3, c. 49; and, by the second section of the former act, it was enacted, that it should be lawful for the principal Secretary of State for the Home Department, for the time being, annually to appoint not less than fifteen persons to be commissioners, during the space of one year, for licensing and visiting all houses within the cities of London and Westminster, and within seven miles thereof, and within the county of Middlesex, for the reception of two or more insane persons, of which commissioners, five at least should be physicians; and such commissioners were empowered to grant licences, if they should think fit, in the manner directed by the act, for persons to keep houses for the reception of two or more insane persons, within the cities of London and Westminster, and within seven miles of the same, and within the county of Middlesex. In all other places the justices of the peace, assembled in General Quarter Sessions, have authority, within their respective counties, to grant licences, if they think fit, to persons for keeping houses for the reception of insane persons, in the same manner as the aforesaid commissioners within their jurisdiction (p). The act provides that no person, not being a parish patient, shall be received into any house kept for the reception of two or more insane persons without a certificate directed by the act; and knowingly and wilfully to receive any insane person, or person represented or alleged to be insane, to be confined in any such house, without such certificate dated not more than fourteen days previous to such reception, and not making a minute in writing of certain particulars mentioned in the act, is made a misdemeanor (q). Every certificate, upon which any order shall be given for the confinement of any person, (not a parish patient), must be signed by two medical practitioners, each of them being a physician, surgeon, or apothecary, who shall have separately visited and personally examined the patient to whom it relates; and such certificate must state, that such insane person is a proper person to be confined, and the (q) 9 Geo. 4, c. 41, s 29. (p) 9 Geo. 4, c. 41, s. 10. day on which he was examined; and also the Christian and surname and place of abode of the person by whose direction or authority such patient was examined; and the degree of relationship or other connection between such person and the insane person; and the name, age, place of residence, former occupation, the asylum, if any, in which such patient shall have been confined; and whether such person has been found lunatic under a commission; and any person who shall knowingly, and with an intention to deceive, sign any such certificate untruly, setting forth any such particulars required by the act, shall be deemed guilty of a misdemeanor (r). Power is given to the commissioners to set at liberty any persons improperly confined, except those found lunatic by inquisition, or confined under the authority of the Secretary of State for the Home Department (s). The signing a certificate of insanity, without having visited and examined the party to whom it relates, alone constitutes an offence within the 30th section of the statute 9 Geo. 4, c. 41; and it is not necessary to show that there was any intention to deceive (t). Thus, in a case where an indictment was preferred by the Metropolitan Commissioners in Lunacy, against a medical practitioner for a misdemeanor-in having "knowingly, and with an intention to (r) 9 Geo. 4, c. 41, s. 30. A writer on insanity observes "A practical reflection is obvious, and must have been felt by all those who are somewhat acquainted with insanity; I mean the abolition of a regulation, which invests every member of the medical profession with the power of depriving any individual of his liberty, and of exposing him to all the inconveniences to which insanity is subject. Few medical men pay attention to that branch of the art. Moreover, in any profession, there are individuals without a sufficient degree of skill; I will not hesitate even to say, without probity deceive," signed a certificate, upon which an order had been given for the confinement of a person in a house kept for the reception of insane persons, without having visited and personally examined the individual, contrary to the provisions of the above act-at the trial before Lord Tenterden, C. J. previously to Michaelmas term, 1830, it appeared that the defendant had not himself seen the patient for a considerable time before the certificate was signed, but that his partner visited and examined her, and thereupon signed a certificate containing the various statements required by the act, and sent it to the defendant, who added his signature. The jury negatived any intention to deceive, but found the defendant guilty, subject to the opinion of the Court, upon a special case, as to the validity of the indictment-It was held, that the averment of intention was surplusage, and that such unnecessary matter might be rejected, as well in an indictment on a penal statute as at common law (w). The defendant on a subsequent day was sentenced by the Court to pay a fine of 20%. to the King, and to be imprisoned until it was paid (x). By statute 9 Geo. 4, c. 41, s. 40, it is provided, "That no person shall receive into his exclusive care and maintenance, except he be a relative, or a committee appointed by the Lord Chancellor, under pain of being deemed guilty of a misdemeanor, any one insane person without first having an order and certificate signed by two medical practitioners, as is required on the admission of any insane person into a licensed house." The first prosecution instituted by the Metropolitan Commissioners, under the above act, was an indictment against a person for having received into his care an insane person without first having an order and certificate signed by two medical practitioners of the state of mind of the patient. The defendant had pleaded not guilty; and, on his being brought up for judgment, the Attorney-General said the prosecution was founded on an act which had been passed by the Legislature with the view of protecting those (w) Rex v. Jones, 2 Barn. & Adolph. 611. (r) S. C. 11th June, 1831. who were afflicted with insanity, from the violence or other improper treatment of persons to whose care they were consigned, and also from the interference of malice, and to secure for them, as far as might be practicable, the common rights of mankind. The Commissioners had thought it their duty to bring it into public discussion, in order that it might be generally known, that cases of this description would be prosecuted, and the parties subjected to severe punishment. The Commissioners had investigated the circumstances of the case, and had satisfied themselves that the defendant had not wilfully violated the provisions of the act of Parliament: and they had also reason to believe, that the person who had caused the commitment to be made had not been actuated by any improper motive. The Commissioners, therefore, felt that they were not called on, in the discharge of their duty to the public, to inflict upon the defendant more than a nominal punishment; at the same time, they wished to have it publicly stated that they were determined to execute the provisions of the act of Parliament in the most rigorous manner_Mr. Justice Bayley observed, that the new regulation was a most beneficial one: and if after the public notice that had been taken of this case, any person should be found offending, the Court would feel it its duty to treat the offence as a very serious one. The defendant was discharged on entering into his own recognizance in the sum of 2001. to appear to receive judgment when called on (y). In another case an indictment was preferred by the Me⚫tropolitan Commissioners in lunacy against a medical man for having received into his exclusive care, a gentleman (who was afflicted with insanity in December preceding) without having obtained the certificate required by the 40th section of the above act. It appeared that the gentleman had been previously visited by a physician, and the defendant having called on his family, they were induced to allow him to go to the defendant's house at Brompton, where he remained for a few days, his wife, mother, and sister hav (y) Rex v. Sharples, Court of King's Bench, 26th Nov. 1829. ing access to him, and a female servant of his own being in attendance upon him. He was taken away by his sister on the 10th of December, and, while at his mother's house, committed suicide. The counsel for the defendant contended, that this was not a case contemplated by the act of Parliament, which had been framed with the benevolent intention of protecting persons whose reason had deserted them, from the designs of those who, from interested motives, might desire to get them into their custody. The gentleman had been received into the defendant's house at the request of his family, but he was not in the defendant's exclusive care. He was under no duress, no restraint in the defendant's house; on the contrary, his own servant was in attendance upon him, and his family, his wife, mother, and sister visited him, and the latter actually took him away, and it was therefore submitted, that the case did not come within either the letter or the spirit of the act of Parliament. Lord Tenterden, C. J., left it to the jury to say, upon the evidence, whether the party had been received into the defendants exclusive care and maintenance, telling them, that if they thought he had not, they must acquit the defendant. The jury having deliberated, and there appearing to be but little probability of their speedily agreeing, on the suggestion of the Chief Justice, and with the consent of the prosecutor's counsel, a juror was withdrawn (≈). By 9 Geo. 4, c. 41, s. 42, it is provided, that it shall be lawful for the Lord Chancellor, or other persons therein named, if they shall see fit, by any order by either of them, directed to the said commissioners, or to any other person whom they shall think fit to appoint, to require the said commissioners, or other persons so appointed, to visit and examine any person confined as insane, who shall be confined in the care of any relative or friend, or in the exclusive care of any other person, and to make a report to the Lord Chancellor, &c., of such matters as in such case they shall be directed to inquire into. (z) Rex v. Lucett, 24th June, 1831. |