plies a consideration of the past history of the case, and bringing the facts derived from others as to the possible causes of the disease to bear upon the case. In this place we need only to say that all these means which are formulated by Georget and other French writers in the way we have indicated have been all along appreciated by English and American writers, and [293] that, perhaps, a more philosophical classification of the facts to be observed will suggest itself to many readers. Little difficulty can arise if an examination such as we have recommended in another place is conducted with the care and intelligence which is necessary to the success of all scientific research. But after the cases which have been alluded to in this chapter, it is evident that in many instances one or two interviews with a lunatic will not be sufficient, and that in some a long course of observation will be requisite to establish the fact of the existence of mental disease.1

In Young v. Dendy, 1 L. R. Pro. 344, the testatrix seems to have concealed her insanity from many persons who were about her during her life, and her sanity seems first to have been seriously doubted from the contents of some written papers which were discovered after her death.

CHAPTER XXIII.

THE ADMISSIBILITY OF THE EVIDENCE OF THE INSANE.

433. The Importance of the Subject considered.[300] It is of some importance at the present time to endeavor to discover in what cases the evidence of persons of unsound mind should be relied upon. There are panics in the world which interests itself about social economy, just as there are on the Stock Exchange. We have had one recently. Fiction has gone so far in the direction of sensation, that actual current history has had to follow. There is a close connection between the novels and the histories of a period. They are both, in their tone and method, outcomes of the same spirit. The newspapers, then, which bear the same relation to history that a photograph does to a painting, found a sensational subject in what is called "Rib-breaking in Asylums." Many journals endeavored to increase their circulation by exposing the abuses of the asylum system, and commissioners in lunacy and medical superintendents of lunatic asylums were subject to the cheap vituperation of an incensed press. Abuses pay. If it were not for disease doctors could not live. If it were not for those diseases of society, abuses and anomalies, newspapers would be almost useless. But as some doctors skake their heads when there is nothing the matter with the patient, and make visits when there is no necessity for attendance, so newspapers sometimes let loose their "rosin'd lightnings" when there is no necessity for it. However, the panic is almost passed. The subject is no longer found remunerative, and the time seems to have come for the consideration of one or two of the questions which were raised, and to which no satisfactory answer has as yet been given. It seems almost time, too, to do justice to one section of the BR. INS.-37

577

medical profession which in our opinion has been very badly treated, and which deserved the respect and confidence of the community. There is no section of the noble and humane profession which devotes itself to the alleviation of human suffering and to the cure of disease, which does its work more thoroughly and conscientiously than that which has to do with the care and treatment of the insane. They are, our experience teaches us, very superior to the ordinary run of medical practitioners; and some have not only proved by the reforms which, in honor to medical psychologists, we must say were initiated by themselves, that they deserved a foremost place amidst philanthropists; while others, by their zeal and ability in research, would take a prominent place amidst men of science. The medical superintendents of asylums are brought face to face with very grave difficulties, and one of these is the character of the nurses and attendants who are engaged to wait upon the insane. So much difficulty is connected with the government and management of these, that Esquirol used to begin his lecture upon the cure of the insane with the advice, "First cure your attendants." That many of these are harsh and cruel is a fact which cannot be doubted, and that if the word of the insane patients who are under their care is in no instance to be trusted, that harshness and cruelty will continue, seems equally certain. Hence the importance of arriving at a definite conclusion as to the admissibility and worth of the evidence of persons of unsound mind.

2434.

Illustration of these Principles.-One of the cases which gave rise to the consternation alluded to, was tried before the late Mr. Justice Willes at the Lancaster Assizes in 1870. William Wood and John Hodson, two attendants in the Lancaster Asylum, were there indicted for 301assaulting a patient, and upon the evidence of another patient, named James Dutton, were found guilty and sentenced to seven years' penal servitude. It is not difficult to understand that such a result raised the whole question as to the admissibility of the evidence of persons of unsound mind, and that the declaration of Lord Campbell, C. J.,' that there would be

Denison's Crown Cases, p. 254.

total impunity for offences committed in asylums for the insane if the only persons who could give information (meaning patients) were not to be heard, was remembered.'

2435. Attendants in Asylums.-In this place, that is the only question which we would wish to consider, although the whole subject of attendants in asylums and on the insane presents itself, together with the recommendation made by the Commissioners in Lunacy in the year 1851 to the Committees of Visitors of Lunatic Asylums. That recommendation was, that for satisfactory performance of the duties of attendants, it was essential that there should be not simply the ordinary qualifications of sobriety, honesty, activity, and general intelligence, but that equally indispensable were a fair education in reading and writing, good temper, patience, firmness, habits of self-control, and, in regard to the more helpless patients, a certain aptitude for training and directing them in the way of employment or amusement,2 and all this was to be had for wages varying from £12 to £18 for females, and from £18 to £25 for males. Something has been done, we are glad to say, to secure a better class of attendants than formerly; and in the Dublin Asylum, under the able superintendence of my friend Dr. Lalor, in which education is had extensive recourse to in the cure of disease, it has been found consistent with enlightened economy to give very much larger wages to secure the services of thoroughly efficient nurses and teachers.

436. The Nature of Evidence. He who is called upon to give evidence is, as it were, to be eyes and ears to the jury who were not present upon some particular occasion concerning which they are to be asked certain questions. But eyes are little unless there is a seeing mind behind, and ears are useless if there is deafness in them. Before, therefore, a man can be of any use as a witness, he must have not only eyes and ears with which he might see and hear what took

In Scotland it was decided that the fact of a person being confined in a lunatic asylum is not in itself sufficient to render him inadmissible as a witness. Sheriff v Mitchell (Aberdeen) 27th April, 1866, 5 Irvine, 226.

2 Fifth Report of the Commissioners in Lunacy to the Lord Chancellor.

place, but a mind which could keep the impressions which were then made, and the power of saying what he has in his mind.

437. Grounds of the Admissibility or Inadmissibility of Evidence. The law rejects as witnesses all those who are incapable of comprehending the nature of an oath or affirmation, or of giving a moderately rational answer to a sensible question. In the eye of the law it does not matter from what cause this incapacity has arisen; for whether it be occasioned by a congenital want of intellect, or by some temporary obscuration of the reasoning faculties, or by mere unripeness of the understanding-whether the person be an idiot, a lunatic, a drunkard, or a child, he cannot, so long as the defect exists, be examined as a witness.'

438. Rule of Indian Law as to the Competency of a Witness. The rule of Indian law differs from that of England. While the former holds that an insane person is deprived of the capacity to bear rational testimony until the reverse is proved, the latter holds that a lunatic is not incompetent to testify, unless it appear that by reason of his lunacy he is prevented from understanding the questions put to him and giving rational answers to them. The test of capacity is the same in both cases, but the presumption of law is different.2

2439. How long Incapacity Lasts.-The rule of the English law is that the capacity is only co-extensive with the defect. Thus a monomaniac, or a person who is afflicted with partial insanity, will be a competent witness, if the Judge

See Taylor on Evidence, ed. 1872; Best's Principles of the Law of Evidence, 5th ed., p. 208. See also 3 Co. Litt. 489.

* In Act II. of 1855, § 14, it was enacted that "Persons of unsound mind who at the time of their examination appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, shall be incompetent to testify." The Indian Evidence Act of 1872, § 118, enacts that "All persons shall be competent to testify, unless the Court considers they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any ether cause of the same kind." As to the law of Scotland, see Stair IV., 43, 7; II. Hume, 2d ed., 340; Tait on Evidence, 3d ed., 342; Case of Alexander Martin, 3d June, 1823; Alison's Prac. of Criminal Law, 436.