LETTSOMIAN LECTURES. No. IV. ON MEDICO-LEGAL EVIDENCE IN CASES (CONCLUSION.) Delivered before the Medical Society of London. BY FORBES WINSLOW, M.D., D.C.L. I PURPOSELY decline entering at any length into the consideration of the law of lunacy relating to dispositions of property, and the performance of the marriage contract. In the former case the proof of insanity invalidates all testamentary documents; but the courts are extremely jealous in interfering with the apparent wishes of the testator, unless clear and positive lunacy be established. The character of the testamentary document itself is generally viewed as the most important evidence of the capacity of the attesting party. Persons actually in confinement, and so violent as occasionally to require the application of mechanical restraint, have executed wills, and such wills have been declared valid and operative in the Prerogative Court; the principle of law being, that the testament itself exhibited, prima facie, no evidence of mental derangement. If the will should be such a will that a sane and rational man would make-the property descending in the right and legitimate channel-the court will not easily be induced to set it aside, even if a considerable amount of eccentricity, oddity, and even insanity, have existed. The proof of eccentricity to an extreme degree, even if accompanied by a testamentary disposition contrary to the usual order of succession, is not sufficient to induce the Ecclesiastical Court to pronounce a will invalid. The following remarkable case of Morgan v. Boys is one in point: The testator in this instance died, leaving by his will a large fortune to his housekeeper. The will was disputed by his relatives on the ground that it bore intrinsic evidence of his not having been in a sane state of mind. After having bequeathed his property, the deceased directed that his executors should cause some part of his bowels to be converted into fiddle-strings, that others should be sublimed into smelling salts, and that the remainder of his body should be vitrified into lenses for optical purposes! He further added in a letter, "the world may think this done in a spirit of singularity or a whim;" but he expressed himself as having a moral aversion to funeral pomp, and he wished his body to be converted to purposes useful to mankind. Sir Herbert Jenner Fust, in giving judgment, held that insanity was not proved; the fact merely amounted to eccentricity, and on this ground he pronounced in favour of the will. It was proved that the testator had conducted his affairs with great shrewdness and ability; that he not only did not labour under imbecility of mind, but that he was treated as a person of indisputable capacity by those with whom he had to deal. The medical man has occasionally to give evidence as to the existence of what, in legal phraseology, is termed a "lucid interval." Without entering into a psychological or pathological consideration of this vexata quæstio, I will only observe, that all who have had opportunities of studying insanity, must readily admit, that during attacks of mental derangement, the mind does occasionally become exempt from the influence of diseased impressions—at least, from all obvious and appreciable delusions, and is quite competent at these periods of intermission, to the exercise of a right judgment in relation to the disposal of property. With regard to the legal bearing of this subject upon the question of marriage, it must be obvious that insanity must . invalidate the most important contract of life, the very essence of which is consent. The spiritual court has the sole and exclusive cognizance of questioning and deciding directly the legality of marriage, and of enforcing specifically the right and obligations respecting persons depending upon it. But the temporal courts have the sole cognizance of examining and deciding upon all temporal rights of property; and so far as such rights are concerned, they have the inherent privilege of determining incidentally either upon the fact or legality of marriage.* In cases of disputed wills, on the ground of mental incompetency, the evidence of the medical witness is generally recorded (privately) before a proctor or his representative. The witness has to reply to a series of written interrogatories relating to the *Starkie on Ev. testator's state of mind, and his replies are written at length by a person specially deputed to examine him, and take his evidence. The cross-examination is also conducted upon the same principle, and the evidence thus recorded, after being attested upon oath, is adduced in court during the trial. In attempts to invalidate the marriage contract upon the ground of insanity, the inquiry is in some cases of the nature of an ordinary commission of lunacy. Should the insanity be thus established, the subsequent question of divorce must of necessity come before the Ecclesiastical Court. It is not, however, indispensable that in these cases a writ De Lunatico Inquirendo should issue. I now proceed to consider another division of the subject,— viz., that relating to the question of capacity to manage both the person and property, and to submit to you an outline of the character of the evidence adduced during the prosecution of a writ De Lunatico Inquirendo. It is at these important inquiries that the legal and medical signification of the terms "soundness" and "unsoundness" of mind come legitimately under consideration. Let me briefly refer to the legal import of these obscure and much-vexed phrases, as defined in one of the recognised text-books upon the "Law of Lunacy." "A sound mind," says Shelford, "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, differ from strong in the extent and power of their faculties; but unless they betray symptoms of a total loss of understanding, and of idiocy, or of delusions, they cannot be considered unsound. "An unsound mind, on the contrary, is marked by delusions, 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 cause who were formerly most dear to them; others take delight in cruelty; many are more or less affected 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 disease, having been once compos mentis, pertinaciously adheres to some delusive idea, in opposition to the plainest evidence of its falsity, and endeavours by the most ingenious arguments, however fallacious they may be, to support his opinions."* Previously to the time of Lord Eldon, the term unsoundness of mind, and its equivalent, "unsound memory," were used indiscriminately in several of the old statutes, not only synonymously with the word lunatic, which in its strict legal signification means a disease of the mind with lucid intervals, but with the phrase idiocy, or permanent insanity. It was reserved for Lord Eldon to give importance and significance to this phrase. Lord Chancellor Hardwicke maintained, that the term implied, not mere weakness of understanding, but a total deprivation of sense Lord Eldon says: "Of late, the question has not been, whether the party be insane, but the court has thought itself authorized to issue a commission De Lunatico Inquirendo, provided it is made out, that the party is unable to act with any proper and provident management-liable to be robbed by any one-under imbecility of mind not strictly insanity, but, as to the mischief, calling for as much protection as actual insanity." Again, his lordship observes, "that unsoundness in some such state of mind undistinguished from idiocy and from lunacy, and yet such as makes him a proper subject for a commission." The legal acceptation of the term unsoundness is, as Mr. Amos observes, "not very easy to define, for it is neither lunacy, idiocy, imbecility, or incompetency to manage a person's own affairs; and yet, we have seen, an inquisition finding a person unfit to manage his own affairs, and therefore not of sound mind, has been found bad." Mr. Amos concludes his remarks by stating that "unsoundness of mind is a legal term, the definition of which has varied, and cannot, even in the present day, be stated with anything like scientific precision." Mr. Shelford regrets that Lord Eldon should have departed from the original signification of * Law of Lunacy, by Leonard Shelford, Esq. 1847. the term unsoundness of mind, and that so much uncertainty and latitude should have been given to the phrase. In a subsequent case, Lord Eldon appears to have laid down a clearer view of his meaning in relation to this important matter. He says: "Whatever may be the degree of weakness or imbecility of the party to manage his affairs, if the finding of the jury is only that he was of an extreme imbecility of mind, that he has an imbecility to manage his own affairs, if they will not proceed to infer from that, in thus finding upon oath, that he is of unsound mind, they have not established, by the result of their inquiry, a case in which the chancellor can make a grant, constituting a committee, either of the person or estate. All the cases decide that mere imbecility will not do, unless that imbecility, and that incapacity to manage his affairs, amount to evidence that he is of unsound mind, and he must be found to be so." The dicta of Lord Chancellor Eldon have, however, been often disregarded by his eminent judicial successors; and in a statute of William IV., relative to trustees and mortgages, a power is given to the Lord Chancellor to issue a commission "De Lunatico Inquirendo" in all cases in which an inability to manage affairs can be established, apart altogether from the existence of idiocy, lunacy or insanity. So much for the glorious uncertainty of the law, and the civil security of the subject!* It would appear that the term "unsoundness of mind," although a recognised and adopted phrase, is to be considered as a legal phantom-an ignis fatuus -a condition of mind amenable to no philosophical or judicial analysis, incapable of being submitted to any psychological testlike a Will-o'-the-wisp, for ever eluding our grasp, and placing at defiance every standard of comparison-a phase of diseased understanding-a form of lunacy suspended upon, or hovering * Dr. Ray, when referring to the facility with which commissions of lunacy are granted in this country, remarks: "One finds it difficult to believe on what slight grounds interdiction is there (in Great Britain) every day procured-a measure that, with the ostensible purpose of protecting the interests of the insane party, is too often, in reality, designed to promote the selfish views of relatives and friends. A kind and degree of mental impairment that has never obscured the patient's knowledge of his relative situation, never altered his disposition to be kind and useful to those around him, never weakened his enjoyment of social pleasures, and never affected his capacity to manage his concerns with his usual prudence, has been repeatedly deemed a sufficient reason for depriving him of the use and enjoyment of his own property, and subjecting him to all the disabilities which the law can impose." |