Open main menu
This page has been proofread, but needs to be validated.

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will of a lady who was a Chancery lunatic at the date of its execution, and died without the inquisition having been superseded.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