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LEGAL ASPECTS]

There is thus an increased ratio in England and Wales of lunatics to the population (which in 1859 was 19,686,701, and in 1907 was estimated at 34,945,600) of 186.8 per 100,000 as against 354.8, and in Scotland of 157 as against 312 per 100,000. The Irish figures on the same basis have increased from 130.9 in 1862 to 538.1 in 1907. The publication of these figures has given rise to the question whether lunacy has actually become more prevalent during the last twenty years, whether there is real increase of the disease. There is a pretty general consent of all authorities that if there has been an increase it is very slight, and that the apparent increase is due, first to the improved systems of registration, and secondly (a far more powerful reason) to the increasing tendency among all classes, and especially among the poorer class, to recognize the less pronounced forms of mental disorder as being of the nature of insanity. Thirdly, the grant of four shillings per week which in 1876 was made by parliament from imperial sources for the maintenance of pauper lunatics has induced parochial authorities to regard as lunatics a large number of weak-minded paupers, and to force them into asylums in order to obtain the benefit of the grant and to relieve the rates. These views receive support from the fact that the increase of private patients, i.e. patients who are provided for out of their own funds or those of the family, has advanced in a vastly smaller ratio. In their case the increase, small as it is, can be accounted for by the growing disinclination on the part of the community to tolerate irregularities of conduct due to mental disease. And again, careful inquiry has failed to show a proportional increase of admissions into asylums of such well-marked forms as general paralysis, puerperal mania, &c. The main cause of the registered increase of lunatics is thus to be sought for in the improved registration, and parochial and family convenience. If there is an actual increase, and there is reason for believing that there is a slight actual increase, it is due to the tendency of the population to gravitate towards towns and cities, where the conditions of health are inferior to those of rural life, and where there is therefore a greater disposition to disease of all kinds.

The futility of seeking for accurate figures bearing on the relative number of lunatics in other countries is illustrated by the tables set forth in a report by the United States Census Bureau. They show that the number of registered lunatics in 1903 was 150,151; in 1890, 74,028; and in 1880, 40,942. An attempt was made in 1890 to estimate the number of insane persons outside of hospitals, which was stated to be 32,457. In 1903 no such attempt was made, as it was admitted that so many sources of fallacy existed as to render it useless. Thus the mere statement that of every 100,000 of the population (calculated at 80,000,000) 186.2 were registered as insane is of no value.

—The following are systematic works: Bucknill and Tuke, Psychological Medicine (4th edition, 1879); Griesinger, On Mental Diseases (New Sydenham Society, 1867); Maudsley, The Pathology of Mind (1895); Bevan Lewis, A Text-Book of Mental Diseases (1899); Clouston, Clinical Lectures on Mental Diseases (1892); Kraepelin, Psychiatrie (1893); Krafft-Ebing, Lehrbuch der Psychiatrie (1893); Regis, A Practical Manual of Mental Medicine (London, 1895); Magnan, Leçons cliniques sur les maladies mentales (1897); Mendil, Leitfaden der Psychiatrie (1902); Mercier, A Text-Book of Insanity (1902); Lewis C. Bruce, Studies in Clinical Psychiatry (1906); Macpherson, Mental Affections (1899); Brower-Bannister, Practical Manual of Insanity (1902); Ford Robertson, Text-Book of Pathology in Relation to Mental Diseases (1900).
 * (J. B. T.; Author:John Macpherson (1817-1890); L. C. B.)

The effect of insanity upon responsibility and civil capacity has been recognized at an early period in every system of law.

Roman Law.—In the Roman jurisprudence its consequences were very fully developed, and the provisions and terminology of that system have largely affected the subsequent legal treatment of the subject. Its leading principles were simple and well marked. The insane person having no intelligent will, and being thus incapable of consent or voluntary action, could acquire no right and incur no responsibility by his own acts (see Sohm’s Inst. Roman Law, 3rd ed. pp. 216, 217, 219); his person and property were placed after inquiry by the magistrate under the control of a curator, who was empowered and bound to manage the property of the lunatic on his behalf (Sohm, p. 513; Hunter, Roman Law, pp. 732-735). The different terms by which the insane were known, such as demens, furiosus, fatuus, although no doubt signifying different types of insanity, did not in Roman law infer any difference of legal treatment. They were popular names, which all denoted the complete deprivation of reason.

Medieval Law.—During the middle ages the insane were little protected. Their legal acts were annulled, and their property placed under control, but little or no attempt was made to supervise their personal treatment. In England the wardship of idiots and lunatics, which was annexed before the reign of Edward II. to the king’s prerogative, had regard chiefly to the control of their lands and estates, and was only gradually elaborated into the systematic control of their persons and property now exercised under the jurisdiction in lunacy. Those whose means were insignificant were left to the care of their relations or to charity. In criminal law the plea of insanity was unavailing except in extreme cases. About the beginning of the 19th century a very considerable change commenced. The public attention was strongly attracted to the miserable condition of the insane incarcerated in asylums without any efficient check or inspection; and at the same time the medical knowledge of insanity entered on a new phase. The possibility and advantages of a better treatment of insanity were illustrated by eminent physicians, Philippe Pinel in France, H. Tuke in England, Bond, B. Rush and I. Ray in the United States; its physical origin became generally accepted; its mental phenomena were more carefully observed, and its relation was established to other mental conditions.

Modern Law.—From this period we date the commencement of legislation such as that known in England as the Lunacy Acts, which aimed at the regulation and control of all constraint applied to the insane. Hitherto, the criteria of insanity had been very rude, and the evidence was generally of a loose and popular character; but, whenever it was fully recognized that insanity was a disease with which physicians who had studied the subject were peculiarly conversant, expert evidence obtained increased importance, and from this time became prominent in every case. The newer medical views of insanity were thus brought into contact with the old narrow conception of the law courts, and a controversy arose in the field of criminal law which in England, at least, still continues.

Relations between Insanity and Law.—The fact of insanity may operate in law—(1) by excluding responsibility for crime; (2) by invalidating legal acts; (3) by affording ground for depriving the insane person by a legal process of the control of his person and property; or (4) by affording ground for putting him under restraint.

Legal Terminology.—Before proceeding, however, to deal with