« PreviousContinue »
not showing any special fitness in the signer, and not requiring any real acquaintance on his part with the alleged lunatic-is ordinarily sufficient to warrant the imprisonment; but this will not enable the incarcerator legally to exercise any control over his victim's property. In many cases this is not required; where it is, however, certain further formalities are needed. And it must at once be admitted that if the alleged lunatic be at large at the time that proceedings are taken for an Inquisition, and if he be determined to assert his right to liberty at whatever cost, the law enables him to do so with reasonable security. He may demand, and must obtain, a public investigation before a jury, and cannot be deprived of his freedom otherwise than by verdict. But he is not entitled to this as of course; no one is bound to inform him of this right; and if he does not formally make the demand within a limited time, he is liable to be found lunatic as the result of a strictly private—it would not be too much to say hole-and-corner-inquiry before a Master in Lunacy. If the "lunatic' be at the house of a friend, the Master and his clerk, often unaccompanied by any other human being, repair thither : the lunatic is seen, or not seen, as the case may be, by the Master, some purely formal evidence is given, which as often as not is not subjected to any test whatever, and, unless the case be so glaringly absurd that the Master cannot help seeing through it by bare inspection, the desired report is made to the Lords Justices, and the man is “found lunatic by inquisition " as a matter of
Now suppose the victim of this proceeding to be already in a private asylum: is it likely that he will ever hear of the petition against him so as to enable him to demand a jury? or that, if he did so, his demand would be forwarded to the Lunacy Office? We may be sure that in every such case the procedure would be such as that I have just described, with the added circumstance that all the surroundings would be carefully arranged to compel the Master, so far as might be, to arrive at the desired conclusion.
I am not unaware of the arguments by which this system is defended : I have listened before now to a recital of the hardships which it would entail, not only on the lunatic himself, but on his sane relatives, if all the skeletons in the family closet had to be paraded in the full glare of daylight; I do not deny that a public investigation, such as I think needed, would be necessarily expensive, and would frequently, perhaps ordinarily, arrive at the same result as the present; and I have been asked somewhat triumphantly whether it is reasonable to sacrifice the dearest feelings, perhaps the best interests, of a whole family in order to bestow a doubtful boon on one who, in a multitude, if not the majority, of instances, would be incapable of appreciating it.
But these considerations, weighty as they sound, seem to me altogether overpowered by the reverence due, and in every other instance paid, to the claims of personal liberty. If no one would think of inflicting permanent imprisonment without public trial as the result of crime, however flagrant and notorious, with what consistency can we apply to misfortune a rule which we consider too harsh for guilt ?
It is true that to meet the case of violence actual or reasonably apprehended, some power of summary arrest for temporary purposes must be entrusted to some authority capable of immediate action at any time; this is a matter of mere detail which might easily be adjusted; probably the same authority which now authorises the apprehension of an alleged criminal and his detention until trial, might safely be entrusted to perform a similar function in the case of a person alleged to be a dangerous lunatic.
The suggestions, then, which I would make as to the required reforms in the law upon this subject, are the following :
1. No inquiry into the sanity of an alleged lunatic, whether by a Master in Lunacy or otherwise, ought to be held in private; in order to authorise the detention of any one as a lunatic such inquiry ought to be public, to proceed exclusively upon sworn evidence, given by witnesses produced for cross-examination, and ought to be conducted by a competent judicial officer, assisted either by a jury or by sworn medical assessors at the option of the alleged lunatic, but in no case acting upon his own judgment merely. The cost of every such inquiry ought to be borne in the first instance by the person instituting the same, but he should be recouped out of the lunatic's property (if any) whenever the case was satisfactorily established.
2. No lunatic should be liable to be forcibly detained in any asylum, or otherwise, until it had been established, in some judicial proceeding, that he was “ dangerous ”—this word to have the meaning already explained-except under circumstances provided for in the next two suggestions.
3. No lunatic, not dangerous, should be received into any public asylum without a special order from a justice of the peace, which should not be given without evidence that, in the absence of such order, the lunatic was likely to be a burden on the rates.
4. Private lunatic asylums should be altogether abolished, and no person receiving lunatic patients into a private house for medical treatment should be permitted to receive more than one at a time.
It will be remarked that these suggestions deal exclusively with the custody of the lunatic's person, and in no way affect the care of his property. I do not wish to be supposed entirely to assent to the law as it stands in this respect, but the subject is not a pressing one, and rather calls for reform in administrative details than for any material alteration in principle.
Another question which calls for the immediate attention of law reformers, but upon which, for obvious reasons, I shall touch but lightly, is the law for the Regulation and Control of Railway Companies. I presume that no one will expect me to express any opinion upon the question, which will have to be determined by Parliament next session, what is the most fitting machinery for this purpose ? a question which has given rise to a great deal of somewhat acrimonious controversy, and upon which I have no opinion sufficiently formed to be of any value, even if it would be becoming in me to give utterance to it. But I assume it as an axiom that some public control over the administration of our national highways is a public necessity, and that that control cannot be efficiently maintained by the ordinary action of the law applicable to common carriers generally, or, indeed, by any action at all which does not partake of an administrative as well as a judicial nature. What the character of the tribunal should be which is to be entrusted with this authority; what should be the extent of its powers, or the nature of its interference; how far it should be independent, and how far a part of our general judicial system; these, and all questions of this nature, I prefer to leave for others to answer. But the practical monopoly of the carrying trade of the country acquired by the railway companies (not, as in the case of coach proprietors or steamboat companies, as the legitimate result of free competition, but by means of exceptional powers granted to them by the Legislature), renders it puerile to expect, as some of their advocates profess to do, that they can be dealt with upon the same footing as ordinary trading companies, who are entitled to carry on their business as they please, and with an eye to their own benefit only, so long as they are reasonably honest. Further, it has been proved by the inexorable logic of facts, that the action of competition between railway companies is not in ordinary cases sufficient, as it usually is in the case of other traders, to secure a due regard to the public interest; and it is therefore requisite, if the companies are to have an independent existence at all, that they should be subjected to some “ Board of Control” capable of holding an even hand between the shareholders and the public. This, the directors, were they ever so willing, cannot do; nay,
more, were they ever so able they ought not to do so: the first duty of a director is to his shareholders, and the interests both of the public and the companies will be best considered by a fair recognition on both sides of this fact. Surely it is not too much to hope of the good sense and moderation of those who practically control the action of this very important interest, that they will look the position fairly in the face, and instead of struggling hopelessly to maintain the untenable, will loyally assist in devising the best scheme for affecting the desired object : the one, that is, which will combine the necessary official control with the minimum of interference with the internal arrangements of the companies. Were they honestly to set themselves to attain this object, I do not doubt their ability not only to devise, but to carry through Parliament, a measure sufficient to afford an effective guaranty to the public without offending unduly even the susceptibilities of railway management. Intimately connected with this subject is the question, already amongst the burning questions of the day, of the liability of railway companies to their servants in respect of injuries arising out of negligence on the part of fellowservants. This question was considered at some length at the sessional meetings of the Association, in the course of last year, in the discussion of a very valuable paper upon a Railway Insurance Scheme, similar to that prevailing in Germany, contributed by my friend Mr. Joseph Brown, and I do not think that any observations of mine here could add anything to the result of that discussion. It seemed to be the feeling of the Association then—and I, for one, entirely concur in it—that, on the one hand, the old rule about “common employment” is inapplicable to the case, at least in the crude form in which it has hitherto been applied to it; and that, on the other, the demand made by some of the advocates of the railway employés is extravagant and inadmissible. It is, on the one side, absurd to treat every plate-layer and pointsman as the fellow