Scottish Court of Session Decisions

Lord President, to the Jury.—Gentlemen, I shall not detain you with stating more than a word or two, as to what is your duty in this case, as you now know it well. You are to decide the questions which have been so long investigated before you, according to the evidence that has been adduced, and not with regard to any feelings you may have as to the hardship of the case, either in one way or other. Without further preface, therefore, I shall merely content myself with calling your attention to the questions involved in these two issues, and particularly to that of the first issue, viz. the discharge to which that issue relates. Gentlemen, I need not tell you, for I am sure your own good sense will point out to you, that both in law and reason, where bargains and contracts are entered into between persons standing in the relationship to each other, such as that of husband and wile, parent and child, every thing ought to be done as fairly, equally, openly, and candidly as possible. I do not mean to say, that it is not possible for them to enter into agreements with each other, such as has occurred in the present instance, even although, in the case of children, that agreement may be greatly in favour of the father. Suppose, for example, one of the children of a family has succeeded to a great fortune by his mother, or by any distant relation, so that he has thereby become possessed of property much greater than the father himself, I should say, in that case, really nothing could be more reasonable than for the father and child to enter into such a contract. The father might, in such a case, be supposed to say to the son, “My dear son (or my dear Alexander), you are now provided for, and as I have a family of other children besides you to provide for, I submit to you, it is reasonable you should grant me a discharge of all that you can ask or claim under your mother's antenuptial contract with me, for such and such a reasonable consideration, in order that I may be the better able to provide for the other children at my death.” Gentlemen, I beg to observe to you, that no man would say, in such a case as that, that any advantage was taken of that son, under such circumstances, nor that such a discharge might not be considered fair and equal between the contracting parties. But in other cases, where it is merely or mainly for the advantage of the father, without any advantage accruing to the son, or any child whatever, I must inform you, it is absolutely necessary that every thing connected with that transaction must be fair, open and equal, on the part of the father, the principal contracting party; for as to the other party, there can be nothing but fairness, every thing being in the power of the parent. Now, gentlemen, look to the situation in which parties stand where a husband and wife, or a parent and child, come to deal with each other;—on one side you have marital authority, parental authority, and influence; while, on the other side, you have conjugal love and regard, filial duty and affection. These feelings, in the latter case, may be naturally leading the children to submit implicitly to the wishes and dictation of the father; while, on the other hand, his parental authority and influence may not be leading him to act with fairness and candour, but to be chiefly favouring his own interest from sinister motives. I say, gentlemen, that where persons are placed in that situation, they do not treat with each other upon fair and equal terms, unless every thing be laid by the father fairly and openly before the child, in order that the child may know what he is treating about. Now, gentlemen, upon this point I shall refer you to the printed copy of the discharge, as it appears in page 114 of the defender's appendix. You will observe that this discharge is planned and drawn by the father, with the assistance of his agent, and transmitted in a ready extended state to the son Alexander, in London, to be signed; Therefore, the language of it, and the sentiments of it, are the father's, and the father's alone. What is it in that document he wishes the children to say or state? This, I must observe, is a point which has not been taken notice of by either of the learned counsel, though I think it is the most material part of the whole of that document. After making them say,—“whatever we may in future receive from our said father, or which he may convey or bequeath to us, or any of us, will be solely and entirely a free gift, and out of his own good-will and pleasure; and we are fully satisfied that the sums we at present receive from him are much more than equal to any legal demand we might otherwise have,”—that is what he makes the children say and confess, so as to appear as if they were satisfied of that being the fact. But how are they satisfied? Only by his own words. Is it pretended that he had laid any statement before them, so as to satisfy them? No; not even the contract itself, nor any scroll nor statement whatever; but he merely says, “There is the discharge; I am determined you shall sign:” and he makes them state, “that it is more than equal to any thing you are or can be entitled to claim under the marriage contract;” while his representations in the letter to his son, enclosing that very discharge, are fallacious and totally inconsistent with the amount of his property. Under these circumstances I need only say, there is not only concealment, but positive fraud and deception on the face of that deed, and in that respect, it cannot be said to be the deed of the pursuer. Then, gentlemen, what says the father in the deed afterwards? He proposes to give them £500 in addition to the £1000, under the specious pretence of its being out of parental regard, and oven from that amount he makes certain deductions. I say that, under such a deed, it ought at all events to have been at least £500 a-piece. But what is it that the son Alexander receives? Gentlemen, he only receives, in the year 1804, the sum of £350. The father actually makes several deductions, one of which he stipulates to give up afterwards; but for what purpose does he make that discount? He makes it in order to defray the expense of a process which was then going on against his brother-in-law, Bowie, and not as a process terminated—that suit having been commenced at his own instance; while, at the same time, according to the defence set up, it might not be a sum due to him by them at all, or perhaps the costs might have exceeded the amount of the whole he was paying. Besides this, he makes a further discount from the sum nominally stated to be paid to his son, by deducting certain other sums, in the first instance, which he had no right to deduct from the sum which he states he is about to pay. Now, I ask you, gentlemen, Do you think there is any stranger who would so deal with another? There it is stated, “you have paid that sum of costs for me, in a suit I instituted,” which they, the children, might never have derived any benefit from, and which sum the father might never have repaid to them at all. I am not sure, in point of justice, whether the father could have claimed that, even although he had gained the law-suit. He was the dominus litis, and as such took the law-suit upon himself; and if that suit had been lost, I doubt exceedingly if any court of law would have allowed the costs of it to have been charged against the children. But, at all events, to deduct that, as being due before the suit was settled, is such an act of gross oppression and deception, that I have no hesitation in saying that, in law, such a discharge is vitiated and rendered null and void, not only by such gross concealment of the amount of his property, as you have heard he made, but at the same time by taking advantage of the filial affections of the other contracting party towards him. This has been rendered apparent, in so much that I may say it is a most unworthy act of extortion on the part of the father towards his children. That is certainly my opinion, in point of law, in so far as I understand that part of the case.

Now, gentlemen, with respect to the other issue you have been investigating, namely, that which more particularly affects the reduction of the settlement, upon the footing of delusion, indepondently of fraud and deception,—you have heard quite enough upon both sides, and with great force of eloquence on behalf of the pursuer, as to which I cannot but express my admiration; but it is not more than the learned gentleman who last addressed you deserves. Amongst other things, he has stated to you the very able judgment of Sir John Nicholl, in the case of Drew v. Clark—a case which is very similar to this one in many respects. I agree in every word of that judgment, both in point of law, and in the application of the law to the facts and circumstances of that case. I think it was a most righteous judgment, and a judgment that does infinite honour to the abilities, integrity, and upright feelings of that learned Judge. But, gentlemen, consider the different situation in which he was placed, from that in which we are placed here. He sat in the Consistorial Court, where he presided, and the documents were all laid before that Judge, for any thing I know, weeks and weeks previously to that elaborate and detailed judgment being given. He had ample time to consider and weigh every word of that evidence. He had ample time to have had produced before him, and to have perused every letter, whereas the letters in this case have been only now laid before mo. In that course of proceeding there was sufficient time allowed, laboriously and maturely to consider them, while we are here called upon to determine upon evidence which has, comparatively speaking, only been laid before us for a few hours altogether. We are called upon to decide upon the merits of letters and documents, which are more voluminous than I ever saw in any court of justice. I never did see any cause so little calculated to be made a jury cause, as this has been. For what are you told, even by the Dean of Faculty, and Mr Skene also, but particularly the Dean? He asked you to peruse every document, and to consider them deliberately; but, on the other hand, I may ask, where, when, and how are you to do all this? Is it in the jury-box that you are to do so, or is it in any adjoining room you are to do it, at this late time of night?I say that such a case as this never can be deliberately tried by any jury, in that manner; not that a jury cannot do it, but because it is impossible that they can devote that time which may be necessary, coolly to deliberate upon these multifarious productions, in such a complicated case as this avowedly is, and to sift and investigate it in the mode in which either of the parties may choose to say it ought to be considered and weighed. Gentlemen, we have now heard this case argued very ably on both sides, and the evidence adduced on the one side and the other has been also descanted upon at great length. That being the case, I shall, at this late hour of the night (it being now about twelve o'clock of the second day of the trial), say but very little mora upon this other issue in the cause. This, you will observe, is a case of what is called monomania; that is to say, not an allegation of what is called perfect lunacy, or insanity, upon every subject generally, but pointing only to one particular subject; or, in other words, to mental delusion, applicable to one object; and, in this case, it appears to have been directed towards suspicions of conspiracy amongst the party's nearest relatives. That there are cases of delusion, occurring frequently, of the same nature as that which is comprised in this issue, it is impossible to dispute. There are sometimes delusions occurring of such an extraordinary character, as to render it almost impossible either to define them with precision, or even to limit them in point of description or character; for they must necessarily be as multifarious as the varieties or characteristics that occur in the human mind itself. The most extraordinary of all delusions—the most wonderful and unaccountable to man in his sound mind—is that which has been stated by the learned counsel who last addressed you, and yet it is a very common one;—it is that which occurs in many people mistaking their own identity, and believing themselves to be different sorts of beings, or different persons from what they really are! One naturally says, is it possible that the human mind can mistake itself, or that a man can believe himself not to be what he actually is? Yet it is so; and one cannot but marvel much, even at that which is a common sort of delusion. We find it generally the case, that those labouring under such a delusion are found to be supposing themselves greater than they really are, or greater than they really, by human possibility, could be raised to. You invariably find that such persons are always imagining themselves to be princes, kings, or emperors. Nay, often they imagine themselves God Almighty himself, or our blessed Saviour. I have known several instances of that nature. I remember the case which is mentioned in that judgment and opinion of Sir John Nicholl, in the decision of the cause Drew against Clark; but I find he had not had before him the right edition of it. I heard it from Mr Erskine, who was himself one of the counsel in the cause. He told me, the true story was this:—That a man was brought before a jury to be cognosced, as it is called; and he answered before the jury the various questions put to him so sensibly, and in such a composed manner, that the jury, when they heard him, stared, and wondered how any party could bring such a case as his before them. Mr Erskine, however, it appears, had got his cue upon the subject of the particular species of delusion, and the proper mode of touching upon it, so as to discover it; and, after the other counsel had addressed the jury, he rose, and, previous to addressing them, asked leave of the individual himself, sought to be cognosced, to put a few additional questions to him. To this the party had no objection; “but,” says he (the counsel), “before doing so, I ought to fall down on my knees, and humbly ask your gracious forgiveness, for daring thus to put questions to such a high, mighty, and supreme character as you avowedly are.” “Stop” (says the other), “rise up and fear not thy sins are forgiven thee;” thereby showing at once the truth of what was suspected, viz. the fact of his actually imagining himself to be our Lord and Saviour. I had an extraordinary instance of a similar nature, occurring a considerable time ago, to myself, at my own chambers in Hill Street, where a gentleman was announced as wishing to speak to me. He was a young man, and, as I supposed, was calling upon business. I accordingly saw him, and found him to be one of the genteelest-looking persons I ever saw in my life. I asked him to sit down. I supposed he had some letter or petition to present to me; but finding that was not the case, I rose and said—“I am just preparing to go to the Court, and may I beg to know what your demands are?” Upon this, he stared with astonishment, and said—“What! don't you know me?” “No; I don't at present recollect you, sir,” after looking firmly and steadfastly at him. “That is very odd,” says the gentleman. Then, I observed—”It may be odd to you; but as I have no recollection whatever of ever having seen you, it would be more odd if I did know you. Let me know who you are, and then I can ascertain how it is that I should not recollect yon. Let me know who you are in the first place.” “I am Jesus Christ!” says be. “Then,” says I, “I really was not aware of that; but as I have not time to receive communications, I beg leave to postpone the interview, as I have to go to the Court immediately, and therefore you must allow me to withdraw at present.” He accordingly walked out of the room; and I soon afterwards found he was a person who had actually made his escape from his keepers, who were in pursuit of him. In fact, he was an insane or deluded person, who had escaped out of the custody of keepers, who were waiting outside for his return. Besides these instances, we hear of many other delusions of a very extraordinary nature. There is one case upon record, for instance, of a very honest gentleman who believed himself to be a tea-pot. How he managed that in his own mind, I really don't know; but upon various occasions in the daytime, he stood up with one hand turned round in this way, to represent the handle, and with the other in an attitude to represent the stroup of the tea-pot. There also have been instances of other descriptions of delusive ideas; such as persons imagining that some parts of their bodies were made of glass, or that their whole frame was made of china. In short, the delusions of the human imagination are quite unaccountable, and there is no end of them. But this is a very common thing attending delusions, viz. that where the imagination is unsupported by facts, it will be always accompanied with suspicions of conspiracies existing against them, or with jealousies which are generally applicable to their nearest relations. I remember, when we had here the famous trial of Sir Archibald Kinloch, it was said (and that was confirmed by Dr Monro) that he showed very striking symptoms of jealousies and suspicions of near relations, which was proved to be a general feature in such cases. Now, gentlemen, as to the delusion alleged to exist in this case, whatever may be my judgment, yet still it is a question of evidence upon this subject which I shall leave entirely to you. It is for you to say whether you think there was a delusion in this man's mind upon certain topics, his jealousies or suspicions of conspiracy not being founded upon actual or real facts; or whether his antipathy to his family arose from other causes? As to that question, it is perfectly plain that Something of the sort arose in this case (as in some of the other instances given), namely, jealousies and suspicions, creating the idea of conspiracy in his mind, which are repea edly alluded to in his numerous letters. Gentlemen, you have evidence of this fact, from the allusion to it contained in the letter from the children, addressed to the father, dated so long back as the 16th of May, 1801, which, however well intended, it seems, under the circumstances of the case, was not a very proper one to assuage any pre-existing delusion—I mean the letter which, you will observe, is dated the 16th May, 1801, being long before the alleged attempt was supposed by the father to have been made upon his life. Now, in that letter, the children say—“We are as sensible as you are, that it is not the duty of children to criticise or find fault with the conduct of one who should be an example to them of every thing that is good and praiseworthy. Neither have they thought, nor will they ever think, of doing so, so long as no irregularity causes suspicions of conspiracy, which have no place but in the imagination alone.” Therefore, there is here proof produced by the defenders themselves (for they produce the letter), that even at that early date the children saw, and stated to their father avowedly and openly, that he had entertained, previously to that period, suspicions of conspiracy, which they could not account for; and that statement is made, totally independent of any attempt upon his life, or of any consciousness on their part, that they were all engaged in a conspiracy against him. Now, gentlemen, if you he of opinion that, previously to that period, there had been no foundation for such a charge, or that he had taken up at that time any groundless notion of conspiracy, then, of course, there is an end of the case upon this issue. If there really were any appearance of conspiracy, then there was not a delusion. But, gentlemen, there is no evidence, prior to that period, that the children had ever said or done any thing that should have led the father to conceive the idea of conspiracy at any time. No doubt this letter may have been a very imprudent one, in so far as it tended very little to remove his delusion or suspicions, however groundless; but certainly the children may not have been then aware of the existence of delusion; for if there were a delusion, such an intimation could not have tended to conciliate him. They might not have been aware from what cause arose such suspicions and jealousies, nor that his conception of conspiracy was that which constituted monomania. In every attempt made to conciliate him, they no doubt appear to have been unable to judge of the cause of it; and if so, it might appear to him that it so far partook of conspiracy, as it is a letter signed by all the three; but, then, that was not a secret conspiracy, for they there openly allude to the allegations on his part, as to imaginary conspiracies existing even before their writing that letter. If there were any such idea existing in his mind before that time, then that letter might aggravate his delusion, but it was evidently not the original cause of it, he having imagined a conspiracy previously to have existed. The idea of conspiracy seemed to have prevailed in his mind, even before the receipt of that letter, and ever afterwards. Now, what says the note which he adds to it many years afterwards, viz. in 1816? He says—“This letter I consider as the most unjust, undeserved, traitorous, and wicked libel ever penned by children to a parent, save by those only who had thrown off all regard to truth and justice, and were themselves the most abandoned of the human species. This writer son longed to rob me of my means, and, to show that the plot was general, prevailed on his sister and young brother to put their names to it along with him.” That is a confirmation of the idea he had conceived as to some conspiracy having previously been entertained, and which he then seems to have taken care to describe to be general: as he further says, in the note afterwards attached to that letter, “The other two I have, upon their imploring it at my hands, both by word and write, forgiven long since; but as for him who afterwards struck me, and threatened my life, my resolution is, as I can never forgive him, never to have any thing to do with him more.” Now, gentlemen, it is for you to consider, and I leave it to you to judge this from the evidence, whether there were any just cause in this man's mind, that his children wanted to rob him of his fortune, by a conspiracy existing amongst them to take away his life, or whether you can attribute his conduct towards his children generally to any other cause than delusion. Let us suppose that this case had never come to trial at all—that there was no evidence on either side as to it, but that the father and son had each of them come before you, telling each his own story—I ask you, which of those stories would you have considered the most probable? Would you say that the son had actually come in with a drawn dagger to take away the father's life; or would you say that the father was under some strange delusion? I should think there could be no doubt as to what would be your opinion upon that part of the subject, from the mere circumstance of the one account being more probable than the other, and because such delusions as to relations conspiring are not uncommon; but parricide is, thank God, a very unusual crime in this or any other country. Now, gentlemen, suppose it does appear that there had been at one time (viz. upon the return from Glasgow visiting his brother) some scuffle between the father and the son, yet still I say there is evidence of a previous determination on the part of the father, forcibly to turn the son out of the house. Of that there can be no doubt; but you will consider whether that was the first origin of the delusion in his mind, and whether the father might not, from his preconceived suspicions of conspiracy, view that matter in a different light from what it ought to have been viewed; he may, for instance, have thought that his son, from the mere circumstance of his having a stick in his hand, was attempting his life, when in fact he was not, and had not the most distant intention of it. But the question is, was that the original cause of the delusion in the man's mind? No, I should say, he had taken up the delusion long before that period; for he had long previously considered that there was a conspiracy to take his property. I think it was very wrong and foolish enough for the son to have made any resistance at all; it would, perhaps, have been better the moment the father said “go,” that he should have gone; for there certainly would have been no difficulty to find a bed in Edinburgh. There was no doubt a struggle between them upon that occasion, created, as is said, by the father's predetermination to attack the Bon, and the son's anxiety to prevent the father getting hold of the slick, from which the son might have some apprehension of danger ensuing. Under these circumstances, you are left to determine these matters by the probabilities of the case. Unless you be convinced that that was the origin of the delusion, you will not attribute it as originating at that period, but you will attribute it to that preconceived impression as to a conspiracy existing, which still remained as a delusion upon his mind; for if that were the origin of the delusion, then the continuance of it must necessarily be attributed to the first cause, namely, a conspiracy to rob him of his property. Even if he had a right to be offended at that which the children had conceived necessary as to the contract he had abstracted during his wife's lifetime, still the question is, was the struggle, as described by the father himself, of such a nature as to make him conceive the son had come in expressly to take away his life? The delusion appears to have been such, that he imagined his son had drawn the dagger upon him; but this seems to have arisen, merely because in the struggle it made its appearance out of the stick. In his description of the scene, in his various letters, the father appears to give different accounts of it. In some letters, he appears to describe it an having taken place in a room—in another, that he never got farther than the kitchen—at another time, it appears to have been in the passage;—at one time, the instrument is described to be a spear, at another time a dagger, and at a third time, one would think it was magnified into a drawn sword; whereas it turns out to have been only what was called a sword-cane, which the son had had with him on a walking excursion, in the course of which he paid a visit to his brother in Glasgow; but it does not appear that that was drawn by the son in the struggle, but, on the contrary, prevented; while, in another letter, previously written by the father to his daughter, he himself had premeditated or anticipated that such a struggle should take place, even at the risk of what he calls a fatal catastrophe. Upon that occasion, the sword part of the cane may have got loose, and from that circumstance the father might have conceived, in his previously disordered imagination, that the son had brought that sword-cane for the express purpose of putting him to death. It is, however, for you to consider, whether such an occurrence as tin's, under all the circumstances of the case, could be magnified into an attempt to take away his life, and that the son had come in expressly for the purpose of doing so, alter that walking excursion which has been described; or whether you can attribute the conduct of the father to other motives. With these observations, I leave the whole matter to you to consider—and you are as able to judge of this case as I can be. It is impossible to go through it all; but I trust you have heard sufficient of the case to enable you to form a correct judgment. You will please now consider your verdict.