Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/123

INSANITY 113 conception of the nature of his property and the objects of his bounty. But it is needless to say that the least appearance of insanity in the deed itself, or any appearance of fraud or nndue persuasion on the part of any one, is immediately fatal to the deed. In the case of contracts an additional element is knowledge of the insanity by the other party. When the contract was entered into bona fide, and the insanity of the one party was not known to the other, the contract may not be set aside unless the parties can be exactly restored to their previous condition. 3. Both the property and person of the insane may be placed under control by a legal process. In England this right was early annexed to the prerogative of the crown, and is even yet in consequence not exercised by the ordinary courts, but by the lord chancellor and such other judges as may be entrusted with it by the sign manual. The procedure is now governed by the Lunacy Regulation Acts (16 & 17 Viet. c. 70 ; 18 Viet. c. 13; 25 & 26 Viet. c. 86). The question of insanity is tried before one of the masters in lunacy, either with or without a jury, according to circumstances. The terms of the inquiry are whether the party is of unsound mind and incapable of managing himself and his affairs ; and on this being found his person and property are placed in charge of one or more persons called committees, whose administration is subject to the masters in lunacy, and through them to the chancellor. Persons thus found insane (technically known from the old form of procedure as lunatics so found by inquisition) are under the inspection of the board of chancery visitors, consisting of two medical men and a barrister, who arc appointed to visit them at intervals. They are not subject to the provisions of the Lunacy Acts. In Scotland the old procedure is by a brieve or writ from chancery, formerly tried before the judge ordinary and now before the lord president of the court of session. The nearest male agnate of twenty-five years of age is appointed tutor, but, latterly at least, is not entrusted with the per sonal custody, the court, if necessary, selecting some one for the purpose, generally the nearest cognate. The procedure by brieves is now becoming infrequent. More generally application is made to the court of session to appoint a curator bonis to take charge of the estate. This procedure is in many ways simpler and more convenient, especially in the numerous cases which are unopposed, as the court when they are satisfied that every person con cerned has had due notice will grant the application on the certificate of two medical men. In America and on the Continent similar forms of procedure exist, which cannot be gone into in detail. In the United States the law is mostly, as is natural, derived from the English sources, but the procedure is regulated by statute in the different States. In many other countries, where the common law is based on Roman jurisprudence, the procedure seems to differ in many points from the English forms, but in substance the law on the subject has in nearly all countries reached very much the same results. 4. Insane persons (although not lunatics so found by inquisition) may be placed under personal restraint. At common law this power is limited to cases where the insane person is dangerous to himself or others, but in practice it used frequently to be exercised with little discretion and often with great barbarity. The care and restraint of the insane (other than that exercised by their friends and relatives in their own homes) is now strictly controlled by the Lunacy Acts (8 & 9 Viet. c. 100 ; 16 & 17 Viet. c. 96 ; 16 & 17 Viet. c. 97; 25 & 26 Viet. c. Ill), the general nature of whose provisions may be thus briefly described. The chief supervision of the insane is vested in a body called the Commissioners of Lunacy. No insane person can be received for profit, or detained in any house or asylum except upon an order by a person who becomes responsible for his detention, accompanied by certificates of two qualified medical practitioners that ho is insane, and a proper person to be taken charge of and detained under care and treatment. Every such case must at once be reported to the commissioners, who must also be informed of the patient s death, discharge, change of residence, and similar circumstances. Not more than one insane person can be received into a house unless a licence has been previously obtained. In the metropolitan districts such licences are granted after due examination by the commis sioners, and in the provinces by the justices of peace in quarter sessions. Every house thus licensed, together with public hospitals and asylums (which are not under licence), and every patient under private treatment, are subjected to a more or less frequent inspection by the commissioners, as well as by visitors appointed in their respective districts by the quarter sessions. The private licensed houses are under especially frequent inspection; their regulations and arrangements are subject to the approval of the commis sioners, and especial precautions are taken that the patients shall have full opportunity of having their cases examined and of communicating with the commissioners. Patients may be discharged as cured, or on the direction of the person who ordered their detention, or on the order of the commissioners, all these modes of discharge, however, being guarded by various conditions. The order for detention of a lunatic may be given by any person having an interest in him, and he is liable in damages if there prove to have been no sufficient ground for the order, his position differ ing in this respect from that of the physicians and keeper of the asylum, who are only liable in the event of negli gence or mala fides. In Scotland the equivalent Acts are 20 & 21 Viet. c. 71, 25 & 26 Viet. c. 54, and 29 & 30 Viet. c. 51. The system is in its main features the same as that of England, the leading differences being that the Commis sioners of Lunacy are the only licensing body, and that an order granted on application by the sheriff takes the place of the order by a private person. The regulations applicable to pauper lunatics differ in some respects from the ordinary case. The provisions applicable to them are for the most part to be found in 16 & 17 Viet. c. 97, and in 20 & 21 Viet. c. 71. The nature of the evidence, and the manner in which it is to be presented to the court, is an important question in every department of the legal treatment of insanity. In England the courts, although giving increasing prominence to expert evidence, have gone a good deal on the theory that the medical evidence is merely a part of the general evidence in the case. In most Continental countries, on the other hand, the whole evidence is presented in the shape of reports by medical men (in most instances officials) who have previously examined the case ; and in this way every piece of evidence as to the state of mind of the insane person is commented on by an expert who is presumably better acquainted with its true import than an ordinary court or jury. Literature. The most recent book on the general law aud pro cedure in insanity is A Treatise on the Law and Practice of Lunacy, by H. M. R. Pope (London, 1877) ; Archibald s Statutes relating to Lunacy (2d ed., London, 1877) contains the statutory law on all branches ; Bertrand, Lai sur Ics Aliines (Paris, 1872), presents a comparative view of English and foreign legislations. In forensic medicine the works of Taylor (Medical Jurisprudence, 2d ed., Lon don, 1873) and of "VVharton and Stille (A Treatise on Medical Jurisprudence, Philadelphia, 1873) are probably the English authorities in most common use. See also Casper and Linian, Pradischcs Handluch der Gcrichtlichen Mcdicin, Berlin, 6th ed. ,1876; Tardieu, fyude me.dico-Ucjale sur la Folie, Paris, 1872 ; Legraml du Saulle, La Folie devant Ics Tribunaux, Paris, 1864 ; and especially Krafft-Ebing, Lclirbnch der gerichtlichen Psyckopatiwlogie, Stutt- gart,1875.