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SOME HEM^RKS 
 
 05 
 
 THE MEDICAL JURMUDENCE OF INSANITY. 
 
 BY 
 
 HENRY HOWARD, M.D., M.R.C.S., Eng 
 
 Ix, 
 
 Government Medical Attendant, Lunatic Asylum, Longue Pointe. 
 
 \!* 
 
 Bead before the Medico-Chirurgical Society of Montreal, 
 
 OCTOBER 19</i, 1877. 
 
 I 1 
 
 m 
 
 M 
 
 PBINTED AT THE "GAZETTE" PRINTING HOUSE. 
 
 1877. 
 
f 
 
JProm the Canada Medical and Surgical Journal, Nov. 1877. 
 
 SOME REMARKS 
 
 ON THE 
 
 MEDICAL JURISPRUDENCE OP INSANITY. 
 
 f 
 
 .• 
 
 Mr. President and Gentlemen, — My object in bringing 
 this subject before you this evening, is in the pleasurable 
 anticipation that the question of insanity will receive considera- 
 tion from Legislature at the next meetmg of our Provincial 
 Assembly, and that we may prompt such legislation to be from 
 a medico-legal stand-point, and not from a legal stand-point only. 
 And let us hope that whatever may be the results of the com- 
 bined wisdom of those whose duty it is to undertake this impor- 
 tant task, that we will have a law founded upon purely scientific 
 grounds, having for its basis benevolence and justice, and for 
 its object, the encouragement of all to try and attain to the 
 highest position of civilization and Christian morality — to do to 
 others as we would that others should do to us. 
 
 That we want a law there can be no possible doubt, now, 
 more particularly, that there is such an increase of crime and 
 insanity : when there is so much evil-doing that it would appear 
 as if men could not do right : where some responsible murderers 
 are, under a false plea, escaping the just consequences of their 
 crime, and some irresponsible imbeciles and insane persons are, 
 through ignorance, unjustly punished. You are, no doubt. 
 
aware that it has taken not only years but centuries to have 
 anything approaching to a humane law in any part of Europe 
 on this subject ; and even yet the law of lunacy is far from 
 what it should be. And all this through the absurd idea that a 
 judge was the proper person to diagnose a case of insanity, and 
 to declare what was and what was not insanity, who was and 
 who was not morally and legally responsible for his acts. In 
 fact, the old idea was that the lawyer of to-day, when he became 
 a judge to-morrow, no matter through what influence he obtained 
 his high position, from that moment, by something in virtue of 
 his judgeship, was capable of defining the disease of insanity. 
 This was just like the old exploded idea that a king, in virtue of 
 his kingship, cured scrofula by the touch of his royal finger. 
 Well, gentlemen, if these old ideas have gradually exploded, it 
 is due to the gradual development of science and to the gradual 
 discoveries of scientific men, which have culminated in th(r 
 recognition of the great scientific truth that body and mind are 
 one — that *he mind is as much the product of the mental 
 organiza as bile is the product of the liver, and that mind 
 diseased (^insanity) is simply body diseased ; and that mind 
 deformed (imbecility and idiocy) is simply body deformed, 
 and the very worst form of deformity that a human being could 
 be born with. 
 
 I would not have you understand from my remarks, that 
 these great truths, which I have just mentioned, have been, and 
 are, accepted by all ; far from it, — men ot the highest intellect 
 and of the highest standard of education, still hold to the old 
 ideas, not from any objections that they have to receive scien- 
 tific truths, but from a fear that having admitted something, 
 they may possibly be lead into the error of admitting too much. 
 These cautious men are to be respected, for they are, in a great 
 degree, the checks to the wild theorists, who, through their pride 
 of intellect are making shipwreck of established usages that 
 have been the safeguards of society for thousands of years, — 
 and it is those theorists that are bringing sound practical science 
 into disrepute : the science that raises men to the highest moral 
 
fitandard of civilization, if thoj have intellects to be raised to 
 that standard. 
 
 It is very much to be regretted that when medical men have 
 written upon the subject of the medical jurisprudence of insanity, 
 they have too frequently considered it their duty to attack the 
 judiciary in a very course manner, and on the other side the 
 compliment has heen returned with compound interest, when the 
 subject has been written upon by lawyers. 
 
 No good could be expected to come from such a course of 
 proceedings ; it is simply discreditable to both. For my part 
 I can see no reason for a quarrel between the two learned 
 professions. The Judge and Lawyer must yield the point, for 
 public opinion will force it, that it belongs as much to the 
 medical man co diagnose insanity and imbecility, as it does to 
 the judge to administer the law. And the medical man must 
 learn that when called upon to give his evidence as to whether 
 a man is, or is not, imbecile ; to give that evidence calmly and 
 dispassionately to the best of his knowledge, and having done 
 that, to take no further interest in the case. What the conse- 
 quences of the trial may be is no affair of his, — he has nothing 
 to do with it ; he has done his duty when he has given his 
 evidence. It is simply disgraceful to see medical men in 
 courts of law taking sides ; if they are called upon by the 
 crown, they think their duty is to have the accused condemned ; 
 if they are called upon by the defence, they consider it their 
 duty to do all in their power to have the accused acquitted. This 
 is all right for the lawyers, but it is not the duty of the medical 
 man ; and it is this that brings them so often under the reproof 
 of the Court. Medical men do more than this : — very frequently, 
 even after a verdict is given by the jury, and sentence given by 
 the judge, they will write to the press and find fault with both 
 one and the other, and try to bring discredit upon the jury and 
 the judiciary. This ought not to be — the medical man is not the 
 judge, he is the witness at the trial. Again medical men have 
 brought discredit upon themselves and the profession generally, 
 hy the absurd statements they have made in Court, when called 
 upon to give evidence in a case where the plea of insanity has 
 
6 
 
 been sot up. I have hoard medical men display the greatest 
 ignorance and speak the most absurd nonsense. I have heard 
 two medical men, one after the other, describe, accurately, the 
 illusions a man suffered under, and call them hallucinations ; 
 and I have heard a most learned and honourable judge accept 
 the statement, — saying, " I understand you — ^yes, yes ; th3 man 
 evidently, as you say, suffers from hallucination," when there 
 was not one word of evidence that the man suffered from any 
 such symptoms. Another great mistake of medical men is to 
 believe that there is no trouble in diagnosing n, case of insanity, 
 and unfortunately it is the most ignorant men in our profession, 
 who fancy they know everything, and who arc always prepared 
 to rush into Court and give their evidence. A thoroughly 
 educated and intelligent medical man will accept such a position 
 •with great caution ; he knows that no one man can knaw every- 
 thing in our profession ; he knows that no matter how well he 
 may be posted in books, and how good his memory may be in 
 retaining what he has read, that without experience, and a large 
 share of it, he should not go into Court and give his opinion on 
 the mental state of a man under trial for a capital offence. I 
 know I am never called upon to examine a man, and to report 
 upon and give evidence as to his mental state, that I don't feel 
 the most fearful responsibility, least by any chance I should make 
 a mistake. And if it were possible, I would often cheerfully 
 avoid the responsibility; yet, I am happy to say, my testi- 
 mony has never been refused by either side, whether for the 
 Crown or for the defence. I will report to you three cases, a» 
 they were all different, and you will see from them how neces- 
 sary it is that we should have a law, well-defined and specially 
 suited to each individual case, where the plea of insanity is set 
 up in the defence of a person accused of a crime. 
 
 If my memory serves me right, I believe it is this very month 
 three years ago that I was called upon, by the then Minister of 
 Justice, now the Honorable Sir Aime Dorion, Chief Justice, to 
 go and see and examine a man in prison in Upper Canada 
 under sentence of death, and make report to him. That Dr. 
 Dickson, of Kingston, would meet me there and for us to* 
 
 i 
 
r 
 
 4 
 
 examine the man severally and collectively. The cause of thus 
 being called in was that very strong petitions had been sent to 
 the government, stating that the man vim really mad. I 
 remember well how terribly I felt the responsibility. I spent 
 nearly two whole days with that man, and reported that he was 
 not mad, but playing the madman ; which he continued to 
 play till the rope was actually round his neck, when he threw 
 off the disguise. I believe if he had not done so, one-half the 
 people of that town, if they could have caught Dr. Dickson 
 and me, would have tarred and feathered us. 
 
 The second case was on the 4th of October, 1870. I was 
 instructed by the Hon. Attorney General of the Province of 
 Quebec to see William Murphy, who was confined in the jail of 
 St. Johns, awaiting trial for some capital oftence. This man 
 had been brought up for trial in October, 1876, and was found 
 to be insane ; he was sent to the asylum at Longue Pointe. 
 When admitted, I found him labouring under acute mania. I 
 sent him back to prison in the month of May, 1877, recovered 
 of his attack. When I visited him in October, 1870, in com- 
 pany with Dr. Howard, of St. .Johns, I found no symptoms of 
 insanity in the man, and reported him fit for trial, stating in my 
 report that I did not believe the man ever had possessed a very 
 strong intellect. This man was brought up for trial on the 11th 
 of said month, one week after I had seen him, and found guilty 
 of the crime of which he was accused and sentenced to five 
 years in the Penitentiary — no doubt a very just sentence, and 
 no doubt both jury and judge were satisfied that when he 
 committed the crime he was sane, and therefore responsible for 
 his act. 
 
 The third case I would draw your attention to, was a young 
 man in the jail of Sherbrooke, awaiting trial for having shot and 
 killed his brother ; he was to be tried on Monday, 8th of October 
 1877. On Saturday, the 6th, I received a telegram from the 
 Advocate for the defence, who wanted to establish that the man 
 was insane. On examination I found that, properly-speaking, 
 he was not insane, but that he was an imbecile, who never had 
 any intelligence to loose, and consequently could not be held 
 
8 
 
 responsible for the killing of his brother ; nevertheless (as T 
 stated) a very dangerous man to society, being a homicidal 
 ** imbecile " that did not know the value of life. I told the 
 Crown prosecutor what my evidence would be before the jury, 
 and he, like a sensible and intelligent man that he is, at once 
 abandoned the case, till ho could report to the Attorney 
 General. Had he boeu a thick-headed, obstinate man, he would 
 have gone on with the case ; and should the jury have accepted 
 of my testimony, the man would have been acquitted, and a 
 homicidal imbecile sot loose upon society to commit another 
 murder, but as it is there will be no trouble in having the 
 fratricide locked up for life. 
 
 You see the difference, gentlemen, in these three cases : the 
 first was a veritable criminal, for he had been tried and found 
 guilty of murder — in fact of the murder of three — but was 
 supposed by kind-hearted people, to have become mad while 
 
 awaiting the carryinjr out of his sentence. 
 
 The second case was that of a man not a criminal, but 
 accused, who spent six months in a Lunatic Asylum, and then 
 six months in prison without trial, becoming insane after having 
 committed the crime, and recovering. 
 
 The third was an untried imbecile, who it was certain had 
 shot and killed his brother, yet under existing laws could not be 
 tried for his act. 
 
 Now, in these three cases, any mistake on the part of either 
 Lawyers or Doctors would iiave terminated with either injustice 
 to the accused or to society : so that it was necessary that the 
 whole proceedings should be conducted by all engaged without 
 any prejudice, and simply with the intention of arriving at the 
 truth, without at all considering consequences. 
 
 But these cases show also that it is necessary to have a law 
 by which all accused of crime should be tried at the first 
 opportunity for their crime, quite independent of their mental 
 state. They also show that the duty of the judge, jury, and 
 lawyers is one thing, and the duty of the medical man is 
 another, all having separate duties to perform, but uniting for 
 
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f 
 
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 9 
 
 one great object: •» "ive, if possible, at truth. I say if 
 possible, because no ina^'er what caution is taken, no matter 
 what their united wisdom may be, cases can arise where it is 
 impossible to speak with certainty. For example, an epileptic 
 maniac, who had shown no signs of mania say for five or ten 
 years, holds conversation to-day, for a couple of hours, with a 
 particular friend ; in one hour after the conversation he kills a 
 man in some lonesome place, and is found and made prisoner 
 for the murder while the blood of his victim is still warm on 
 his hands ; and, when made prisoner, shows no sign whatever 
 of insanity, denies the killing, and can show no reason 
 whatever for the act — or says he can show no reason — 
 nor any reason for the blood stains upon him. Now, who 
 on earth can say, positively, that this man was insane 
 when he committed this crime ? No man in the world could say 
 so positively ; yet ho may have been insane, he may have com- 
 mitted the crime under an insane impulse, and laboured at the 
 time under the delusion that the man was going to kill him. 
 It would be strong circumstantial evidence in favor of his being 
 insane, if his victim had been to him a perfect stranger, that 
 he had never even seen before, but, on the other hand, if his 
 victim had been one with whom he had boon well acquainted, 
 and with whom, it had been well known, he had lived at enmity 
 for years, then there would be strong circumstantial evidence 
 against his having committed the deed in a fit of insanity. 
 Still he might have been insane. What would be the duty of 
 a medical man in such a case ? Simply state the facts to the 
 judge and jury, and the judge and jury would have quite 
 enough to do. Afterwards, of course, in such a doubtful case, 
 the accused would have the benefit of the doubt, yet this man 
 might have been perfectly sane when he committed the crime, 
 and might possibly have been a wilful murderer. 1 have at 
 present an Epileptic in the Asylum subject to attacks of re- 
 current mania, G. J., aged 22, admitted for the second time 
 April, 1877. Had no maniacal attacks since the January pre- 
 vious. One day in June in making my ordinary visit at 2 
 o'clock, he was well and cheerful, at he made a sudden rush 
 
10 
 
 through the ward screeching, don't let him kill him ! and before- 
 he could be stopped, pushed his two hands out through the panes 
 of glass, cutting them dreadfully, his cry all the time was 
 " Don't let him kill him ! will none of you save him ?" When I 
 returned in the morning, I went at once to see the poor lad ; he 
 had just awoke out of a quiet, refreshing sleep. I said " What 
 happened you George my boy ?" His reply was " Nothing sir^ 
 I was dreaming I saw Kennedy (a lunatic in the ward with 
 him), shooting you in the yard ; he had the pistol to your fore- 
 head." Now, there is no doubt, but had the poor boy met with 
 Kennedy at the moment of his insane impulse, he would most 
 likely have strangled him, and afterwards when spoken to about 
 the matter, of course, deny it, and tell of his dream. You see 
 how similar this actual case is to the imaginary case I have just 
 supposed for you. I could give you other similar cases to the 
 one I have just given, but this is sufficient. 
 
 You now see, gentlemen, the great responsibility that rest* 
 upon judge, jury, lawyers i .id doctors, when the plea of insanity 
 is set up for the defence of one accused of murder or of any 
 other capital offence. I could tell you of how, in my own day,, 
 in the very town I lived, in Ireland, nearly forty years ago, a 
 poor, miserable imbecile was tried, found guilty and hanged for 
 the crime of raping a married women. The man had no 
 friends, no one to defend him, and had no idea, in the world, of 
 what the whole proceedings meant — even up to his being 
 hanged ; the creature had not half the intelligence of a very 
 s!,x-pid dog. And it is not so very many years ago since there 
 ^..li! d. man hanged in Montreal for killing an infant, of whom 
 h«^ was the father and his daughter the mother. Why, he and 
 iils viiole family were a family of imbeciles, living together like 
 a lot of the lower brutes ! What things these two creatures 
 were to hang, as a warning to evil-doers ! Hanging two dogs 
 would have produced as great a moral good to society. On 
 the other hand, gentlemen, though I would not if I could, nor 
 could not if I would, give you actual cases of vile murderers 
 that escaped the punishment due to their crime on the plea of 
 insanity, yet there is not the slightest doubt of that fact. 
 
 I 
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t 
 
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 41 
 
 i 
 
 ''' 
 
 11 
 
 Gentlemen, if I have taken up your time with all these cases, 
 real and supposed, it is to impress you with the fearful 
 responsibility the judge, the jury, and the medical witnesses 
 have, where, in a trial for murder, the plea of insanity has been 
 set up for the defence. What law, then, do we want that Avill, 
 as far as it is possible, secure equal justice to all — ^justice tem- 
 pered with mercy ? We want a law by which every man shall 
 be, at the earliest possible opportunity, tried for his supposed 
 offence, quite independent of his mental state, whether it be 
 sound or unsound. Let the man be tried, at all events. If the 
 plea of insanity be set up, let the widest possible latitude be 
 allowed to the defending advocate. But let the Crown take 
 the greatest possible caution that nothing in the case shall go 
 wrong ; therefore, let the Government have sworn medical 
 experts, men of experience, and let these experts be present 
 at the trial, and hear all the evidence for and against the 
 accused, — and having examined him, let them give tlieir 
 testimony before the judge and jury, not with any desire to 
 either convict or acquit the accused, but simply that the jury 
 may have all the information possible upon which to find 
 their verdict, and the judge all tlie information possible upon 
 which to pass a just sentence. If the judge and jury are 
 satisfied that the accused was sane when on his trial, but was 
 insane when he committed the crime of which he is accused, 
 why of course he must be acquitted and set free. If the, are 
 satisfied he not only was insane when he committed the crime, 
 but insane at the time of trial, he mast either be sent to (x 
 lunatic asylum, or be discharged when cured ; or his friends 
 must give security for his safe-keeping. He must in all 
 respects be treated as an innocent man suffering from a 
 terrible disease. If the judge and jury are satisfied that 
 the accused was sane when he committed the crime, and 
 became insane while awaiting trial, like case No, 2, let him be 
 found guiliy, and sentenced as if he were sane at the time of 
 trial, but let him be sent first to a Lunatic asylum to be, if 
 possible, cured of his disease. If the accused should be found 
 subject to homicidal fits of insanity, for the sake of society let 
 
12 
 
 his sentence be to be imprisoned for life, in either an asylum or 
 penitentiary. If judge and jury should be satisfied that the 
 accused was a dangerous homicidal Imbecile, like case No. 3, 
 that I read for you, why, of course, sentence him to life-long 
 imprisonment in the Penitentiary ; such a creature should never 
 be at large, once found to have homicidal tendencies, or tenden- 
 cies worse than homicidal. As you already know, my theory is 
 that all these c. Iminal imbeciles should be locked up for life, but 
 I would have it done according to law. — "But none hanged. 
 
 A few remarks, gentlemen, with regard to criminal Lunatics, 
 in a Lunatic Asylum, and I am done. For example, I am 
 obliged to consider every insane person who comes from prison 
 to be a criminal lunatic, whether they have been tried or not : it 
 is no business of mine. My duty is when I consider them fit 
 to be discharged, to send a certificate signed by another medical 
 man and myself to the Honourable Provincial Secretary stating 
 that fact, and His Excellency the Lieutenant-Governor issues 
 an order either to discharge the person or send them back to 
 prison. 
 
 Now this places me, or any man that would or may occupy 
 a similar place, in a very false position. These creatures, 
 before they enter, and after they enter the asylum, are told 
 that their discharge depends altogether upon me, and every 
 day there is the everlasting cry, " Doctor, I am well ; give me 
 my discharge." This cry comes in every shape and form, and 
 when they get weary in asking for it they come to hate me, 
 and look upon me as an enemy, which is by no means safe or 
 pleasant to me ; indeed, I have been more than once struck and 
 had my life endangered. But it is also injurious to the insane 
 person himself, and often retards his recovery. The insane 
 person should know from the beginning that I had no power to 
 grant his discharge — and I should have no power — my simple 
 duty should be to treat them for their disease to the best of my 
 capacity. How, then, you will say, should tjiey be discharged, 
 if the medical attendant should not discharge them ? I have 
 spoken of government medical experts ; well, a part of the 
 duty of these experts should be to hoH, with the medical 
 
13 
 
 attendant, a board at different periods of the year, say every 
 three months, at the lunatic asylums, for the purpose of exam- 
 ining into the mental state of the patients, discharging those 
 ivhom they found fit to be discharged, and returning to prison 
 those that should be returned for trial. And I hope, for the 
 sake of medical attendants, of proprietors of asylums, who are 
 exposed to unjust criticisms though they were very saints — and 
 above all, for the sake of the insane themselves — that whatever 
 legislation may take place on the subject I have treated of, 
 that these particulars will not be lost sight of; and that the law 
 may accurately define the exact duties of judges, juries, lawyers 
 and medical experts, in all cases where the plea of insanity is 
 set up for the accused ; and that it will also accurately define 
 the duties of experts, medical attendants, and proprietors of 
 asylums, as to their several duties — particularly as to who shall 
 be discharged and retained ir> asylums — and as to when Boards 
 shall be held. 
 
 If, Mr. President and gentlemen, I have detained you long, 
 you will make all allowance when you consider the great 
 importance of the subject, and when you remember that, as 
 men of science, we are bound to do all in our power to have 
 humane and equitable laws, and to use every effort to raise the 
 standard of morality and civilization — the grand standard that 
 all should be taught to aim at, "to do to others as we would 
 that others should do unto us."