It has been questioned, whether medical evidence toprove insanity be not inferior to that of other people, who may have had opportunities of observing the individual, where the same opportunities have not been in the power of the practitioner. A writer on this subject observes, that it is to be presumed that no member of the medical profession would directly state an individual to be insane, without being able, satisfactorily to his own reason and conscientious feelings, to exhibit, from his conversation, his actions, or his writings, unequivocal proofs of his derangement (a).

The question irresistibly presents itself-Can no one do this satisfactorily but a medical man? And the author just quoted very shortly adds, "that patient inquiry, daily communication with deranged persons, and attentive observation of their habits, confer the means of judging on medical practitioners. And it must be agreed, that men professionally conversant with these maladies will be better judges of their existence, than those who have derived their ideas in some abstract way, as by reading, or from popular and ill defined notions about madness, melancholy, &c." The popular bias on this score finds its way into our Courts; and juries, who, though of the intelligent classes, are never of the medical order, would be constantly deciding upon the most inconsistent grounds, were professional opinion in these cases to be overlooked (b).

The following question having been put to Dr. Latham, before the committee of the House of Lords-" Is not the consulting two medical men a considerable means of ascertaining the fact, whether the person is insane or not?" He replied" It may, or it may not be so. There is great difficulty sometimes in ascertaining the fact, whether a person is insane or not. You judge, in the first place, from the conversation that you may have with the lunatic; then, you perhaps may think it necessary to get him into something like a correspondence by letter; you may even then be foiled, and then you are to judge of his general conduct; and it is very seldom, but that, by one or other of those modes,

(a) Haslam's Medical Jurisprudence, as it relates to Insanity, p. 5.

(b) Dr. Smith's Principles of Forensic Medicine, p. 428, 2nd ed.

any medical man may make up his mind as to the state in which he is, whether he be sane or insane. But it may sometimes even happen, that none of those three modes will answer the purpose; and then we are obliged to have recourse to the inquiry, whether there be any particular subject, upon which the person is insane or not; and if we get that sort of key note, it is almost impossible that any person can escape us" (c).

Of all evidence in Courts of justice, that of professional men ought to be given with the greatest care, and received with the utmost caution. Plain facts are level to ordinary understandings, and very simple logic is sufficient to ascertain their relative connexions and separate value; but opinions drawn from recondite branches of human knowledge, and grounded on inquiries with which few comparatively are acquainted, must be regarded as of little weight, unless well strengthened by reasoning that admits of no misconstruction, and supported by authority that cannot be controverted. In every case where the balance hangs in equipoise, and doubt hovers on the beam, no man possessed of the common feelings of humanity would endeavour to draw upon his imagination or his science, to supply the lack of direct and positive information. A man of extensive knowledge will deliver his testimony to facts in very plain and explicit terms; but when called upon for his opinion, in a matter where that opinion is certain of having considerable influence on the fate of others, he will be extremely tender, slow, and circumspect (d).

"The medical man's evidence, (it is observed by Dr. Haslam), in order to impress and satisfy the tribunal before which his testimony is given, should not merely pronounce the party to be insane, but ought to adduce sufficient reasons, as the foundation of his opinion. For this purpose it behoves him to have investigated accurately the collateral circumstances. It should be inquired if the

(c) Minutes of Evidence before the Committee of the House of Lords, 1828, p. 97.

(d) Smith's Analysis of Medical Evidence, 197.

party had experienced an attack at any former period of his life. If insanity had prevailed in the family. If any of those circumstances, which are generally acknowledged to be causes of this disease had occurred-as injuries of the head, mercurial preparations largely or injudiciously administered, attacks of paralysis, suppression of customary evacuations &c. It should likewise be ascertained if previous depression of mind had prevailed, resulting from grief, anxiety or disappointment; and it should not be neglected to collect any written documents, as insane persons will very often commit to writing their feelings and opinions, although they may suppress them in discourse.

"There appear, however, sufficient criteria to discriminate crime from insanity, although it must be confessed, and such has been the opinion of distinguished legal authority (d), that they have often seemed to be intimately blended; yet there is a partition which divides them, and it is by such well-defined interposition that they are to be separated: for madness, clear and unequivocal insanity, must be established by the medical evidence. It is not eccentricity, habitual gusts of passion, ungovernable impetuosity of temper, nor the phrensy of intoxication, but a radical perversion of intellect, sufficient to convince the jury that the party was bereft of the reason of an ordinary man.

"Notwithstanding the medical evidence may be incapable, totidem verbis, to give a clear definition of madness, so as to be suited to the conception of all persons, and to comprehend the various shapes of this disease, on account of the various notions affixed by different persons

(d) The Hon. Charles Yorke, when Solicitor-General, is reported to have said, "In some sense, every crime proceeds from insanity. All cruelty, all brutality, all revenge, all injustice is insanity. There were philosophers in ancient times, who held this opinion as a strict maxim of their sect; and the opinion is right philosophy, but dangerous in judiIt may have a useful and a

noble influence to regulate the conduct of men, to control their impotent passions, to teach them that virtue is the perfection of reason, as reason itself is the perfection of human nature; but not to extenuate crimes, nor to excuse those punishments which the law adjudges to be their due." How. St. Tr. 19 Vol. 954.

to the abstract terms he may employ; yet it is always in his power to state such perversions of thought, such projects, and such conduct, contradistinguished from that which all men hold to be rational, as shall leave no doubt on the minds of those who are to appreciate his evidence, that insanity exists: and if the person be really insane, it must be from the ignorance or neglect of the medical practitioner if he do not satisfactorily establish his derangement, provided his opportunities of visiting and conversing with the patient have been sufficient" (e).

It certainly is extremely proper, that the inquiries suggested by the author last quoted should be made, but as insanity is not a necessary consequence of all or any of the circumstances which he has mentioned, we must be cautious not to infer its presence from them alone, but extend our inquiries to their actual effect on, and the present state of, the party supposed to be affected with derangement.

(e) See Haslam's Medical Jurisprudence, 48 to 51.

74

CHAPTER IV.

OF THE COMMISSION OF LUNACY.

SECTION I.

To whom, and in what Manner, Authority is given to inquire whether Persons are Lunatics.

By the common law, the King's officers, his sheriff, coroner, and escheator, were bound, virtute officii, to make inquiry concerning any matter which gave the King a title to the possession of lands, tenements, goods, or chattels-a most important trust during the existence of military tenures, when escheats and forfeitures were frequent; and when, upon the death of each of the King's tenants, it became necessary to inquire of what lands he died seised, who was his heir, &c., in order that the Crown might exercise its right of marriage and other privileges. On special occasions writs were directed to them to make the inquiry; and commissioners were sometimes appointed for the same purpose. When idiots and lunatics came within the jurisdiction of the Crown, the King's title was found in like manner by these officers, assisted, as in other cases, by a jury of the county, whose verdict was called an inquisition, or inquest of office (a). The escheator was an ancient officer, so called, because his office is properly to look to escheats, wardships, and other casualties belonging to the

(a) 1 Coll. on Lun. 107; Gilb. Exch. 109.