Part 45

## 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.).