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CHAPTER III.

OF EVIDENCE RESPECTING THE EXISTENCE OF INSANITY.

BEFORE any person is deprived of his personal liberty, or power of entering into contracts binding himself or his property, or exonerated from the penal consequences attending acts of a criminal nature, on the ground of insanity, clear and satisfactory evidence must be adduced to prove that the party labours under such alleged incapacity, in order that persons may not be cruelly debarred of their liberty, or power of contracting, or exempted from punishment, on slight and insufficient grounds. The existence of insanity is a fact, which, by the law of England, is not in general decided without the intervention of the verdict of a jury (a), whose decision in such cases, as in other questions of fact, ought to be founded on clear and unexceptionable evidence submitted to their consideration. On inquiries upon this subject the same general rules of evidence are to be observed as in other trials. It is the correct practice, where the question turns on the sanity of a party, to give particular acts of madness in evidence, and not general

(a) There has been a departure from this principle in some modern acts of Parliament, 1 & 2 Geo. 4, c. 114; 6 Geo. 4, c. 74, and 11 Geo. 4 & 1 Will. 4. c. 60, s. 5, enabling the Lord Chancellor, in certain cases, to appoint a person to convey and transfer lands and stock vested in lunatics as trustees, who have not been found such by inquisition; and in

such cases the existence of unsoundness of mind is determined on affidavit only, either by the Lord Chancellor or by a Master in Chancery, to whom the matter is referred. See post, ch. viii. s. 3.

In proceedings in the Ecclesiastical Courts, insanity, like other facts, is proved by the examination of witnesses on interrogatories in writing.

evidence that the party is insane (a). Reason, being the common gift to man, raises the general presumption that every man is in a state of sanity, and that insanity ought to be proved; and in favour of liberty and of that dominion which, by the law of nature, men are entitled to exercise over their own persons and properties, it is a presumption of the law of England, that every person, who has attained the usual age of discretion, is of sound mind until the contrary is proved: and this holds as well in civil as in criminal cases (b).

Insanity is in many cases a state of mind not only not easily reducible to any correct definition, but not easily ascertained, being frequently a disorder in those faculties, with the sound state of which mankind in general has made but a very moderate progress. But experience and observation will shew, that insanity may subsist in various degrees, sometimes slight, as partaking rather of disposition or humour, which will not incapacitate a man from managing his own affairs, or making a valid contract. It must be something more than this, something which, if there be any test, affords demonstrative proof of the incapacity of the individual to be trusted with the management of himself and his own concerns. Madness, when not raving, is sometimes an invisible quality, but it discovers itself, it presents its symptoms, it betrays and accuses itself by the most ordinary actions. The habit, the exterior appearance, the conversation, and other actions of a man, may furnish proofs of insanity, on account of their extravagant and unreasonable nature. But, as it is an habitual state or disposition, and generally a permanent affection of the mind, its existence must be proved, not by one instance of unreasonable conduct, but by reiterated acts, and a multiplicity of actions, by the testimony of persons who have been attentive observers of them.

In the general relations of life, a man may be thoughtless, ridiculous, and extravagant; yet such errors will not be sufficient to fix the charge of insanity, which consists either

(a) 2 Atk. 340.

(b) 1 Hale's P. C. 33.

in false perceptions, or erroneous reasoning on objects distinguished in their true colours. Many individuals of this kind require guardians of their property, as much as persons really insane; but the law of England does not sanction the exercise of any such discretionary power. The difficulty arises when this wild absurd conduct is attended with such inconsistencies as lead to the suspicion that the perceptions or the reason are affected. Under such circumstances individuals are proper subjects for the advice and remonstrance of friends, who may induce them to adopt a more prudent course of conduct, but not for the restraints imposed by law on lunatics.

2. The judicial investigations of insanity are, for the most part, confined to the inquiry whether such a state of incapacity arising from insanity exists, as actually disqualifies the person whose sanity is disputed, from conducting himself with personal safety to himself or others, or from managing and disposing of his own affairs and property.

Weakness of mind and insanity are susceptible of degrees and considerable differences; incapacity may increase and diminish in proportion to these degrees and these differences; but it is impossible to fix them in general, or to mark precisely the frontiers, the almost imperceptible limits, which separate insanity from sanity, or to number the degrees by which reason declines and falls into annihilation. It is necessary to consider such degrees so far only as they afford circumstances of evidence of legal competency or incompetency of mind.

A person's being of weak understanding, is not of itself any objection in law to his disposing of his estates. Courts will not measure the extent of people's understandings or capacities; if a man, therefore, be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as a reason for his actions; and there is no such thing as an equitable incapacity where there is a legal capacity (c).

The doubtful and uncertain point at which reason disap

(c) Osmond v. Fitzroy, 3 P. Wms. 128; Willis v. Jernegan, 2 Atk. 251.

pears, and where incapacity becomes evident and manifest, can be ascertained only by an examination of the particular circumstances of each individual case requiring decision.

From the diversity of views which have been taken of the precise condition of the mind which constitutes insanity, some important conclusions may be deduced-First, that all the faculties of the mind are capable of being affected in the maniacal state, though not always equally, or at one and the same time-Secondly, that it is hardly possible to express in words the nice distinctions that mark the boundaries of reason and insanity, or to specify the delicate gradations by which weakness of intellect, depression of spirits, violence of temper, and eccentricity of manner, degenerate into actual disease-Thirdly, that, in determining the question of sanity or lunacy, the common sense of mankind must ultimately be relied on; and that its decision cannot receive much assistance from metaphysical speculations, although a general knowledge of the faculties of the human mind and their mode of operation, will afford much assistance in leading to correct conclusions respecting insanity.

3. In deciding whether a party is of sound or unsound mind, one of the most important points to be considered, and which should be distinctly ascertained, as far as it can be fixed, is, what is the test and criterion of unsound mind, and where eccentricity or caprice ends, and derangement commences. Derangement assumes a thousand different shapes, as various as the shades of human character. It shews itself in forms very dissimilar both in character and in degree. It exists in all imaginable varieties from the frantic maniac, chained down to the floor, to the person apparently rational on all subjects, and in all transactions save one; and whose disorder, though latently perverting the mind, yet will not be called forth, except under particular circumstances, and will shew itself only occasionally. We have heard of persons at large in Bedlam, acting as servants in the institution, shewing other maniacs, and describing their cases, yet being themselves essentially mad. We have heard of the person who fancied himself Duke of Hexham, yet acted as agent and steward to his own committee. It

has probably happened to most persons who have made a considerable advance in life, to have had personal opportunities of seeing some of these varieties, and the intermediate cases between mere eccentricity and absolute phrensy-maniacs who, though they could talk rationally, and conduct themselves correctly, and reason rightly, nay, with force and ability, on ordinary subjects, yet, on others, were in a complete state of delusion, which delusion no argument or proofs could remove. In common parlance, it is true, some say a person is mad when he does any strange or absurd act; others do not conceive the term madness to be properly applied, unless the person is frantic (c).

4. A sound mind is one wholly free from delusion, all the intellectual faculties existing in a certain degree of vigour and harmony; the propensities, affections, and passions being under the subordination of the judgment and the will, the former being the controlling power, with a just perception of the natural connexion or repugnancy of ideas. Weak minds, again, only differ from strong ones in the extent and power of their faculties; but, unless they betray symptoms of a total loss of understanding, or of idiocy, or of delusion, they cannot properly be considered unsound.

An unsound mind, on the contrary, is marked by delusion, mingles ideas of imagination with those of reality, those of reflection with those of sensation, and mistakes the one for the other. And such delusion is often accompanied with an apparent insensibility to, or perversion of, those feelings which are peculiarly characteristic of our nature. Some lunatics, for instance, are callous to a just sense of affection, decency, or honour; they hate those without a cause, who were formerly most dear to them; others take delight in cruelty; many are more or less offended at not receiving that attention to which their delusions persuade them they are entitled.

Retention of memory, display of talents, enjoyment in amusing games, and an appearance of rationality on various subjects, are not inconsistent with unsoundness of mind; hence, sometimes arises the difficulty of distinguishing between sanity and insanity. The man of insane mind from

(c) See Dew v. Clark, reported by Haggard, p. 5; S. C. 3 Add. 87, 88.

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