If such facts were admissible in evidence, the inquisition finding the ancestor of unsound mind, although founded on imbecility arising from old age and an incapacity to manage his affairs merely, or from some accidental cause quite independent of constitutional predisposition, might be adduced in evidence on a trial respecting the sanity of his descendant, whilst the grounds, upon which the former verdict was founded, would not appear, and an unjust prejudice might be thus created. It is submitted that the legal course is to confine the evidence to the actions and state of mind of the party whose sanity is questioned. 13. The English constitution has with much care provided protection for persons who are represented to be of unsound mind; and has been extremely cautious to prevent the power of the Crown, or of individuals (o), to interfere with such persons, from being assumed in any case where it is not required for the safety of the public and of individuals; because it is difficult to exert such power without depriving the subject of that liberty, and power of dealing with his property, which ought to be unrestricted, unless the necessity for restraint be clearly proved. It has, in the first place, made it necessary, before a commission of lunacy is issued, that a petition should be presented to the person who is delegated to exercise this authority of the Crown, and imposed on such person the duty of considering whether there is ground for an inquiry or not. It does not allow that individual to declare, that the person is of unsound mind; it calls on him to look through the case which is brought before him, to decide whether or not there is ground for further inquiry: if he finds that there is, the matter then goes to a jury of the country (p). Lord Chancellor Eldon laid it down as unquestionable, that the Crown has not, in England, the power of taking upon itself the care of any individuals, either as to their persons or their property, on the ground that they are of unsound mind, without the verdict of a jury (q). (0) See statute 9 Geo. 4, c. 41, which repealed the stat. 14 Geo. 3, (p) See note, ante, p. 35. But it frequently happens, that persons are in a state in which it is absolutely necessary to throw around them protection, before the opinion of a jury has been obtained upon the question, whether they are, or are not, of unsound mind, and unable to take care of themselves. The Lord Chancellor, therefore, in such cases, upon receiving information making it his duty to interpose, interferes temporarily, for the purpose of taking care of such individuals, until it can be ascertained, upon the acknowledged authority of the verdict of a jury, what is the real state of their minds, and how they are to be permanently treated, with respect to the management of their affairs (r). 14. Before a commission of lunacy issues, the duty of that person who has the authority to issue it, requires him to have evidence that the subject of the commission is of unsound mind, and incapable of managing his affairs; and, for that purpose, the evidence of medical men is generally produced. If the question is brought into controversy, the policy of the law determines, that the judgment on which the commission is issued, is not conclusive against either the property, the person, or any right the subject of it. The person issuing the commission ought at least to have a strong belief that his judgment, should it be called in question, will be affirmed (s). But the person exercising this authority is not bound to issue a commission of lunacy whenever the fact of lunacy is established, the object of such a proceeding being the welfare of the party-by granting it, a cure might in many cases be prevented. The true point for the consideration of the person intrusted with that authority is, whether it is really necessary for the benefit of the lunatic, with reference to his mental health and his property, that a commission should issue. Upon this ground, an application for a commission of lunacy against a lady, who was unquestionably a lunatic, under the care of her husband, who opposed the application, was refused; as it appeared that there was not any thing in his conduct with reference to the care of either her pro (r) 2 Wilson & Shaw, 515, 520. See ch. iv. s. 6. (s) Sherwood v. Sanderson, 19 Ves. 236. perty or her person, which rendered such a proceeding necessary (t). The Lord Chancellor, in many cases where the application for a commission is opposed, or the lunacy of the party is not apparent, will, before a commission is granted, make an order for delivery of office copies of the affidavits filed, to two physicians of his own nomination, for their perusal, and for their afterwards visiting and having access to the supposed lunatic for the purpose of examination, and for ascertaining the actual state of his mind, and for their afterwards certifying to the Lord Chancellor in writing the result of such examination, and their opinions on the state of mind of the supposed lunatic, and the grounds upon which they form such opinions (u). It is not a proper mode of proceeding, merely to state facts, in a case where the sanity of a party is in question, to medical men, and take their opinion upon these facts, and then leave it to the Court to judge upon those facts and opinions, without any personal examination of the party by the medical men (v). However valuable the testimony of such men may be in questions of insanity, when speaking from personal knowledge and careful observation of the individual, nothing can be more fallacious than to try judicially the condition of any person by a comparison of his alleged symptoms with those which are stated by medical authorities to be usually the concomitants of insanity, or to submit the opinions of medical men, taken upon cases laid before them, with a description of symptoms, as evidence to a Court of justice. It is often proper to look to the state of the bodily health, not as in itself evidence of mental derangement, but with a view to ascertain what effect it has had on the state of mind of the party (w). It was held in one case, where a party gave rational an (t) Ex parte Tomlinson, and Ex parte Broadhurst, 1 Ves. & Bea. 57. (u) In re Galloway, 9 Aug. 1827; In re Clement, 14 Aug. 1828; Ex parte Tomlinson, 1 Ves. & Bea. 59; In re Michell, 9 Aug. 1828. There (v) 1 Dow, P. C. 179. swers respecting the situation and value of his estates, that the inability to answer the most common question touching figures was not a foundation for granting a commission (x). Lord Chancellor Eldon, however, said, that the want of power to comprehend the most simple proposition of figures, as that two and two make four, may be more or less evidence of unsoundness of mind; but still its weight and character are to be estimated with reference to age, situation, and all the other circumstances by which it may be affected; and that he did not find it easy to comprehend what some of his predecessors intended, when they intimated that the incapacity proved by the want of power to comprehend the most simple proposition of figures, is not evidence of an unsound mind (y). In order to obtain an estimate of the capacity of individuals supposed to be affected by idiocy, or imbecility of mind, the person exercising his judgment upon this question ought particularly to ascertain the power of the individual's attention; since his knowledge of objects, and his memory of them, will depend on the duration of his attention: it will also be indispensably necessary to investigate his comprehension of numbers; for, without a capacity sufficient for understanding something of the first simple rules of arithmetic, it seems impossible to comprehend the nature and value of property, which is represented by numbers of pounds, shillings, and pence. Cases of imbecility of mind, produced in adults, and in those of advanced age, by paralytic or epileptic attacks, and from various affections of the brain, require the same accurate investigation to determine on the competency of such persons to be intrusted with the management of themselves and their affairs. 15. An inquisition of lunacy may be given in evidence on the trial of a person charged by an indictment, for the purpose of shewing that the prisoner was insane when he committed the offence (z). Such inquisitions are prima facie evidence (x) Lord Donegal's case, 2 Vez. sen. 407. (z) Rex v. Bowler, O. B. June, 1812, before Le Blanc, J., and Lord (y) Sherwood v. Sanderson, 19 C. J. Gibbs. See post, ch. xii. s. 1. Ves. 286. against third persons, who were strangers to the proceeding. Thus, in a case, where an inquisition of lunacy was offered as evidence to affect the rights of third persons, and objected to as res inter alios acta, Lord Hardwicke overruled the objection, and said, that inquisitions of lunacy, and likewise other inquisitions, as post mortem, &c., are always admitted to be read, but are not conclusive (a). And in an action upon a bond against the executors of the obligor, an inquisition of lunacy has been admitted under the plea of non est factum, for the purpose of shewing that the obligor had been a lunatic from a certain time, as found by the inquisition (b). So, where a defendant in a suit in equity resisted the specific performance of an agreement, on the ground of insanity, and in support of that allegation an inquisition was produced, by which the defendant was found a lunatic from a period long antecedent to the contract, but with lucid intervals; such inquisition having been taken in the absence of the plaintiff, was held not conclusive upon him, but prima facie evidence of the lunacy; and that it was competent to third parties to dispute the fact, and to maintain, that, notwithstanding the inquisition, the subject of it was of sound mind at any period of time over which the inquisition extended (c). So, where the validity of the marriage of a party, who has been found by inquisition to be of unsound mind, is disputed in the Ecclesiastical Court, the finding of the jury is a circumstance and a part of the evidence in support of the unsoundness of mind at the time of the marriage, but no more; for that Court must be satisfied by evidence of its own (d). In a case where the validity of a marriage was disputed after the death of the party, on the ground of insanity, and a writ de lunatico inquirendo had been executed six months after the marriage, and the verdict of a most respectable jury, before whom the party had been produced and examined in person, had found him incapable for two years antecedent to the marriage, and no attempt had been made to impeach such verdict in Chancery; the inquisition so tak (a) Sergeson v. Sealey, 2 Atk. 412. (b) Faulder v. Silk, 3 Campb. (c) Hall v. Warren, 9 Ves. 609. (d) 1 Hagg. Eccl. Rep. 356. |