners in Lunacy annually appoint three or more of their number as visitors of licensed houses.

Provision is made for the discharge of lunatics from asylums, &c., on recovery, or by _habeas corpus_, or by the various visiting authorities. Any person who considers himself to have been unjustly detained is entitled on discharge to obtain, free of expense, from the secretary to the Lunacy Commissioners a copy of the documents under which he was confined.

The Irish [Lunacy Acts 1821-1890; Lunacy (Ireland) Act 1901] and Scottish [Lunacy Acts 1857 (20 & 21 Vict. c. 71), 1887 (50 & 51 Vict. c. 39)] asylum systems present no feature sufficiently different from the English to require separate notice, except that in Scotland "boarding out" is a regular, and not merely an incidental, part of asylum administration. The "boarding out" principle has, however, received its most extended and most successful application in the Gheel colony in Belgium. The patients, after a few days' preliminary observation, are placed in families, and, except that they are under ultimate control by a superior commission, composed of the governor of the province, the Procureur du Roi and others, enjoy complete liberty indoors as well as out of doors. The patients are visited by nurses from the infirmary, to which they may be sent if they become seriously ill or unmanageable. They are encouraged to work. The accommodation provided for them is prescribed, and is to be of the same quality as that of the household in which they live. Clothing is provided by the administration.

In the French (see laws of 30th June 1838 and 18th December 1839) and German (see _Journal of Comparative Legislation_, n.s. vol. i. at pp. 271, 272) asylum systems the main features of English administration are also reproduced.

The lunacy laws of the British colonies have also closely followed English legislation (cf. Ontario, _R.S._ 1897, cc. 317, 318; Manitoba, _R.S._ 1902, c. 80; Victoria (No. 1113, 1890); New Zealand (No. 34 of 1882 and Amending Acts); Mauritius (No. 37 of 1858).

In America the different states of the Union have each their own lunacy legislation. The national government provides only for the insane of the army and navy, and for those residing in the District of Columbia and in Alaska. The various laws as to the reception, &c., of the insane into asylums closely resemble English procedure. But in several states the verdict of a jury finding lunacy is a necessary preliminary to the commitment of private patients (Kentucky, Act of 1883, c. 900, § 14; Maryland, _R.S._ 1878, c. 53, § 21; Illinois, _R.S._ 1874, c. 85, § 22).

AUTHORITIES.--The following works may be consulted: Collinson on the
_Law of Lunatics and Idiots_ (2 vols., London, 1812); Shelford on the
_Law of Lunatics and Idiots_ (London, 1847). On all points relating to
the history and development of the law these two treatises are
invaluable. Pope on _Lunacy_ (2nd ed., London, 1890); Archbold's
_Lunacy_ (4th ed., London, 1895); Elmer on _Lunacy_ (7th ed., London,
1892); Wood Renton on _Lunacy_ (London and Edinburgh, 1896); Fry's
_Lunacy Laws_ (3rd ed., London, 1890); Pitt-Lewis, Smith and Hawke,
_The Insane and the Law_ (London, 1895); Hack-Tuke, _Dictionary of
Psychological Medicine_ (London, 1892), and the bibliographies
attached to the various legal articles in that work; Clevenger,
_Medical Jurisprudence of Insanity_ (2 vols., New York, 1899);
Semelaigne, _Les Aliénistes français_ (Paris 1849); Bertrand, _Loi sur
les aliénés_ (Paris, 1872), presents a comparative view of English and
foreign legislations. In forensic medicine the works of Taylor,
_Medical Jurisprudence_ (5th ed., London, 1905); Dixon Mann, _Foreign
Medicine and Toxicology_ (3rd ed., London, 1902); and Wharton and
Stillé, _A Treatise on Medical Jurisprudence_ (Philadelphia, 1873);
Hamilton and Godkin, _System of Legal Medicine_ (New York, 1895); are
probably the English authorities in most common use. See also Casper
and Liman, _Praktisches Handbuch_ _der gerichtlichen Medicin_
(Berlin, 6th ed., 1876); Tardieu, _Étude médico-légale sur la folie_
(Paris, 1872); Legrand du Saulle, _La Folie devant les tribunaux_
(Paris, 1864); Dubrac, _Traité de jurisprudence médicale_ (Paris,
1894); Tourdes, _Traité de médecine légale_ (Paris, 1897); and
especially Krafft-Ebing, _Lehrbuch der gerichtlichen Psychopathologie_
(Stuttgart, 1899). (A. W. R.)

III. HOSPITAL TREATMENT

The era of real hospitals for the insane began in the 19th century. There had been established here and there in different parts of the world, it is true, certain asylums or places of restraint before the beginning of the 19th century. We find mention in history of such a place established by monks at Jerusalem in the latter part of the 5th century. There is evidence that even earlier than this in Egypt and Greece the insane were treated as individuals suffering from disease. Egyptian priests employed not only music and the beautiful in nature and art as remedial agents in insanity, but recreation and occupation as well. A Greek physician protested against mechanical restraint in the care of the insane, and advocated kindly treatment, the use of music, and of some sorts of manual labour. But these ancient beneficent teachings were lost sight of during succeeding centuries. The prevailing idea of the pathology of insanity in Europe during the middle ages was that of demoniacal possession. The insane were not sick, but possessed of devils, and these devils were only to be exorcised by moral or spiritual agencies. Medieval therapeutics in insanity adapted itself to the etiology indicated. Torture and the cruellest forms of punishment were employed. The insane were regarded with abhorrence, and were frequently cast into chains and dungeons. Milder forms of mental disease were treated by other spiritual means--such as pilgrimages to the shrines of certain saints who were reputed to have particular skill and success in the exorcism of evil spirits. The shrine of St Dymphna at Gheel, in Belgium, was one of these, and seems to have originated in the 7th century, a shrine so famed that lunatics from all over Europe were brought thither for miraculous healing. The little town became a resort for hundreds of insane persons, and as long ago as the 17th century acquired the reputation, which still exists to this day, of a unique colony for the insane. At the present time the village of Gheel and its adjacent farming hamlets (with a population of some 13,000 souls) provides homes, board and care for nearly 2000 insane persons under medical and government supervision. Numerous other shrines and holy wells in various parts of Europe were resorted to by the mentally afflicted--such as Glen-na-Galt in Ireland, the well of St Winifred, St Nun's Pool, St Fillans, &c. At St Nun's the treatment consisted of plunging the patient backwards into the water and dragging him to and fro until mental excitement abated. Not only throughout the middle ages, but far down into the 17th century, demonology and witchcraft were regarded as the chief causes of insanity. And the insane were frequently tortured, scourged, and even burned to death.

Until as late as the middle of the 18th century, mildly insane persons were cared for at shrines, or wandered homeless about the country. Such as were deemed a menace to the community were sent to ordinary prisons or chained in dungeons. Thus large numbers of lunatics accumulated in the prisons, and slowly there grew up a sort of distinction between them and criminals, which at length resulted in a separation of the two classes. In time many of the insane were sent to cloisters and monasteries, especially after these began to be abandoned by their former occupants. Thus "Bedlam" (Bethlehem Royal Hospital) was originally founded in 1247 as a priory for the brethren and sisters of the Order of the Star of Bethlehem. It is not known exactly when lunatics were first received into Bedlam, but some were there in 1403. Bedlam was rebuilt as an asylum for the insane in 1676. In 1815 a committee of the House of Commons, upon investigation, found it in a disgraceful condition, the medical treatment being of the most antiquated sort, and actual inhumanity practised upon the patients. Similarly the Charenton Asylum, just outside Paris, near the park of Vincennes, was an old monastery which had been given over to the insane. Numerous like instances could be cited, but the interesting point to be borne in mind is, that with a general tendency to improvement in the condition of imbeciles upon public charge, idiots and insane persons came gradually to be separated from criminals and other paupers, and to be segregated. The process of segregation was, however, very slow. Even after it had been accomplished in the larger centres of civilization, the condition of these unfortunates in provincial districts remained the same. Furthermore, the transfer to asylums provided especially for them was not followed by any immediate improvement in the patients.

Twenty-five years after Pinel had, in 1792, struck the chains from the lunatics huddled in the Salpétrière and Bicêtre of Paris, and called upon the world to realize the horrible injustice done to this wretched and suffering class of humanity, a pupil of Pinel, Esquirol, wrote of the insane in France and all Europe: "These unfortunate people are treated worse than criminals, reduced to a condition worse than that of animals. I have seen them naked, covered with rags, and having only straw to protect them against the cold moisture and the hard stones they lie upon; deprived of air, of water to quench thirst, and all the necessaries of life; given up to mere gaolers and left to their surveillance. I have seen them in their narrow and filthy cells, without light and air, fastened with chains in these dens in which one would not keep wild beasts. This I have seen in France, and _the insane are everywhere in Europe treated in the same way_." It was not until 1838 that the insane in France were all transferred from small houses of detention, workhouses and prisons to asylums specially constructed for this purpose.

In Belgium, in the middle ages, the public executioner was ordered to expel from the towns, by flogging, the poor lunatics who were wandering about the streets. In 1804 the Code Napoleon "punished those who allowed the insane and mad criminals to run about free." In 1841 an investigation showed in Belgium thirty-seven establishments for the insane, only six of which were in good order. In fourteen of them chains and irons were still being used. In Germany, England and America, in 1841, the condition of the insane was practically the same as in Belgium and France.

These facts show that no great advance in the humane and scientific care of the insane was made till towards the middle of the 19th century. Only then did the actual metamorphosis of asylums for detention into hospitals for treatment begin to take place. Hand in hand with this progress there has grown, and still is growing, a tendency to subdivision and specialization of hospitals for this purpose. There are now hospitals for the acutely insane, others for the chronic insane, asylums for the criminal insane, institutions for the feeble-minded and idiots, and colonies for epileptics. There are public institutions for the poor, and well-appointed private retreats and homes for the rich. All these are presided over by the best of medical authorities, supervised by unsalaried boards of trustees or managers, and carefully inspected by Government lunacy commissioners, or boards of charities--a contrast, indeed, to the gaols, shrines, holy wells, chains, tortures, monkish exorcisms, &c., of the past!

The statistics of insanity have been fairly well established. The ratio of insane to normal population is about 1 to 300 among civilized peoples. This proportion varies within narrow limits in different races and countries. It is probable that intemperance in the use of alcohol and drugs, the spread of venereal diseases, and the over-stimulation in many directions induced by modern social conditions, have caused an increase of insanity in the 19th as compared with past centuries. The amount of such increase is probably very small, but on superficial examination might seem to be large, owing to the accumulation of the chronic insane and the constant upbuilding of asylums in new communities. The imperfections of census-taking in the past must also be taken into account.