INSANITY IN LAW. It would be difficult to find a more satisfactory term for unsoundness of mind than the old phrase hallowed by usage non compos snentis and it is interesting to note in the legislation of Saskatchewan the phrases mentally incompe tent person and mentally incompetent for lunatic and insane (No. 65 of 1921). Serving a less useful purpose perhaps are various euphemisms whereby lunacy, insanity, lunatic and lunatic asylum are called mental disorder or defect, patient and mental hospital respectively (South Africa, no. 38 of 1916). It is to be noted that even countries under the civil law (i.e., countries whose law is rather code law than case law) shrink from definitions of insan ity and prefer as we have done to judge of the alleged unsound ness of mind with regard to the circumstances of any particular case. One distinction, however, is practically universal, viz., between idiot and lunatic; idiocy is considered to be natural and lunacy acquired. The Idiots Act of 1886 has, however, been re pealed by the Mental Deficiency Acts of 1913 and 1927 and cer tain definitions attempted. The latter acts introduce the new terms mental defective and defective. For all legal purposes these can be dealt with under the act of 1890 as persons of unsound mind. The Mental Deficiency Acts provide for the segregation of per sons if defective, with a separate code for their benefit. (See MENTAL DEFICIENCY.) When a man becomes unable to manage himself or his affairs, society, to protect herself and the lunatic, changes his status by taking the management of his person or of his property, or of both, out of his hands. But, since rights and obligations are co-relative, the civil incapacity resulting from the changed status carries with it a certain freedom from responsibility which forms the subject matter of the substantive law of lunacy. Of these the most dramatic is the criminal irresponsibility of the insane. Other examples of irresponsibility are the avoiding of certain contracts, including, under certain circumstances, marriage and the setting aside of wills.
No person of unsound mind can, in Great Britain, be detained, nor can the management of his property pass into the hands of another, except by due process of law, and we shall consider how this is done and what safeguards besides the writ of habeas corpus (q.v.) there are against improper detention.
The adjective law of insanity is codified in the Lunacy Acts, 189o-1922. In the middle ages the wardship of idiots and lunatics was in the king, who under the Statute De Prerogativa Regis enjoyed an idiot's property, subject to the obligation to provide him with necessaries, but was a strict trustee for a lunatic. Idiots and lunatics were so found on inquisitions under the writs De Idiota Inquirendo and De Lunatico Inquirendo; but as juries avoided finding a verdict of idiocy the former writ fell into desue tude. The latter, however, exists to this day and is described in part 3 of the Lunacy Act of 189o. Certain important legal dis tinctions exist between the status of a "lunatic so found" (i.e., under the inquisition) and a "lunatic not so found" ; the latter term meaning a person whose unsoundness of mind has been legally established by another procedure than inquisition as, e.g., by certification.
On an inquisition the issue is whether the person is of unsound mind so as to be incapable of managing himself or his affairs. (I) A lunatic so found is looked after by a committee. The com mittee of the person and the committee of the property are not necessarily one and the same person (L.A. 189o, pt. 4). In some cases a lunatic so found is allowed his liberty but not the manage ment of his property (L.A. 189o, s. 98 [2] ). The contracts entered into by a lunatic so found are void ab initio as also is marriage even during a lucid interval. He may, however, make a valid will during a lucid interval, and even at other times his will is valid if it appears that he was of a "disposing mind." (2) The person and property of lunatics not so found are governed by other rules. The property of the average lunatic is so soon swallowed up in the arrangements for his care that it is not his property that interests the State, but the absence of it. (See POOR LAW.) A lunatic may be detained in any one of seven ways: (I) On an urgency order signed by a relative or other interested person and accompanied by one medical certificate. The judicial authority does not intervene in this order, which lasts only seven days. (2) On a petition by relatives; two medical certificates (L.A. 189o, s. 4) ; the usual procedure. (3) On the information of a constable, etc., that a lunatic, not a pauper, is not under proper care and control or is cruelly treated or neglected by any relative, etc.; two medical certificates (s. 13). (4) On the information of a constable, etc., that any person, whether pauper or not, is "wandering at large" and deemed to be a lunatic ; one medical certificate. (5) Under s. 23 two commissioners in lunacy may, with one medical certificate, send a pauper lunatic or alleged luna tic to an asylum. (6) On the information of a parish officer, with one medical certificate, pauper lunatics may oe dealt with (s. i4)• Methods 2 and 3 require the intervention of the judicial author ity defined in ss. 9 and io. The judicial authority may act in cases 4 and 6, but a justice of the peace will suffice. (7) The committee of the person or a master in lunacy may, of course, without medical certificates, sign a reception order after a lunatic has been formally so found and a committee of the person may sign in case 1.
Elaborate safeguards against improper detention are provided by the Lunacy Act, 189o. The powers and duties of the com missioners in lunacy are transferred by the Mental Deficiency Act, 1913, to a board of control (s. 65, I). Two or more commissioners, one of whom must be a doctor and one a barrister, must visit every asylum at least once a year (s. 187). In addition, two mem bers at least of the visiting committee appointed by the local authority (s. 188) must inspect every two months every part of an asylum and see every patient therein, so that they may have tan opportunity of making complaints. There are also provisions for visiting hospitals, licensed houses and single patients (ss. 191 200). Lunatics so found are visited by "chancery visitors" (ss. 163-68) .
The Royal Commission on Lunacy, 1926, was unable to find (p. 39) that any of the alleged cases of improper detention could be supported on the evidence. This royal commission was ap pointed in 1924 to enquire, as regards England and Wales, into the law and procedure relating to the certification, detention and care of persons of unsound mind ; and to consider what provision should be made for the treatment of such persons without certification.
As a result of this, the Mental Treatment Act of 193o was passed which makes certain amendments of the Lunacy Act 1890 for the reception of "voluntary patients" into mental institutions (ss. 1-4) and for the "temporary treatment without certification" of patients "incapable of expressing themselves as willing or un willing to receive treatment" (s. 5). Before this Act, such cases could not be received without the intervention of the judicial authority; now two medical certificates suffice for the latter class, one preferably from the patient's usual medical attendant and the other from a practitioner approved by the Board of Con trol. The two doctors may see the patient together (contrast the procedure for full certification, L.A.1890 s. 29, 2). As to the for mer class, a patient under 16 can be received only on the applica tion of his parent or guardian plus a medical certificate; over 16, the patient's own application suffices.
S. 33o of the principal Act, purporting to protect those giving certificates under the Act by a stay of action if the High Court or a Judge thereof is satisfied that there is no reason for alleging want of good faith or reasonable care, is amended by providing, inter alia, (s. 16 [2]), that no such action shall be brought unless the High Court is satisfied that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable care.
By S. 20 of the Act of 1930, the use of the words asylum, pauper and lunatic is discontinued; asylum becomes hospital; pauper becomes rate-aided patient or person; while lunatic be comes patient or person of unsound mind or simply person or patient. The term criminal lunatic is retained.
In actions at common law the issue is: Was the alleged lunatic at the date in question capable of understanding the nature of the act he was performing. The contract of a lunatic not so found is voidable but not void ab initio (contrast case of a lunatic so found) and it must be shown that the other was aware of the lunatic's condition. A lunatic not so found may therefore make a valid contract in a lucid interval, nor need he have fully recov ered (ex parte Hoyland [ 1805] II Ves. 1o).
Marriage (q.v.) is more than a contract involving, as it does, a change of status. By the Marriage of Lunatics Act, 1811, the "marriage" of a lunatic so found, even during a lucid interval, is void. The marriage of a lunatic not so found is voidable if insanity of a pronounced type can be shown to have existed at the time of the ceremony.
In probate actions (actions on wills) the issue is: was the testator of a sound and disposing mind. In particular he must be able to recall the several persons who may be fitting objects of his bounty and understand the relation of the various bene ficiaries to himself and their respective claims upon his bounty. A medical man who attests a will ipso facto certifies that, in his opinion, the testator is of a sound disposing mind as regards that particular will.
In the criminal law the question for the jury, if insanity is pleaded, is: Was the person at the time of committing the act labouring from such a defect of reason, from disease of the mind, as not to know the quality of the act he was doing; or, if he did know it, did he know that what he was doing was wrong. This issue is a summary of the famous McNaughten rules. In 1843 one McNaughten, under the delusion that he was being persecuted by Sir Robert Peel, killed that statesman's secretary. Insanity was pleaded on the ground that the delusion deprived the prisoner of any control over acts connected with the delusion, and the prisoner was found not guilty on the ground of insanity. The case gave rise to a good deal of discussion and led to the unusual step of putting a hypothetical case to the law lords; un usual, because in English law judges give judgment after hearing the argument in an actual case. The answers of the judges on this occasion are called the McNaughten rules. Not having been decided in an actual trial, they are technically not authority, but in practice their authority is great.
Writing in The Law Relating to Lunacy, Theobald says (I.g24 at p. 242) "The more recent charges given by the judges in trials for murder shows that, though the rules in McNaughten's case are relied on, yet being abstract and general in their terms the judges are careful to adapt and apply them to the circum stances of each case." In July 1922 the then lord chancellor (Lord Birkenhead) pointed a committee to consider what changes, if any, were desirable in the existing law practice and procedure relating to criminal trials in which the plea of insanity as a defence is raised, and whether any, and if so what, changes shall be made in the existing law and practice in respect of cases falling within the provisions of s. 2(4) of the Criminal Lunatics Act, 1884. The committee's recommendation (I. II. 1923), among others, that a modified recognition should be given to the doctrine of irre sistible impulse was referred to 12 high court judges in 1924; ten advised against it.
Insanity is seldom pleaded except in murder trials, but it must be remembered (as pointed out by Lord Birkenhead, Times, 26. v. 1924) that any alteration in the law will be far-reaching and affect all crimes. All that we are entitled to say about an irre sistible impulse is that in fact it has not been resisted. (F. T. G.) BIBLIOGRAPHY. See N. A. Heywood and A. S. Massey, Lunacy Bibliography. See N. A. Heywood and A. S. Massey, Lunacy Practice (1st ed., 'goo, sth ed., 192o) ; C. A. Mercier, A Text-book of Insanity (1902 ; 2nd ed. rewritten, 1914) ; H. S. Theobald, The Law relating to Lunacy (1924) United States.—In America the law does not follow either medicine or metaphysics in its conception or definition of in sanity. The whole American system of criminal law postulates moral responsibility, and persistently refuses to accept any other standard. Hence, the law will not entangle itself in the ancient controversy between metaphysicians as to the freedom of the will. For the purpose of accountability for crime, it holds that the deliberate acts of sound minds involve discrimination and are not necessitated. So, likewise, it holds that such accountability is not nullified by mere mental or psychiatric derangement, how ever extreme in itself. Hence, while medical knowledge may be necessary rightly to apply the law's definition of insanity, the prevailing legal definition has an ethical and not a medical or psychological content.
This prevailing definition, though variously worded by different courts and legislatures, is, in essence, that given in Sect. 1,120 of the Penal Law of the State of New York, to wit that : A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or not to know that the act was wrong.
This statutory definition is taken, almost verbatim, from the answer of the 15 judges of England to the questions propounded to them by the House of Lords in 1843 in M'Naughten's case (io Cl. and F. 200). It draws no distinction, in point of criminal responsibility, between insanity or idiocy or imbecility; and it measures such responsibility by the depravation of understanding as to the particular act rather than in general. Under this defi nition, knowledge of the nature and quality of the act has reference to its physical nature and quality, and knowledge that the act is wrong refers to its moral, rather than its legal side, although knowledge of its illegality may imply knowledge of its immorality, since obedience to the law is a moral duty. Hence, where an insane delusion produces a conflict between moral duty and a known man-made law, the defence of insanity is still available. (People v. Schmidt, 216 N. Y. Implicit in this definition of legal insanity, is the subsidiary principle declared by many American courts that a sufferer from insane delusions must be judged as to his knowledge of the nature, quality and morality of his act by the supposed facts presented by the delusion.
In a few States the legal definition of insanity has been so enlarged as to include irresistible impulse. This test assumes that, even though there may be full realization of the nature, quality and immorality of the act, nevertheless, through mental or psychic disease the defendant may have lost all power to refrain, and hence can be held to . no legal responsibility. But this additional definition is rejected in most States as involving the law too deeply in metaphysics and as not affording a safe basis of legal adjudication. Hence, capacity to distinguish between right and wrong, without power of choosing between them, is not recognized, except in the law of a very few States. According to the great weight of authority, where the accused relies on insanity, he has the burden of proof upon that issue. A person while insane cannot be required to plead or to undergo trial or sentence. The manner of determining insanity at the time of the offence or at the time of trial or sentence is usually regulated by statutes which differ widely as between the various States.
Throughout the United States there is a growing tendency to test the issue of insanity in advance of trial and by more scien tific means than a battle of hired experts. There is also a growing appreciation of the fact that habitual criminality may in itself be a symptom of mental derangement. Both these new trends of thought manifested themselves in a statute (ch. 415) passed by the State of Massachusetts in 192I which provided that an indicted person, accused of or known to have been previously convicted of a felony or previously indicted more than once, shall be examined by the State department of mental diseases as to any mental condition or defect which would affect his criminal responsibility. The official report is accessible to the court and to both sides, and is admissible as evidence, although not con clusive. If the prisoner is found insane he is committed imme diately to a State hospital. This law has almost completely eliminated in Massachusetts the trial of a plea of insanity and the familiar duel of hired experts. Under it, accused persons mentally irresponsible are speedily placed in hospitals and treated medically rather than punitively.
In civil matters, the law is relieved of the question of guilty responsibility, and hence adopts various definitions of insanity, depending upon the nature of the acts involved. A person medically insane may, nevertheless, legally make a contract, or appoint an agent, or convey property, if he is able to comprehend, in a reasonable manner, the nature and effect of his act. He may make a will if he has sufficient mind and memory reasonably to understand the nature of the business in which he is engaged, to comprehend the character and extent of his estate, and to recol lect the natural objects of his bounty. An insane person is liable for his tortious acts or negligence, except where actual intent is an essential element of the wrong, as, for example, in the case of such defamation as is actionable only when uttered with conscious malice. (C. H. TUT.) See A. M. Hamilton, A System of Legal Medicine (2nd ed., 2 vol., i9oo) ; S. S. Glueck, Mental Disorder and the Criminal Law (with appendix of state legislation and interpretative decisions, 1925) ; J. Koren, Summaries of Laws Relating to the Commitment and Care of the Insane in the United States (0912).