The Sun.
London, England, 1822-12-13 00:00:00

THE PORTSMOUTH CAUSE.

COURT OF CHANCERY, DECEMBER 12.
• JUDGMENT.
This important cause, it will be recollected,
was appointed for judgment this day, and such
was the intense interest excited, that long before
the sitting of the Court the Hall was exceedingly
crowded. The judicial attendance was greater
than we have ever before witnessed.
The LORD CHANCELLOR said, that in this case a petition
was presented by the brother of Lord Portsmouth, praying that
a commission might issue for the purpose of inquiring into the
soundness or unsoundness of the mind of his Lol ‘: ;hip. The
application was made, as was the custom in most other cases,
for a commission of lunacy. It was fitting that the fact should
be rightly understood, on account of what he had to observe
upon it, with respect to the rule and jurisdiction of this Court.
Whatever had been the practice of the Court originally, it had
been long confirmed, that where the attention of the Court was
drawn to such cases, on the question being referred to the jury
of the country, and their returning a verdict declaring unsound-
ness of mind, the affidavits, if properly supported, would be
sufficient to authorize the Court to take such further steps as
the security of the person and property might be supposed to
require. The return of the writ de inquircndo lunatico, even if
the jury should deem that there was unsoundness of mind,
would not of necessity compel the issuing of a commission of
lunacy. There might be strong grounds under which the verdict
should be returned, and yet not sufficient to cause the commis-
sion to issue ; because, if the party were found by them to be
even incapable of managing his affairs, unless there was a
verdict of unsoundness of mind the Court could not act all.
Neither did it follow that the Court would act in all cases
where the return of the inquisition alleged unsoundness of
mind. In stating this to )e the doctrine of the Court,
he had great satisfaction in being able to refer them to the
judgment of one of his most able predecessors. In the case
of Lord Donegall, Lord Chancellor Hardwicke laid down
the law in the way which he was about to show them.—
After mentioning a preceding case wherein the Countess
Warman had taken extraordinary pains to prevent the exe-
cution of the inquisition as to the soundness or unsound-
ness of her husband's mind (the case was in Peer Williams),
Lord Chancellor Hardwicke condemned the conduct of the
Countess ; because, if her husband had been found a lunatic,
the custody of the person would most probably have fallen to
her as the natural guardian. The judgment went on to show
that a distinction must be held between an idiot and a lunatic.
An idiot must be so ex navitate. It vas good, however, to find
a man for several years past, as it went towards a presumption
that he must have been such ea, navitate, from his birth. It
then went on to show what was in law to be considered as
lunacy. His Lordship then proceeded to read the judgment as
follows, from 2d Vesey, sen., page 41)7 :—" Lunacy is a dis-
temper occasioned either by disorders or accidents, and to one
of these two cases were commissions first confined. But in
some time this part of the prerogative, this paternal care was
enlarged and extended to one who is non compos mends. But
here it stopped ; and this at least the Court insists THUSC:be
found to entitle any one to a commission, and therefore, though
a Jury finds that one is incapable of managing his affairs, yet
such a finding is not sufficient ; but they must expressly find
him of unsound mind. In the present case I allow Lord Do-
negan is of very weak understanding, anti of no resolution of
mind ; but that is not sufficient for me whereupon to ground
a commission. If I was to grant any, it must be that of idiotcy,
for no time is mentioned when he was of better understanding.
There was a case in Lord Harcourt's time, where though one
could not be proved a lunatic, yet, from the imposition upon
his weakness, this Court releived against a deed obtained from
him. Immediately after the decree, the grantee in the deed
got a release of the decree from him. Against this also the
Court relieved, and I have heard it said, that Lord Harcourt
ordered that he should not execute any future deed but with
the consent of the Court. It may be very difficult to draw
the line between such weakness which is the proper object
of relief in this Court, and such as amounts to insanity ;
however, the denying a commission does not exclude from
relief against any deeds or wills which may be improperly ob-
tained." It was under these conditions that the care of lunatics
devolved to the Court ; and thus young persons especially, re-
presented as not being of sound mind, received that great care
and attention which their misfortunes required. In fulfiling
this duty of protection, it next became a question with the
Court who were and who were not proper persons to be in-
trusted with the immediate care of the person of the lunatic.—
On the other hand, the Court would he cautious not to assume
that care in every particular case, as in all cases it would be
careful not to assume it under say circumstances but those of
a commission which should establish the lunacy ; because it
was difficult for the Court to interfere without seriously affecting
the liberty of the individual both in respect to his person and
the management of his property. This made it necessary
that the power of the jurisdiction should be limited in the
first instance ; and that it should be trusted so far with no
other authority than that of considering whether or not there
were good and sufficient grounds for inquiry. It could by no
means undertake ofitself to determine the question of sound-
ness or unsoundness of mind ; but only if there were grounds,
or if there were not grounds, sufficient to warrant the sending
of the inquisition to be tried before a jury of the country. if by
their verdict the Jury should return that not only the grounds
were good, but also that they believed from the evidence that
the party must be of unsound mind, then the Court would
have enough to authorize the issuing a commission of lunacy ;
or if it deemed, notwithstanding the proof of unsoundness,
that the circumstances were not such as to call for the com-
mission, to refuse to order it. But the greatest latitude must be
given in the conduct of the inquisition. Any one might come
forward to rept ; the allegation of insanity, and the parties who
might choose to controvert it were at liberty to traverse-the in-
quisition, without assigning any reasons for it. The parties
making the allegation were bound to answer all the reasons ad-
vanced against them, and even to invite all persons to conic for-
ward to offer such reasons as would tend to show that such an
inquisition ought not to be had. He would now turn to the facts
of the case before them, in which, to support the allegation of
insanity, there were affidavits from five persons of the medical
profession—Messrs. France and Palmer, Sir George Tuthill,
Dr. Sutherland, and Dr. Warburton. If this matter had never
been mentioned to hint before—if he had never before heard
of Lord Portsmouth, and if 110 caveat had been entered
against the commission—he would have thought that there was
case enough to authorize him in the discharge of his duty to
direct an inquiry to be instituted. It did happen, however,
that about the year 1813 or 1814, an application was made
to him for the same purpose by Mr. Newton Fellowes, brother
to Lord Portsmouth, and heir presumptive to the estate. He
said " heir presumptive," not wishing thereby to prejudice the
question, or in any way to affect the rights or characters of any
of the parties in other respects. He had adapted the term
" heir presumptive" deliberately, and according to the circum-
stances of the case. if there had been a son horn to Lord
Portsmouth, now living, instead of A daughter, he would not
have called_ Mr. N. Fehowes heir presumptive, because that
would have been at once prejudicing the question and circum-
stances of the birth of that son, and reflecting on the character
of the mother, neither of which he could consent to do. But
without reflecting on, or prejudicing in any way, the characters
and interests of any party, Mr. Newton Fellowes was, and
continued to be, heir presumptive to the estate. In that appli-
cation there was no statement made as to what had been the
condition of Lord Portsmouth's mind since his birth. There
were only some particulars given as to the occurrences in his
marriages—first with Lady Grace Norton, and afterwards with
Miss Hanson ; while it appeared on the other hand that Lord
Portsmouth had transacted affairs of consequence—that he had
even executed deeds to which Mr. Newton Fellowes had been a
party, and had made an important settlement with the concur-
rence of parties who might and ought to have opposed it, if the
unsoundness of his mind were matter of common conviction.—
As the circumstances then alleged did not seem to have refe-
rence to the question of soundness or unsoundness of mind, he
did not think it his duty to interfere : he considered that there
might be indications of weakness of mind, but not any thing
capable of producing conviction as to the insanity. The medical
evidence which accompanied the application contained a great
variety of remarks on the conduct of Lord Portsmouth ; but in
his (the Lord Chancellor's) opinion they might all be classed as
eccentricities of little or no importance. So far was the case at
that time from leading him to infer that there was alienation of
mind, he was of opinion that the representation went rather to
establish tine soundnes of the mind of Lord Portsmouth. On
that account lie felt considerable surprise at the satements made
on the present application. With respect to the complaints
of ill treatment, they were of a very serious and important
nature ; but whether they were right or wrong, they could
of themselves form no part of the question as to whether
or not the party on whose behalf the allegations were
offered were a fit object for a commission of lunacy;._

and if he were so, whether it would be right in him (the
Lord Chancellor) to grant such commission ; and lastly,
whether or not it would be incumbent on him to take
any steps to alter the situation and guardianship of the lu-
natic ; for if he found that the sufferer was placed in such
circumstances, as were in the first place most natural and fit—
such as a husband, though a lunatic, living under the protec-
tion and care of his wife—or a lunatic father, who was properly
watched and provided for by his son—or a lunatic son as well
taken care of by his father—though no one would doubt but
that the commission of lunacy would be perfectly applicable to
all these ; yet, if he found ix the first proceedings that the
sufferer would be as carefully and providently watched over
without the interference of the law as with it, the Court would
be at liberty to issue or not to issue the commission, according
to the expediency suggested by this and other circumstances.
He had read the affidavits on the applications both now and on
the former occasion ; and on reviewing what took place on that
former occasion, he felt that there was not enough advanced to
substantiate the allegation of unsoundness of mind, though
there was testimony of weakness of mind. Had the statements
now made been alleged on the first application, he must have
had great difficulty in refusing the commission ; and the ques-
tion was, if, having that conviction on his mind, he ought or
ought not still to refuse the commission ? He wished it to be
understood that his present determination could go no farther
than to settle this question ; that his business was only to say
whether there should or should not be inquiry, and not to de-
cide in any thing beyond it.—(His Lordship here again ex-
pressed his strong anxiety that his remarks should not be held
to reflect the least reproach on the character and conduct of any
of the parties, as he considered himself bound to protect them
from any such danger, as much as the interests of justice would
permit.)—No doubt there were cases in which certain juris-
dictions could take notice of imputations or offences of cruelty
and adultery. His was no jurisdiction to try such questions
directly ; indirectly he had power to notice them. Ile might
he called upon to determine on an imputation of cruelty or
adultery. It would perfectly consist with every thing which
he was now saying, that the imputations of adultery and cruelty
made in this case should turn out true or false hereafter. The
only question for the present was, if matter enough had been
laid before him to induce him, in the proper exercise of his
authority, to direct an inquiry to be instituted. As to the alle-
gations of cruelty, adultery, and impotency, from neither of
them, nor from all of them together, would it follow of neces-
sity that there was unsoundness of mind, the proof of which
must depend mainly on the testimony of the conduct of the indi-
vidual. There might be impotency, and yet the patient might be
no fit object for a commission ; he might suffer cruelty, and yet
be no fit object for a commission. His wife might commit adul-
tery, and yet he might not be a fit object for a lunatic commis-
sion. Whether in this case there had been adultery, or cruelty,
or impotency, on none of these points would he give an opinion.
He would not so far prejudice the question which was to be
tried, as to say any thing likely to affect the character of any
one of the parties, which he must do were he to pronounce upon
any of those allegations. The only question, as he had re-
peatedly shown, was, whether or not he had grounds to induce
him to direct an inquiry. Ile must, therefore, look at the case
more closely, and consider what affidavits were offered in sup-
port of it, and what had been offered in contradiction to those
affidavits. Ile was obliged to compare the affidavit of Dr.
Bankhead with those of the other Medical Gentlemen, and con-
sider the particular grounds on which Dr. Bankhead professed
to found his opinion. Ile must consider Dr. Bankhead as not
only representing that there was no unsoundness in Lord Ports-
mouth's mind, but as endeavouring to prove " that there was
not a tittle of testimony" to support the contrary assertion. On
reading over the evidence of Dr. Bankhead, it did appear to
him strikingly evident that the Doctor had not entered into the
examination with the only proper view—that of simple inquiry.
It would he in the recollection of some who were about him,
what had been his opinion on subjects of this kind for many
years hack. From the experience of the evidence given in luna-
tic cases during at least 20 years, he felt himself justified in say-
ing, that Dr. Bankhead did not approach Lord Portsmouth in
a way and manner which were likely to make his observations
useful in the way of testimony. He might be mistaken in his
opinion, but he guided himself by all that he had ever heard of
medical evidence given in cases of lunacy. Dr. Bankhead's
affidavit contained these expressions :
" Previously to his seeing Lord Portsmouth, this deponent
was desired by Messrs Palmer and France to read over the affi-
davits of Sir George Tuthill, Dr. Sunderland, and Dr. War-
burton, and then adopt his own course ; and they delivered
to him the affidavits for that purpose, which this deponent
carefully read over. This deponent considered that if he adopt-
ed the mode of examination which those Gentlemen pursued, he
should not satisfy his judgment on the question of sanity, and
he therefore determined in his own mind, before seeing his Lord-
ship, not to follow the example of either of the said Gentlemen
in his mode of examination, for this reason—that each of the
said Gentlemen, on points which only enclosed a prejudice or a'
passion (for example, timidity of Mr. Alder and Mr. Hanson,
jealousy as to Lady Portsmouth—capricious modes of excite-
ment of venery, and the vanity to sit on a throne on the birth
of a son),-these being points of error in Lord Portsmouth's
mind, as detected by those Gentlemen in their examination of
his Lordship ; whereas this deponent, as a medical person, be-
lieves a man may be timid of the control of another, jealous of
his wife, morbid and base in his carnal propensities, and fool-
ishly vain of his rank on the birth of an heir, without its afford-
ing one tittle of testimony as to the soundness or unsoundness
of his mind, or as to his competency or incompetency to manage
his concerns. This deponent further saith, that even if he had
so examined Lord Portsmouth, and ascertained the existence of
some errors and illusions on these points, he should not have
given a different opinion as to the general soundness of Lord
Portsmouth's mind from the statements of the affidavits." He
did not wish to prejudice the opinions and assertions of Dr.
Bankhead at all ; but they did not much affect the present ap-
plication. It was one thing, be it observed, to say that a Noble-
man may be a man of weak mind, and therefore sat upon a
throne at the birth of a son, and quite another thing to say that
he sat there imagining himself a ju.lge distributing justice;
and again another thing to say that a Nobleman sat upon a
throne professing to have the same splendour and dignity as the
King had at his coronation, which that Nobleman was repre-
sented as having done, and also as having adopted a son which
he declared to be none of his—of having repeatedly avowed that
he never had sexual intercourse with his wife—and as having
actually pointed out and named those whom he took to be the
parents of the boy, which names, on account of the reasons
which he had before expressed, his Lordship would not now re-
peat. It was not the acts of adultery, or cruelty, nor the im-
potency alleged, either of which might he borne by a
base and depraved mind, that constituted proof of insanity ;
but the question was, how did the party demean himself under
the circumstances ? The medical evidence preponderated prodi-
giously towards unsoundness of mind. lie would abstain from
any observations on the matter of other affidavits, as to what
passed at Edinburgh, Cheltenham Harrington, the Metropolis,
andother places. Ile would say nothing more at present, than that
all the allegations were solemnly denied on oath. The facts
being so, the question was, if he was not bound to inquire on
what side the truth lay ? Ile allowed that he could not, in this
stage of the proceedings, go farther than to state the nature of
the affidavits, and how far he was bound to notice their con-
tents. It might be his duty to order an inquiry, and it would
tend to prejudice that inquiry, if he suffered the consideration
of those allegations to reach any further at present. The ques-
lion as it stood was merely one of expediency or inexpediency.—
As the facts affected the situation ()Mord Portsmouth, he would
go no Eirther than this at present—was it such as, under all the
circumstances, was likely to secure to him that protection and
care which the law intended should be thrown about him ; and
that before he (the Lord Chancellor) really had hoped would
be thrown about him, by those who had been connected with
him ? That question, he must be allowed to say, he could not
look on in the same light as he had done. He did not pretend
to say that the allegations were true or false ; they might turn
out either way ; they could not now be determined. But on
the grounds stated, and considering that tile alleeeations, though
they might be fidse, might also turn out to be facts, he was of
opinion that the commissiete must issue. Under what circum-
stances it should issue with respect to the means and mode of
examination, the persons who were to be examined, the secu-
rity for the person and property of Lord Portsmouth—these
were matters which would require considerable judgment, and
such as he would not now pronounce upon. The immediate
point for consideration was the commission, which would cer-
tainly issue before the week could close. Again he desired that
nothing which he had said should be interpreted prejudicially
to the characters of any of the parties. He wished to reflect
shame on no one living or dead. He only felt that there were
grounds for inquiry, and that it was his duty to throw around
Lord Portsmouth that protection and security which the law
had provided for him in case he should be found of insane mind.
He felt that he must grant tire commission.
The ATTORNEY-GENERAL suggested, that upon the whole
it would be better for the commission to issue in Middlesex, for
the sake of securing his Lordship's attention to the progress of
the inquiry, for the convenience of having the best medical evi-
dence, and the convenience of the parties generally who would
have to attend.

Mr. llonNE said, on behalf of his clients, that he did not
believe there would be any obstacle to the course of an intelli-
gible inquiry.
The LORD CHANCE Limn observed, that it was of great im-
portance to save expense, if it could be done without lessening
the facilities. The parties on the other side ought also to have
the fullest benefit of papers and evidence. Ile was of opinion,
upon the whole, that it would be better for the commission to
issue in Middlesex.