UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 WHARTON AND STILLE'S 
 
 MEDICAL JURISPRUDENCE. 
 
 FOUETH EDITIOX. 
 
 VOL. I. 
 
 PHILADELPHIA: 
 KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET. 
 
 1882.
 
 T 
 
 iu( 
 
 EntiTed according to Act of Congress, in the year 1S55, by 
 KAY & BROTHER, 
 
 in the Ofilce of tlic Clerk of the District Court of the United States in and for the 
 Eastern District of Pennsylvania. 
 
 Kntercd according to the Act of Congress, in the year 1860, by 
 KAY & BROTH ER, 
 
 in the Clerk's Office of the District Court of the United States in and for the 
 Eastern District of Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1872, by 
 
 KAY A: BROTHER, 
 in the Oflicc of the Librarian of Congress, at Washington. 
 
 Entered according to Act of Congress, in the year 1882, by 
 
 F R A N C I S W H A R T O N , 
 in the Ollice of the Librarian of Congress, at Washington. 
 
 r K I N T E u ,
 
 A TREATISE 
 
 MEOTAL UNSOUromSS, 
 
 EMBRACING A 
 
 GENEIUL VIEW OF PSYCHOLOGICAL LAW. 
 
 BY 
 
 FRANCIS WHARTON, LL.D., 
 
 AUTHOR OF TREATISES ON CRIMINAL LAW, ON EVIDENCE, AND ON THE CONFLICT OF LAWS. 
 
 PHILADELPHIA: 
 KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET. 
 
 1882.
 
 Entered ixeeordinir to Act of Congress, in the year l.S.W, by 
 KAY ct HROTIIEK, 
 
 in tlu- Olliee of the Clerk of the Distriet Court of tlie United States in and for the 
 Eastern District of Pennsylvania. 
 
 Entered according to the Act of Congress, in the year 1800, by 
 KAY & BROTHER, 
 
 in the Clerk's Office of the Distriet Court of the United States in and for the 
 Eastern Distriet of Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1872, by 
 
 K A Y iV: B R O T II E R , 
 in the Office of the Librarian of Congress, at Washington. 
 
 F^nli-red according to Act of Congress, in the year 1882, by 
 
 E P. A N C I S W II A R T O N , 
 in the Olliee of the Librarian of Congress, at Washington.
 
 PREFACE TO THE FOURTH EDITION. 
 
 Ix the present edition the text of former editions has 
 been rearranged and condensed ; a large amount of new 
 material introduced , the number of citations ha\ing 
 been doubled; and the chapters on the jurisprudence of 
 insanity rewritten. In the task of preparation I have 
 been aided by my nephew, Thomas I. Wharton, Esq., 
 of Philadelphia. 
 
 F. W. 
 
 Philadelphia, jNlarch 24, 1882. 
 
 740116
 
 PREFACE TO THE THIRD EDITION. 
 
 Since the publication, in 1860, of the second edition of this 
 work, the specialty of psychological law has taken a shape which 
 has made necessary the preparation of a treatise which is substan- 
 tially new. The circumstances which have led to this change may 
 be thus stated. 
 
 Until the close of the last century, insanity received but little 
 attention from physicians, and still less from psychologists. " Lu- 
 natics," to follow the barbarous old English designation, were re- 
 garded as outcasts mostly incurable ; as devoid of those sensibilities 
 which call for tender care ; as presenting little more claim to phi- 
 lanthropic consideration than do brutes. Unless birth or wealth 
 gave special opportunities for their custody at home, they were 
 huddled, in England and France, in pens, or chained in cells, where 
 they were generally subjected to treatment the most brutal. In 
 New England they were often let out by the town to the lowest 
 bidder, who undertook to support them for a pittance scarcely 
 sufficient to buy offals for their food, and who permitted them, when 
 they Avere gentle, to roam at large, or chained them, when violent, 
 in stables. Asylums, as reformatory and hygienic establishments, 
 were unknown. Hence arose the tendency both of psychologists 
 and courts to narrow the definition of insanity so as to reduce as 
 far as possible the numbers of the class who were to be subjected to 
 so wretched a doom. 
 
 But on the insanity of George III. a new era came in. Insanity 
 could not be so vulgar a thing when it attacked the king. It could 
 scarcely be regarded by loyal Englishmen as a merited curse, when 
 
 vii
 
 PREFACE TO THE THIRD EDITION. 
 
 it visited a prince of \vlioso virtues they were justly proud, and of 
 whose obstinate self-will they were blindly ignorant. Philanthro- 
 pists as well as philosophers poured in Avith abundant advice as to 
 the tendcrest treatment to be applied to the royal sufferer ; and 
 committees of the house of commons vied with medical commissions 
 in speculating on the characteristics of a malady which had become 
 exalted in the exaltation of the victim on wliom it had pounced. 
 Fortunately for the interests of humanity, almost simultaneously 
 took place in Paris the investigations of Pinel. This remarkable 
 man, who united in rare excellence great administrative power, 
 luitiring patience of research, and singular attractiveness of style, 
 found the Bicetre, when he took medical charge of it in 17 1*1, in a 
 condition at which humanity shuddered. It combined, under one 
 general superintendence, the functions of almshouse, prison, nursery, 
 foundling's liome, and lunatic asylum, with no distinction made in 
 the treatment of crime and of disease. Such patients as could do 
 so without disturbance mingled with the other iinnates of this vast 
 abode of wretchedness and of guilt ; but those who Avere in any 
 way troublesome were chained in damp and putrid cells, under the 
 charge of convicts whose desperatcness seemed to constitute their 
 title to this distinction. Against this inhumanity Pinel protested 
 with such untiring and dauntless eloquence that he succeeded in 
 effecting a thorough reformation. A separate asylum, based on 
 wise sanitary regulations, Avas opened for the insane, and subse- 
 quently the Sal];etri6re, a distinct establishment for deranged 
 Avomen, Avas organized under his [>articular care. He Avas suc- 
 ceeded at the Salpetriere by Esquirul, Avho had been his assistant, 
 and by Avhom his Avise hygienic reforms Avere further elaborated 
 an<l extended. 
 
 Xor (lid the efforts of these eminent physicians stop at the 
 
 amelioration of the physical and mental condition of the insane. 
 
 Madness having been shoAvn to be caj)able of cure, and to be a 
 
 condition in itself implying no moral stigma, and insane asylums 
 
 viii
 
 PREFACE TO THE THIRD EDITION. 
 
 having been proved to be the places where the insane can most 
 readily be restored to health, many persons came to be regarded 
 by their friends and by a rightful public feeling as insane, who 
 previously Avould have been treated as sane. The definition of 
 insanity, in the philanthropic mind at least, was so enlarged as to 
 include all persons who, while not being clearly maniacs, were yet 
 subject to mental or moral anomalies which a wise medical treat- 
 ment could remove. 
 
 But this was not the only circumstance that tended to an expan- 
 sion of the definition. Another influence, still more marked, had 
 already prepared the public mind to treat as insanity much that 
 was really only folly or guilty impulse. Between 1760 and 1764, 
 Rousseau published his Coyitrat Social and .Emile, works which, 
 in the sentimental humanitarianisra they inculcated, were the natural 
 extreme reaction from the inhumanity of the prior absolutist regime. 
 Rousseau flamed with a romantic admiration not merely for the 
 liberty to do right, but for the liberty to do wrong. Even the 
 grossest natural instincts were of divine origin, and should be nursed 
 with delicate respect. Crime was something to which a man was 
 impelled by his nature : else why should he indulge in crime ? 
 Heretofore all insanity was crime. Now all crime was to be in- 
 sanity. Sin was not to be viewed ,as horrible and odious, but as 
 something abnormal, indeed, but provocative of curious regard and 
 sympathy. And criminals were an interesting class of lunatics, 
 who were especially consecrated to the restorative care of the 
 state. 
 
 Pinel, like most other French philospphers of his day, was not 
 slow, when responding to this reaction, to welcome a plan which 
 proposed to extirpate crime and inaugurate liberty, by placing 
 crime distinctively under humane medical care. Undoubtedly 
 there was much in his special experience to strengthen him in this 
 view. lie had seen many insane persons treated as criminals. It 
 was natural to him to assume the converse, and to hold that there 
 
 IX
 
 PREFACE TO THE THIRD EDITION. 
 
 arc many criminals Avho are to be treated as insane. In sustaining 
 this view he cautiously though distinctly set forth the proposition, 
 hereafter fully discussed,^ that there is a distinct form of mad- 
 ness in -which the reason remains unimpaired. It is true, when 
 he came to illustrate this by examples, it was found that the 
 " reasoning maniacs," whom he described, Avere more or less 
 maniacs even in their reason. But nevertheless the proposition 
 fitted symmetrically into the philosopliy of the French revolution, and 
 was accepted by the apostles of that revolution wherever they taught. 
 Fifty years afterwards, in times greatly changed, another influ- 
 ence arose to give fresh impetus to the same peculiar theory. The 
 French revolution was over, and with it had vanished those ideas 
 of sentimental humanitarianism which had lent it so much fascina- 
 tion. It is true that the evaporating process was not without a 
 sensible deposit of good. Insanity, for instance, was no longer 
 associated with crime ; and the speculations of Pinel, reproduced in 
 a modified shape by his scliolar, Esquirol, were, when accepted by 
 French legislation, interpreted to mean nothing more than that 
 crime is often a consequence of insanity, and, when so, is irrespon- 
 sible. In 1708, however, Gall startled the scientific world by his 
 alleged discovery of phrenology. His genius, eminently enter- 
 prising and constructive, but shut out by the then state of Europe 
 from political adventure, betook itself to adventure in science. 
 Arrested, as he tells us, by tlie fact that those of his school com- 
 panions who had good verbal memories had bulging eyes, he grad- 
 ually developed the theory that each function and propensity had 
 a separate local habitation in the brain ; and that the power of the 
 function or propensity varied with the size of its cerebral apart- 
 ment, as measured on the outside. As, however, each function and 
 each propensity dwelt alone in its particular cell, each was capable 
 of independent action, and, of course, as each could be independ- 
 ently strong or weak, each could be jjrivately insane. This sever- 
 
 ' Injya, § 531.
 
 PREFACE TO THE THIRD EDITION. 
 
 ance of functions and propensities was tlie distinguishing feature of 
 Gall's system ; and, to establish it psychologically, he devoted the 
 energies of a mind which, while disdaining logical restraint, and 
 rash in leaping at results, was peculiarly quick, curious, and spe- 
 cious. A peripatetic from necessity, for the German reactionary 
 governments, doubtful of the uses to which his philosophy might 
 be put, forced him into a series of exiles, he collected, wherever he 
 went, from newspapers, from sympathetic disciples, from every 
 quarter, in fact, except the official reports of experts and of courts, 
 every anecdote by which his theory could be helped. Such was 
 the piquant plausibility of his publications that they not only 
 attracted interest, but enlisted enthusiasm. Nothing, indeed, could 
 be more racy than his details. A distinguished prince, remarkable 
 for his sagacity and cool sense, was possessed, it was declared, by 
 an irresistible propensity to steal. A young girl, of singular 
 amiability and excellent reasoning powers, w^as in the habit of set- 
 ting fire to houses. A philanthropist, blandly sane in all other 
 respects, met with some injury to the cell that restrained the func- 
 tion of destructiveness, and forthwith betook him to killing his 
 neighbors. No doubt there was a basis of reality in most of Gall's 
 cases. The difficulty was that he did not sufficiently investigate 
 the facts. For all he knew, and for all he inquired, the prince, 
 and the girl, and the philanthropist might have been the descend- 
 ants of insane parents ; might have been epileptics ; might have 
 betrayed in their families unmistakable symptoms of mental derange- 
 ment ; might subsequently have died in a madhouse. Nor were 
 his cases cited in such a way as to enable subsequent investigators 
 to inc^uire into their accuracy. No one could tell whence most of 
 them came. Yet so engaging was the style in which they were 
 narrated, and so great was the confidence felt in Gall as a narrator, 
 that they were readily accepted by those whose theories they sub- 
 served. The psychological conclusion was inevitable. If criminal 
 instincts have separate apartments in the brain, then those criminal 
 
 xi
 
 PREFACE TO THE THIRD EDITION. 
 
 instincts can be separately insane. Hence, the doctrine of mono- 
 mania^ sustained at once by Gall's facts and by his hypothesis, 
 began, under the impulse thus imparted, once more to challenge 
 judicial assent. 
 
 On our distinctive jurisprudence, the causes just mentioned 
 would have had little influence had it not been for the indirect 
 bearings of another condition. Nothing could have been more 
 barbarous than the old English adjustment of penalty to crime. 
 A man -who stole a fowl was capitally punished ; and, even after a 
 century of legal reform, the law in England still is that a man who 
 kills another when designing to hurt, but not to kill, is amenable to 
 as high a sentence as he who deliberately assassinates. But 
 humane observers revolted from this subjecting crimes so entirely 
 distinct to the same penalty, and they cast about for some method 
 of relief. In the United States a remedy was seized which Avas in 
 a large measure efficacious. Murder was divided into two degrees, 
 and capital punishment was reserved exclusively for cases in which 
 there was proved a premeditated intention to take life. On this 
 has been not unfre(|uently grafted the humane construction that 
 where from mental or nervous excitement the defendant is incapable 
 of forming a specilic intent, then the capital oftence is not proven.^ 
 But in England, these mitigating qualifications were not accepted ; 
 and though in the United States the division of murder into two 
 degrees was at an early period established almost universally, the 
 courts were at first slow to recognize the fact that a mind disturbed 
 by nervous excitement and blurred by insane predispositions may 
 be incapable of intellectual premeditation, while at the same time 
 capable and responsible for passionate crime. Hence, it has been 
 that the jui*y has been too often narrowed to a choice between con- 
 viction of a capital offence and acquittal ; and hence, to justify an 
 ac([uittal, insanity has sometimes been used as a pretext, when 
 insanitv in the correct sense of the term did not exist. 
 
 ' See infra, § 200. 
 
 xii
 
 PREFACE TO THE THIRD EDITION. 
 
 This unscientific extension of insanity received a quasi scientific 
 sanction under the following circumstances. By the Anglo-Ameri- 
 can practice, a party is entitled to call on trial any expert he may 
 select ; and he is not likely to select any whose views will not pro- 
 mote his cause. It so happens that among the present large body 
 of experts there is little trouble in discovering one or more by whom 
 is maintained the particular psychological theory of which the party 
 on trial stands in need. It is an old truth that there is nothing so 
 absurd but that some philosopher may be found by whom it is 
 affirmed. " Nihil tam absurde dici potest quod non dicatur ab 
 aliquo philosophorum."^ To sustain a particular defence, for 
 instance, it is necessary to prove that the " morals" may be insane 
 Avhile the mind is sane. The defendant's counsel forthwith proceed 
 to search among the multitudes who have written on insanity, or 
 have been in any way conversant with the insane, for a philosopher 
 by whom this unique hypothesis is held. When the case is tried, 
 this philosopher is produced and swears promptly and positively 
 to his belief. On the strict principles of law, he cannot be cross- 
 examined as to the opinions of others, for this would be hearsay. 
 So far, therefore, as the particular case is concerned, he stands 
 before the jury as if he Avas the collected sense of the psychological 
 experts of the whole world. It may be that the prosecution may 
 be able to cancel his testimony by the production of a preponderat- 
 ing weight of experts on the other side. But to do so requires 
 energy, skill, and means ; and too often has the duty been neg- 
 lected, and the case left to rest, in criminal trials, on the testimony 
 of the exceptional experts selected by the defence. Hence it is 
 that juries, if not courts, have occasionally succumbed to such 
 testimony in respectful amazement, feeling, indeed, that it is wrong, 
 but not seeing how it could be disregarded. 
 
 As influences disturbing the juridical conception of insanity — to 
 recapitulate those which we have just been enumerating in detail — 
 
 ' Cicero, do Divinatione, II. 58. 
 
 xiii
 
 PREFACE TO THE THIRD EDITION. 
 
 we may, therefore, mention (1) the romanticism of the French 
 psychological followers of Rousseau, afterwards aided by phre- 
 nology, which refined crime into insanity ; (2) reaction from the 
 old English barbarism which punished insanity as if it were crime ; 
 and (3) the hesitation felt by the courts in grappling with the 
 philosophy of a question which had been claimed to be purely 
 medical. Under these circumstances arose that confusion of law 
 which was noticed in the prior editions of this treatise. 
 
 Since 1860, when the second edition was issued, a great change 
 has taken place. Before that period, we may say generally, there 
 had been no positive and final repudiation by psychological science 
 of the theory of criminal monomanias. Since then medical as well 
 as psychological science has rallied, and from all quarters there 
 has risen, as will be hereafter shown more fully, almost an unbroken 
 denunciation of a scheme of psychological romanticism Avhich sober- 
 minded men have learned to feel is as repugnant to science as it is 
 hostile to society.^ And this advance of science, towards a common 
 reconciliatory stand-point, is now met by a corresponding advance 
 of law. It has been just stated that one of the causes of early 
 juridical confusion on this topic was the revulsion from the exces- 
 sive punishments assigned by the old law to offences of even lighter 
 grade. Civilization was shocked at seeing a man, who, from ner- 
 vous or mental or physical disorder, was incapable of cool premedi- 
 tation or exact intent, hurried to the gallows for what might be a 
 comparatively venial crime ; and it was to the desire to save such 
 that the toleration of the idea of irresponsibility in such cases is in 
 a large measure traceable. But it was soon found that this enlarge- 
 ment of irresponsibility worked badly. It exposed many persons, 
 virtually sane, to the pains and penalties of insanity. It enfran- 
 chised a dangerous class of outlaws, too insane to be punished for 
 crime, and yet too sane to be restrained. It involved, on the part 
 of the state, the abdication of one of its chiefest functions — the 
 
 I See infra, §§ 552-643. 
 
 xiv
 
 PREFACE TO THE THIRD EDITION. 
 
 building up of a right moral sense in those of its subjects in whom 
 such moi'al sense is deficient. 
 
 But is so violent a remedy necessary ? Is there no alternative 
 between an unjust conviction of a man of an offence to whose grade 
 of guilt he does not quite reach, and his equally unjust acquittal in 
 the face of evidence showing his guilt of an intermediate grade ? 
 It has already been seen that in the United States, at an early day, 
 a statutory approach was made to this result by the beneficent 
 enactments dividing murder into two degrees. But this by itself is 
 not enough. A court may say to a jury, " Here is evidence of 
 premeditation ; you must here find either murder in the first degree, 
 or acquit." Eminent jurists, in order to meet this difficulty, have 
 authoritatively advanced positions which have just been incidentally 
 noticed, and will now be stated more fully. 
 
 The idea of diminished responsibility, in cases of abnormal ex- ^/^ 
 citement, is already familiar to the law. Homicide in hot blood is 
 not murder but manslaughter ; j^et, what is rage but a short frenzy, 
 and how difficult is it to distinguish such frenzy from the mania 
 trandtoria of the alienists ? A drunken man engages in a brawl 
 and shoots an innocent stranger ; and here, as his mind was so 
 stupefied by drink that he was incapable of a specific intent to take 
 life, the offence is reduced to murder in the second degree. Or he 
 receives and passes a counterfeit note when in the same condition, 
 and here his drunkenness is admissible to show that he did not 
 know the note was counterfeit. Or a series of men, swept away 
 by religious or political excitement, fall into such a highly charged 
 and abnormal state of mind that they are incapable of accurate 
 perception, and here, then, homicide committed when in such a state 
 is held to be reduced to murder'in the second degree.' 
 
 How are these last states distinguishable from other well-known 
 exciting influences ? What is there that mitigates guilt in cases 
 
 ■ See infra, § 181. 
 
 XV
 
 PREFACE TO THE THIRD EDITION. 
 
 ^\liere the patient is advanced one degree in the insane scale, but 
 will not mitigate it when he is advanced two degrees ? 
 
 By the Austrian and Bavarian codes this question has been 
 J recently answered by the recognition of degrees in penal responsi- 
 bility. Diminished responsibility (verminderte Zurechnungsfahig- 
 keit) is distinctively and authoritatively defined as a condition in 
 which the mind is incapable of calm and exact premeditation or 
 conception, and to this condition a lesser grade of punishment is 
 assigned. And the same principle is adopted juridically by the 
 Korth German courts. In England there is no statutory adoption, 
 so far as concerns insanity, of such diminished responsibility, nor 
 have the courts as yet proceeded so far as to look upon nervous or 
 mental disease as lowering the grade of guilt, emphatic as they are 
 in recognizing the entire suspension of responsibility when insanity 
 destroys the capacity of distinguishing between right and wrong. 
 But the reform which the courts, in their distinctively judicial 
 capacity, have felt unable to eft'oct, has been brought about by the 
 joint action of judiciary and executive. Thus in two remarkable 
 cases of homicide, those of Watson and Edmunds, hereafter fully 
 noticed,^ the defence being insanity, but the proof amounting 
 merely to insane predisposition, or at the highest to a light and 
 incipient stage of insanity, while tlie jury were directed to convict, 
 yet, after conviction of the capital crime, on application to the 
 crown, in which the judges joined, capital punishment was com- 
 muted to imprisonment for life. 
 
 In the United States, in construing the statutes already noticed 
 as establishing degrees in homicide, the courts^ have uniformly 
 held, as has been already noticed, that, when through JravJcenness 
 the defendant was incapable of premeditation or of specific intent, 
 then only the second degree of murder is reached. The same 
 relaxation has been applied, not only in the United States, but in 
 England, to cases of larceny and other fraudulent crimes when the 
 
 ' See infra, §§ 1(J(J-1T:3. 2 gg^^ irij'm, §§ 214-227. 
 
 xvi
 
 PREFACE TO THE THIRD EDITION. 
 
 party's mental condition was such through drunkenness that he was 
 incapable of guilty knowledge or intent. And in Pennsylvania, in 
 a series of cases of riotous homicide committed by parties in a high 
 state of political and religious excitement, the courts humanely and 
 wisely accepted the principle already stated, that there may be a 
 fury and distraction of mind in which the capacity to comprehend, 
 to compare, to weigh, and to premeditate may be temporarily so 
 far depressed or disturbed as to bring the oifence within the defini- 
 tion of murder in the second, as distinguished from that of murder 
 in the first degree.* 
 
 From the scope of the reasoning which has led to such results^it 
 is impossible to withdraw cases of mental excitement and disturb- 
 ance, which, though not amounting to such mature insanity as to 
 utterly suspend responsibility, yet prevent the patient from forming y/ 
 calm, premeditated, and specific criminal designs. Slow as have 
 the courts been in reaching this conclusion, we may now regard it 
 as gradually winning judicial acceptance f and, if so, we may view 
 the law as having received an expansion philosophically consistent 
 with its own principles, and bringing it in full accord with the 
 mature and humane renditions of science. \ Heretofore " moral 
 insanity" and "insane monomania" have o-wed the little practical 
 favor they have wrung from courts and juries to the fact that there 
 were cases in which their recognition seemed to be the only way of 
 escaping a verdict which would involve the penalty of deatii. The 
 consequence was that the public was outraged, sometimes by the 
 acquittal, on the ground of insanity, of men who in no other rela- 
 tion would be viewed as insane, and sometimes by the conviction 
 and execution of men who, though not fully insane, would in no 
 relation be regarded as fully and perfectly responsible. The mod- 
 ification of the laAV now introduced avoids both these extremes. It 
 says, on the one hand, that men not fully and perfectly insane are 
 not to be acquitted of crime. It says, on the other hand, that they 
 
 1 See infra, §§ 181, 200, * See wfm, § 200. 
 
 VOL. L— B xvii
 
 PREFACE TO THE THIRD EDITION. 
 
 are not to be convicted of those higher grades of calm and specific 
 guilt of which they Avere not capable. It judges them according 
 to their lights, and assigns to them that well-known grade of modi- 
 fied guilt which belongs to those who do wrong, wilfully, indeed, 
 and intentionally, but whose illegal acts are the consequents of such 
 passion as destroys in them the capacity of accurate guilty knowl- 
 edge or complete guilty design. 
 
 Such is the shape into which the law of insanity is now gradually 
 settling. That the change is one of natural and logical develop- 
 ment will at once be seen ; but with regard to it, so far as concerns 
 the question of time, and therefore, so far as concerns the present 
 edition of this work, two circumstances are to be particularly 
 noticed. The first is that the development here spoken of has, on 
 the law side, evidenced itself distinctively in the last ten years. 
 The second is that, on the psychological and medical side, it has 
 only been within the last ten or fifteen years that the opinions of 
 ex})erts and of scientists have presented themselves in such a body 
 as to enable the full voice of science and experience in this relation 
 to be heard. The results on both sides of the inquiry are exhib- 
 ited in the following pages. What has been just said is mainly 
 designed for the purpose of explaining why the text of the former 
 editions has been in a large measure thrown aside, and why, in its 
 place, is presented what is substantially a new treatise.* 
 
 The author takes this method of expressins; his acknowledirments 
 to T.C. CoooAN, Esq.,and Nathan Franks, Esq., for aid rendered 
 in examination of authorities. 
 
 ' On tlie special tdjiit: of this preface may bo consulted Dr. Hammond on 
 " Reasoning Mania,'' Jour. Ncrv. and Jlent. L)is(,'as(!s, Jan. 1882, Attention is 
 also directed to tlic valuaVde reports of Mr. liidiard Vaiix on Prison Discipline. 
 
 xviii
 
 TABLE OF CONTENTS. 
 
 BOOK I. 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 CHAPTER I. 
 
 CONTRACTS, §§ 1-18. 
 
 I. Lunacy, § 1. 
 II. Intoxication, § IG. 
 III. Marriage contracts, § 17. 
 
 CHAPTER II. 
 
 WILLS, §§ 19-98. 
 
 I. Capacity, § 19. 
 II. Delusions, § 34. 
 
 III. Lucid intervals, § 61. 
 
 IV. Intoxication, § 65. 
 
 V. Undue influence and fraud, § 76. 
 VI. Presumptions, § 81. 
 
 CHAPTER IIL 
 
 COMMISSIONS OF LUNACY, §§ 99-107. 
 
 CHAPTER IV. 
 
 INSANITY AS A DKFKNCK TO CHARGE OF CRIMK, §§ 108-201. 
 
 I. General rule, § 108. 
 II. Special exceptions, § 116. 
 
 xix
 
 CONTENTS. 
 
 CHAPTER V. 
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME, §§ 202-217. 
 
 CHAPTER VI. 
 
 INSANITY AS RELATED TO LIFE INSURANCE, §§ 229-241. 
 
 CHAPTER VII. 
 
 INSANE PERSONS AS WITNESSES, §§ 242-245. 
 
 CHAPTER VIII. 
 
 EVIDENCE, §§ 24U-279. 
 
 I. Mode of proof, § 21G. 
 II. AVitnesses, § 257. 
 III. Books, § 279. 
 
 BOOK II. 
 
 MENTAL UNSOUNDNESS CONSIDERED PSYCHO- 
 LOGICALLY. 
 
 CHAPTER I. 
 
 GENERAL THEORIES, §§ 305-337. 
 
 I. Preliminary observations, § 30."). 
 II. Psychical theory, § ol'J. 
 
 III. Somatic theory, § .320. 
 
 IV. Intermediate theory, § .329. 
 
 CHAPTER II. 
 
 now MENTAL rXSOUNDNESS IS TO BE DETECTED, §§ 338-411. 
 
 I. By whom, § 338. 
 II. At what time examinations should be made, § 341. 
 III. By what tests, § 34."). 
 XX
 
 CONTENTS. 
 
 CHAPTER III. 
 
 FROM WHAT MENTAL UNSOUNDNESS IS TO BE DISTINGUISHED, 
 
 §§ 412-460, 
 
 I. Emotions, § 412. 
 II. Simulated insanity, § 443. 
 
 CHAPTER IV. 
 
 MENTAL UNSOUNDNESS AS CONNECTED WITH PHYSICAL DISORDERS, 
 
 §§ 461-530. 
 
 I. As connected with derangement of the senses and disease, § 4G1. 
 II. As connected with sleep, § 482. 
 III. As affecting the temperament, § 502. 
 
 CHAPTER V. 
 
 MENTAL UNSOUNDNESS AS AFFECTING THE MORAL SENSE, §§ 531-681. 
 
 I. General " moral insanity," § 531. 
 II. Special " moral monomanias," § 5G7. 
 III. Prominent forms of supposed monomania, § 578. 
 
 CHAPTER VI. 
 
 IDIOCY, IMBECILITY, AND DEMENTIA, §§ 682-701. 
 
 I. Idiocy, § G82. 
 II. Imbecility, § 092. 
 III. Dementia, § G98. 
 
 CHAPTER VII. 
 
 DELIRIUM, §§ 702-722. 
 
 I. General delirium, § 702. 
 II. Partial delirium, § 70G. 
 
 CHAPTER VIII. 
 
 DELUSIONS AND HALLUCINATIONS, §§ 723-743. 
 
 CHAPTER IX. 
 
 LUCID INTERVALS, §§ 744-752. 
 
 xxi
 
 CONTENTS. 
 
 CHAPTER X. 
 
 TREATMENT OF INSANE CRIMINALS, §§ 753-770. 
 
 I. Ketribiition, § 754. 
 II. Prevention, § 7G3. 
 III. Example, § 765. 
 TV. Kctbrm, § 7()G. 
 
 CHAPTER XI. 
 
 PSYCHICAL INDICATIONS, §§ 771-833. 
 
 I. Prior to crime, § 773. 
 II. At crime, § 781. 
 
 III. Alter crime, § 788. 
 
 IV. General conclusions, § 830. 
 
 XXll
 
 TABLE or CASES. 
 
 [the numbers refer to sections.] 
 
 Acliey V. Stephens 
 
 3, 
 
 01, 250 
 
 A flams *'. Kerr 
 
 
 242 
 
 Addington v. Wilson 
 
 
 36 
 
 Adkins v. Ins. Co. 
 
 
 239 
 
 Allen V. Berryhill 
 
 8 
 
 . 14, .34 
 
 Allis V. Billings 
 
 
 9 
 
 Allman v. I'igg 
 
 
 77, 78 
 
 Am. Seaman's Friend See. v. 
 
 Hopper 39 
 
 Ames' Will 
 
 
 90 
 
 Anderson v. State 
 
 
 174 
 
 Andress v. Weller 25, 28, 6.'' 
 
 ,69 
 
 . 77, 87 
 
 Andrews' case 162, 269, 375, 388, 41(;, 
 
 Angel Will case 
 
 1 
 
 35 
 
 Arnhout, in re 
 
 101, 107 
 
 Arnold v. Richmond Iron Works 
 
 <) 
 
 Asbcraft v De Arniand 
 
 
 89 
 
 Atkinson v. Medford 
 
 
 17 
 
 Atty. Gen. r. I'arnther 
 
 
 2 
 
 Aurentz v. Anderson 
 
 
 2, 01 
 
 Austen v. (iraham 
 
 
 29 
 
 Ayrey v. Hill 12, Gl 
 
 62 
 
 09, 70 
 
 B. 
 
 * 
 
 
 
 Baker's case 
 
 
 578 
 
 Baker v. Baker 
 
 
 13, 18 
 
 V. Lewis 
 
 
 77 
 
 Baldwin v. Dunton 
 
 
 1 
 
 V. Parker 
 
 
 79 
 
 V. State 
 
 
 257 
 
 Ball V. Manning 
 
 
 1 
 
 Bank of Oil City v. Ins. Co. 
 
 
 238 
 
 Bank v. McCoy 
 
 
 7, 16 i 
 
 V. Moore 
 
 
 1, 6« 
 
 Banker v. Banker 
 
 
 17 
 
 Banks v. Goodfellow 3, 23, 
 
 40, 
 
 48, 88 
 
 Bannatyne n. Bannatyne 21, 
 
 03, 
 
 04, 83, 
 255 
 
 Barker's case 
 
 
 101 
 
 Barker, in re 
 
 
 101 
 
 Barnes v. Barnes 24, 
 
 77, 
 
 78, 81 
 
 Bai'nsley, ex parte 
 
 101 
 
 Barr's case 
 
 443 
 
 Barret )'. Buxton 
 
 16 
 
 Barron's case 
 
 823 
 
 Bates V. Bates 
 
 16, 77 
 
 Baxter v. Abbott 
 
 375, 388 
 
 V. Earl of Portsmouth 1 
 
 Beals V. See 
 
 6, 8 
 
 Beaubien v. Cieotte 
 
 25, 257 
 
 Beaumont's case 
 
 1, 101 
 
 Beavan v. McDonnell 
 
 8 
 
 Behrens v. McKinsie 
 
 8 
 
 Belcher v. Belcher 
 
 166 
 
 Beller ?'. Jones 
 
 8 
 
 Beliingham's case 
 
 679 
 
 Bennett v. State 
 
 205 
 
 Benoist v. Miirrin 
 
 25, 30. 35 
 
 Bernett v. Taylor 
 
 2-12 
 
 Beverly's case 
 
 4, 12 
 
 Bicknell v. Bickiiell 
 
 77 
 
 Bigelow V. The Ins. Co. 
 
 239 
 
 Bird r. Bird 
 
 87 
 
 Birdsong v. Birdsong 
 
 7, 16/y 
 
 Bishop V. Spining 
 
 259 
 
 Bitner i'. Bitiier 
 
 7 
 
 Black V. Ellis 
 
 24, 69 
 
 Black's Estate 
 
 1 00 
 
 Blackburn t;. State 
 
 100 
 
 Blackford v. Cliiistian 
 
 70 
 
 Blakeley v. Blakeley 
 
 •7 
 
 Blakeley's Will 
 
 7, 25, 29, 30 
 
 Blanchard v. Nestle 
 
 23, 77 
 
 Blandy's case 
 
 779, 780 
 
 Bleecker v Lynch 
 
 82, 89 
 
 Bliss V. The K. R. 
 
 li->a 
 
 Boardman w Woodman 
 
 37, 60, ()1 
 
 Bonard's Will 
 
 35, 59 
 
 Booth v. Kitchen 
 
 78, 81 
 
 liorradaile c. Hunter 
 
 230 
 
 Boswell );. Com. 
 
 214 
 
 Boughton V. Knight 25 
 
 26, 30, 34, 41. 
 
 
 46, 242 
 
 Bovard v. State 
 
 145 
 
 IJowler's case 
 
 117 
 
 Boyce v. Smitii 
 
 3 
 
 xxiii 

 
 TABLE OF CASES. 
 
 Boyd p. Boyd 
 
 V. Eby 
 Boylan v. Meeker 
 lioyse V Rossborongh 
 15r;i(lford V. Aliend 
 Bi-iuiley i>. State 
 Breiisted v. The Farmers' 
 
 Trust Co. 
 Breed v. Pratt 
 Brick V. Brick 8, 29, 
 
 Bricker v. Lightner 
 Brill V. Fhicrler 
 Broadwiiter i\ Darne 
 Brogden (•. Brown 
 Brooks V. Barrett 
 Brown i'. Com. 
 
 V. Joddrell 
 
 V. Rifrgin 
 
 V. Torrey 
 
 V. Wrt)-d 25, 
 
 Bro-wne v. .Molliston 
 Browning w Heane 
 Brydges v. King 
 Buckminster r. Perry 
 Buiuly V. McKiiight 
 Burch V. Bnrch 
 lUirdett V. Thompson 
 Burger v Hill 
 Burk's Will 
 Burke v. .Allen 
 Burroughs r. Ricliman 
 Burrow's case 
 Burrows v. Burrows 
 Builer V. Ins. ("o. 
 
 82 
 
 25, 34, 62 
 
 85 
 
 26, 77, 80 
 
 18 
 375, 377 
 Loan and 
 
 282, 234 
 30, 78, 82 
 
 6rt 
 
 78, 
 
 80, 81 
 
 258 
 
 259 
 
 16 
 
 62 
 
 241 
 
 160 
 
 4 
 
 2, 24, 01 
 
 25 
 
 29, 30, 35, 59 
 
 78, 87 
 
 17 
 
 77 
 
 260 
 
 25, 82 
 
 795 
 
 26 
 
 23 
 
 78 
 
 5, 6 a 
 
 17 
 
 117, 209 
 
 211 
 
 Ciiilwallader v. West 1, 77, 81, 82 
 
 Caleb r. State 2-39 
 
 Campbell v. Hooper 1 
 
 V. Ketcli.im 10 i 
 
 V. Spencer 16 a 
 
 V. Slate 242 
 
 Canada's Ajipeal 81 
 
 Caiifield V. Fairbank 7 
 
 Carpenter r. Calvert 24, 26, 29, 33, 81 
 
 ?-. ('iirpetiter 2, 61, 241 
 
 Carrr. Holliilay 8 
 
 Carroll's Will 77 
 
 Cartwright v. Cartwright 250 
 
 Castner v. Sliker 257, 260 
 
 Caulkins v. Fry 6 a, 16 
 
 Cavender I'. Waddington 16 
 
 Chambers v. (Queen's Proctor 63, 2H 
 
 Chandler *•. Barrett ti2 
 
 V. Ferris 77, 78 
 
 Chapman v. Greaves 242 
 
 V. Ins. Co. 239 
 
 Chase v. Lincoln 260 
 
 Chew V. Bunk 9 
 
 xxiv 
 
 Children's Aid Soc. v. Loveridge 78, 90 
 Choice V. State 90, 174, 259, 643 
 
 Christmas v. Mitchell 95 
 
 Clapp r. FuUerton 40, 258 
 
 Clark V. Stansbury 79, 81, 82 
 
 V. State 257 
 
 Clarke v. Fisher 25, 30, 61, C2, 63, 81, 
 
 83 
 V. Sawyer 23, 77 
 
 Clary v. Clary 257 
 
 Clearwater v. Kimler 1 
 
 Clement v. Mattison 17 
 
 Clift V. Schwabe 236 
 
 Clifton V. .Murray 96 
 
 Coffey V. Ins. Co. 241 
 
 Coit I'. Patchea 35, 40, 82 
 
 Colah, in re 100 
 
 Cole V. Cole 17 
 
 V. Bobbins 5 
 
 Cole's Will 
 Coleman v. Corn. 
 
 V. Frazer 
 V. Robertson 
 Colhoun V. Jones 
 
 Collins, in re 
 
 V. Townlcy 
 Combe's case 
 VjOta. V. Fai'kin 
 V. Green 
 V. Haggerty 
 V. Hart 
 V. Haskell 
 V. Heath 
 V. Jones 
 V. Kirkbride 
 V. Mosler 
 V. Reynolds 
 V. Rich 
 
 35, 40, 41 
 
 242 
 
 1 
 
 34, 84 
 
 82 
 104 
 27, 89, 90 
 
 117 
 204 
 214 
 214 
 144, 159, 198 
 
 117, 174 
 
 214 
 
 104 a 
 
 157, 117 
 242 
 259 
 
 14 
 
 Rogers 117, 126, 134, 156, 174, 
 259 
 
 V. Schneider 
 
 V. Scott 
 
 V. Smith 
 
 V. Sturtivant 
 
 V. Wilson 
 Comstock r. Iladlyme 
 Converse v. Converse 
 Convey's Will 
 I'ooke i\ Clayworth 
 Cooper I'. Ins. Co. 
 Cordrey v. Cordrey 
 (>ornwell v. State 
 Cory r. Cory 
 (Jotton V. Ulmer 
 Couch V. Couch 
 Coverston r. Ins. Co. 
 ('ram v. Cram 
 Cranmer, ex parte 
 ('rawford, in re 
 Crawford v. Scovel 
 Creely v. Ostrander 
 
 25, 26, 
 25, 
 
 ro 
 
 ' 104 
 
 829 
 
 210 
 
 257 
 
 258 
 
 8, 80 
 
 6, 77 
 
 81 
 
 16 a, 16c 
 
 233, 237 
 
 25 
 
 205 
 
 16a 
 
 35, 40 
 
 83 
 
 234 
 
 257 
 
 101 
 
 107 
 
 9, 10, 14 
 
 87
 
 TABLE OF CASES. 
 
 Crispell V. Dubois 
 Crolius ('. Stark 
 CrowninshieUi's case 
 Ci'owninshield v. Crowniii; 
 Crown r. Thornley 
 Crump i\ Morgan 
 Cudney v. Cudney 
 Cu aiming, in re 
 Cummings v. Henry 
 Cuneo V. Bessoni 
 Cunlifl'e v. Sefton 
 Currie v. Cliild 
 Curtis V. Brownell 
 CutLbertson's Appeal 
 
 D. 
 
 82 
 
 Lield 6 a 
 
 35, 241 
 
 17 
 
 81 
 
 100 
 
 16 
 
 33 
 
 242 
 
 242 
 
 7 
 
 82 
 
 Dalton V. Dalton 
 
 795 
 
 Dane v. Kirkwell 
 
 1,6,8 
 
 Daniel v. Daniel 
 
 25 
 
 V. Hill 
 
 82 
 
 Darby v. Cabann6 
 
 IG, 16c 
 
 Davis V. Davis 
 
 •60, 79 
 
 V. Rogers 
 
 95 
 
 V. State 
 
 259 
 
 Day V. Day 
 
 96 
 
 Dean v. Ins. Co. 
 
 233 ! 
 
 V. Negley 
 
 82 i 
 
 De Gogorza v. Ins. Co. 
 
 23'.) 
 
 Delafield v. I'arish 
 
 23, 25 
 
 Den V. Rennett 
 
 6 
 
 V. Johnson 
 
 25, 77, 90 
 
 V. Vancleve 
 
 25 
 
 Dennet v. Dennet 
 
 3 
 
 Dennis v. Weekes 
 
 81 
 
 Denton v. Franklin 
 
 "''' i 
 
 De Silver's Estate 
 
 9 1 
 
 Dew V. Clark 
 
 41, 42 ' 
 
 Dewitt V. Barley 
 
 258 ; 
 
 Dexter v. Hall 5, 
 
 6 a, 9, 259, 41 
 
 Dicker v. Johnson 
 
 258 
 
 Dickinson v. Barber 
 
 258 
 
 Dietrick i\ Dietrick 
 
 77 
 
 Doe V. Reagan 
 
 257, 25S 
 
 Dornick v. Reicheuback 
 
 23, 77 
 
 Dorsey v. Warfield 
 
 258 
 
 Dove V. State 
 
 257 
 
 Dozier, in re 
 
 100 
 
 Drake's Appeal 
 
 77, 82 
 
 Draper v. Saxton 
 
 259 
 
 Drummond v. Hopper 
 
 k; 
 
 Dufanr v. Ins. Co. 
 
 236 
 
 Duffield V. Robeson 
 
 7, 28, 82, 241 
 
 Dulany v. Green 
 
 16«/ 
 
 Uumond v. Kitl 
 
 90 
 
 Dunham's Appeal 
 
 30 
 
 Durliug V. Lovelaiid 
 
 82 
 
 E. 
 
 Eastabrook v. Ins. Co. 
 Eaton V. Eaton 
 V. Perry 
 Eckert v. Flowry 
 Eddy's case 
 
 Edmund's case 152 
 
 Edwards v. Fincliatn 
 Egbert v. Egbert 
 Eggers V Eggers 
 Elder v Ogleiree 
 Elliott V. Ince 
 Elliott's Will 
 Elston V. Jasper 
 Emery v. Hoyt 
 Encking v. Simmons 
 Errickson i\ Field 
 Evans v. Arnold 
 V. Horan 
 
 Fagnan v. Knox 
 Fairchild v. Bascomb 
 Farley v. Parker 
 Farnura v. Brooks 
 Farr v. O'Neall 
 Farrell v. Breman 
 Farrer v. State 
 Faulder v. Silk 
 Fauntleroy's case 
 Fearon, ex parte 
 Feunell v. Tait 
 Fentress v. Fentress 
 Ferguson v. Barrett 
 \ Fisher v. People 
 Fitch V. Ins Co. 
 Fitzgerald v. Reed 
 Fitzliugh V. Wilcox 
 Flanagan v. Fenlay.sou 
 
 i\. People 
 Florey v. Florey 
 Ford V. Ford 
 Forman v. Smith 
 Foss V. Hildreth 
 Foster v. Cleans 
 Foote V. Tewksbury 
 Fowler v. Ins. Co. 
 Francke v. His Wife 
 Fraser v. Jennisou 
 Frazer v. Frazer 
 Freed v. Brown 
 Freeman's trial 
 Freeman v. People 11' 
 Freeth's case 
 French v. French 
 Frere v. Peacock 
 Friery v. J'eople 
 Fulleck V. Allison 
 Fulton V. Andrews 
 
 XXV 
 
 233, 237 
 
 9, 10 
 
 16 
 
 78, 80 
 
 77, 90 
 
 165, 167, 375 
 
 96 
 
 30, 258 
 
 33, 35 
 
 258 
 
 255 
 
 28, 83 
 
 6 a, 9 
 
 1, 13 
 
 7, 8 
 
 25, 29 
 
 30, 35 
 
 7 
 
 257, 
 
 259 
 
 
 9 
 
 
 1 
 
 38, 78 
 
 
 258 
 
 174, 
 
 815 
 
 
 6 a 
 
 
 784 
 
 50, 
 
 t < 
 242 
 
 
 101 
 
 
 255 
 
 
 159 
 
 
 238 
 
 
 5 
 
 6 
 
 a, 8 
 
 
 35 
 
 
 174 
 
 
 40 
 
 
 ^ t 
 
 
 1^0 
 
 1 i\ 
 
 
 i '> 
 
 17 
 
 
 16 
 
 
 ''32 
 
 
 101 
 
 
 24 
 
 
 I, 61 
 
 - (1 
 
 
 1 , '7 
 
 158 
 
 145, 174, 
 
 158 
 
 
 158 
 
 
 16 6 
 
 
 29 
 
 
 210 
 
 81
 
 TABLE OF CASES. 
 
 G. 
 
 
 Hardy v, Merrill 
 
 257, 258 
 
 
 
 Harford v. Morris 
 
 17 
 
 Gnffey's cnse 
 
 443 
 
 Harnett v. Garvey 
 
 259 
 
 Gahngnn r. H. R. 
 
 261 
 
 Harper's Will 
 
 25 
 
 Gaither r. Giiitlier 
 
 27,82 
 
 Harrell v. Harrell 
 
 78 
 
 Galpin v. Wilson 
 
 1 
 
 Harrington v. Stees 
 
 78 
 
 Gamble v. Gamble 
 
 184 
 
 Harris v. Betson 
 
 83 
 
 Gaiigwere's Estate 
 
 62 
 
 Harris's case 
 
 160 
 
 Gardiner i\ Gardiner 
 
 78, 258 
 
 Harrison v. Rowan 25, 
 
 26,61, 77,96, 
 
 Gardner v. Gardner 
 
 65, 69. 71, 77 
 
 
 257 
 
 V. Lamback 
 
 23, 29, 35 
 
 Harrison's Will 
 
 77 
 
 V. Maroney 
 
 101 
 
 Hart V. Ueamer 
 
 6 a 
 
 Garrison v. libinton 25, 2G, 74, 257 
 
 Hartman v. Ins. Co. 
 
 234, 288 
 
 Garrow v. Brown 
 
 7 
 
 Harvey o. Sullens 
 
 25, 82, 90 
 
 Gartside v. l^herwood 
 
 6 
 
 liarwood v. Baker 
 
 25, 85 
 
 Garvin v. Vv'illiams 
 
 82 
 
 Hassard v. Smith 
 
 8 
 
 Gass I'. Gass 
 
 35 
 
 Hatha waj' v. Ins. Co. 237 
 
 241, 257, 259 
 
 Gay V. Ins. Co. 
 
 234, 270 
 
 llathorn v. King 
 
 25, 77, 258 
 
 Geale, in re 
 
 95 
 
 Haynes v. Swnim 
 
 2, 63 
 
 Gehrke v. State 
 
 258 
 
 Hazard v. Hefford 
 
 78 
 
 Getchell v. Hill 
 
 259 
 
 Hcbert v. Winn 
 
 65 
 
 Gihson'.s case 
 
 375 
 
 Henderson v. McGregor 
 
 1, 6, 7, 8 
 
 Gibson c. Gibson 
 
 258 
 
 Henry v. Kine 
 
 8 
 
 r. .leyes 
 
 101 
 
 Hicks (I. Marshall 
 
 6 a 
 
 V. Soper 9, 
 
 10, 12, 13, 14 
 
 Higgins V. Carlton 25, 
 
 29. 30, 78,81, 
 
 Gilreatli r. Gilreatli 
 
 77 
 
 
 84, 87, 258 
 
 Gleespin, i/i re 
 
 24, 77, 84 
 
 Hinchman v. Richie 
 
 104 a 
 
 Glover v. llayden 
 
 79 
 
 nines r.'. I'otts 
 
 7 
 
 Goble V. Grant 
 
 77 
 
 Hirsh *'. Trainer 
 
 6 a 
 
 Gombault v. Tub. Almr. 
 
 61, 62 
 
 Hix i\ Whittemore 
 
 3, 51, 250 
 
 Goodell V. Harrington 
 
 6 a 
 
 Hoard v. Peck 
 
 259 
 
 Goodridge's case 
 
 811 
 
 lloge V. Fisher 
 
 61,250 
 
 Gore V. Gibson 16 
 
 1 6 rt, 16 c, 65 
 
 Hoge's Will 
 
 18, 77, 307 
 
 Grabill v. Barr 
 
 77 
 
 Holcomb I' Holcomh 
 
 242 
 
 Grainger v. State 
 
 126 
 
 H olden ?'. Meadows 
 
 25 
 
 Grant v. Thompson 
 
 5, 6, 257 
 
 Holland V Miller 
 
 76 
 
 Gray v. Obear 
 
 101 
 
 Holmes' case 
 
 162 
 
 Greenwood v. Grei'tnvond 
 
 18, 25 
 
 llolroyd's case 
 
 779 
 
 Griffith r. DiffendeifR-r 
 
 78. 8), 82 
 
 Holy land, ex parte 
 
 62 
 
 Griffiths V. Rubins 
 
 87 
 
 Hope V. Everhart 
 
 7 
 
 Gruhbs i\ McDonald 
 
 30 
 
 Hoppin's case 
 
 158, 712 
 
 Guiteaii's case 102, 
 
 552, 603, 679 
 
 Hopple's Estate 
 
 28, 77, 78 
 
 Guthrie c. I'rice 
 
 95 
 
 Hopps V. People 
 
 159 
 
 
 
 Horbach v. Denniston 
 
 25 
 
 
 
 Horn IK Pullman 
 
 25, 78, 81, 87 
 
 H. 
 
 
 Home ('. Home 
 
 25, 77 
 
 
 
 Hovey V. Hobson 
 
 9, 10 
 
 Hacker v. Newborn 
 
 77 
 
 Howard /• (loke 
 
 77 
 
 Haiifield's case 
 
 177. 679 
 
 V. Moot 
 
 30 
 
 Hall v. Hall 
 
 41, 78 
 
 Howe r. Howe 
 
 9 
 
 V. linger 
 
 41, 241 
 
 Howell /'. Taylor 
 
 258 
 
 r. Warren 
 
 2, 62 
 
 Hubbard r Hubbard 
 
 25, 79 
 
 Hallet r. Oakes 
 
 16e 
 
 Hughes i\ Murtha 
 
 77, 79 
 
 Halley v. W'ebster 
 
 30, 62, 61 
 
 ilulings V. Laird 
 
 100 
 
 Halse, ex parte 
 
 101 
 
 Hunt V. Hunt 
 
 79 
 
 Haile v. State 
 
 205 
 
 Hunter v. State 
 
 787 a 
 
 Hamilton v. Hamilton 
 
 29 
 
 Huntington's case 
 
 1 58 
 
 Hancock v. I'eaty 
 
 17 
 
 Hutchinson v. Brown 
 
 16/^ 
 
 Hand /'. Burrows 
 
 242 
 
 V. Sandt 
 
 6« 
 
 Haiiiiley v. Stacey 
 
 73 
 
 V. Tiudell 
 
 16rt, 166 
 
 Harden i". Hays 
 
 30, 61. 62 
 
 
 
 XXVI
 
 TABLE OF CASES. 
 
 Insurance Co. v. Graves 177, 19G, 
 
 V. Groom 
 V. Hunt 
 V. Isett 
 V. Lawrence 
 V. Moore 
 V. Peters 
 V. Rodel 
 
 234 
 
 284 
 231 
 
 Isler V. Baker 
 
 235, 
 269 
 237 
 242 
 234 
 239 
 234 
 241 
 257 
 11 
 
 Jackman's Will 
 
 
 77 
 
 Jackson v. King 
 
 
 30 
 
 IK Vandusen 
 
 61,62 
 
 250 
 
 Jacobs V. Richards 
 
 
 255 
 
 Jacox V. Jacox 
 
 7, 
 
 101 
 
 James v. Langdon 
 
 
 35 
 
 Jamison v. Jamison 
 
 25, 28. 90 
 
 Jenckcs v. Smithfield 
 
 
 40 
 
 Jenisch's case 
 
 
 476 
 
 Jenkins v. Morris 
 
 
 35 
 
 Jenners v. Howard 
 
 16, 
 
 16c 
 
 Joest r. Williams 
 
 
 16 
 
 Johns V. Fritchey 
 
 
 16 
 
 Johnson v. Mediicott 
 
 5, 
 
 166 
 
 V. Moore 
 
 
 35 
 
 V. State 
 
 
 258 
 
 Jones V. Perkins 
 
 6, 7, 
 
 16c 
 
 Julke V. Adam 
 
 
 69 
 
 K. 
 
 Keeble v. Cummins 6 
 
 Kelley v. State 205 
 
 Kelly V. Miller 36 
 
 Kempsey r. McGinnis 259 
 
 Kendall?). May 1,8, 16 c, 242 
 
 Kessinger v. Kessinger 82 
 
 Kevil V. Kevil 81 
 
 Key V. Davis 9 
 
 V, Holloway 65, 69 
 
 Killian v. Badgett 7 
 
 Kinleside v. Harrison 27, 80, 87, 91 
 
 King V. Bryant 16 
 
 Kings County Asylum, in re 104 a 
 Kingsbury v. W hi taker 25, 29, 63, 71. 
 
 250 
 
 Kinne v. Johnson 25, 77, 78 
 
 V. Kinne 7, 25, 77 
 
 Kirk wood v. Gordon 87 
 
 Kise *'. Heath 29 
 
 Knapp's case 785 
 
 Kneedler's Appeal 6 a, 8 
 
 La Bau v. Vanderbilt 
 Lackey i\ Lackey 
 Lagay v. Mansion 
 Lamoree's case 
 L'Amoureux v. Crosby 
 Lang V. Whidden 
 Laros v. Com. 
 La Rue v. Gilkyson 
 Lasher, in re 
 
 25, 29, 35, 59 
 
 101 
 
 6 a, 7, 10 
 
 107 
 
 6a 
 
 5 
 
 377 
 
 1, 5 
 
 101 
 
 Lathrop v. Board of Foreign Missions 35 
 
 Lawrence v. Ins. ('o. 
 
 V. Steel 
 Lawton's case 
 Lee V. Dill 
 
 V. Lee 
 
 V. Lee 
 
 V. Scudder 
 Leech v. Leech 
 Leeper v. Taylor 
 Lefroy's case 
 Lemon v. Jenkins 
 Leverett v. Carlisle 
 Levett's case 
 Lewis's case 
 Lewis V. Baird 
 V. Lewis 
 Life Association v. W'aller 
 Life Ins. Co. v. Terry 
 Lilly V. Waggoner 
 Lincoln, ex parte 
 
 i\ Buck master 
 Lindsey v. Lindsey 
 Livingston v. Kiersted 
 Logan *'. McGinnis 
 Longchamp v. Fish 
 Loomis V. Spencer 
 Lowder v. Lowder 
 Lowe *'. Williamson 
 Lozear v. Shields 
 Lucas V. Cannon 
 2'. Parsons 
 Ludwick V. Com. 
 Lynch v. Clements 
 Lyon V. Home 
 Lyons v. Van Riper 
 
 M. 
 
 239 
 
 24, 26 
 481 
 
 82 
 
 29, 36, 78, 82 
 
 139 
 
 35 
 
 35, 87 
 
 25, 78 
 552, 786 a 
 
 3 
 
 78 
 
 128, 485 
 
 29 
 
 61, 250 
 
 95 
 
 234 
 
 IGO, 231, 237 
 
 24, 62 
 
 101 
 
 1, 7 
 
 91 
 
 242 
 
 258 
 
 95 
 
 8 
 
 90 
 
 89, 258 
 
 1, 3, 8 
 
 77, 81 
 
 40, 62 
 
 105 
 
 25, 77 
 
 59 
 90 
 
 Main v. Ryder 
 
 
 82 
 
 Mann v. Betterly 
 
 
 1 
 
 Mallory v. Ins. (.'o. 
 
 
 239 
 
 Mansfield v. Watson 
 
 16, 16 «, 
 
 166 
 
 Marmon v. Marmon 
 
 
 7 
 
 Marquis of Winchestci 
 
 's case 
 
 77 
 
 Marsh v. Tyrrell 
 
 
 77 
 
 Marshall (;. PMinn 
 
 
 78 
 
 Martin v. Mitchell 
 
 
 96 
 
 V. Perkins 
 
 
 30 
 
 xxvii 
 

 
 TABLE OF CASES. 
 
 Marvin v. Mnrvin 
 
 78. 81 
 
 N. 
 
 
 Mason, in re 
 
 101 
 
 
 
 Miitcliin r. Matchin 
 
 18 
 
 Nailor v. Nailor 
 
 101 
 
 Matthews v. Baxter 
 
 7, 16 
 
 Nash V. Hunt 
 
 79 
 
 Matthiesson v. McMnhon 
 
 1, 7, 8 
 
 Neal'a case 
 
 270 
 
 Maverick v ReynoUls 
 
 87 
 
 Needham v. Ida 
 
 101, 260 
 
 May V Bradlee 
 
 79, 81 
 
 Negro Jerry v. Townshend 
 
 259 
 
 McAiiam v. Walker 
 
 63 
 
 Neill V. Morley 
 
 1 
 
 McAllister v. State 
 
 117 
 
 Nelson v. Duncombe 
 
 1 
 
 Met 'lackey v. State 
 
 257 
 
 Newell V. Fisher 
 
 16 
 
 McClintock v. Curd 
 
 25 
 
 Newhouse v. Godwin 
 
 28, 82 
 
 ^IcClure V. Ins. Co. 
 
 232 
 
 Newton v. Ins. Co. 
 
 232 
 
 Mctjorniick v. Littler 
 
 1, 2, 7 
 
 Nichol V. Thomas a, 
 
 10, 14, 19 
 
 McCrillis V. Bartlett 1, 13, 10, 16 c 
 
 Nichols V. Biniis 
 
 63, 88 
 
 McDaniel v. Crosby 
 
 77, 78 
 
 V. Nichols 
 
 18 
 
 McKlwee v. Ferguson 
 
 25 
 
 V. State 
 
 215 
 
 McFarland's case 120, 152, 
 
 100, 174, 
 
 Niniick v. Ins. Co. 
 
 234 
 
 
 412 
 
 Noel V. Karper 
 
 255 
 
 McGinnis v. Com. 
 
 105 
 
 Northington, ex parte 
 
 1, 8 
 
 Mctirefjor's case 
 
 200 
 
 Norton v. Relley 
 
 59 
 
 Mclntire v. McC mn 
 
 77 
 
 Nottridge v. Ripley 
 
 104 a 
 
 McLauglilon's Will 
 
 69 
 
 Nussear v. Arnold 
 
 77 
 
 McMahon v. Ryan 
 
 78 
 
 
 
 McNaghten's case 117,110, 
 
 145, 578, 
 
 
 
 
 679 
 
 0. 
 
 
 M'Daniel's Will 
 
 77 
 
 
 
 M'Sorley v. M'Sorley 
 
 71 
 
 Oliver v. Berry 
 
 95, 96 
 
 Means v. Means 
 
 83 
 
 O'Neall V. Parr 
 
 78 
 
 Meares, in re 
 
 10c 
 
 Osmond v. Fitzroy 
 
 28 
 
 Meek i\ Perry 
 
 82 
 
 Osterhout v. Shoemaker 
 
 3 
 
 Meeker v Meeker 
 
 24 
 
 Owing's case 
 
 1 
 
 Menkins v. Lightner 16 
 
 a, 61,250 
 
 Owbtou, in re 
 
 95 
 
 Merrill v. Rush 
 
 20 
 
 
 
 Merritt r. lus. Co. 
 
 234, 241 
 
 
 
 Middleborough v. Rochester 
 
 17 
 
 P. 
 
 
 Miller v. Finley 
 
 16 
 
 
 
 V S mi til 
 
 259 
 
 Paine's case 
 
 787 a 
 
 Mitchell V. Kingman 
 
 5, 16 a 
 
 Palmer's case 
 
 774 
 
 v. Thomas 
 
 96 
 
 Pancoast c Graham 
 
 05 
 
 Molten V. Caniroux 
 
 7, 8 
 
 Parfitt V. Lawless 
 
 78, 81, 82 
 
 V. Hendersoa 
 
 100 
 
 Paske V. Ollatt 
 
 82 
 
 Monroe v. Barclay 
 
 78 
 
 Pate's case 
 
 079 
 
 t'. State 
 
 120 
 
 Patrick v Ins. Co. 
 
 238 
 
 Moody V. ]'>ihb 
 
 109 
 
 Patterson v. Patterson 
 
 77 
 
 Mooney v. Olsen 
 
 81 
 
 Payn, in re 
 
 100 
 
 Moore v Hershey 
 
 ( 
 
 Pearl v. McDowell 
 
 1 
 
 V. Ins. Co. 
 
 234 
 
 Peck r. Carey 
 
 05, 74 
 
 V. Moore 
 
 25, 28, 95 
 
 Penfold V. Ins. Co. 
 
 239 
 
 V. Wolsey 
 
 2:19 
 
 Pennsylvania v. M'Fall 
 
 205, 214 
 
 Mordaunt v. Moncrieffe 
 
 18 
 
 People V. ("off'man 
 
 117, 174 
 
 V. Mordaunt 
 
 18 
 
 V. Coleman 
 
 133 
 
 Morey's Appeal 
 
 100 
 
 V. Eastwood 
 
 ,201 
 
 Morgan, in re 
 
 101, 107 
 
 V. Furbush 
 
 578 
 
 Morgan v- Boy.s 
 
 29, 80 
 
 V. Garl)ntt 
 
 375 
 
 Morrison v. .McLeod 
 
 16 a 
 
 V. Gi'illin 
 
 578 
 
 V. Smith 
 
 30 
 
 v. Hammell 
 
 214 
 
 M tiller V. The Association 
 
 81, 82 
 
 V. Klein 
 
 578 
 
 Murray v. Carlin 
 
 7 
 
 V. McCann 
 
 259 
 
 Myatt V. Walker 
 
 1 
 
 V. McUonell 
 
 174 
 
 
 
 V. McLeod 
 
 126 
 
 
 
 t'. New York Hospital 
 
 242 
 
 XXVI II
 
 TABLE OF CASES. 
 
 People V. Pine 
 
 V. Robinson 
 V. Rogers 
 V. Sanford 
 V. Shorter 
 V. Smith 
 V. Sprague 
 V. Wheeler 
 
 Perkins v. R. R. 
 
 Persse, ex parte 
 
 Pettit, ex parte 
 
 Peterson's case 
 
 Phadenhauer v. Ins. Co. 
 
 Phelan v. Gardiner 
 
 Phillips V. Ins. Co. 
 V. Starr 
 
 Phipps V. Van Kleeck 
 
 Pickett V. Sutler 
 
 Pierce v. Ins. Co. 
 V. Pierce 
 
 Pigg r. State 
 
 Pigman r. State 
 
 Pingree v. .Jones 
 
 Pirtle V. State 
 
 Pitt V. Smith 
 
 Pittenger i'. Pittenger 
 
 Plank, ex parte 
 
 Pool V. Pool 
 
 Poole V. Richardson 
 
 Porter v. Campbell 
 
 Portsmouth v. Portsraou 
 
 Potts V. House 
 
 Powell V, State 
 
 Prentice v. Achorn 
 
 Price V. Berrington 
 
 Purdoa v. Longford 
 
 Queen v. Farmer 
 
 th 
 
 Ley 
 
 R. 
 
 Rabb V. Graham 
 Rabello's case 
 Ragan v. Ragan 
 Rambler v. Tryon 
 Rankin v. Rankin 
 Rathbun v. Rathbun 
 Rawdon v. Rawdon 
 Ray V. Hill 
 Read v. Legard 
 Real V. People 
 Reed's Will 
 R. V. Barton 
 
 V. Bellingham 
 
 V Burton 
 
 V. Carroll 
 
 126, 377, 566 
 
 R. V. Daviea 
 
 
 200 a 
 
 214 
 
 V. Davis 
 
 
 209 
 
 210 
 
 V Dwerryhouse 
 
 
 200 a 
 
 257 
 
 V. Eriswell 
 
 
 242 
 
 126, 174 
 
 V. Frances 
 
 
 259 
 
 375 
 
 V. Francis 
 
 
 679 
 
 117, 578 
 
 V. French 
 
 
 491 
 
 805 
 
 V. Gamlen 
 
 
 215 
 
 259 
 
 V, Goode 
 
 117, 164, 200 a 
 
 100 
 
 V. Goule 
 
 
 399 
 
 101 
 
 V. Grindley 
 
 
 216 
 
 806 
 
 V. Hadfield 
 
 
 679 
 
 234, 237, 241 
 
 V. Haynes 
 
 
 152 
 
 16 
 
 ■ V. Higginson 
 
 117 
 
 164, 259 
 
 234 
 
 V Hill 
 
 
 50, 242 
 
 259 
 
 V. Jackson 
 
 
 491 
 
 90 
 
 V. Law 
 
 
 118 
 
 16 
 
 V. Lawton 
 
 
 481 
 
 239 
 
 V. Layton 
 
 117 
 
 164, 250 
 
 65, 09, 72, 79 
 
 V. Leigh 
 
 
 165 
 
 289, 259 
 
 V. McNaghten 117, 
 
 119, 
 
 145, 578, 
 
 205, 215 
 
 
 
 679 
 
 77 
 
 V. Meakin 
 
 204 
 
 209, 210 
 
 205,214 
 
 V. Milligan 
 
 
 490 
 
 5, 10, 16, 16 a 
 
 V. Monkhouse 
 
 
 215 
 
 166 
 
 V. Moore 
 
 
 215 
 
 117 
 
 V. Morley 
 
 
 242 
 
 78 
 
 V. OfiFord 
 
 
 117 
 
 258, 260 
 
 V. Oxford 117, 119, 
 
 164, 
 
 375, 578. 
 
 62 
 
 
 
 679 
 
 1 17 
 
 V. Pate 
 
 
 679 
 
 23, 87, 258 
 
 V. Pearce 
 
 
 201 
 
 257 
 
 V. Pritchard 
 
 
 98 
 
 166 
 
 V, Richards 
 
 115 
 
 152, 259 
 
 7, 8 
 
 V. Southey 
 
 
 165 
 
 7,8 
 
 V. Stokes 
 
 
 117, 250 
 
 
 V. Stopford 
 
 
 215 
 
 
 V, Taylor 
 
 
 250 
 
 
 V. Thomas 20-^ 
 
 ,209 
 
 , 210, 216 
 
 
 V. Townley 
 
 
 127, 165 
 
 399 
 
 V. Tucket 
 
 
 375 
 
 158 
 
 V. Turton 
 
 
 200 a 
 
 
 V. Vaughan 
 
 
 117 
 
 
 V. Vyse 
 
 
 118 
 
 
 V. White 
 
 
 606 
 
 
 V. Whitfield 
 
 
 98 
 
 77, 78 
 
 Reinecker v. Smith 
 
 
 16 
 
 578 
 
 Rennie's case 
 
 
 204, 209 
 
 25 
 
 Reynolds v. Adams 
 
 
 81 
 
 24, 257 
 
 V. Dech»ums 
 
 
 16 
 
 77, 257 
 
 V. Reynolds 
 
 
 95 
 
 18 
 
 V. Robinson 
 
 
 259 
 
 17 
 
 V. Root 25 
 
 27,1 
 
 >9, 80, 81, 
 
 96 
 
 
 
 87. 90 
 
 1 
 
 Rhodes v. Bate 
 
 
 6 
 
 257. 258 
 
 Kice V. Peck 
 
 
 5, 16 a 
 
 88, ^.tO 
 
 Richardson v. Dubois 
 
 
 1 
 
 117, 152, 164 
 
 V. Strong 
 
 
 1, 16a 
 
 679 
 
 Riddell i'. Johnson 
 
 
 30, 82 
 
 127 
 
 Ridgeway v. Darwin 
 
 
 101 
 
 216 
 
 Riggs V. The Society 
 
 xxix 
 
 
 8
 
 TABLE OF CASES. 
 
 Ritter's Appeal 
 
 Roberts v. I'eople 
 V. State 
 V. Trnwick 
 
 Robinson v. Atlanis 
 
 Robin.son's case 
 
 Roe I'. Taylor 
 
 Rogers's case 
 
 Rogers v. Diamond 
 V. Walker 
 
 Rollwagen v. Roll wn gen 
 
 Rudy V. Ulrich 
 
 Runyan v. Price 
 
 Rush V. Megee 
 
 Rusk V. Fenton 
 
 Russell, in re 
 
 V. State 
 
 Rutherford v. Morris 
 
 V. Ruff 
 
 Sadleir's case 
 Sarbach r. Jones 
 Sargeson r. Sealey 
 Sawyer v. Lut'kin 
 
 V, State 
 Say V. Barwick 
 Scaiilan v. Cobb 
 Scheffer v. Ins. Co. 
 Scribner i\ Crane 
 Scruby v. Ford ham 
 Seaman's Friend See. v. 
 Searle v. Gall)raith 
 Sears v. Scliater 
 Seaver v. i'lielps 
 Seehrest v. Kd wards 
 Seeley i'. Price 
 Seqtiine ?'. Sequine 
 Seymour r. Delancy 
 Shailer r. Bumstead 
 Shakespeare v. Markhat 
 Shaunahari c. Com. 
 Shaul, in re 
 Shaw r. Uixon 
 
 f. Thackray 
 Sherman's case 
 Sherwood v. Sanderson 
 Shorter ;;. People 
 Shropfihire v. Reno 
 Sickles' case 
 Sill V McKnight 
 Sills V. Brown 
 Sims V. Mc('lure 
 Sisson V. Conger 
 Ski dm ore v. Romaine 
 Sloan V. Maxwell 
 Sloo's case 
 Smee v. Smee 2- 
 
 XXX 
 
 30, 
 
 69 
 
 198, 209 
 
 126 
 
 83 
 
 34, 35, r)9 
 
 814 
 
 77 
 
 210 
 
 
 
 9 
 
 
 77 
 
 , 80 
 
 82 
 258 
 
 30 
 
 , 61 
 
 , 02 
 
 
 8, 9 
 
 ,10 
 101 
 259 
 
 24, 
 
 81, 
 
 84, 
 
 
 90, 
 
 257 
 
 6 
 
 "i, 
 
 16 6 
 
 821 
 242 
 
 6tf 
 1, 16c 
 
 377 
 
 1 f) a 
 
 217 
 
 284 
 
 77, 90 
 
 83 
 
 Hopper 39 
 
 5, 7 
 258 
 
 5 
 77, 78 
 
 6, 7 
 78 
 
 16'/, \i>b 
 
 78 
 
 a 1, 17, 90 
 
 210 
 
 101 
 
 101 
 
 10 6 
 
 790 
 
 101 
 
 126, 174 
 
 25 
 
 158 
 
 105 
 
 259 
 
 8 
 
 258 
 
 1, 8, 76 
 
 25, 77, 87, 2.")S 
 
 126 
 
 ], 30, 34, 46, 47 
 
 Smith V. Com. 
 
 V. Kramer 
 
 V. Smith 
 
 V. Tebbitt 
 Smith's Will 
 Snook V. Watts 
 Snow V. Benton 
 Snyder v. Sherman 
 Somers v. Pumplirey 
 Somerset (countess of), ca 
 Somes V. Skinner 
 Spear's case 
 Spear v Richard.ion 
 Spittle V. Walton 
 Sprague's case 
 Stackhouso ?). Ilorton 
 Stancell /'. Kenan 
 Standerman's case 
 Stanton ?;. Wetlierwax 
 Staples V. Wellington 
 Starrett v. Douglas 
 State V. Brandon 
 
 V. Christmas 
 
 V. Coleman 
 
 V. Felter 
 
 V. Gardiner 
 
 V. Gut 
 
 V. Hundley 
 
 V. Huting 
 
 V. John 
 
 V. Klinger 
 
 V. Lawrence 
 
 V. McCants 
 
 V. McGonigal 
 
 V. Medlicutt 
 
 V. Patten 
 
 V. I'ike 24, 108 
 
 V. Pratt 
 
 a. Powell 
 
 V. Reddick 
 
 V. Richards 
 
 V. Scott 
 
 V. Sewell 
 
 V. Spencer 
 
 V. Thompson 
 
 V. Turner 
 
 V. Wellington 
 
 V. Windsor 
 Stedham v. Stetlliam 
 Steed )'. Calley 
 Stevens v. State 
 
 V. Vancleve 25, 
 Stewart v. Lispenai-d 
 St. Leger's Appeal 
 Stone r. Damon 
 Stormont v. The Assuran 
 Striiigfellow's case 
 Stuckey r. Bellah 
 V. Matiies 
 Stu1z V. Sclia^dile 
 Sutherland v. Hawkins 
 
 7, 
 
 209, 
 
 175 
 
 
 373, 
 
 375 
 30 
 
 33, 45 
 
 , 61 
 
 
 29 
 
 , 59 
 255 
 
 377 
 
 
 7? 
 
 , 81 
 
 1 
 
 se of 
 
 787, 
 
 805 
 3,5 
 158 
 259 
 
 50, 
 
 242 
 
 243 
 
 573 
 
 40 
 
 25 
 
 476 
 
 40 
 
 
 2, 3, 
 
 241 
 65 
 
 
 161, 
 
 174 
 375 
 
 258 
 160 
 
 
 117, 
 
 174 
 
 
 145, 
 
 160 
 205 
 
 
 117, 
 
 145 
 205 
 
 259 
 
 117 
 
 145, 
 
 174 
 205 
 
 206 
 259 
 201 
 
 , 111 
 
 190, 
 
 258 
 105 
 259 
 
 
 2, 61 
 
 
 
 174 
 
 
 
 120 
 
 
 205, 
 
 250 
 
 117 
 
 174, 
 
 250 
 205 
 205 
 
 61, 66, 
 
 250 
 
 
 136 
 
 174 
 74 
 
 62 
 
 
 108 
 
 159 
 
 , 26, 
 
 CI, 7 
 
 -, 83 
 23 
 82 
 6 a 
 
 ce Co 
 
 
 236 
 789 
 257 
 
 1 T 
 
 
 7' 
 
 257
 
 TABLE OF CASES. 
 
 Sutton V. Sadler 
 V. Sutton 
 Swan V. State 
 
 62 
 
 205, 214 
 
 Tate V. Tate 
 
 
 39 
 
 Tawney v. Long 
 
 28, 35 
 
 77, 78 
 
 Taylor v. Creswell 
 
 
 30, 61 
 
 V. Kelley 
 
 
 25 
 
 V. Patrick 
 
 
 7 
 
 Tebout, hi re 
 
 
 107 
 
 Temple p. Temple 
 
 
 65 
 
 Thomas v. Stump 
 
 
 81 
 
 Thompson v. Davitte 
 
 
 78 
 
 V. Kyner 25, 
 
 26, 09 
 
 78, 83 
 
 V. Leach 
 
 
 5, 9 
 
 V. Quimhy 
 
 
 35. 36 
 
 V. Thompson 
 
 
 35, 36 
 
 Tichborne's case 
 
 
 786 
 
 Tingley v Covvgill 
 
 77 
 
 81. 82 
 
 Titeomb v. Vantyle 
 
 1, 
 
 7, 101 
 
 Titlow V. Titlow 
 
 ') 
 
 37, 258 
 
 Tobin V. Jenkins 
 
 ^'l" 
 
 77, 78 
 
 Tod's case 
 
 
 799 
 
 Todd V. Fenton 
 
 
 78, 81 
 
 Tomkins ?>. Tomkins 
 
 
 24, 28 
 
 Tomlinson, iz jntrle 
 
 
 101 
 
 Townshend v. Townslieiid 
 
 
 257 
 
 Tozer t\ Saturlee 
 
 
 2 
 
 Tracy, ex parte 
 
 101, 107 
 
 Trish V. Newell 
 
 24, 
 
 26, 250 
 
 Trumbull v. Gibbons 
 
 
 29, 84 
 
 Tufnell V. Constable 
 
 
 28 
 
 Turner v. Cheeseman 
 
 
 65 
 
 V. Hand 
 
 
 38 
 
 V. Meyers 
 
 
 17 
 
 V. Rusk 
 
 3, 9, 61 
 
 Tyson v. Tyson 
 
 
 24, 78 
 
 Udderzook r. Com. 
 
 78 
 
 7 a, 824 a 
 
 U. S. V. Clarke 
 
 
 205 
 
 V. Drew 
 
 
 204, 205 
 
 V. Forbes 
 
 
 204 
 
 V. Mewson 
 
 
 155 
 
 V. Holmes 
 
 
 174 
 
 i\ McGlue 
 
 204, 
 
 205, 259 
 
 V. Reynolds 
 
 
 137 
 
 V. Roudenbusii 
 
 
 215 
 
 V. Shultz 
 
 
 117, 174 
 
 101, 232 
 
 Valpey v. Rea 
 Van Alst v. Hunter 
 Vanaukeu, ez parte 
 
 9 
 
 87, 89 
 
 33, 90, 258 
 
 Vance v. Com. 
 
 Van Deusen v. Sweet 
 
 Van Guy sling v. Van Kuren 
 
 V^an Horn v. Hann 
 
 Van Zandt v. Ins. Co. 
 
 W. 
 
 Wade V. Colvert 
 Wadsworth v. Sherman 
 Wager, ex parte 
 Wager v. Reid 
 Wainwright's Appeal 
 Wait V. Breeze 
 Walker v. Davis 
 
 V. Walker 
 Waltz's case 
 Wampler v. Wampler 
 Ward V. Duianey 
 Ware v. Ware 
 Waring v. Waring 
 Watson's case 
 
 Interdiction 
 Watson V. Watson 
 Webster's case 
 Weed V. Ins. Co. 
 Weems v. Weems 
 Weir V. Fitzgerald 
 Weir's Will 
 
 Wenman (Lord), case of, 
 Weston's case 
 Wetter v. Habersham 
 Wheeler v. Alderson 
 Wliitakei's case 
 White ('. Cox 
 
 V Driver 
 
 V. The Assurance Co. 
 
 V. Wilson 
 Whitenach v. Stryker 
 Wigglesworth v. Steer 
 Wightman v. Wightman 
 Wilder V. Weakly 
 Wilkinson v. iMoseley 
 V. I'earsoii 
 Willemin v. Dunn 
 Wiliey V. Portsmouth 
 Williams' Kst.ate 
 Williams v. Goude 
 V. Inabnet 
 V. Lee 
 
 V. Wentworth 
 Wilson V. Bigger 
 
 V. iMoran 
 
 )'. Ohlham 
 Winter's case 
 Wintermute v. Wilson 
 Wirehach v. Bank 
 Wisener v. Maupiii 
 Wiser />. Lockwood 
 Wolf V. Ins. Co. 
 
 xxxi 
 
 117, 174 
 
 9 
 
 25 
 
 1, 16c 
 
 232, 234 
 
 16 
 
 6 a 
 
 101, 107 
 
 16(7, 16 6 
 
 82, 79 
 
 79 
 
 16 
 
 268 
 
 443 
 
 96 
 
 17 
 
 258 
 
 42 
 
 166 
 
 101, 104 
 
 90 
 
 808 
 
 232, 241 
 
 241, 257 
 
 9, 95 
 
 83 
 
 3, 101 
 
 809 
 
 30 
 
 08, 257 
 
 811 
 
 166 
 
 61, 02 
 
 236 
 
 40, 01 
 
 09 
 
 10, 16 6 
 
 17 
 
 8 
 
 257, 259 
 
 257 
 
 1, 7, 90 
 
 259 
 
 77 
 
 78 
 
 16 
 
 257 
 
 1 
 
 16a 
 
 82 
 
 7 
 
 100, 198 
 
 84, 90 
 
 7, 8, 16 
 
 25, 77, 90 
 
 17 
 
 241
 
 TABLE OF CASES. 
 
 Wood V. Woofl 
 Woodbury v. Obear 
 Worthy r. Worthy 
 Wray r. Wrny 
 Wright r. Hardy 
 c. Howe 
 V. Tathain 
 
 Yates r. Boen 
 
 25 
 
 18 
 18 
 
 259 
 78, 82 
 
 257 
 
 Yauger v. Skinner 
 Yglesias v Dyke 
 Yoe V. McCord 
 Young V. Barner 
 
 V. Ridenbaugh 
 V. Stevens 
 
 Zimmerman v. Zimmerman 
 5 I Zwanziger's case 
 
 44 
 
 24, 77 
 
 63, 83 
 
 25 
 
 77 
 783 
 
 xxxu
 
 MEDICAL JURISPRUDENCE. 
 
 BOOK I. 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 CHAPTER I. 
 
 CONTRACTS. 
 
 I. Lunacy. 
 
 Lunatics in any view liable for neces- 
 saries, § 1. 
 
 Also liable for contracts during lucid 
 intervals, § 2. 
 
 Monomania does not incapacitate on 
 other topics, § 3. 
 
 By early authorities lunacy no ground 
 for avoidance, § 4. 
 
 Subsequent tendency to hold all con- 
 tracts with lunatics void, § 5. 
 
 Question conditioned by fraud, § 6. 
 
 Inquisition only prima facih proof to 
 third parties, § 6 a. 
 
 Better opinion that contracts l)y luna- 
 tics are voidable at option, § 7. 
 
 Contracts executed in good faith will 
 be sustained, § 8. 
 
 Conflict as to whether deeds are void- 
 able, § 9. 
 
 In rescission parties to be placed in 
 statu quo, § 10. 
 
 Partnership contracts not dissolved, ip- 
 so facto, by lunacy, § 11. 
 
 Administrators may avoid contract of 
 insane decedent, § 12. 
 
 And so of representatives and guar- 
 dians, § 13. 
 
 And so of party himself, § 14. 
 
 Lunatic liable for torts, § 15. 
 
 II. IXTOXICATIOX. 
 
 Intoxication alone, unless excessive, no 
 ground for avoiding contract, § 16. 
 
 Otlterwise when acted on by fraud, § 
 16 a. 
 
 Rule in equity, § 16 h. 
 
 Drunkard liable for necessaries, § 16 c. 
 
 III. Marriage Contracts. 
 Distinctive rule as to marriage, § 17. 
 Rule as to divorce, § 18. 
 
 I. LUNACY. 
 
 § 1. Persons not only apparently but actually destitute of reason 
 are incapable of dealing contractually. Hence the in- 
 capacity of idiots, when complete, is absolute. Mere any'view '" 
 
 mental imbecility, however, is not sufficient to set aside ''^I'lc for 
 
 *' ... necessaries. 
 
 a contract where there is not an essential privation of 
 
 the reasoning faculties or an incapacity to understand and act 
 
 VOL. I. — 1 1
 
 §2.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 with discretion in the ordinary affairs of life. The law cannot 
 undertake to measure the validity of contracts by the greater or 
 less strength of the understanding; and if the party be compos 
 mentis^ the mere -weakness of his mental powers does not incapaci- 
 tate hira.^ To sustain a contract made by him, there being no un- 
 due advantage taken, it is, in general, sufficient to show that the 
 party contracting knew what he was about." If he is incapable 
 of such knowledge ; if, in other words, he is either an idiot or a 
 maniac, not capable of knowing what he is about — then he is inca- 
 pable of contracting. But in any view it may be regarded as 
 settled both at law and in cijuity that a lunatic's estate is liable for 
 necessaries furnished to him,^ and the lunatic himself, or his admin- 
 istrator, and not his guardian, must be sued on such debts."' 
 
 § 2. Where the disease is of such a character that lucid intervals 
 exist, the power to contract returns with the return of reason, and 
 
 ' Somers v. Pumphrey, 24 Intl. 231, 
 Elliott, C. J. ; Mann v. Betterly, 21 Vt. 
 32tj ; Farnuni v. Brooks, 9 Tick. 212 ; 
 Baldwin r. Diinton, 40 111. 188 ; Tit- 
 comb r.Vantyle, 84 111. 371; Willemin r. 
 Dnnn, 93 111. 511 ; Camjibell r. Hooper, 
 3 Sin. k Gr. 153 ; Henderson v. McGregor, 
 30 Wis. 78. The jury may consider 
 how far tlu^ party was liable to be de- 
 ceived, tliongh the incapacity was only 
 partial. Galpin r. Wilson, 40 Iowa, 90. 
 See also Shakespeare ;•. Markham, 72 
 N. Y. 400, and Cadwallader /•. West, 48 
 Mo. 483. In this last ease it was said 
 that wherever inadequacy of considera- 
 tion and mental weakness concur, the 
 contract should be annulh'd. And see 
 Owing's case, 1 Bland, 370, 390. 
 
 2 Lozear v. Shields, 23 .\. .]. Eq. 509 ; 
 Clearwater v. Kinder, 43 111. 272 ; My- 
 att V. Walker, 44 111. 485 ; Emery r. 
 Iloyt, 4(j 111. 258 ; Cadwallader r. West, 
 48 Mo. 483; Ball v. Mannin, 3 Bligh 
 (.\. S.) 1. 
 
 * Baxter v. Earl of Portsmouth, 5 B. 
 & C. 170; 7 D. & R. (J14; Neill v. Mor- 
 ley, 9 Ves. Jr. 478 ; Dane v. Kirkwall, 
 8 C. & P. l>79 ; Sawyer v. Lufkin, 5G 
 
 Me. 308 ; McCrillis r. Bartlett, 8 N. H- 
 5(39 ; Lincoln r. Buckmaster, 32 Vt. 
 652 ; Kendall r. May, 10 Allen, 59 ; 
 Skidmore v. Roraaine, 2 Bradf. (N. Y.) 
 122 ; La Rue v. Gilkyson, 4 Penn. St. 
 375 ; Bank r. Moore, 78 Penn. St. 407 ; 
 Matthieson v. McMahon, 38 N. J. L. 537 ; 
 Van Horn r. Hann, 39 N. J. L. 207 ; 
 McCormick v. Littler, 85 111. 62 ; Pearl 
 r. McDowell, 3 J. J. Marsh. 658 ; Cole- 
 man r. Frazer, 3 Bush, 300 ; Richard- 
 son v. Strong, 13 Ired. L. 106 ; North- 
 ington c.r /Kirte, 37 Ala. 496. In Read 
 i\ Legard, 6 Ex. 636, it was decided 
 that the maintenance and support of a 
 wife is a necessary ; where, however, 
 the husband gives his wife a suitable 
 allowance, he is not liable for lier debts 
 contracted with a party who knew of 
 liis lunacy. Richardson v. Dubois, L. 
 R. 5 Q. B. 51. The expenses of a com- 
 mission are a necessary protection for 
 the party and his estate, even though 
 lie is tound sane therel)y. Nelson i-. 
 Duncombe, 9 Beav. 211 ; Williams v. 
 Wentworth, 5 Beav. 325. 
 
 * See Van Horn v. Hann, 39 N. J. L. 
 207.
 
 CONTRACTS. [§ 3. 
 
 a contract made in a lucid interval is valid. ^ Since, however, as 
 
 will presently be seen more fully, insanity of a permanent ., , 
 
 ^ . / -^ . "^ . . Also liable 
 
 type is continuous, the party alleging a lucid interval will for con- 
 be required to prove its actual existence.^ On the insiucid" 
 other hand, where the disease is in its nature periodic '^^'^'■^''^^^• 
 or temporary, the presumption of incapacity does not apply.' 
 By a lucid interval, moreover, " is not meant a perfect restora- 
 tion to reason, but a restoration so far as to be able, beyond doubt, 
 to comprehend and to do the act with such perception, memory, 
 and judgment as to make it a legal act."* It is sufficient, to estab- 
 blish such lucid intervals, to prove that the party had sufficiently 
 recovered his reason to know what he was about. A discharge 
 from a lunatic asylum is ox\\\ prima facie evidence of restoration to 
 sanity.' 
 
 § 3. Nor do delusions or hallucinations avoid capacity if not 
 touching the subject matter of a contract.^ While every ,, 
 
 o o -J Monomania 
 
 man is presumed to be sane, chronic insanity, when once dt)e8n()tin- 
 
 , . . , . _ -P, , . capacitate 
 
 proved to exist, is presumed to continue.' i>ut there is on other 
 no such presumption of law as to the continuance of a *°i^'^®- 
 temporary hallucination or delusion arising from disease ; the party 
 seeking to avoid a contract by reason of a hallucination must 
 show its existence at the time of making the contract, and that the 
 hallucination was of a character aftecting his capacity. To the 
 eftect that there is no presumption of permanence in the case of in- 
 termittent delusions caused by disease, there are numerous authori- 
 
 ■ Story on Contracts, § 74; Hall r, Bnsh, 283; Aurentz v. Anderson, 3 
 
 Warren, 9 Ves. Jr. (305 ; Tozer r. Sat- Pitts. 310. 
 
 urlee, 3 Grant (Pa.), 162; Frazer v. * FrazL'r r. Tvazer, ubi supra. 
 
 Frazer, 2 Del. Cli. 2t)0 ; McCormick r. ^ Haynes i". Swann, 6 Heisk. (Tenn.) 
 
 Littler, 85 111. 62 ; Jones r. Perkins, 5 5(30. 
 
 B. Mon. 222; Blakeley r. Blakeley, 33 ^ /„fra^ § 34; Staples v. Wellington, 
 
 N. J. Eq. 502. 58 Me. 453 ; Dennet r. Dennet, 14 N. H. 
 
 2 Staples V. Wellington, 58 Me. 454 ; 531 ; Somes v. Skinner, 16 Mass. 348 ; 
 Frazer r. Frazer, 2 Del. Ch. 200; Osterhoiit r. Shoemaker, 3 Hill (N. Y.) 
 Aurentz r. Anderson, 3 Pitts. 310 ; 573 ; Banks v. Goodfellow, L. R. 5 Q. 
 Rush V. Megee, 36 Md. 69 ; State r. B. 256 ; so in Lozear r. Shields, 23 N. J. 
 Reddick, 7 Kan. 143; Atty. Gen. ;•. Ex. 509, where there was religious 
 Parntl)|er, 3 Bro. C. C. 441. monomania ; Emery v. Hoyt, 46 111. 258 ; 
 
 3 Brown v. Riggin, 94 111. 500; so of Boyce v. Smith, 9 Gratt. 704; Lemon 
 epileptic fits, Carpenter r. Carpenter, 8 v. Jenkins, 48 Ga. 313. 
 
 7 Wh. on Ev. § 1252 ; supra, § 2. 
 
 3
 
 § 4,] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 ties,^ and it is now well settled that delusions and hallucinations 
 must directly affect the act in question in order to incapacitate.^ 
 Whether an existing delusion as to the subject matter of the con- 
 tract affects the capacity to contract is a question for the jury.^ 
 But when the delusion or hallucination goes to the essence of the 
 contract, and sways the party when making the contract, then he 
 must be regarded in this relation as without contracting power. ^ 
 § 4. The early common law authorities inclined to the position 
 that, as no man could be allowed to stultify himself, so no 
 
 By early au- ' ... 
 
 thorities man could set lip his own insanity at the time of a con- 
 
 Ki-ouiid lor tract as the ground of avoiding it.* At the same time it 
 
 avoidance. ^^^^ conceded that this right of avoidance belonged to 
 
 the alleged lunatic's heirs and administrators.^ The restriction, 
 
 therefore, was purely personal, and was based on a mistaken view 
 
 of insanity. Insanity was deemed to be perpetual. If it existed 
 
 at the time of the contract, it existed when suit was brought. If 
 
 it did not exist when suit was brought, it did not exist at the time 
 
 of the contract. 
 
 The progress of this idea is traced by Blackstone,^ so far as it 
 
 relates to the conveyances of lunatics. It seems to have rested 
 
 chiefly on the authority of Lord Coke, as Fitzherbert, Britton, and 
 
 Bracton were directly opposed to him.^ But it cannot be said ever 
 
 to have been law" in America, and has been exploded in England, 
 
 though followed by Lord Tenterden in 1827.^ 
 
 > Supra, § 2 ; Hix v. Whittemore, 4 7 2 Bl. Com. 2t)l. 
 
 Mete. 545 ; Turner v. Rusk, 53 Md. 65 « Nat. Brev. 202 ; Bracton, fol. 100a; 
 
 (1880) ; Achey i\ Stephens, 8 Ind. 411. Britton, c. 28, fol. tJtJ. 
 
 2 CiHAL'H sujira; &ee infra, §§ 3ietseq. ^ Brown r. Joddrell, 3 C. & P. 30. 
 
 3 Jenkins r. Morris, L. R. 14 Ch. D. Mr. Pollock says that the doctrine was 
 674 (1880). In this case P., the lessor exploded long before it was adopted 
 of certain property, was laboring under by Lord Tenterden. See Pollock on 
 the delusion that it was impregnated Contracts, p. 78. Stephen, however 
 with sulphur ; in other respects he was (1 Com., 7th ed. 475), considers the 
 a shrewd business man. Tlie jury found maxim still to be one of law as regards 
 the lease valid. See infra, § 5. transactions merely voidable ; though 
 
 ' Banks v. Goodfellow, L. R. 5 Q. it has, he says, no application to traus- 
 B. 549. And see infra, §§ 4G, 48. actions absolutely void, such as con- 
 
 ^ Co. Ijitt. 247 «. veyances other than feofl'ments. 
 
 6 Co- Litt. 2476. Beverley's case, 4 
 Rep. 123 i. 
 
 4
 
 CONTRACTS. [§ 5. 
 
 § 5. The early doctrine, then, was that the contract of a lunatic 
 could only be avoided after his death by his heirs or rep- 
 resentatives ; but the cases of Thompson v. Leach^ and tendency to 
 Yates V. Boen^ overthroAv this, and took the "[round that, ^^°'*^ '"^^K 
 
 ' ^ ' contracts 
 
 with the exception of feoffments, which from their solemn with luna- 
 
 . tics void. 
 
 nature could be only voidable, the deeds and contracts 
 of persons incompetent not only from insanity, but from drunken- 
 ness,2 were void. And though it was held by Sir Joseph Jekyll 
 that intoxication does not destroy capacity to contract, unless it be 
 shown that the drunkenness was contrived by the other party,* 
 Lord Ellenborough inclined to the view that drunkenness by itself 
 is sufficient to avoid an agreement.^ In this country, several early 
 cases took the ground that the contracts of a lunatic, executed or 
 unexecuted, are per se void, unless for necessaries.^ This is un- 
 questionably correct in cases where the absence of mental capacity 
 is so obvious as to make dealing with the lunatic a fraud. But 
 unless there is such a total deficiency in capacity, it is not reason- 
 able to hold that a contract entered into in good faith with a lunatic 
 is void. Lunacy may be for years latent, and, at all events, where 
 not amounting to idiocy or mania, it is a condition as to which 
 there can be no such fixed and obvious rule laid down as will give 
 security to purchasers. If all contracts of persons mentally un- 
 sound are void, no matter what may be the degree of the unsound- 
 ness, no title to property of any kind would be secure. Some prior 
 vendor may have been insane ; his conveyance Avas, therefore, void ; 
 and hence the title is incomplete. And even against a party 
 contracting immediately with the alleged lunatic, the contract, if 
 bona fide and fair on both sides, ought not to be set aside on the 
 ground of latent lunacy.'' 
 
 » 3 Salk. 300 ; Comb. 4G8 ; 2 Ventr. ner, 16 Mass. 348 ; Grant ;•. Thompson, 
 
 198. 4 Conn. 208 ; Kice r. P.^ck, 15 .Johns. 
 
 2 2 Str. 1104. 503; La Rue v. Cxilkyson, 4 I'enn. St. 
 
 3 Cole V. Robbing, Bull. N. P. 172. 375 ; Fitzgerald r. Reed, i) yni.& Marsh. 
 * Johnson v. Mellicott, 3 P. Wms. (Miss.) 94. And se(! the remarks of 
 
 130. Strong, J., in Dexter v. Hall, 15 Wall. 
 
 5 I'itt *;. Smith, 3 Camp. 33. 20. 
 
 6 Lang V. Whidden, 2 N. II. 435 ; ^ Searlo v. Galbraith, 73 111. 2G9. In 
 Hurke v. Allen, 29 N. II. lOG ; Mitchell JcMikins v. Morris, L. R. 14 (Jh. I). ()74, 
 V. Kingman, 5 Pick. 431 ; Seaver v. before! allnd(;d to, tiie lessor of a farm 
 Phelps, 11 Pick. 304; Somes v. Skin- believed that it was impregnated with 
 
 5
 
 §7.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § G. A party dealing with notice with an insane person, except for 
 necessaries, is charji^eable with fraud ; and where there 
 
 Question i , i • i v i j. 
 
 coiKiitioned is fraud independently shown, a comparatively slight 
 
 by iraiui. fjgg^.g^. ^f mental debility will suffice to sustain a decree 
 
 setting aside a contract with the party imposed upon.^ Imbecility? 
 
 or ]iartial hallucination, if there be fraud, will be a ground for 
 
 setting aside a contract, which would have been sustained without 
 
 fraud. 2 
 
 ^ a a. As to strangers, an inquisition of lunacy is only prima 
 
 facie proof of business incompetency, though it binds 
 Inquisition . i ^ ' o 
 
 parties.^ 
 
 That it is admissible as prima facie proof as to third 
 parties is generally held;* though on principle, its ad- 
 mission is open to the serious objection of being ren inter alios acta} 
 § 7. That when a contract has been produced by fraud, acting 
 upon mental debility or eccentricity, it will be set aside in equity, 
 is scttleil." And it is further settled that the mere act of contract- 
 ing with a lunatic, except for necessaries, is fraudulent in all cases 
 
 only prima 
 ftidc proof 
 to third 
 parlies. 
 
 sulphur, and was at the pains to try 
 many experiments to rid himself of it. 
 A jury found him of sufficituit business 
 capacity to make a valid leasee thereof. 
 The Court of Appeals refused to dis- 
 turb the verdict. 
 
 ' Gartside /•• Ishcrwood, 1 Bro. ('. C. 
 b'>S ; Dane r. Kirkwall, 8 C. & P. (ITU ; 
 Den V. Bennett, 7 Hiins, !J[V.) ; Rhod.-s 
 V. Bate, L. R. 1 Ch. App. 2r)2 ; Grant 
 V. Thomj)sou, 4 ('(Hin. 20S ; Seeley v. 
 Price, 14 Mich. 541 ; Henderson v. Mc- 
 Gregor, 30 Wis. 78 ; Rutherford v. 
 Ruir, 4 Dessaus. :3.'>0. 
 
 2 Ik'als >: ye<', 10 Penii. St. .''ji; ; 
 Jones r. Perkins, 3 B. Mon. 222; Kee- 
 bl(! r. Cummins, .') llayw. 43. 
 
 3 See Wh. on Ev. §§ 812, 12;-4. See 
 also llirsch l: Trainer, 3 Abb. (N. Y.) 
 N. (,'as. 274 ; Faulder v. Silk, 3 Camp. 
 12(5, i)er Lord Ellenborough. See other 
 cases cited in Wh. on Kv. § 1254. 
 
 * Sargeson v. Sealery, 2 Atk. 412; 
 Stone V. Damon, 12 ^Lass. 488 ; Breed 
 (J 
 
 V. Pratt, 18 Pick. 115 ; Crowninshield 
 r. Crowninshield, 2 Gray, 524 ; Ilart 
 r. Deamer, 6 Wend. 497 ; Hicks v. 
 Marshall, 8 Hun, 327 ; Goodell r. Har- 
 rington, 3 Thonip. cS: C. 345 ; Hutch- 
 inson r. Sanilt, 4 Rawh", 234 ; Bank r. 
 Moore, 78 Peiin. St. 407 ; Kneedler's 
 Ai)p., 92 Penn. St. 428. 
 
 ^ See, as sustaining admissibility of 
 such records. Dexter v. Hall, 15 Wal- 
 lace, 9 ; Caulkins v. Fry, 35 Conn. 170 ; 
 Burke v. Allen, 29 N. H. lOfcl ; L'Amo- 
 reux V. Crosby, 2 Paige, 422 ; Fitzhugh 
 ?•. Wilcox, 12 Barl). 235 ; Wadsworth 
 V. Shcniian, 14 Barb. 1(J9 ; Nichol v. 
 Thomas, 5:5 Ind. 53; Elston r. Jasper, 
 45 Tex. 409. In Lagay r. Marston, 32 
 La. Ann. 170, the llnding of a com- 
 mission that the person was notoriondy 
 insane was treated as affording the jire- 
 sumi)tion that a party wlio had pre- 
 viously contracted with her must have 
 been warned of her condition. 
 
 ^ Shakespeare v. Markham, 72 N. Y.
 
 CONTRACTS. 
 
 [§7. 
 
 where the lunacy, to the knowledge of the other contract- Better opin- 
 ing party, extends to the subject matter of the contract.* contnicts 
 If we assume that in the case of lunatics there is an ^^ lunatics 
 
 are voida- 
 
 ahsence of consenting mind, the principle involved in bieatop- 
 this question is analogous to that by which the deed of 
 an illiterate person, who has been deceived as to the contents 
 thereof, is held void.^ Agreeably to this principle the contracts 
 of a lunatic, made under the circumstances given above, have 
 been considered to be void in several recent x\merican cases. ^ A 
 more satisfactory conclusion, however, is established by the English 
 cases of Molton v. Camroux^ and Matthews v. Baxter.^ In the latter 
 case Kelley, C. B., said : " It has been argued that a contract made 
 by a person who was in the position of tlie defendant, is absolutely 
 void. But it is difficult to understand this contention. For, surely, 
 the defendant, upon coming to his senses, might have said to the 
 plaintiff, ' true, I was drunk when I made this contract, but still I 
 mean, now that I am sober, to hold you to it.' And if the defendant 
 could say this, there must be a reciprocal right in the other party. "^ 
 
 400 ; Garrow v. Brown, 1 Wins. (N. C.) 
 No. 2, Eq. 49 ; Rutherford r. Ruff, 4 
 Dessans. S.SO ; Seely v. Price, 14 Mich. 
 541 ; Jacox v. Jacox, 40 Mich. 473 ; 
 Taylor r. Patrick, 1 Bibb, 168 ; Wil- 
 son r. Oldham, 12 B. Mon. 55; Bird- 
 song r. Birdsong, 2 Head. 289 ; Killian 
 V. Badgett, 27 Ark. 166 ; Henderson v. 
 McGregor, 30 Wis. 78. In Moore v. 
 Hershey, 90 Penn. St. 196, Paxon, J., 
 held that the indorsement of a promis- 
 sory note by a lunatic could be in- 
 quired into, and fraud, knowledge of 
 the lunacy, or want of consideration 
 set up as a defence. See Wirebach v. 
 Bank, 10 W. N. C. (Pa.) 143 ; infra, § 8. 
 ' Price V. Berrington, 7 Hare, 402 ; 
 Shadwell, V. C, Lincoln r. Bucknias- 
 ter, 32 Vt. 652; Henderson v. Mc(Jre- 
 gor, 30 Wis. 78 ; Lagay v. Marston, 
 32 La. Ann. 170. Story on Contracts, 
 § 83. But S(!(! Curtis r. Browiicll, 42 
 Mich. 165, 171, wliere it seems to be 
 hinted that this presumption of fraud 
 
 may be overcome by conduct of the 
 lunatic indicating a restoration to rea- 
 son. And the presumption may be 
 rebutted, and equity will not interfere 
 except on equitable principles. Where 
 the lunatic has had the benefit of tlie 
 contract, it will be upheld. Canfield v. 
 Fairbank, 63 Barb. 461 ; Jones v. Per- 
 kins, 5 B. Mon. 222. 
 
 2 See Pollock on Contracts, Am. ed. 
 402, 406, and cases cited. 
 
 3 See notes to § 6 ; Enckmg v. Sim- 
 mons, 28 Wis. 272 (1871). Hines v. 
 Potts, 56 Miss. 346 (1879), goes further 
 than the statement in the text. See 
 Bank v. McCoy, 69 Penn. St. 209 ; Hope 
 V. Kverliart, 70 Penn. St. 231 (1871) ; 
 Marmon i\ Marmon, 47 Iowa, 121. See 
 also Wilson v. Ohlham, 12 B. Mon. 55 ; 
 and infra, § 15, for cases dealing witli 
 intoxication on tlic same principle. 
 
 4 4 l-lxch. 17 ; 2 I'Xch. 4S6. 
 
 5 L. ]{. s V.xvh. V.Vl. 
 
 6 L. R. 8 Kxch. 133.
 
 §8.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 The same observations may be made as to persons temporarily, 
 though not obviously, insane. Sufficient protection to persons of 
 this class is aftbrdecl by holding their contracts voidable when it is 
 shown that their incapacity was known or practised upon, while the 
 transaction of business is assisted by the opportunity given in lucid 
 intervals, or upon recovery, for the ratification of contracts really 
 conducive to the interests of both parties. In this country there is 
 a growing tendency to adopt the English rule, both as more fair 
 and more philosophical.^ 
 
 § 8. We may therefore hold it to be settled by the weight of 
 authority, that a contract made with a lunatic in good faith 
 execuU'd in and in ignorance of his incapacity cannot, after the pro- 
 wiii bcsus- perty has been obtained and enjoyed by the lunatic, be 
 tamed. ^^^ aside or defeated by the latter or his representatives, 
 
 unless the parties can be put hi statu quo. Or, to adopt the 
 words of Pollock, C. B. :^ " Where a person, apparently of sound 
 mind, and not known to be otherwise, enters into a contract for the 
 purchase of property, which is fair and bo)id fide, and which is exe- 
 cuted and completed, and the property, tiie subject matter of the 
 contract, has been paid for and fully enjoyed, and cannot be de- 
 stroyed, so as to put the parties in statu quj), such contract cannot 
 afterwards be set aside, either by the alleged lunatic, or those who 
 represent him." 
 
 This conclusion is sustained in America by numerous adjudica- 
 tions.^ 
 
 ' Murray v. Carlin, (57 111. 286 ; 
 Searle r. Galhraith, 73 111. liU'J ; Tit- 
 oouib r. Vaiitylc, S4 111. 371 ; McCor- 
 niick r. Littler, Sf, 111. G2 ; Wilk'Uiin r. 
 Dunn, !)3 111. 511. In otluT cas(^s, 
 while tlu! rulings wont oil' on (U)lLit(!ral 
 points, the reasoning oF the judges 
 rested on tlu; ijrhu'iples stated in the 
 text. Matthieson v. MuMahon, 38 N. 
 ,r. L. 537 ; Turner v. Rusk, 53 Md. ()5 ; 
 Freed v. Brown, 55 Ind. 310. But see 
 Kvans r. Iloran, 52 Md. GIO. 
 
 In Blakeley r. Blakcley, 33 N. .1. 
 Eq. 502, the (juestion in the text is dis- 
 cussed with much ability, and a learn- 
 ed note by the rej)urter is given, in 
 
 "8 
 
 which numerous cases are cited. It 
 is shown by abundant authority that 
 contracts by lunatics are open to ratifi- 
 cation. 
 
 2 Molton V. Camroux, 2 Exch. 503. 
 
 3 Kendall V. May, 10 Allen, 59 ; 
 Young V. Stevens, 48 N, II. 133 ; Fitz- 
 hugh r. Wilcox, 12 Barb. 235 ; Loomis 
 r. Spencer, 2 Paige, 158 ; Riggs v. The 
 Society, 1!) Ilun, 481 ; Ins. Co. v. Hunt, 
 7!) N. Y. 541 ; Beals v. See, 10 Penn. 
 St. 5lj ; Kn(H'dler's App., 'J2 Penn. St. 
 428 ; Yaugtu- >\ Skinner. 14 N. J. Eq. 
 389; Matthieson l\ McMahon, supra; 
 Lozear r. Shields, uhi supra; Wilder 
 r. Weakley, 34 Ind. 181 ; Behreus v.
 
 CONTRACTS. 
 
 [§9. 
 
 § 9. While, however, the prevalent opinion now is that an ordi- 
 nary business contract with a lunatic, when fair, and by 
 a party having no notice of his mental disability, will be ^ whether 
 
 sustained, there is still much difference of opinion as to ^^':'}^ ^^^ 
 
 ' • voidable. 
 
 whether title to real estate can be passed by a person at 
 
 the time a lunatic, no matter how completely his lunacy may have 
 
 been disguised. Some of the earlier authorities recognize the dis- 
 
 tinction taken in Thompson v. Leach' between a deed of feoffment 
 
 and a deed of bargain and sale, holding the latter absolutely 
 
 void.^ The supreme court of the United States has accepted this 
 
 ](Osition.^ 
 
 In Massachusetts it has been held that while a deed of bargain 
 
 McKinsie, 23 Iowa, 333 ; Allen v. Ber- 
 ryhill, 27 Iowa, 450; Ashcraft v. De Ar- 
 iiiand, 44 Iowa, 229 ; Sims v. McClnre, 
 8 Rich. Eq. 286; Rusk v. Fentoii, 14 
 Bush, 490 ; Northiiigton ex parte, 37Ala. 
 496 ; Beller v. Jones, 22 Ark. 92 ; Henry 
 r. Fine, 23 Ark. 417 ; Carr ;;. Holliday, 5 
 Ired. Eq. 167 ; Encking v. Simmons, 28 
 Wis. 272 ; Henderson v. McGregor, 30 
 Wis. 78. If the contract be executory it 
 will not he upheld. Story on Contracts, 
 .")th ed. § 83 ; Skidmore v. Romaine, 2 
 Bradf. (N. Y.) 122. But see Beavan r. 
 McDonnell, 9 Exch. 309, 10 Exch. 184. 
 In a late case (1881) in Pennsylvania, 
 .Judge Trunkey, in holding the accom- 
 modation indorsement of a promissory 
 note by a lunatic void, laid down the 
 general principle that " there can be no 
 landing executory agreement where one 
 of the parties is bereft of reason." Wire- 
 bach V. Bank, 10 W. N. C. 145. For 
 other English cases following Molton v. 
 Camroux, see Price v. Berrington, 7 
 Hare, 394 ; Dane v. Kirkwall, 8 C. & 
 P. 679 ; Beavan v. McDonnell, 10 Exch. 
 184 ; Hassard v. Smith, 6 Ir. Eq. 429. 
 ' Supra, § 5. By statute in Eng- 
 land the feoffments of a lunatic are 
 now void. See 1 Steph. Com. 7th ed. 
 475. See also Pollock on Contracts, 
 Am. ed. p. 80, 406. 
 
 2 It was thus held in Pennsylvania. 
 De Silver's Est., 5 Rawle, 111 ; Rogers 
 V. Walker, 6 Penn. St. 371. In this state 
 deeds of bargain and sale have, by stat- 
 ute, the same effect as livery of seisin ; 
 but the late cases agree with Gibson v. 
 Soper, 6 Gray, 279, in holding that the 
 lunatic may ratify his deed, and hence 
 that it is to that extent only voidable. 
 But " when there is no evidence of 
 ratification after restoration to reason, 
 it is impossible upon legal principles 
 that the estate passed to the grantee 
 in the deed." Semble, that retention 
 of the consideration after a return to 
 sanity would be such evidence ; but if 
 the deed be avoided during the insanity 
 the consideration need not be returned. 
 Per Trunkey, .1., Crawford v. Scovel, 8 
 W. N. C. 364 (1880). 
 
 3 Dexter v. Hall, 15 Wallace, 9. In 
 this case, Mr. Justice Strong, in dealing 
 with the power of attorney of a lunatic, 
 took the ground that by common law 
 his conveyances, other than by feoflf- 
 ment, are absolutely void ; a fortiori 
 his p()W(!r of attorney. Other cases 
 holding the deed of a lunatic absolutely 
 void do not seem to notice the distinc- 
 tion. Van Deusen v. Sweet, 51 N. Y. 
 378 ; Farley i\ Parker, 6 Oreg. 105.
 
 §11.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 and sale is in this country equivalent to a feoffment, and of an equal 
 solemnity, the deeds of lunatics, like the deeds of infants, though 
 voidable, may be ratified.^ To the extent of hokling the deed of a 
 lunatic not under guardianship voidable only, this is sustained by 
 numerous other authorities,^ though the appointment of a guardian 
 may avoid subsequent deeds. ^ 
 
 § 10. The case of Gibson v. Sopcr^ pushed the doctrine in Massa- 
 chusetts to the length that, on suit for avoidance brought, 
 2!!„",v!vHo= restitution of the consideration by the lunatic is unneces- 
 to be placed gary as a condition precedent, unless the lunatic be re- 
 
 inittatuqiio. ^ ^ . . . . 
 
 stored to reason, and seeks inequitably to use his prior 
 lunacy as an engine of fraud.' But the better opinion is that the 
 parties must be placed in statu quo, unless there has been actual 
 fraud." 
 
 § 11. The findings of a commission of lunacy are not regarded as 
 
 dissolving a partnership contract ipso facto. To work 
 contract such a dissolution the decree of a court of equity must 
 
 soivc(W))so ^^ ^'^'^ ' ^'^^^ ^^'^^ ^^'^^ ^^^ ^*^ given where the insanity 
 
 facto by lu- Jg only temporary.'^ The point does not seem ever to 
 
 have been decided whether a partnership contract entered 
 
 into by one already found a lunatic would be valid until set aside 
 
 • Allis r. Billings, G Mctc. 415; Ar- 
 nold r. Hicliniond Iron ^V<)rks, 1 Gray, 
 4.34; (filison ?•. Sopor, (J Gray, 279; 
 Howe r. Howe, !)9 Mass. 88; Valpcy v. 
 Rca (S. C. Mass. 1881), 24 Albany L. 
 J. 137. 
 
 * Hovoy r. Hobson, 53 Me. 4.51 ; Eaton 
 V. Eaton, 37 N. ,1. L. 108 ; Key r. Davis, 
 1 Md. 82 ; Chew v. Bank, 14 M.l. 29!) ; 
 Evans r. Horan, .52 Md. (J02 ; Rusk r. 
 Fenton, 14 Bush. 49(l ; Ashcraft r. I)e 
 Arniand, 44 Iowa, 229 ; Nichol r. 
 Thomas, 53 Ind. 42; Freed v. Brown, 
 55 Ind. 310; Elston r. .lasper, 45 Tex. 
 409 ; Scanlan v. Cobb, 85 111. 29(i. The 
 action may be brought by the lunatic 
 or by Ills guardian ; cases sn/mi, and 
 se(! Crawford c. Scovel, sujira. Cimtra, 
 Nichol *■. Thomas, supra. The luna- 
 tic cannot tile a bill in equitv, till he 
 
 10 
 
 is restored to mind. Turner v. Rusk, 
 53 Md. 65. See In/ra, § 14. 
 
 ^ Hovey »'. llobson, Nichol v. Thomas, 
 Freed i\ Brown, Elston r. .Jasper, sit- 
 /ini : see Eaton v. Eaton, Busk r. Fen- 
 ton, supra. 
 
 * (3 Gray, 279. 
 
 5 Per Thomas, .7. See, to same effect, 
 Crawford r. Scovel, 8 W. N. C. (I'a.) 
 3(14 ; Ilovey i\ Hobson, Nichol v. 
 Thomas, siijira. Cf. Lagay r. Marstoii, 
 32 La. Ann. 170. 
 
 6 I'^aton r. Eaton, Evans v. Horan, 
 Scanlan r. Cobb, Ashcraft v, De Ar- 
 mand, Rusk r. Fenton, supra. 
 
 I Lindiey, 4th ed. 1, *22(i ; CoUyer, 
 6th ed. Am. notes, 1, 152 n. ^ne contra, 
 Story, §295. That an inquest dissolves 
 a partnership, see Isler v. Baker, 6 
 IIumi)h. 85.
 
 CONTRACTS. 
 
 [§ 16. 
 
 by the lunatic or his representatives ; but where entered into bona 
 
 fide on the part of the other party it might be argued that the rights 
 
 of third parties require it to be held binding until dissolved. 
 
 ^12. Where the contract of an alleged lunatic is Adminis- 
 
 •'ill- • 1 T 1 1 • 1 • • trators may 
 
 voidable, it may be avoided by his executors or adminis- avoid con- 
 
 , , I, 1 • I • 1 tract of in- 
 
 trator, or by his heirs.i ^^ne dece- 
 
 §13. So the guardian, committee, curator, or assignee ^*^°*- 
 
 in lunacy, whatever may be his official title, may contest represeuta- 
 
 before the proper court his ward's prior dealings, and tives and 
 
 ^ , . ^ . . guardians, 
 
 may either disavow and rescind or ratify the lunatic's 
 
 contracts made during lunacy.^ 
 
 § 14. Notwithstanding the position taken in the older books that 
 
 no man can stultify himself by alleging his lunacy at a 
 
 . . -^ J o o J ^ ^ And so of a 
 
 prior period, it is now settled, as has been already inci- party him- 
 dentally seen, that a person who has been insane, and 
 when insane makes a contract, can, on his restoration to sound mind, 
 contest the validity of the contract. ^ 
 
 § 15. A lunatic is liable for his torts so far as to subject his 
 estate to a suit for damages worked to others by its neg- , 
 
 ° . . JO Lunatic 
 
 ligent management. On principle, hoAvever, he cannot liable for 
 be held liable for malicious acts in cases where he is not 
 capax doll.* 
 
 II. INTOXICATION. 
 
 § 16. A drunkard, voluntarius dicmon, is not entitled to the 
 same consideration as persons rendered incapable by the visitation 
 
 ' Beverley's case, 4 Rep. 123 6. See 
 Gibson v. Soper, Gray, 279. 
 
 2 2 Bl. Com. 292. McCrillis r. Bart- 
 lett, 8 N. H. 569 ; Gibson v. Soper, siiprn. 
 In Baker v. Baker, L. R. 5 P. D. 145, 
 it was held that the committee of the 
 estate of a lunatic, as against the com- 
 mittee of the person, was the proper 
 party to luring a proceeding for divorce 
 on account of the adultery of the luna- 
 tic's wife. 
 
 ' Gibson r. Sojx^r, uhi supra ; Craw- 
 ford i: Scovel, 8 W. N. C. (Pa.) 'M4; 
 Turner v. Rusk, 53 Md. G5 ; the same 
 
 principle applying as in the case of 
 infants. But where the party is un- 
 der guardianshii^, the action must be 
 brought by the guardian. Nichol v. 
 Tliomas, 53 Ind. 42. It would seem 
 to be impossible that the action should 
 be allowed to be brought by the other 
 party. AHen r. Berryhill, 27 Iowa, 
 540. 
 
 * See the cases collected in Ewell's 
 Leading Cases, pp. G35, 638, 642, n. ; 
 Wh. Neg. §§ 87, 88, 306, 307. As to 
 responsibility for malicious acts, see 
 Wh. Cr. L., 8th ed. § 82 et seq. 
 11
 
 §16.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 of God. A lunatic is " incapable of committing a crime or making 
 J . ^, a contract, yet it is common to speak of his torts and his 
 tion, unless contracts, and on many of them he is liable in a civil ac- 
 no ground tion;"^ it is for the protection of others who do not know 
 ingcon-^' 0^ ^^^^ incapacity that his contracts when fair are up- 
 tract. held, and his misdeeds, when injurious, are compensated 
 
 for. But drunkenness, so far from being a defence to the merits 
 in actions for torts, may be an aggravation,- and in actions ex con- 
 tractu, the validity of the transaction depends upon its fairness. 
 A party taking advantage of another's incapacity from drunkenness 
 ■will not be allowed the aid of the law to enforce an unfair bargain 
 thus obtained. But in cases where one of the parties to a contract 
 was, at the time it was made, intoxicated, to an extent not depriving 
 him of business capacity, he cannot, after having received the benefit 
 of the contract, supposing it to be fair and reasonable, be allowed 
 to rescind it; and in any view executory contracts by persons 
 excited by drink should be considered only voidable, open to rati- 
 fication when the party is sober.^ 
 
 ' Truiikey, J., in Wirebach v. Bank, 
 10 W. N. C. (Pa.) on p. 144. See also 
 the remarks of Drake, J., in Burroughs 
 V. Richman, 13 N. J. L. 233. 
 
 2 Wh. on Neg. § 306. 
 
 8 In Gore v. Gibson, 13 M. & W. 623, 
 a case which has been cited with ap- 
 probation in many American decisions, 
 it was held that the contract of a man 
 too drunk to know what he was about, 
 is absolutely void, confirming Lord El- 
 lenborough's ruling in Pitt v. Smith, 
 3 Camp. 33. But tlie later case of 
 Matthews v. Baxter, L. R. 8 Ex. 132, 
 has modified this, and decides, in ac- 
 cordance with the principles stated in 
 the text, that such a contract, even 
 though executory, is voidable only. In 
 this country the earlier authorities fall 
 in the line of Pitt v. Smith, and hold 
 the contracts of drunkards void. Caul- 
 kins V. Fry, 35 Conn. 170; Jenners v. 
 Howard, 6 Blackf. 240 ; Drummond v. 
 Hopper, 4 Harring. 327 ; Wade r. Col- 
 vert, 2 Mill's Const. N. S. 27 ; Fitz- 
 
 12 
 
 gerald v. Reed, 17 Miss. 94; Newell r. 
 Fisher, 19 Miss. 431. As to statutory 
 rule in New Hampshire, see McCrillis 
 V. ]5artlett, 8 N. H. 5G9. As to Ver- 
 mont, see Barret r. Buxton, 2 Aiken, 
 167; Foote r. Tewksbury, 2 Vt. 97. 
 And so if fraud is practised (but whe- 
 ther the contract would stand if not 
 procured by fraud, not decided). King 
 i\ Bryant, 2 Hayw. 591. That a prom- 
 issory note given by one when drunk 
 is void against the payee, see Bank v. 
 McCoy, 69 Penn. St. 204, where the 
 evidence was that the maker of the 
 note was at the time " wholly uncon- 
 scious of what he was doing." It was 
 held, however, that in the hands of a 
 bona fide indorser for value, the note is 
 good. In Connecticut it was intimated 
 in 1S68, on the authority of 1 Parsons 
 on Bills and Notes, 171, that if the in- 
 capacity was complete, it would be as 
 valid a defence against the indorsee as 
 the payee ; Caulkins v. Fry, 35 Conn. 
 170. A better rule is furnished by the
 
 CONTRACTS. 
 
 [§ 16 a. 
 
 § 16 a. The inference of fraud is strong when one contracting 
 party knows of the other's disability, and when the bar- 
 
 . . • ,. p • 1 » Otherwise 
 
 gain is on its lace untair and unequal. Attempts at when acted 
 fraudulent dealing are, under such circumstances, indica- °" ^ ^^^ 
 tions from which the jury may judge as to the probability of the 
 party's being deceived. Where advantage has been taken, the con- 
 tracts will always be avoided, and upon slight evidence, especially 
 when the drunkenness has been contrived by the other party. ^ 
 But they cannot be deemed absolutely void, as they may be ratified. 
 
 case of Miller v. Finley, 20 Mich. 249 
 (at p. 254), where a note made by a 
 man when drunk was held good in the 
 hands of the indorsee, but only void- 
 able as against the payee. In unison 
 with this case are some old, and most of 
 the late cases, which hold the contracts 
 of a drunkard only voidable. Walker 
 V. Davis, 1 Gray, 506, at p. 508 ; — in 
 Foss V. Ilildreth, 10 Allen, 76, at p. 
 79, the word void is used, it is true, 
 but taken in connection with the facts, 
 it will be seen to refer only to the par- 
 ticular case ; — Burroughs v. Richraan, 
 13 N. J. L. 233 ; Reinicker v. Smith, 2 
 Harr. & John. 421, 423 ; Johns v. 
 Fritchey, 39 Md. 258 ; Wigglesworth v. 
 Steers, 1 Hen. & Munf. 70; Mansfield 
 V. Watson, 2 Iowa, 111 ; Reynolds v. 
 Dechaums, 24 Tex. 174; Cumings v. 
 Henry, 10 Ind. 109 ; Joest v. Williams, 
 42 Ind. 5G5 ; Broadwater v. Dame, 10 
 Mo. 277 ; Eaton v. Perry, 29 Mo. 96 ; 
 Darby v. Cabanne, 1 Mo. App. 126 ; 
 Cavender v. Waddingham, 5 Mo. App. 
 457 ; Bates v. Bates, 72 HI. 108 ; Wil- 
 liams V. Inabnet, 1 Bailey, 343 ; Phe- 
 lan V. Gardiner, 43 Cal. 306. In Joest 
 V. Williams, ut supra, a contract of sale 
 had been executed, and was on its face 
 reasonable, but the intoxicated party 
 was allowed to r<;fund the considera- 
 tion and rescind the contract. The 
 cases agree that the mere fact of intoxi- 
 
 cation is not prima facie proof of incom- 
 petency ; it must be a degree of drunk- 
 enness producing entire incapacity. 
 See, among other cases, Johns v. 
 Fritchey, Cavender v. Waddingham, 
 Bates V. Bates, ut supra, and Pickett v. 
 Sutter, 5 Cal. 412. It is for the jury to 
 determine whether the party's intoxi- 
 cation was such as to render him either 
 incapable of contracting or to expose 
 him an easy victim to fraud. 
 
 ' That a promise unfairly obtained 
 from a drunken promisor will not be 
 enforced, see Pitt v. Smith, 3 Camp. 
 33 ; Cory v. Cory, 1 Ves. Sen. 19 ; 
 Say V. Barwick, 1 Ves. & B. 196 ; Gore 
 V. Gibson, 3 M. & W. 623 ; Cooke r. 
 Clayworth, 8 Ves. 12; Bliss v. R. R., 
 24 Vt. 424; Mitchell v. Kingmans, 5 
 Pick. 431 ; Rice v. Peck, 15 Johns. 503 ; 
 Wager v. Reid, 3 T. & C. (N. Y.) 332 ; 
 Hutchinson v. Tindall, 3 N. J. ¥.q. 357 ; 
 Camjjbell v. Spencer, 2 Binn. 133 ; Wil- 
 son I'. Bigger, 7 Watts & S. Ill ; Du- 
 laney r. Green, 4 Harring. (Del.) 285 ; 
 Johns V. Fritchey, 39 Md. 258 ; Men- 
 kins V. Lightner, 18 111. 282; Scanlan 
 V. Cobb, 85 111. 296 ; Mansfield v. Wat- 
 son, 2 Iowa, 111 ; Jones v. Perkins, .') 
 B. Mon. 222; Richardson v. Strong, 
 13 Ired. L. 106 ; Morrison v. McLeod, 
 2 Dev. & B. 226. See also other cases 
 in the jjreceding and succeeding para- 
 graphs. 
 
 13
 
 §17.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § IG h. Courts of equity will relieve against contracts entered into 
 in a state of intoxication: (1) where the intoxication pro- 
 equitv" ducccl mental incapacity; and (2) where it produced men- 
 tal excitement, subjecting the party to the undue influ- 
 ence of the other contracting party, who thereby gains an unfair 
 advantage.^ 
 
 § IG e. A drunkard, like a lunatic, will be held liable for neces- 
 saries requisite for his support,'' though in such cases the 
 
 DrUllkiVrd • i ^ ^ ^ n 11 TIT 
 
 liable for suit should be tor goods sold and delivered, and not on 
 s. g^ggym,!; stated.^ 
 
 III. MARRIAGE CONTRACTS. 
 
 § 17. A person incapable of solemnizing other contracts is inca- 
 pable of solemnizing the contract of matrimony.^ The 
 Distinctive . i i i • , c 
 
 rule as to marriage 01 an absolute lunatic, therefore, may be sub- 
 
 se({uently annulled.* On the other hand, such a mar- 
 
 marnage. 
 
 ' Wigglesworth r. Steers, 1 lien. & 
 Munf. 70 ; Birdsong v. Birdsong, 2 Head, 
 289 ; Belcher v. Belclior, 10 Yerg. 121 ; 
 French?'. French, 8 Ohio, 214; Mansfield 
 V. Watson, 2 Iowa, 111, at p. 115. But 
 that equity will only relieve wliere 
 fraud has been practised, and not other- 
 wise, see Hutchinson v. Brown, IClarke, 
 408; Prentice v. Achorn, 2 Paige, 30; 
 Wager r. Reid, 3 T. & C. (N. Y.) 332 ; 
 Seymour ?•. Delancy, 3 Cowen, 445 ; 
 Pitteiiger v. Pittenger, 3 N. J. Ivi- 15(J; 
 Hutchinson r. Tindall, 3 N. J. Eq. 357 ; 
 Jones ('. Perkins, 5 B. Mon. 222 ; Scau- 
 lan r. Cobb, 85 111. 29fJ, at p. 298; 
 White r. Cox, 4 Hayw. (Tenn.) 213; 
 Cainpliell v. Ketcliam, 1 Bibb, 40G ; 
 Rutherford r. Ruff, 4 Dessaus. 350; 
 .lohnson v. Medlieott, 3 P. Wnis. 130 ; 
 Shaw r. Thackray, 3 Sm. & U. 537. 
 
 2 Cooke r. Clayworth, 18 Ves. Jr. 15 ; 
 Gor(! V. Gibson, 13 M. k. W. ()23 ; Saw- 
 yer r. Lufkin, 50 Me. 309 ; McCrillis v. 
 Bartlett, 8 N. II. 509 ; Kendall v. May, 
 10 Allen, 59 ; Seymour v. Delancy, 3 
 Cowen, 445 ; Van Horn ?•. Hann, 39 N. 
 J. L. 207 ; Jenners r. Howard, (I Bla.kf. 
 240 ; Darby r. Cabaniie, 1 Mo. App. 12(j ; 
 14 
 
 so in equity, Jones v. Perkins, 5 B. Mon. 
 222. As necessaries may be consid- 
 ered expense of suits undertaken for 
 the i)rotection of the drunkard or of his 
 estate. Meares in re, L. R. 10 Ch. D. 
 552 ; Ilallet y. Oakes, 1 Cush. 296. 
 
 3 Atkinson v. Medford, 46 Me. 510 ; 
 Banker v. Banker, 63 N. Y. 409 ; Cole 
 V. Cole, 5 Sneed (Tenn.), 57 ; Ward v. 
 Dulaney, 23 Miss. 410 ; Browning v. 
 Rean(^, 2 Phill. 169 ; but it is said in 
 Hancock r. P.'aty, L. R. 1 P. & D. 335, 
 that " tlie qui.'stidU for the court is, 
 wheth(;r the mind of the contracting 
 party is diseascid or not at tlie time of 
 tlie contract, and if the evidence estab- 
 lishes tliat the mind was, at tlie time 
 of eiitei-ing the contract, diseased, the 
 c(Hirt will not enter into the extent of 
 the dei'angement." Per Lord Penzance. 
 
 « Bishop, Mar. & Div. 6tli ed. § 135 ; 
 TuriKU- r. Meyers, 1 llagg. Con. 414 ; 
 Middlel)oi-ough v. Rochester, 12 Mass. 
 363 ; Wightman v. Wightman, 4 Jolms. 
 Ch. 343 ; Ward v. Dulaney, 23 Miss. 
 410 ; Crump v. Morgan, 3 Ired. Eq. 91 ; 
 Foster i\ Means, 1 Sjjeei's' Eq. 569 ; 
 Rawdou v, Rawdon, 28 Ala. 565. So
 
 CONTRACTS. 
 
 [§17. 
 
 riage may be ratified by the party ^vhen restored to capacity.^ 
 Although, to justify a decree of nullity, there must be an undoubted 
 unsoundness at the time of marriage,^ yet in marriage, as in other 
 contracts, fraud or coercion, when brought to bear on a person of 
 weak mind, will work an avoidance which, without such fraud or 
 compulsion, would not have been decreed.^ 
 
 intoxication, Clement v. Mattison, 3 
 Rich. 93. In New York, under the Re- 
 vised Statutes, a marriage by a lunatic 
 is only voidable. Stuckey v. Mathes, 
 24 Hun, 461. 
 
 ' Cohabitation is strong evidence of 
 such ratification. See Bishop, Mar. & 
 Div. ut supra. Cole i'. Cole, 5 Sneed, 
 .57. In Rawdon v, Rawdon, supra, it 
 was held that the right to a decree of 
 nullity would be barred by the lapse 
 of time — in this case twenty-two years 
 had elapsed. And in Wiser v. Lock- 
 wood, 42 Vt. 720, it was held that the 
 marriage could not be impeached after 
 the death of the lunatic. In Hancock 
 V. Peaty, L. R. 1 P. & D. 335, it was al- 
 leged that the lunatic had recovered ; 
 in which case Lord Penzance said he 
 would annul the marriage at her re- 
 quest only. Contra, that there can be 
 no confirmation. Crump r. Morgan, 3 
 Ired. Eq. 91 ; Ward v. Dulaney, 23 
 Miss. 410. 
 
 2 Banker v. Banker, 63 N. Y. 409. 
 
 3 The leading case on tiiis point is 
 that of Lord Portsmouth, 1 Hagg. 
 Ecc. 355. See also Browning v. Reane, 
 2 Phill. 69. Lord Portsmouth's case 
 was, shortly stated, as follows : Lord 
 Portsmouth was married for the second 
 time in March, 1813, to a young woman 
 who was the daughter of one of his 
 trustees, the solicitor of the family, 
 under whose charge he was at the time 
 living. From earliest childhood he had 
 displayed great weakness, both moral 
 and mental, being cruel, timid, and 
 fickle in his management of his house- 
 
 hold, and exceedingly capricious in his 
 tastes. Upon his arrival at twenty- 
 one, however, his incapacity was such 
 as to induce his family to take steps to 
 put him under the charge of a commit- 
 tee, and at their instance lie joined 
 with his father in suffering common 
 recoveries, and making a new settle- 
 ment of the estate. It was not dis- 
 puted that he mixed in society gener- 
 ally, corresponded with his friends, 
 and settled his own accounts with his 
 steward. His first marriage was in 
 1799, and took place under a family 
 arrangement, with a lady several years 
 older than himself, who it was under- 
 stood took a general supervision of his 
 affairs. In the settlement made at that 
 marriage, the father of his second wife 
 was one of the trustees. The first wife 
 died in November, 1813, and in Febru- 
 ary, 1814, Lord Portsmouth went down 
 to London with his medical attendant, 
 and being left in his trustee's hands, a 
 Meek afterwards contracted a second 
 marriage to the trustee's daughter. In 
 1823, not until after the birth of a 
 chilli, which took place in 1822, a com- 
 mission was issued to inquire into his 
 lunacy, the result of which, after a 
 long contest, was a finding that he was 
 of unsound mind, and had been so 
 since January, 1809. The committee 
 appointed under this procedure imme- 
 diately filed a petition in the ecclesias- 
 tical court to annul tlie second mar- 
 riage. Sir John Niclioll, in deciding 
 t!ie case, said: " 'J'liat considerable 
 weakness of mind, circumvented by 
 
 15
 
 §18.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Rule as to ^18. It has been argued that, as an insane person can- 
 
 divorce. ^ , , ■, P I- 
 
 not consent to adulterj, a decree oi divorce on ground 
 
 proportionate fraud, will vitiate the 
 fact of marriage, whether the fraud is 
 practised on his ward by a party who 
 stands in the relation of a guardian, as 
 in the case of Harford against Morris (2 
 Hag. Cons. R. 423), which was decided 
 principally on the ground of fraud ; or 
 whether it is effected by a trustee, pro- 
 curing the solemnization of the mar- 
 riage of his own daughter with a per- 
 son of very weak mind, over whom he 
 has acquired great ascendency. A per- 
 son incapable from weakness of detect- 
 ing the fraud, and of resisting the as- 
 cendency practised in obtaining his 
 consent to the contract, can hardly be 
 considered as binding himself in point 
 of law by such an act. At all events, 
 the circumstances preceding and at- 
 tending the marriage itself may mate- 
 rially tend to show that the contracting 
 party was of unsound mind, and was 
 so considered and treated by the par- 
 ties engaged in fraudulently effecting 
 the marriage. In respect to Lord Ports- 
 mouth's unsoundness of mind, the case 
 set up is of a mixed nature, not abso- 
 lute idiocy, but weakness of under- 
 standing ; not continued insanity, but 
 delusions and irrationality on 23articu- 
 lar subjects. Absolute idiocy, or con- 
 stant insanity, would have carried witii 
 tliem their own security ; for in either 
 case, the forms preceding, and the 
 ceremony itself, could not have been 
 gone through without exposure and 
 detection ; but here a mixture of both, 
 by no means uncommon, is set up — 
 considerable natural weakness, grow- 
 ing at length, from being left to itself 
 and uncontrolled, into practices so ir- 
 rational and unnatural as in some in- 
 stances to be bordering on idiocy, and 
 in others to be attended with actual 
 delusion — a perversion of mind — a de- 
 
 16 
 
 ranged imagination — a fancy and belief 
 of the existence of things which no ra- 
 tional being, no person possessed of his 
 powers of reason and judgment, could 
 possibly believe to exist. ... It 
 appeared that February, 1814, Lord 
 Portsmouth was brought to London by 
 his medical attendant, and delivered 
 up to his trustees, Hanson being one, 
 and then in town — that day week he 
 was married to the daughter of Mr. 
 Hanson. The confidential solicitor of 
 the family, one of the trustees, who 
 had a great ascendency over him, who 
 owed him every i)Ossible protection, 
 married him to one of his daughters ! 
 It is unnecessary to state the jealousy 
 with which the law looks at all trans- 
 actions between parties standing in 
 these relations to each other. The 
 whole transaction will bear but one 
 interpretation : every part of it is the 
 act of the Hansons ! Lord Portsmouth 
 is a mere instrument in their hands, 
 to go through with the necessary forms ; 
 the settlement is begun in forty-eight 
 hours after Lord Portsmouth's arrival 
 in London ! The contents of that set- 
 tlement ; the mode in which it was 
 prepared ; the concealment of the whole 
 from the friends and the other trustees 
 who were in town, some in the same 
 house witli Lord Portsmouth : all these 
 particulars bear the same character. 
 The necessary forms are gone through 
 with, but in support of these mere 
 forms, not a witness is produced to 
 show that this nobleman was conduct- 
 ing himself as a man understanding 
 what he was doing, or capable of judg- 
 ing, or acting as a free and intelligent 
 agent ; nothing tending to show he was 
 a person of sound mind ; nothing in his 
 conduct inconsistent with unsoundness 
 of mind : every circumstance conspires
 
 CONTRACTS. 
 
 [§ 18. 
 
 of adultery cannot be granted against an insane person.^ To this 
 it may be replied tliat divorce statutes are meant to relieve parties 
 from intolerable wrong, and the wrong of adultery is none the less 
 intolerable because the party committing it was insane .^ This view 
 w^as intimated in England in the Mordaunt case, although that case 
 was decided upon the peculiar construction of a statute. ^ The in- 
 sanity of either party is now held no bar to a divorce in England ;* 
 but in this country it has been held that a divorce will not be de- 
 creed in favor of an insane plaintiif.^ 
 
 to prove that he was the mere puppet 
 of the Hanson family, and that the 
 celebration of this marriage was brought 
 about by a consijiracy among them to 
 circumv^ent Lord Portsmouth, over 
 whom they, and particularly the father, 
 had a complete ascendency, so as to 
 destroy all free agency and rational 
 consent on his part to this marriage. 
 A marriage so had wants the essential 
 ingredient to make the contract valid 
 — the consent of a free and rational 
 agent. The marriage itself, and the 
 circumstances immediately connected 
 with it, do not tend to establish restored 
 sanity ; it was neither ' a rational act' 
 nor was it ' rationally done' — the whole 
 ' sounds to folly' and negatives sanity 
 of mind. The Hansons, in the mode 
 of planning and conducting the trans- 
 action, show that they treated and con- 
 sidered Lord Portsmouth as a person of 
 iinsound mind, and Lord Portsmouth, 
 in submitting and acquiescing, and not 
 resisting, confirms his own incompe- 
 tency. Even if no actual unsoundness 
 of mind, strictly so called — if no insane 
 d(;rangement — existed, if only weak- 
 ness of mind (and all admit that he 
 VOL. I. — 2 
 
 was weak), yet, considering the pas- 
 siveness and timidity of his character 
 on the one hand, the influence and re- 
 lation of Hanson, his trustee, on the 
 other, and the clandestinity and other 
 marks of fraud which accompanied the 
 whole transaction, I am by no means 
 prepared to say, that, without actual 
 derangement in the strict sense, the 
 marriage would not be invalid ; but in 
 my judgment Lord Portsmouth was of 
 unsound mind, as well as circumvented 
 by fraud." 
 
 ' Nichols V. Nichols, 31 Vt. 328 ; 
 Wray v. Wray, 19 Ala. 522 ; Rathbun 
 V. Rathbun, 40 How. Pr. 328. But the 
 suit may be brought against them while 
 insane for adultery committed when 
 sane. lb. 
 
 2 Matchin v. Matchin, 6 Penn. St. 
 332. 
 
 3 Stat. 20 & 21 Vict. c. 85, § 27. See 
 the cases, Mordaunt r. Mordaunt, L. 
 R. 2 P. 109, 382. 
 
 4 Baker v. Baker, L. R. 5 P. D. 145, 
 affirmed 6 P. D. 12 ; Mordaunt v. Mon- 
 crieffe, 2 H. L. 375. 
 
 5 Worthy l^ Worthy, 3« Ga. 45 ; Brad- 
 ford V. Abend, 89 111. 78. 
 
 17
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 CHAPTER II. 
 
 WILLS. 
 
 I. Capacity. 
 
 Disposing mind is a mind capable of 
 independent compreliension, § 19. 
 
 Idiots unable to malce a will, § 20. 
 
 If intelligence be shown, liypotliesis of 
 idiocy falls, § 21. 
 
 Different theories as to necessary (quali- 
 fications, § 22. 
 
 Theory that a low grade of intelligence 
 is sufficient, Steivart v. Lispe.nurd, § 
 23. 
 
 Theories calling for business capacity, 
 § 24. 
 
 Theory that disposing memory is ne- 
 cessary, § 25. 
 
 English rulings that such qualifications 
 involve a higher degree of capacity, 
 §2G. 
 
 Party must have capacity to resist 
 fraud or force, § 27. 
 
 Mere mental weakness does not inca- 
 pacitate, § 28. 
 
 Nor does eccentricity, § 29. 
 
 Conflict as to the burd('n of j^roof, § 30. 
 
 Non-exjji-rts as well as experts may 
 give opinion, § 31. 
 
 Experts may be asked as to hypothetical 
 case, § 32. 
 
 Speculative opinions of experts entitled 
 to little weight, § 33. 
 
 II. Delusions. 
 
 Delusions to be proved by insanity, not 
 insanity by delusions, § 34. 
 
 Will void when the result of insane de- 
 lusion, § 35. 
 
 But single delusion not g(uieral insan- 
 ity, § 30. 
 
 18 
 
 Nor does "moral insanity" incapaci- 
 tate, § 37. 
 
 Eccentricities are not delusions, § 38. 
 
 Unless the result of insanity, § 40. 
 
 Rule in England formerly that delusion 
 must affect /ac^Hm of will to incapaci- 
 tate, § 41. 
 
 This view only partially approved by 
 Lord Lyndhurst, § 42. 
 
 And dissented from by Lord Brougham, 
 Waring v. Waring, § 43. 
 
 His views pushed to the extreme, § 44. 
 
 Followed by Lord Penzance, Smith v. 
 TMntl, § 45. 
 
 But repudiated by Queen's Bench, 
 Banks V. GoodJ'cUow, § 4G. 
 
 Conflict in these decisions ; Lord Brough- 
 am's tlieory, § 47. 
 
 Contra, Lord Cockburirs compartment 
 theory, § 48. 
 
 Objection to this view, § 49. 
 
 Theories reconciled by supposition of 
 mental twilight, § 50. 
 
 The mind is indivisible, § 51. 
 
 Yet delusions need not destroy capacity 
 )';/ toto, § 52. 
 
 This proved by instances of delusion 
 att'ecting strong-mindcsd persons, § 53. 
 
 Im]>ortant modifications of conduct liave 
 been caused by visions, § 57. 
 
 And even morbid (b-rangement need not 
 incapacitate, § 58. 
 
 Spiritualistic delusions do not incapaci- 
 tate unless subjecting testator to un- 
 due influence or affecting particular 
 provisions, ^ 59. 
 
 Better opinion that delusions do not per 
 se destroy capacity, § GO.
 
 WILLS. 
 
 [§19. 
 
 III. Lucid Intervals. 
 
 Where habitual insanity is shown, lucid 
 intervals must be proved, § 61. 
 
 Restoration of disposing mind must be 
 shown, § 62. 
 
 Rational character of act affords pre- 
 sumption of sanity, § 63. 
 
 So as to idiocy, § 64. 
 
 IV. Intoxication. 
 
 To destroy business capacity must be 
 complete, § 65. 
 
 So as to wills, § G6. 
 
 Except in cases of undue influence, 
 § 67. 
 
 When party is intentionally made 
 drunk, will is void, § 68. 
 
 Habitual drunkard not necessarily in- 
 capacitated, § 69. 
 
 Mere stimulation does not incapacitate, 
 § 70. 
 
 Habitual drunkenness may produce in- 
 sanity and imbecility, § 71. 
 
 Illustrative cases. Pierce v. Fierce, § 72. 
 
 Hundley v. Staceij, § 73. 
 
 Peclc V. Carey, § 74. 
 
 Use of medicines may produce incapa- 
 city, § 75. 
 
 V. Undue Influence and Fraud. 
 
 Fraud acting on weakness invalidates 
 contracts and deeds, § 76. 
 
 Still more so wills, § 77. 
 
 Undue influence must amount to con- 
 straint, § 78. 
 
 Question is one of capacity to resist, § 
 79. 
 
 Mental weakness does not prove undue 
 influence, § 80. 
 
 VI. Presumptions. 
 1. From act and surroundings. 
 
 Contents ofwill may indicate incapacity, 
 § 81. 
 
 Inference from abuse of confidential re- 
 lationship, § 82. 
 
 Inference from contents not conclusive, 
 §83. 
 
 Unjust will not necessarily invalid, § 
 84. 
 
 Disposing mind free to decide, § 85. 
 
 Eccentric clauses do not invalidate per 
 se, § 86. 
 
 2. From old age. 
 
 Old age does not per se incapacitate, § 
 87. 
 
 Should rather be protected, § 88. 
 
 So of partial loss of faculties, § 89. 
 
 And bodily infirmities, § 90. 
 
 Mental weakness must be shown to in- 
 capacitate, § 91. 
 
 So in England, § 92. 
 
 Excessive failure of memory invalidates, 
 § 93. 
 
 And senile dread of relatives, § 94. 
 
 3. From physical defects. 
 
 Competency exists in cases of deaf- 
 mutes, but not knowledge of contents 
 of instrument, § 95. 
 
 Question depends on education, § 96. 
 
 Deaf-mutes may marry when compos 
 mentis, § 97. 
 
 Question one for jury, § 98. 
 
 I. CAPACITY. 
 
 § 19. A DISPOSING mind, the existence of which is essential to 
 testamentary capacity, is a mind intelligent enough to £)jj.,,„pj, 
 have a general idea of the property to be disposed of i"i"d is a 
 
 ^ ... niiiid capa- 
 
 and of the objects among which the distribution ought hie of inde- 
 
 to be made. When we come, however, to concrete {.','H'„p,"heu- 
 
 cases, two important and often conflicting conditions are **'""• 
 
 19
 
 § 20.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 to be considered. On the one side the comfort of the weak, the 
 dependent, and the aged, depends hirgely upon their testamentary 
 capacity being maintained. If they cannot leave property to per- 
 sons kind to them, they may be often left to suft'er from want of 
 kindness. On the other side, if a person of feeble intellect is so 
 far exposed to the coercion or fraud of others as to validate testa- 
 mentary provisions made by him under the pressure of such coercion 
 or fraud, then not only may his life be made miserable, but he may 
 become instrumental in perpetrating great wrongs. Hence it is 
 that to constitute a disposing mind there must be, as will hereafter 
 be more fully seen, capacity as well to resist undue influence as to 
 take a general view of the estate to be bestowed and the objects 
 among whom it is to be distributed.^ 
 
 § 20. An idiot, it is agreed on all sides, has no testamentary 
 
 capacity ;^ though as to what constitutes idiocy there is 
 able to ^' as much doubt in testamentary as in contractual issues, 
 make a a Idiocy," according to Dr. Ray, "is that condition of 
 
 mind in which the reflective, and all or a part of the 
 affective powers, are either entirely wanting, or are manifested to 
 the slightest possible extent. "^ And to work testamentary inca- 
 pacity, under any circumstances, the privation of reason must be 
 complete. Yet even here the question varies with the facts of each 
 case. 
 
 ' Mr. Bigelow argues (IJarm. Wills, ^ Jarman on Wills, 5th Am. ed. *34, 
 
 5tli Am. ed., note to *38), that the vol. i. ; ed. by Randolph & Taleott, i. 
 
 term " a disposing mind," is ambigu- p. 63; 1 Redf. on Wills, §§ vii., viii. 
 
 ous and misleading. For, he says, it " Medical Jurisprudence of Insanity, 
 
 is •' applied to issues of insanity in tlie 1871, § 58 ; and the following remarks 
 
 sense of perverted (diseased) intellect, are worthy of attention : He tells us 
 
 where the real question is, not whether that " there is even more diversity in 
 
 the decedent had capacity to make a the characters of the idiotic and imbe- 
 
 will, but whetlier he did (normally) cile than in those of the sound ; and 
 
 will," whereas, "it is applicable pro- this truth must not be forgotten if we 
 
 perly only to issues of decay or of want would avoid tlie flagrant error of regu- 
 
 of mind ; the true question in such lating judicial decisions by rules, 
 
 cases being whether the supposed tes- whicli, though perfectly correct in re- 
 
 tator liad sufficient mental atiility at gard to one case or set of cases, may be 
 
 the time to exercise will." See also wholly incon-ect in regard to others." 
 Randolph & Talcott's note to Jarman, p. 
 100. 
 
 20
 
 WILLS. [§ 21. 
 
 § 21. Though we may fail to discover a definition of idiocy tho- 
 roughly comprehensive, we are justified in saying that j„ . ,,. 
 where there is even a low degree of intelligence, idiocy geuce be 
 
 L 1 • 1 L • i rni i 1 • • 1 • shown, liy- 
 
 cannot be said to exist. I he test is comparatively sim- pothesis of 
 pie. If the pretended idiot can be shown to have intel- ^'^lo'^y ^^^iis. 
 ligently performed acts of business during the period in which 
 idiocy be claimed to have existed, the allegation of incompetency 
 on this ground falls, unless fraud or constraint be shown. ^ 
 
 ' Bannatyne v. Baniiatyne, 2 Rob. 
 475 ; 16 Jur. 864 ; 14 Eiig. L. & Eq. R. 
 581. In this case Dr. Lushingtoii said : 
 " Before entering upon tliis branch of 
 the case, I must bear in mind what the 
 nature of the case set up in opposition 
 to the will is. I must repeat that it is 
 not lunacy — it is not monomania — it is 
 not any species of mental disorder, the 
 symptoms of which it may, at periods, 
 be difficult to detect ; but the case pre- 
 sented is that of idiocy or imbecility, 
 the characteristic of which is perman- 
 ence, with little or no variation, though 
 often, in case of idiots, it does some- 
 times hai^pen that there will be a 
 greater degree of excitement demon- 
 strated than at other i>eriods. How is 
 such a case to be met ? I apprehend, 
 to meet it and to show that such a state 
 of things did not exist at any given 
 period, proof of acts of business are 
 most important evidence. Many acts 
 of business could possibly be done by 
 a lunatic, and the lunacy not detected ; 
 but it is scarcely possible to predicate 
 the same of an idiot or lunatic, or an im- 
 becile person. I shall look, therefore, 
 in the first instance, to the acts of busi- 
 ness. It is proved by Mr. Falkner, 
 that the deceased kept an account with 
 Messrs. Tuckwell, at Bath, for four 
 years, from 1818 to 1821, and during 
 all that period, occasionally drew 
 drafts, and all thosc^ drafts were ])ai(l 
 to himself over the; counter. Accord- 
 ing to the evidence, the deceased came 
 
 himself to the counter, and there is no 
 proof of any one accomi:)anying him on 
 such occasions ; he asked for the sum 
 he wanted ; the clerk filled it in, he 
 signed it, and took the money. Surely 
 no idiot could have done this, for he 
 must have exercised thought to go to 
 the bank, memory and judgment as to 
 the thing required ; and moreover, his 
 conduct and demeanor could not at such 
 times have been as described by the 
 witnesses against the will, or, from the 
 glaring colors in which his imbecility 
 is depicted, it must have been dis- 
 covered, and the business never could 
 have been transacted at all. ... I 
 consider these transactions, then, of 
 first-rate importance towards solving 
 all the difficulties of this case ; for 
 here, after the lapse of about thirty 
 years, tlie court has the advantage of 
 facts proved, with the dates duly 
 affixed to them. There is, I must say, 
 not the least evidence to show that in 
 any one of these acts of business the 
 deceased was assisted by any person 
 whatever, thepresumi)tion is tlie otlier 
 way ; and to put these acts uj)on the 
 very lowest basis on which they can be 
 I)laced, they do utterly disprove idiocy 
 or -imbecility. I will simply nspeat 
 what I have already indeed said, that 
 those who are aftlicted with lunacy, 
 sometimes have tlie management of and 
 can manage their pecuniary all'airs — 
 an idiot, never." 
 
 21
 
 § 23.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § 22. The cases considering the question, What constitutes un- 
 soundness of mind in its legal sense ? may be grouped in 
 Different - . , 
 
 theories as three classes. In the first we have those which proceed 
 
 quaunea-^"^^ upon the notion that no man is incapable of making 
 tions. ^ ^y^i^ unless he is absolutely insane ; in the second 
 
 those Avhich proceed upon the test of ordinary business sagacity 
 and capacity ; while in the third are to be considered such as re- 
 quire of each testator certain specified qualifications for making a 
 will, the absence of any one of which incapacitates. 
 
 § 23. Tiie most prominent case of the first class is the case of 
 
 Stewart v. Lispenard,^ already referred to. In this case 
 
 Theory that the lowest test of capacity was applied. It was there held 
 
 a low grade , i i i i i- i i ii c ^ 
 
 of inteiii- that a woman who had always lived under the care or her 
 fuliicient. friends, had never attempted to transact business, who, 
 
 Stewart v. ^^ ^hc aire of fortv, had not mastered the Lord's Prayer, 
 Lispe?i.ara. o ./ ? 
 
 and whose intellect and understanding were of a very 
 
 low degree, was competent to execute a will. The court — the 
 
 senate of the state of New York — reversing the chancellor, ruled 
 
 that it is not the province of courts to measure the extent of the 
 
 understanding of the testator, in passing on a will ; if he be not 
 
 totally deprived of reason, whether he be wise or unwise, he is the 
 
 lawful disposer of his property. Followed for a time in several 
 
 cases in New York,^ this view has been adopted in Georgia f in 
 
 that state it is now settled that a disposing mind exists unless there 
 
 IS a total privation of reason.'* But it is no longer the rule in 
 
 New York.^ 
 
 • 26 Wend. 255. See an excellent must be an entire loss of intellect to in- 
 summary of this case, in 1 Beck's Med. capacitate, and that the testator must be 
 Jur. 850. unable to understand what he is doing 
 
 2 Blanchard v. Nestle, 3 Denio, 37 ; or the contents of the pajier when read 
 Clarke!'. Sawyer, 2 Comst. 498 ; Burger to him. (Ingraham, P. .J. 1873.) But 
 V. Hill, 1 Bradf. 3G0. subsequent cases follow Delatield v. 
 
 3 I'otts V. House, 6 Ga. 324. Parish. An able review of this case 
 < (iardner v. Lamback, 47 Ga. 133. appears as an editorial in the Am. 
 
 With the exception of an old Pennsyl- .lourn. of Insanity for Oct. 18lJ2 (vol. 
 
 vania case (Dornick v. Reichenback, 19). From this review we extract the 
 
 10 S. & R. 84) these seem to be all the following :— 
 
 cases embodying this theory. "The alleged loss of understanding 
 
 5 Delafield v. Parish, 25 N. Y. 9. See, on th(^ part of Mr. Parish was, as usual, 
 
 however, Crolius r. Stark, 7 Lans. 911, dependent upon physical disease. He 
 
 ()4 Barb. 112, where it is said that there had threatening of cerebral disturb- 
 
 9'?
 
 WILLS. 
 
 [§24. 
 
 § 24. The next class of cases occupy an intermediate position. 
 They avoid any strict definition, holding that, from the nature of 
 
 ance for several years before his at- 
 tack of apoplexy and paralysis in 1849, 
 and had hereditary tendency to disor- 
 ders of that nature. The shock of this 
 final attack rendered him insensible 
 and convulsed for several hours. 
 
 "It was soon discovered that his right 
 side was paralyzed. His physician 
 characterized the seizure as ' hemi- 
 plegia,' leading to ' defect of motion, 
 not of sensation,' and implicating 
 ' the right arm and the right leg, and 
 also the organs of speech.' He sub- 
 sequently acquired a slight control 
 over the right leg, but the arm, which 
 improved somewhat for the first six 
 months immediately succeeding the at- 
 tack, afterwai'ds entirely lost its power. 
 The left arm and leg were not perma- 
 nently affected by paralysis. 
 
 "It is stated that Mr. Parish recov- 
 ered, in a considerable degree, his 
 strength after the first shock, and that 
 during the remaining seven years of 
 his life he enjoyed good, but not unin- 
 terrupted, health. He suffered from a 
 severe and painful disease of the bow- 
 els in October, 1849 ; subsequently, he 
 had a number of attacks, ' distinct 
 from the general disease, but the most 
 frequent dependent upon its cause, or, 
 in other words, dependent upon the 
 condition of the brain which led to the 
 disease.' 
 
 " ' He had one or more severe attacks 
 of cholera morbus, one or more of in- 
 flammation of the lungs, an abscess 
 formed at one time under tlie jaw, 
 which became so large as to threaten 
 suffocation, and there were several 
 minor attacks from time to time.' 
 
 " In addition to these disorders, ever 
 after his apoplectic attack, Mr. Parish 
 was subject, at regular intervals, to 
 sjiasms or convulsions, tlie intervals 
 
 extending from one or two weeks to 
 six months, or even a year. Their 
 approach was preceded by despondency 
 and irritability on the part of the para- 
 lytic, and after the convulsion had 
 passed off, he was generally better and 
 brighter than he had seemed before. 
 The convulsions are described as com- 
 monly coming on suddenly with a noise 
 in the throat, resembling a shriek or 
 scream, a violent reddening of the face, 
 and a convulsion of the whole body — 
 the muscles becoming alternately rigid 
 and relaxed. Some of these paroxysms 
 were so violent as seriously to threaten 
 a fatal result. It was the opinion of 
 Mr. Parish's attendant physician that 
 these convulsions were ' connected 
 with the condition of the brain left by 
 the apoplectic attack.' The main fea- 
 ture of Mr. Parish's final illness was 
 congestion of the lungs, but it was a 
 complicated disease depending also, in 
 the opinion of his pliysicians, upon the 
 condition of the brain. 
 
 "His power of speech was mainly 
 abrogated on his first attack, and from 
 that time to his death he was never 
 able to utter anything excejit a few 
 imperfectly articulated monosyllables. 
 These were principally ' yes' and 
 'no,' which he pronounced very im- 
 perfectly, and there is even great 
 doubt whether he ever uttered them 
 intelligibly. 
 
 " He expressed himself most fi'equent- 
 ly by the use of inarticulate sounds. 
 These are descrilxnl by the witnesses 
 as sounds resembling the syllables, 
 'yah, yah, yah,' 'nyeh,' ' nin, nin,' 
 'yeali, yeah, yeali,' and others of a 
 similar character. 
 
 " II(! accompanred these sounds by 
 g(^stures and motions of th(! left hand 
 and arm, and by nodding or shaking 
 
 28
 
 § 24.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Theories the case, the law in this respect presents " no formula 
 
 businfJ°'" ^J which judges are bound.''^ The possession of ordi- 
 
 capacity. jj^ry business capacity,^ the ability to contract,^ or 
 
 liis5 lioad. The gestures usually cnu- 
 sisted in his waving his hand in dif- 
 ferent directions with his fingers ex- 
 tended, putting his fingers in his 
 mouth, or raising liis hand and shak- 
 ing it. The external senses, feeling, 
 hearing, and smelling, do not api)ear 
 to have been seriously afi'ected. His 
 eyesight was always more or less im- 
 perfect. 
 
 " He would occasionally look at books 
 and papers, but the preponderating 
 evidence was that he could not read at 
 all. An attempt was made to induce 
 him to write with his left hand, but 
 after several trials with paper, slate, 
 and blackboard, which, in one or two 
 instances, resulted in his writing after 
 a copy the first few letters of his name 
 in very doubtful characters, the at- 
 tempt was abandoned. 
 
 " Block-letters were procured, but he 
 would not use them, and pushed them 
 away. A dictionary was suggested, 
 but whether the trial was ever made 
 or not, he never adopted that method 
 of communicating his ideas. It was 
 the constant practice of Mr. Parish's 
 nurses, in accordance with his wife's 
 directions, to read the newspajier to 
 him, but the proponents failed to prove 
 that he manifested comprehension of 
 what was thus communicated, or ex- 
 
 hibited any intelligent interest in the 
 reading. 
 
 "Subsequent to the attack he was 
 never intrusted with the management' 
 of his own affairs, nor allowed to have 
 money in his possession. He could not 
 supply his own wants, and was washed, 
 dressed, and attended at table like a 
 child, and was even frequently unable 
 to control his evacuations. 
 
 " His wishes, as might be expected, 
 were not easily ascertained. He ex. 
 pressed, by the inarticulate sounds 
 and motions before referred to, that he 
 desired something, and various sug- 
 gestions would be made by those at- 
 tending him until he expressed assent, 
 though it often happened that it was 
 utterly impossible to comprehend him, 
 and the attempt would be abandone<l 
 by both parties. He would also assent 
 to contradictory suggestions. 
 
 " Before his attack Mr. Parish is de- 
 scribed l>y his relatives and acquaint- 
 ances as a ' placid and unexcitable 
 man,' of great self-respect and with 
 great command of temper ; ' his man- 
 ners were mil<l, gentle, and unruflled ;' 
 a quiet, undemonstrative gentleman, 
 rarely exhibiting any emotion, and 
 deeply absorbed in his commercial 
 transactions. 
 
 "After his attack he manifested a 
 
 ' Reade, .!., in Lawrence v. Steel, (JG 
 N. C. 584. 
 
 2 So in Illinois, Lilly v. Waggoner, 
 27 111. 395 ; Trisli r. Newell, 62 111. 11)() ; 
 Yoer. McCord, 74 111. 33; Meeker v. 
 Meeker, 75 111. 260 ; Rutherford v. Mor- 
 ris, 77 111. 397 ; Carpenter v. Calvert, 
 83 111. 62 ; Brown r. Riggin, 94 III. 560 ; 
 Rambler r. Tryon, 7 S. & R. (Pa.) 90. 
 
 24 
 
 Capacity is established by capability to 
 transact business with sagacity and 
 decision. Barnes v. Barnes, 66 Me. 
 286 ; Gleespin in re, 26 N. J. Eq. 523 ; 
 Fraser v. Jennison, 42 Mich. 206 ; Black 
 r. Ellis, 3 Hill (S. C.) 68 ; Tomkins v. 
 Tomkins, 1 Bailey, 92. 
 
 ' Coleman r. Robertson, 17 Ala. 84 ; 
 Tobin v. Jenkins, 29 Ark. 151.
 
 WILLS. 
 
 [§24. 
 
 make a deed/ are the general tests which they propose, leaving the 
 actual status of the decedent's mind to he arrived at by the jury by 
 every-day standards and the light of ordinary reason. 
 
 marked change of disposition ; he oc- 
 casionally shed tears ; and, in several 
 instances, exhibited a want of appre- 
 ciation of the requirements of decorum 
 and even of decency. He had occa- 
 sional unmeaning freaks and caprices, 
 such as searching for his clothes in 
 imiwssible places, going out to see the 
 moon, and making excursions to the 
 garret and the cellar, for no ascer- 
 tained purpose ; and it sometimes be- 
 came necessary to use physical force to 
 prevent him from undertakings which 
 threatened his personal safety. 
 
 " He exhibited some recollection of 
 his former daily and familiar places of 
 resort, and of his former habits of busi- 
 ness, which he would attempt, in tri- 
 fling matters, to resume, as, by pulling 
 out his watch when he j^assed the 
 City Hall clock, or insisting, when 
 driven out, upon being taken to the 
 bank of which he was once a director, 
 or to his old office, or to various trades- 
 men with whom he had been in the 
 habit of dealing. In addition to these, 
 the proponents, who contended that 
 Mr. Parish's intellect was never mate- 
 rially impaired, brought forward many 
 particular instances in which it was 
 claimed that he manifested undimin- 
 ished intelligence. One or two of these 
 may be mentioned. 
 
 " It was said by one witness : ' Hav- 
 ing been riding out of the city, he 
 would take his watch out of his pocket, 
 look at it, turn round and look at me, 
 when I would ask him if he wished to 
 return, if it was late or about his usual 
 drive; he would say 'yes,' and nod 
 his head.' Elsewhere, the same wit- 
 
 ness says : ' I recollect, on one occa- 
 sion, the dining-room clock was run 
 down ; when he pointed at the clock, I 
 perceived that it had stopped ; re- 
 marked to him that it had stopped, 
 and I would wind it up, when he nod- 
 ded his head.' An old acquaintance 
 testified that he recalled to Mr. Parish 
 a ridiculous circumstance that had 
 happened to them in company, many 
 years before, and that Mr. Parish 
 ' gave him to understand' that he rec- 
 ollected the circumstance, and laughed 
 at it quite heartily. These instances, 
 however, of which the above are speci- 
 mens, were isolated, and taken together 
 were not deemed of sufficient signifi- 
 cance to avoid the conclusion derived 
 from the facts before stated. 
 
 " In regard to the actual execution of 
 the codicils, it seemed that the counsel 
 employed to prepare them, read them 
 to Mr. Parish in the presence of the 
 subscribing witnesses, put to him the 
 requisite formal questions, and re- 
 ceived from him by sound and gesture, 
 as usual, what were supposed to be 
 affirmative replies. The counsel then 
 assisted Mr. Parish by guiding his 
 hand while he made his mark. At 
 least this was the case at the execu- 
 tion of the first and second codicils ; 
 there was no evidence whether or not 
 lie received assistance in making his 
 mark at the execution of the third. 
 
 "Such were the main points of the 
 case presented to the court of appeals. 
 The opinion of the court was delivered 
 by .Judge Davies, from which we quote 
 the comments upon the facts which we 
 have narrated, and the conclusions in 
 
 > Tyson i-. Tyson, 37 Md. 5(J7. 
 
 25
 
 §25.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § 25. But the preponderance of authority is to the effect that 
 the law requires not so much any particular character of intellect, 
 
 which the majority of the Court con- 
 curred. 
 
 "After adverting to the change in Mr. 
 Parish's disposition after his attack, 
 Judge Davies says : ' How diametri- 
 cally opposite to the previous conduct 
 of his whole life is that now exhibited ! 
 And the inquiry forces itself upon the 
 mind, what cause has produced such 
 results ? Can such totally inconsistent 
 and opposite characters be reconciled 
 with the theory that the faculties, the 
 mind, and moral perceptions of Mr. 
 Parish underwent no change, but were 
 the same after July 19, 1849, as they 
 were before that day ? . . . . We 
 confess ourselves totally unable to as- 
 sent to any such theory. The convic- 
 tion on our mind is clear that these 
 facts and circumstances show uner- 
 ringly that the attack of July 19th ob- 
 literated the mental powers, the moral 
 percejitions, the refined and gentle sus- 
 ceptibilities, of Henry Parish ; that after 
 that period he ceased to be the mild, 
 intelligent, and unruffled man he had 
 been theretofore, and that thereafter 
 he was not responsible for the unbe- 
 coming and ungentlemanly conduct 
 he so frequently exhibited. He then 
 ceased to be Henry Parish, and was no 
 longer an accountable being.' Upon 
 the point of Mr. Parish's method of 
 communicating his ideas. Judge Davies 
 says : ' Witli these imperfect media 
 for ascertaining the thoughts of Mr. 
 Parish, it is doing no injustice to any 
 one to assume that they have been 
 mistaken when they supposed that 
 they correctly understood him. We 
 more naturally and readily come to 
 this result, because we find that all 
 who had any intercourse with Mr. 
 Parish, on many occasions, found great 
 
 26 
 
 difficulty in understanding his wishes 
 and thoughts, if they even under- 
 stood them at all ; and the instances 
 are frequent and clearly established 
 where he often made an affirmative and 
 negative motion of his head, imme- 
 diately succeeding each other, to the 
 same question, leaving the inquirer in 
 perplexity which he really intended. 
 
 " 'AH the testimony shows that he 
 could only indicate with his fingers 
 and hand, or by sounds, that he wanted 
 something, or that something was the 
 matter, and which motions or sounds 
 were construed by those aroimd him 
 as evidences of his wish to put a ques- 
 tion, whereupon they began to suggest 
 various topics, and when they thought 
 they perceived that they had hit upon 
 the subject in his mind they supposed 
 he wished to inquire about, they put 
 such questions as suggested themselves 
 to them, and to which tliey supposed 
 they had received affirmative or nega- 
 tive answers. If Mr. Parish had no 
 power to express a wish to destroy a 
 will, it follows he had none to create 
 one, and the manifestation of his 
 wishes depended entirelii upon the inter- 
 pri tcr (inil the i>iti'(jriti/ of the interpreta- 
 tion. 
 
 " ' It is thus seen that great difficulty 
 and uncertainty, to say the least of it, 
 attended any expression of the thoughts 
 or wishes of Mr. Parish, and that a 
 large number of those having business 
 or intercourse with him, utterly failed 
 to attach or obtain any meaning to his 
 signs, sounds, motions, or gestures. 
 Tlie natural and obvious deductions to 
 be made from all these facts and cir- 
 cumstances are, that Mr. Parish had 
 no ideas to communicate, or, if he had
 
 WILLS. 
 
 [§25. 
 
 as the ability to make certain efforts of mind and me- Theory that 
 mory. These are stated variously ; but the cases come meniorvfs 
 to the same general result, namely, that the party necessary. 
 
 any, that the means of doing so, witli 
 certainty and beyond all cavil and 
 doubt, were denied to him.' 
 
 "After referring to the testator's fail- 
 ure to communicate by writing, or by 
 the use of any artificial means. Judge 
 Davies states the final conclusions, as 
 follows : — 
 
 " ' To what result does this review of 
 the facts and circumstances in this 
 case, adverted to and conmiented on, 
 lead the mind ? On a careful con- 
 sideration of them all, with a most 
 anxious desire to arrive at a just and 
 correct conclusion, we are clearly of 
 the opinion that the attack of Mr. 
 Parish on the 19th of July, 1849, ex- 
 tinguished his intellectual powers, so 
 obliterated and blotted out his mental 
 faculties, that after that period he was 
 not a man of sound mind and memory 
 within the meaning and language of 
 the statute, and was, therefore, incom- 
 petent to make a will 
 
 " ' It is not the duty of the court to 
 strain after probate, and especially to 
 seek to establish a posterior will, made 
 in conceded enfeebled health, unsus- 
 tained by previous declaration of in- 
 tention, over a prior will, made in 
 health, and with care and deliberation, 
 when the provisions of the posterior 
 will are in direct hostility to and con- 
 flict with those of the prior one. 
 
 " ' It would be in violation of long 
 and well-established principles, and an 
 almost uniform and unbrokcni current 
 of decision in England and in this 
 country, to admit to probate; testamen- 
 tary papers, prepared and executed 
 under the circumstances these were, by 
 a man who was in apparent full phy- 
 
 sical health, and possessing nearly his 
 natural strength, who could not or 
 would not write, who could not or 
 would not speak, who could not or 
 would not use the letters of the alpha- 
 bet or even a dictionary, for the piir- 
 pose of conveying his wishes, upon 
 proof solely that they were supposed to 
 express the testator's wishes, from 
 signs, gestures, and motions made by 
 him, and especially when it appeared 
 that such signs, gestures, and motions 
 were often contradictory, uncertain, 
 frequently misunderstood, and often 
 not comprehended at all.' 
 
 "Judge Davies states at length the 
 three principles of law which he con- 
 ceived to be applicable to the case. 
 
 " The first regards testamentary ca- 
 pacity, the second the burden of proof, 
 the thii'd the maxim, qui se scripsit 
 hcvreclem. The chief interest and im- 
 portance attaching to the decision, 
 turn upon the discussion of the first of 
 these — the doctrine of testamentary 
 capacity. 
 
 "Up to the present time, the well- 
 known case of Stewart v. Lispenard, 
 decided in the court of errors in 1841 
 (26 Wend. 2')')), has been held to be 
 of binding authority. The rule of tes- 
 tamentary capacity there adopted was 
 extremely rigorous, and the proposi- 
 tion was sustained that in passing upon 
 the validity of a will, courts do not 
 measure the understanding of the tes- 
 tator, but, if he have any at all, and 
 be not an absolute idiot, totally de- 
 l>rived of reason, he is the lawful dis- 
 poser of his own propi'rty, and bis will 
 stands as a reason for bis actions. 
 This doctrine is repudiated, or at least 
 modified, in the Parish Will decision, 
 
 27
 
 §25.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 must be able to remember what property he has, to consider who 
 have claims vipon it, and to know what disposition he is making 
 of it. Delusions affecting any one of these subjects will destroy 
 capacity.^ And this, as has already been said, is the best test. 
 
 and the Lispeiiard case expressly over- 
 ruled. In the language of the opinion, 
 derived from various high authorities, 
 the testator must have " sufficient 
 capacity to comprehend perfectly the 
 condition of his property, his relations 
 to the persons who were, or should, or 
 might have heen the objects of his 
 bounty, and the scope and bearing of 
 the provisions of his will. 
 
 " ' He must have sufficient acth-e mrm- 
 ory to collect in his mind, without 
 prompting, the particulars or elements 
 of the business to be transacted, and 
 to hold them in his mind a sufficient length 
 of time to perceive at least their obvi- 
 ous relations to each other, and to be 
 able to form some rational judgment in 
 relation to them.' 
 
 "This is receding from an extreme 
 and perhajis a dangerous position, 
 hitherto occupied by the court of last 
 resort ; and the establishment of a 
 more rational doctrine. To hold, as a 
 settled rule of law, that testamentary 
 capacity exists where there is even ' a 
 glimmering of reason,' is scarcely in 
 accordance with an enlightened system 
 of jurisi^rudence, or even with the dic- 
 tates of ordinary common sense." 
 
 ' Four cases may be considered lead- 
 ing on this subject : Converse v. Con- 
 verse, 21 Vt. 168 ; Harrison v. Rowan, 
 3 Wash. C. C. 580 ; Delafield v. Parish, 
 25 N. Y. 9 ; and Banks v. Goodfellow, 
 L. R. 5 Q. B. 540. In the first case. 
 Judge Redfield said that it was neces- 
 sary for the party to have something 
 more than mere passive memory re- 
 maining. " He must undoubtedly," 
 said the judge, " retain sufficient active 
 memory to collect in his mind, without 
 
 28 
 
 prompting, particulars or elements of 
 the business to be transacted, and to 
 hold them in his mind a sufficient 
 length of time to perceive at least their 
 more obvious relations to each other, 
 and be able to form some rational judg- 
 ment in relation to them. The ele- 
 ments of such a judgment should be 
 the number of his children ; their de- 
 serts, with reference to conduct and 
 capacity, as well as need, and what he 
 had done before for them, relatively to 
 each other, and the amount and condi- 
 tion of his property, with some other 
 things, perhaps." Mr. Justice Wash- 
 ington charged the jury in Harrison v. 
 Rowan, a case approved by Lord Chief 
 Justice Cockburn, in Banks v. Goodfel- 
 low, that "the testator ought to be 
 capable of making his will with an un- 
 derstanding of the business in which he 
 is engaged ; a recollection of the proper- 
 ty he means to dispose of ; of the per- 
 sons who are the objects of his bounty, 
 and the manner in which it is to lie 
 distributed between tlii'm." The lan- 
 guage of the court in Delafield r. Parish 
 has been ali'eady given ; and the opin- 
 ion of Cockburn, C. J., in Banks v. 
 Goodfellow is to the same etfect. And 
 these qualifications are the test whether 
 unsoundness of mind arises from 
 congenital defect or mental disease. 
 See Banks i\ Goodfellow, nl supra, at p. 
 570. Tile English cases following this 
 case are, Sinee i\ Smee, L. R. 5 P. D. 
 84 ; 40 L. J. P. 8 ; Boughton v. Knight, 
 3 L. R. P. & D. (J4. Greenwood v. Green- 
 wood, 3 Curt. Append. 30 ; Ilarwood v. 
 Baker, 3 Moore P. C. C. 282, are earlier 
 cases. In this country may be cited to 
 the same efl'ect, Hathorn v. King, 8
 
 WILLS. 
 
 [§ 26. 
 
 Memory to this extent the party must have. Although mere weak- 
 ness of mind does not generally incapacitate, yet a testator cannot 
 dispose of property, the possession of which he but barely appre- 
 ciates, among parties whose relations to himself he knows but does 
 not understand ; while, on the other hand, if he has this disposing 
 capacity, nothing can prevent him from making a will as eccentric, as 
 injudicious, or as unjust as caprice, frivolity, or revenge can dictate. 
 § 20. In a late English case,^ Sir James Hannen, in charging 
 the jury, took especial care to guard against incapa- Ensriish 
 city in relation to the natural objects of the testator's ruiingsthat 
 
 •^ ^ _ such quail- 
 
 bounty .2 The testator must have, he said, "a memory flcatious in- 
 
 Mass. 371 ; Comstock v. Hadlyme, 8 
 Conn. 265 ; Van Guysling v. Van Ku- 
 ren, 35 N. Y. 70 ; Horn v. Pullman, 72 
 N. Y. 269 ; Clarke v. Fisher, 1 Paige, 
 171 ; Brown v. Torrey, 24 Barb. 583 ; 
 Kinne v. Johnson, 60 Barb. 69 ; Rey- 
 nolds V. Root, 62 Barb. 250 ; Moore v. 
 Moore, 2 Bradf. 261 ; Farman i'. Smith, 
 7 Lans. 443 ; La Bau v. Vanderbilt, 3 
 Redf. 384 ; and see RedfieJd's Reports, 
 passim, for cases following Delafield v. 
 Parish ; Boyd v. Eby, 8 Watts, 66 ; 
 Daniel v. Daniel, 39 Penn. St. 191 ; 
 Thompson v. Kyner, 65 Penn. St. 368 ; 
 Tawney r. Long, 76 Penn. St. 106 ; 
 Wood V. Wood, 4 Brewst. 75 ; Ilorbach 
 V. Denniston, 3 Pittsb. 49 ; Den r. .John- 
 son, 4 N. J. L. 454 ; Den v. Vancleve, 4 
 N. J. L. 589 ; Sloan v. Maxwell, 3 N. J. 
 Eq. 563 ; Andress v. Weller, 3 N. J. Eq. 
 604 ; Lyons r. Van Riper, 26 N. J. Eq. 
 337 ; Errickson v. Fields, 30 N. J. Eq. 
 634 ; Cordrey v. Cordrey, 1 Houst. 269 ; 
 Jamison ??. Jamison, 3 Iloust. 108 ; 
 Higgins V. Carlton, 28 Md. 115 ; McEl- 
 wee V. Ferguson, 43 Md. 479 ; Brown v. 
 Ward, 53 Md. 376 ; Home r. Home, 9 
 li'ed. 99 ; Stancell v. Kenan, 33 Gla. 56 ; 
 Ragan v. Ragan, 33 Ga. Su^jp. 106 ; 
 Taylor v. Kclley, 31 Ala. 59 ; Leepcir 
 V. Taylor, 47 Ala. 221 ; Kingsbury v. 
 Whi taker, 32 La. Ann. 1055 ; Shrop- 
 sliire V. Reno, 5 J. J. Marsh. 91 ; Har- 
 per's Will, 4 Bibb, 244; (larrisoii v. 
 
 Blanton, 48 Tex. 299 ; Wisener v. Mau- 
 pin, 58Tenn. 342 ; Beaubien v. Cicotte, 
 12 Mich. 459 ; Bundy v. McKnight, 48 
 Ind. 502 ; McClintock v. Curd, 32 Mo. 
 44 ; Harvey i: SuUens, 56 Mo. 372 ; Be- 
 noist V. Miirrin, 58 Mo. 307 ; Young 
 V. Ridenbaugh, 67 Mo. 574 ; Holden 
 V. Meadows, 31 Wis. 284 ; Blakeley's 
 Will, 48 Wis. 294 ; Hubbard v. Hub- 
 bard, 7 Oreg. 42. Many of these cases 
 state the condition to be that "the tes- 
 tator must know what he was doing at 
 the time." It is evident that this does 
 not mean that the testator need only be 
 conscious that he is making a will ; it 
 is to be traced to the language of Judge 
 Washington in Harrison v. Rowan, ut 
 s)ipi-a, and in Stevens i-. Vancleve, 4 
 Wash. C. C. R. 262. In both of these 
 cases, after enumerating the necessary 
 qualifications, the judge summed them 
 up in the sentence, "Were the testa- 
 tor's mind and memory sufficiently 
 sound to enable him to know and un- 
 derstand the business in which he was 
 engaged at the time when he; ex(^cuted 
 his will ?" Some cases hold that it is 
 necessary that the testator should know 
 what he is about and to whom he is giv- 
 ing liispro2)erty. S(!e Horner. Home, 9 
 IrccL 99, and Missouri cas(;s cited above. 
 
 » Boughton V. Knight, L. R. 3 P. & 
 D. 64. 
 
 2 See i'l/rii, Delusions, §§ 34 ct scq. 
 
 29
 
 § 26.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 voivc a to recall the several persons who may be fitting objects 
 grce of ea- of his bounty, and an understanding to comprehend their 
 pacity. relationship to himself and their claim upon him," From 
 
 this necessity he argues that it rec^uires a peculiar degree of sound- 
 ness of mind to make a Avill. Against this theory militate many 
 American cases which consider that less mind is required to make 
 a valid will than a valid contract;* but all these cases insist upon the 
 possession by the testator of the specific qualifications already noticed. 
 In Bouo-hton v. Knight, Sir J. Ilannen reviewed the various acts con- 
 cernin'' a man's capacity to do which there might be a question, and 
 came to this conclusion: "Whatever degree of mental soundness is 
 required for any one of these things — responsibility for crime, ca- 
 pacity to marry, capacity to contract, capacity to give evidence as a 
 witness — I must tell you . . . that the highest degree of all, if 
 degrees there be, is required in order to constitute capacity to make 
 a testamentary disposition . . . because it involves a larger 
 and wider survey of facts and things than any one of those matters 
 to which I have drawn your attention. "^ In a later case^ he said, in 
 explanation of this language, "I never said that it requires a greater 
 defi^ree of soundness of mind to make a will than to do any other 
 act. . . . What I have said ... is, that if you are at 
 liberty to draw distinctions between various degrees of soundness 
 of mind, then, whatever is the highest degree of soundness is re- 
 quired to make a will. That is very different. . . . From the 
 character of the act, it requires the consideration of a larger variety 
 of circumstances than is required in other acts, for it involves re- 
 flection upon the claims of the several persons who, by nature, or 
 through other circumstances, may be supposed to have claims on 
 the testator's bounty, and the power of considering these several 
 claims, and of determining in what proportions the property shall 
 be divided amongst the claimants." 
 
 Similar language to this was held by the court in an Illinois 
 case,'' where the rule as stated in Converse v. (Jonverse^ is objected 
 
 • Converse r. Converse, 21 Vt. 168 ; ^ Boughton v. Knight, ut supra, p. 72. 
 
 Comstock V. Hadlyne, 8 Conn. 2(Jl ; ^ I}ard<'tt v. Tliompson, L. K. 3 P. 
 
 Thompson r. Kyner, 65 Penn. St. 368 ; & D. 72 note. 
 
 Harrison ;•. Rowen, 3 Wash. C. C. 586; ♦ Trish v. Newell, 62 111. 196. 
 
 Stevens v. Vancleve, 4 Wash. C. C. 262. ^ Supra, § 25. 
 
 30
 
 WILLS. [§27. 
 
 to.^ At the same time there is a general acquiescence in Judge Wash- 
 ington's conclusion that " it is not necessary that the testator should 
 view his will with the eye of a lawyer, and comprehend its provisions 
 in the legal form. It is sufficient if he has such mind and memory as 
 will enable him to understand the elements of which it is composed 
 — the disposition of his property in its simplest form."^ A man who 
 could make a will under certain circumstances might fail to grasp 
 the subject under others.^ Under any circumstances the question 
 is one of degree,^ and we may therefore accept the opinion of the 
 Illinois supreme court, that the question in such cases is, "Were 
 the testator's mind and memory sufficiently sound to enable him to 
 know and understand the business in which he was engaged at the 
 time he executed the will? the competency of the mind being judged 
 by the nature of the act to be done, from a consideration of all the 
 circumstances of the case."^ 
 
 § 27. As is the case with contracts, issues in cases of the class 
 now before us are largely dependent upon the question p.^^^y ^i^ + 
 of undue influence by others. If no such undue influence ii'ive tapa- 
 
 • -11 1 city to re- 
 
 is exercised, a degree oi testamentary capacity will be sist fraud 
 regarded as adequate, when this degree of testamentary 
 capacity would be regarded as inadequate were it unduly acted 
 upon by the force or fraud of others. The question is, was the 
 
 ' Trish i\ Newell, ut supra, 204, per fectly sane mind of the testator dwelt 
 
 McAllister, J. iipon them. 
 
 2 Judge Washingtoia in Harrison v. ^ Lord Cranworth in Boyse v. Ross- 
 Eowan, ubi siipi-a. borough, 6 H. L. C. at p. 45. 
 
 3 As is said by Judge Washington in ^ Trish v. Newell, (52 111. 205. And 
 Harrison t'. Rowan, "most men at dif- see Carpenter v. Calvert, S3 111. G2 ; 
 ferent periods of their lives have medi- Garrison v. Blanton, 48 Tex. 299. See 
 tated vipon the subject of the disposi- Lawrence v. Steel, 66 N. C. 584. 
 
 tion of their property by will; and Theobald (Wills, 1881, p. 14) states 
 
 when called upon to have their inten- the rule to be, that "a testator must, 
 
 tions committed to writing, they find at the time of making his will, have 
 
 much less difficulty in declaring their an understanding of the nature of the 
 
 intentions than they Avould in compre- business in which he is (employed, a 
 
 bending business in some measure recollection of the property he mc^ans 
 
 new." But this can only be so when to dispose of, of tlu; pi^rsons who have 
 
 the conditions of the disposition remain a claim to be th(; objc^cts of liis bounty, 
 
 practically the same as when the per- and the manner in which it is to be 
 
 distributed." 
 
 31
 
 § 28.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 document in question the testator's will ? If he had a disposing 
 mind, no matter how feeble, and this disposing mind was allowed 
 freedom in its play, then the will is to be sustained. But if he was 
 defrauded or coerced by those about him, then the will is to be set 
 aside, no matter how high may have been the standard of his capa- 
 city.^ Tayo important qualifications, however, are to be here kept 
 in mind : First, the lower the degree of intellect, the less the 
 amount of proof of fraud or of coercion required to set aside a will ; 
 an amount of fraud or of coercion which a strong mind would at 
 once repel, may be yielded to by a weak raind.^ Secoyidly, it is 
 not necessary that absolute freedom from influence should be 
 shown. There is no testator absolutely free from influence.^ The 
 test is, was there such influence api)lied as to take away his freedom 
 of disposition? If so, if his will was overcome by force, either phy- 
 sical or moral, or perverted by fraud, then a testamentary disposition 
 so made cannot stand.* 
 
 & 28. Weakness of mind and forgetfulness, therefore, are not 
 
 sufficient to invalidate a will if it appear that the testa- 
 Mere men- _ ^ ^ 
 
 tai weak- tor's mind was capable of attention and exertion when 
 not incapa- roused, and was not imposed upon.^ It has been truly 
 citate. g^j^j ^j_^j^^ a ^j^g ^veak have the same rights with the pru- 
 
 dent or strong-minded to dispose of their property."^ In general, 
 so that capacity exists, courts will not undertake to measure the 
 degree of that capacity, and they will protect those deficient in strong 
 natural ability in the exercise of the powers they possess.^ 
 
 • See wfra, §§ 77 et seq. Kinleside ^ Strong, J., in Newhouse i'. Godwin, 
 V. Harrison, 2 Pliill. 441) ; Gaitlier v. 17 Barb. 23(3. 
 
 Gaither, 20 Ga. 709 ; Collins r. Town- ? Osmond r. Fitzroy, 3 P. Wms. 129; 
 
 ley, 21 N. .J. Eq. 353. Sec also cases Andress r. Weller, 3 N. J. Eq. 604 ; 
 
 cited in the next section. Jamison r. Jamison, 3 Houst. (Del.) 
 
 2 Infra, §§ 77 et seq., 82 et seq., 87 108; Duffield v. Robeson, 2 Harr. 375; 
 et seq. ; Reynolds v. Root, (J2 Barb. 250. Elliott's Will, 2 J. J. Marsh. 340 ; Tom- 
 
 3 Infra, §§ 80 et seq. kins r. Tomkins, 1 Bailey, 92. See 
 
 * See generally infra, as above; 1 iifra,^ 87. In Hopple's Est., 7 W. N. 
 Jarman on Wills, Bigelow's ed., *35 ; C. (Penn.) 523, Judge Ashman (0. C.) 
 Randolph and Talcott's ed., note E to said that "want of memory, vacilla- 
 cliap. iii. ; 1 Redf. W^ills, *508, and tion of purpose, credulity, vagueness 
 succeeding pages. of thought may coexist with testa- 
 
 5 Tuffnell V. Constable, 3 Knapp P. mentary capacity." This seems to be 
 C. C. 122. somewhat broad in view of the fact 
 
 32
 
 WILLS. 
 
 [§30. 
 
 § 29. If eccentricities are to incapacitate a man from making a 
 will, few valid wills could be made, and often men of the 
 strongest character would be incapable of will making, eccentri- 
 Sometimes the attendant of old age, sometimes the con- " ^' 
 comitant of genius, often the consequence of hard treatment by 
 others, eccentricity cannot be regarded as working testamentary 
 incapacity without depriving of this capacity some of the most meri- 
 torious as well as most intelligent of mankind. It is otherwise, 
 however, as will presently be seen more fully, when eccentricity 
 takes the phase of monomania as to one of the objects of testa- 
 mentary disposition.' 
 
 § 30. So far as concerns collateral contentions, the burden of 
 proof is on those assailing the validity of a will. All 
 persons not under judicial decree of insanity are pre- 
 sumed to be sane until the contrary is proved.^ And 
 this is in some jurisdictions held to be the case in an 
 issue of devimv'it vd non.^ But the rtile is taken to be otherwise 
 in some of our states and also in England, those propounding a will 
 being required to prove the capacity of the testator.^ 
 
 Conflict as 
 to tliii bur- 
 den of 
 proof. 
 
 that the supreme court of that state 
 has adopted the ruling of Converse v. 
 Converse and Harrison v. Rowan ; but 
 it serves to illustrate the uuwillingness 
 of judges to refuse capacity to those 
 whose mental powers have become 
 dulled. 
 
 ' Eccentricity differs from mono- 
 mania in this, that it is a conscious 
 aberration, and consists of peculiarities 
 which are indulged in in defiance of 
 popular sentiment ; whereas mono- 
 mania is unconscious. ] Redf. on 
 Wills, *72. The cases exhibit many 
 interesting phases of eccentricity. 
 Hamilton v. Hamilton, 10 R. I. 538 ; 
 Reynolds v. Root, 62 Barb. 250 ; Brick 
 V. Brick, G6 N. Y. 144; La Ban v. 
 Vanderbilt, 3 Redf. 384; Truml)ull v. 
 Gibbons, 22 N. J. L. 117 ; Errickson v. 
 Fields, 30 N. J. Eq. (J34 ; Lewis's Case, 
 33 N. J. Eq. 21!) ; Kise v. Heath, 33 N. 
 J. Eq. 239 ; Merrill v. Rush, 33 N. J. Eq. 
 VOL. I. — 3 
 
 537 ; Higgins v. Carlton, 28 Md. 115 ; 
 Brown i>. Ward, 53 Md. 376 ; Gardner 
 V. Lamback, 47 Ga. 133 ; Kingsbury v. 
 Whitaker, 32 La. Ann. 1055 ; Carpen- 
 ter V. Calvert, 83 HI. 62 ; Blakeley's 
 Will, 48 Wis. 294; Smith's Will, 8 N. 
 W. Rej). 602. See, also, Frere v. Pea- 
 cock, 1 Rob. 442 ; Morgan v. Boys, cited 
 1 Redf. on Wills, *82, from Taylor ; 
 Austen v. Graham, 8 Moore P. C. C. 
 493. For a case where a will was 
 sustained though the eccentricities of 
 the testator were most extravagant, 
 see Lee r. Lee, 4 McCord, 183. 
 
 2 Whart. on Ev. § 1252 ; Tlu^obald 
 on Wills, 14. 
 
 3 Swinburne!, 44, i)t. 2, § 3. 
 
 ■* As to the English rule, s(!e Sniee v. 
 SiiKie, etc., L. R. u ]'. 1). 84 ; Bougliton 
 V. Knight, L. R. 3 J'. & D. 64. A re- 
 view of the cases in this country will 
 be found in Randolph and 'J'alcott's 
 edition of Jarman on Wills (5tli Am. 
 
 33
 
 § 33.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 ^ 31. As will hereafter be seen more fully, a non-ex- 
 Non-ex- ' . . 
 
 perts, as pert (('. g. a lay attendant or nurse, or friend, or business 
 
 perts, may adviser) may be called upon to give his opinion as to 
 fous °^'"" ^^® testator's sanity in all cases in which the symptoms 
 are not occult, but are distinguishable by non-specialists. 
 A fortiori^ may experts in the treatment of the insane, give opin- 
 ions as to the. sanity of particular persons, such opinions being 
 based on personal observations.^ 
 
 § 32. Experts, also, in these, as well as in all other 
 
 Experts issues in which sanity is involved, may be examined on 
 
 may be . '' *' 
 
 asked as to hypothetical cases, ihey cannot, however, be asked 
 
 cai ease ' their Opinions as to the evidence in any case involving 
 
 contested questions of fact.^ 
 
 § 33. As is shown in detail in another work,^ and as we shall 
 
 , . have hereafter occasion to see more fully when we pro- 
 Speculative _ ^ . . 
 
 opinions of cecd to discuss the authority of experts in their general 
 
 experts en- , . , , , . . . „ , , , 
 
 titled to lit- relations,* the speculative opinions oi experts employed 
 tieweif,4it. ^^^^ |-gg^ jj.j particular cases are not entitled to great 
 weight. This is peculiarly the case in testamentary questions in- 
 volving strong family feeling and large pecuniary interests. In 
 such cases each party is led to seek, among the large number of 
 specialists in mental diseases, specialists who would, from their pre- 
 conceived view, be likely to sustain his case ; and as there is no 
 theory of insanity that has not an expert exponent, no case of sup- 
 
 ed.), note D to chap, iii., vol. i. p. 104. diauship is prt^sumptively incapable 
 
 The following cases may he added to of making a will. ]?reed v. Pratt, 18 
 
 those in the note ri'ferred to : Davis c. Pick. 115; Hamilton v. Hamilton, 10 
 
 Davis, 123 Mass. 590 ; Howard v. Moot, R. I. 538. And the burd(!n of proof is 
 
 64 N. Y. 447 ; Egbert ?'. Egbert, 7<S shifted wliere there has been an in- 
 
 Penn. St. 32G ; Gruhbs y. McDonald, 91 quisition or g(>neral derangement has 
 
 Penn. St. 236 ; Taylor v. Creswell, 45 heen shown. Halley v. Webster, 21 
 
 Md. 522; Brown ),'. Ward. 53 Md. 376 ; Me. 4G1 ; Clark v. Fisher, 1 Paige, 
 
 Rush V. Megee, 3G Ind. 69, decide that 171 ; Jackson v. King, 4 Cowen, 207 ; 
 
 sanity in such cases is to be presumed. Morrison v. Smith, 3 Bradf. 209 ; Har- 
 
 Contra, that the burden is on the pro- den v. Hays, 9 Penn. St. 151 ; Higgins 
 
 pounders, Robinson v. Adams, 62 Me. v. Carlton, 28 Md. 115 ; Smith v. Smith, 
 
 369 ; Riddell v. Johnson, 26 Gratt. 4 Baxt. 293 ; Rush v. Megee, 36 Ind. 
 
 152; Evans v. Arnold, 52 Ga. 169; 69. 
 
 Wetter v. Habersham, 60 Ga. 193 ; ' Infra, § 257. 
 
 Benoist v. Murrin, 58 Mo. 307 ; Tate 2 /„j).f,^ § 261. 
 
 V. Tate. 89 111. 42 ; Martin v. Perkins, 3 Wh. (m Ev. §§ 434 el seq. 
 
 I)() Miss. 204. But one under guar- * Infra, § 275. 
 
 34
 
 WILLS. 
 
 [§ 33. 
 
 posed insanity can be brought into court which some expert cannot 
 be found to support by his testimony under oath. We must also 
 take into consideration the bias arising from the relation of the 
 professional expert to his employer. The opinions of feed counsel 
 as to law would not be regarded as binding the court, no matter 
 how high-toned such counsel may be ; for the same reason the opin- 
 ions of even the most high-toned of experts, when employed and 
 feed by particular parties to litigated issues, should not be regarded 
 as binding the jury.^ 
 
 ' See infra, §§ 293 et seq. 
 
 Mr. Shelford's views on this point 
 are worthy of grave consideration. 
 "One person," he says, "seeing a tes- 
 tator in extreme age, or under extreme 
 sickness, thinks that if he knows tliose 
 about him, and can answer an ordinary 
 question with respect to the state of 
 his illness, or his wants, sucli and sim- 
 ilar matters render him capable of giv- 
 ing effect to a disposition hy will, how- 
 ever complicated it may be, hy the 
 mere formal execution of the instru- 
 ment ; while another person may be of 
 opinion that, though a testator, in the 
 ordinary management of his affairs, 
 can hold reasonable conversation, can 
 fully comprehend all the usual and 
 simple transactions of life, yet, if he is 
 unable to take the active management 
 of all his concerns, however involved 
 those concerns may be, or if he is lia- 
 ble to become confused by entering into 
 intricate transactions, he is totally in- 
 capable, and cannot enter into a testa- 
 mentary disposition, however plain 
 and simple it may be. Now, when 
 opinions are formed by sucli opposite 
 standards, it is obvious much contrari- 
 ety will occur. Sir John NichoU ob- 
 served that experience in the ecclesi- 
 astical court teaches us that evidence 
 upon questions of capacity is almost 
 always contradictory, such evidence 
 being commonly that of opinion mere- 
 
 ly ; and this contrariety proceeds from 
 tile obvious grounds that, of the wit- 
 nesses, no two, possibly, have seen the 
 party whose estate is deposed to, at 
 precisely the same circiimstances ; and 
 that each, again, of the several wit- 
 nesses, no matter how numerous, meas- 
 ures, possibly, testamentary capacity 
 by his own particular standard. These 
 sources of discrepancy, and many more 
 might be enumerated, are common to 
 all cases of this description. There is 
 an additional source, when the trans- 
 action of which they have to speak is 
 remote, a circumstance sufficient in it- 
 self to account for no inconsiderable 
 degree of contrariety of evidence, even 
 where the witnesses have to speak of 
 facts merely, and not of opinions formed 
 and inferences built upon facts, of 
 which most of tlie evidence furnished 
 upon questions of capacity is commonly 
 made up. If the court, therefore, on 
 questions of capacity, is accustomed to 
 rely but little upon such evidence, so 
 far as it is that of mere opinion, but to 
 form its own judgment from the facts 
 and the conduct of the parti(!S at the 
 time, it becomes it to do so, more pecu- 
 liarly when much of the evidence not 
 merely consists of opinions delivered 
 long subsequently to the transactions 
 wliich they profess to have suggested 
 them, upon loose recollections, too, and 
 after rei>eated discussions of the suIj- 
 
 35
 
 §34.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Delusions 
 to be 
 proved by 
 insanity, 
 not vice 
 versa. 
 
 II. DELUSIONS. 
 
 § 34. Delusions, as viewed psychologically, will be considered at 
 large in a subsequent chapter.' In their legal relations, 
 so far as concerns testamentary capacity, they were the 
 subject of patient investigation by Sir J. P. Wilde (Lord 
 Penzance), in the court of probate and divorce, in 
 1807.^ A delusion is "a belief of facts which no ra- 
 tional person would have believed;" so spoke Sir J. Nicholls ; " but 
 who," asks Sir J. P. Wilde, " is a ' rational' person ? and does not 
 the assumption ' rational' beg the question at issue ?" " The belief 
 of things as realities which exist only in the imagination of the 
 patient;" so said Lord Brougham in Waring v. Waring; but do 
 not sane people imagine unrealities ? "A pertinacious adherence 
 to some delusive idea, in opposition to plain evidence of its falsity," 
 said Dr. Willis, as quoted by Sir J. Nicholls ; " but are not sane 
 people sometimes pertinacious in error ? and who is to determine 
 ■what evidence is 'plain?'" Hence it is that Sir J. P. Wilde, 
 arguing from the inadequacy of these definitions, concludes that 
 " delusions," as insane delusions, are to be proved by insanity, not 
 insanity by delusions.^ 
 
 ject matter with interested parties." 
 Shelford on Lunacy, 277-8, t^ee Van- 
 auken c.r parte, 2 Stoekt. (N. J.) 18G. 
 Judge Redfield, in commenting upon 
 this subject, says that the testimony 
 shoukl come "(1) From persons of 
 general capacity, skill, and experience 
 in regard to the whole subject, in all 
 its bearings and relations ; and (2) as 
 far as practicable, from those persons 
 who have had extensive oi^portunity 
 to observe the conduct, habits, and 
 mental peculiarities of the person whose 
 capacity is brought in question, ex- 
 tending over a considerable length of 
 time, and reaching hack to a period 
 anterior to the date of the malady." 
 Wills, 4th ed. *13G, 137. In Illinois 
 it is said that where cai>acity is estab- 
 lished aliunde, medical speculations are 
 of little weight. Carpenter v. Calvert, 
 
 3(5 
 
 83 111. G2. It is ruled in Indiana that 
 it is wrong to direct the jury as to the 
 weight to be given to the t(;stimony of 
 experts ; their credibility is to be tested 
 by the rules applying to other classes 
 of witnesses. Eggers v. Eggers, 57 
 Ind. 4G1 ; Cuneo v. Bessoni, 03 lud. 
 524. 
 
 ' Infra, §§ 723-743. As. to delusions 
 as a criminal defence, see infra, § 125. 
 
 2 Smith V. Tebbitt, L. R. 1 P. & D. 
 31)8. 
 
 3 Here may be noticed the language 
 of Sir J. Hannen in two recent cases 
 before the probate court. In Boughton 
 r, Knight (1873, L. R. 3 P. k D. 64; 
 see xuj>ra, § 2(J) he told the jury tliat 
 in one sense Sir ,J. Nicholls' phrase was 
 " arguing in a circle, for, in fact, it is 
 only saying that a man is not rational 
 who believes what no rational man
 
 WILLS. 
 
 [§35. 
 
 § 35. In most of our American states, proof of insane delusions 
 is insufficient to defeat a will, unless the will be the direct 
 ofispring of such insane delusions. Where the delusion 
 thus operates, then the will is void.^ " It appears to me," 
 says Mr. Justice Sergeant, in delivering an opinion of 
 the supreme court of Pennsylvania in 1830,^ " that the only ques- 
 tion in such a case is, whether the person was of sound memory 
 
 Will void 
 when the 
 result of in- 
 sane delu- 
 sion. 
 
 would believe ; but for practical pur- 
 poses it is a sufficient definition of a 
 delusion, for this reason — that you 
 must remember that the tribunal that 
 is to determine the question (whether 
 judge or jury) must, of necessity, take 
 his own mind as the standard where- 
 by to measure the degree of intellect 
 pos'sessed by another man. You must 
 not arbitrarily take your own mind as 
 the measure . . . but you must of 
 necessity put to yourself this question, 
 and answer it : Can I understand how 
 any man in possession of bis senses 
 could have believed such and such a 
 thing ? and if the answer you give is, 
 I cannot understand it, tlien it is of the 
 necessity of the case that you should 
 say the man is not sane." Subse- 
 quently, in charging the jury in the 
 case of Smee i'. Smee (1879) L. R. 5 P. 
 D. 84, he said (p. 90), that delusions 
 are " ideas which you cannot conceive 
 any rational man to entertain." In 
 reviewing the case of Boughton v. 
 Knight, the erlitors of the Journal of 
 Mental Science say, " Sir James 
 Ilannen . . . says, ' the test applied 
 will solve most, if not all, the difficul- 
 ties which arise in investigations of 
 tliis kind.' The discovery is so simple 
 and satisfactory that one is surprised 
 the world should not have hit upon it 
 sooner. Tlie test whereby to deter- 
 mine what is an insane delusion is not 
 whether it is of a kind which has been 
 observed in thousands of insane per- 
 sons, has a character of insanity about 
 
 it, and is associated with mental and 
 physical symptoms which mark a de- 
 finite form of disease running through 
 a definite course, but it is whether each 
 of twelve men, who have been gathered 
 together in a box from behind their 
 counters, can understand how any man 
 in possession of his senses could have 
 believed it." Jour. Ment. Sc, vol. xix. 
 p. 241. 
 
 • Robinson v. Adams, 62 Me. 369 ; 
 Coit V. Patchen, 77 N. Y. 533 ; Bonard's 
 Will, 16 Abb. Pr. N. S. 128 ; Thomp- 
 son V. Quimby, 2 Bradf. 449 ; S. C. 
 sub nomine Thompson i\ Thompson, 21 
 Barb. 107; La Bau v. Vanderbilt, 3 
 Redf. (N. Y.) 384; Lathrop ('.Board 
 of Foreign Missions, 67 Barb. 590 ; 
 Tawney v. Long, 76 Penn. St. 106 ; 
 Lee V. Scudder, 31 N. J. Eq. 633; ' 
 Brown v. Ward, 53 Md. 376 ; Gardner 
 V. Lamback, 47 Ga. 133 ; Evans v, 
 Arnold, 52 Ga. 169 ; Cotton v. Ulmer, 
 45 Ala. 378 ; Johnson r. Moore, 1 Litt. 
 (Ky.) 371 ; James v. Langdon, 7 B. 
 Mon. 193; Gass v. Gass, 3 Humph. 
 278 ; Benoist v. Murrin, 58 Mo. 307 ; 
 Cole's Will, 49 Wis. 179 ; and cases 
 iji/ra. See an essay by Dr. Ray on the 
 " Angel Will Case," 20 Am. Journ. of 
 Insanity, 145 ; and see also Flanagan 
 V. Fenlayson, 18 ibid. 249. See, also, 
 in/ra, §§ 723-743. In Indiana, by stat- 
 ute, a person "who has become the 
 victim of a mental derangement in any 
 form" is incompetent to make a will. 
 p]gg(;rs V. Eggers, 57 Ind. 461. 
 2 Boyd V. Eby, 8 Watts, W. 
 37
 
 §35.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 and discretion, considering the act done in all its bearings, and 
 judging of the soundness of the mind of the supposed testator 
 hy his conduct and declarations at the time, and as connected with 
 his previous insanity, and the degree of restoration of mind in the 
 interval ; and that if the erroneous and groundless impressions re- 
 ceived during the time of his delirium shall retain their hold (whether 
 by some physical derangement of the brain, or by some indelible 
 stamp on the thinking faculties), that person must be considered 
 still under a delusion — the effect continues, and it is only by effects 
 we can judge of the existence of the exciting cause — and if he is 
 under a delusion, though there be but a partial insanity, yet if it he 
 171 relation to the act in question, it is ivell settled it tviU invalidate 
 contracts generally, and defeat a tvill which is the direct offspring 
 of this partial insanity.''''^ 
 
 The converse of this result, depending, however, on the same 
 principle, is illustrated by a case decided by Judge King, in Phila- 
 delphia, in 1851. " A monomaniacal delusion," he said, " invete- 
 rately entertained by a testator against one who would otherwise 
 have been the natural object of his bounty, and shown to be the 
 reason which has excluded him from it, and to have had no other 
 existence except the distempered imagination of the testator, would 
 invalidate a will made under such influence. And for the very plain 
 reason that a will made under the suggestion of such an insane de- 
 lusion is not, what the law requires a will to be, the product of a 
 mind capable of reasoning rightly. For although the law recog- 
 nizes the difference between general and partial insanity, yet if the 
 will has been made under the influence of such partial insanity, and 
 as the product of it, it is as invalid as if made under the effects of 
 an insanity never so general. Eccentricities of conduct, absurd 
 opinions, or belief in things appearing to us extravagant, although 
 they may be and are evidences of testamentary incapacity, do not 
 constitute it necessarily and in themselves. A man may believe in 
 witches and Avitchcraft, as it seems this testator did, or, like him, he 
 may have believed his health to have been permanently affected by 
 slow poisons surreptitiously administered to him, and yet be compe- 
 tent to make a will, where such will is not shown to have some con- 
 nection with such absurd opinions or extravagant belief, and Avhere 
 
 ' See also Crura v. Thornly, 47 111. 192. 
 
 38
 
 WILLS. [§ 37. 
 
 the mind is shown to be in other respects sound and vigorous, and 
 the judgment intelligent and clear. This testator was upwards of 
 eighty-three years old when he died, and consequently received his 
 early impressions when the belief in witches and witchcraft still 
 lingered acftong persons of a much higher social position and of 
 much better education than himself. Colonial America either in- 
 herited from the mother country, or received from the emigration of 
 continental Europe, this absurd notion. Pennsylvania did not so 
 far escape the general contagion as to make it very surprising that 
 a man in the condition of life occupied by the testator, born before 
 the American Revolution, should have participated in it."^ 
 
 § 36. A belief in witchcraft, it has been ruled in Indiana and 
 Mississippi, does not divest testamentary capacity,^ and 
 a will on its face rational has been sustained, although ^i^iuslou ^ 
 
 the testator believed in mesmerism, clairvoyance, maoric, P"* S'^'ncrai 
 
 . insanity, 
 
 and occasional diabolic visitation.^ So, in Connecticut, 
 
 in 1850, after a very careful review of the authorities, including 
 Waring V. Waring, it was ruled " that the notion that a single delu- 
 sion is general insanity, and that the jury are to be so instructed, 
 irrespective of the degree or intensity of it, is nowhere counte- 
 nanced in this country, and not until lately in England." In this 
 case the court below had refused to instruct the jury " that, if the 
 testatrix harbored a delusion, she was while harboring such delusion 
 of unsound mind, and her will made at such a time would be void." 
 Judge Ellsworth, who delivered the opinion of the supreme court, 
 held that the judge was right in refusing to instruct the jury as 
 requested. He discusses this question at great length, and his 
 conclusion is: "That if the testatrix had mind enough to know and 
 appreciate her relations to the natural objects of her bounty, and 
 the character and effect of the dispositions of her will, then siie had 
 a sound and disposing mind and memory, although her mind may 
 not be entirely unimpaired."'* 
 
 § 37. So, on an apjieal in the New Hampshire supreme court 
 from the probate court, where the issue was whether a certain 
 
 ' Leocli I'. Leech, 4 Am. L. J. N. S. 170. '^ Thomjison r. Tlimuiisoii, 21 Bar- 
 ^ Addiiigton v. Wilson, 5 Iml. 137; Ixnii-, 107; S. (J. iioin. 'riionijjson v. 
 
 Kelly V. Miller, 39 Miss. 19. Kee Lee Quiinhy, 2 Bradf. 449. 
 
 V. Lee, 4 McCord, 183. ■» Diinliani's Appeal, 27 Conn. 192. 
 
 39
 
 § 38.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Nor does tcstator was of sane mind at the time of executing her 
 s'anitv" inl ""'i^^? ^"^^^ '^^ appeared that the judge in the court below 
 capacitate. \^q]^ i\^c^^ u jnere moral insanity, disorder of the moral 
 affections and propensities, will not, unless accompanied by in- 
 sane delusions, be sufficient to invalidate a will or to incapacitate 
 a person to make one;" also "if the Avill and its provisions were 
 not in any way the offspring or the result of the delusion, and were 
 not connected with or influenced by it, then she was of sane mind to 
 make the will ;" and exceptions were taken to these instructions ; 
 Sargent, J., in the supreme court, said, " The instructions were 
 correct as being in accordance with the great weight of authority, 
 ancient and modern, English and American, medical and legal. "^ 
 § 38. In a trial before Judge Grier, in the circuit court of the 
 United States, in Philadelphia, in 1855,^ it was in evi- 
 
 Eccentrici- • i i 
 
 ties are not dcnce, " that the testator was oi strong mind, but very 
 e usioub. eccentric, obstinate, and opinionated; but no witness," 
 to follow Judge Grier's charge to the jury, " has shown facts from 
 which a sound and disposing mind and memory could be inferred. 
 His mind was greatly excited on a particular subject — his park 
 property — he was very stingy, and set a high value on his rights 
 of property. But it is no evidence of an}' mental delusion that he 
 thought this seizure of his property Avithout his consent a high- 
 handed exercise of power, etc. That it became his hobby, made 
 him very troublesome, and a bore to all his acquaintances and 
 friends, is of no importance at all, in the matter trying before you, 
 if he retained his memory and his usual shrewdness in the manage- 
 ment of all his other concerns. Many a man has some hobby, and 
 may ride it very much to the annoyance of others, and yet be per- 
 fectly capable of managing his own affairs and disposing of his 
 property by deed or will. He may believe in spiritualism, the 
 Book of Mormon, Fourierisra, or any other of the absurdities of the 
 day, which infest the trains of fanatics. He may talk very much 
 like a fool, as y^u or I may think, on these subjects, and unduly 
 magnify their importance. He may profess an absurd fondness for 
 music, and play the Pandean pipes, behave like a fool occasionally; 
 may tell his dreams and call them visions, and may believe in them ; 
 
 > Boardmau v. Woodman, 47 N. H. « Turner v. Hand, 3 Wall. Jr. 88 at 
 120. p. 12U. 
 
 40
 
 WILLS. [§ 40. 
 
 he may be addicted to telling lies about his will ; yet, gentlemen, 
 we could not on these accounts pronounce him unfit to manage his 
 affairs or dispose of his property in his lifetime ; and could not 
 avoid his deeds, nor condemn him to a lunatic hospital as a fit 
 tenant for such an institution." 
 
 § 39. On the other hand, a delusion by a testator that his neph- 
 ews, being his heirs-at-law, were conspiring to take his life, and that 
 one of them had caused his death by putting him in a stove, coupled 
 with other collateral delusions, invalidates a will which was its pro- 
 duct.^ In his opinion in the court of errors, Denio, C. J., said: 
 " On questions of testamentary capacity, courts should be careful 
 not to confound perverse opinions and unreasonable prejudices with 
 mental alienation. These qualities may exist in any mind, even to 
 a high degree, and yet, so far as the view which the law takes of 
 the case, the subject may be sane and competent to perform a legal 
 act, and to be held responsible for a crime. Setting aside cases of 
 dementia, or loss of mind and intellect, the true test of insanity is 
 mental delnsum." A person may be insane on some subjects, 
 though on others he may reason, act, and speak like a sensible 
 man.- 
 
 § 40. So, where a testator, during an attack of insanity, conceived 
 
 a violent and groundless prejudice against his oldest son, 
 
 *= 1 J o ^ 5 Unless the 
 
 which prejudice he retained after his apparent conva- result of 
 lescence, a will, disinheriting his son, which he executed '"'"^'^^>- 
 at the latter period, was ruled by the supreme court of Georgia to 
 be invalid. 3 But, unless the prejudice be proved to be insane, in 
 other words, in cases where it is the conclusion of a reasoning mind, 
 on any evidence, no matter how slight, its indulgence will not over, 
 turn a will. Thus no such disabling effect was assigned to a notion 
 by the testator, on slight but insufficient evidence, that a daughter 
 was illegitimate, this notion causing her disinheritance,^ nor will 
 
 1 Am. Seaman's Friend Soc. v. Hop- en, 77 N. Y. 533 ; Stackhouse v. Ilorton, 
 per, 43 Barb. G25. 15 N. J. Eq. 202 ; Evans v. Arnold, r)2 
 
 2 Seamen's Friend Soc. r. Hopper, 33 Ga. 169 ; Florey v. Florey, 24 Ala. 241 ; 
 N. Y. ()19. Cotton V. Ulmer, 45 Ala. 378; Cole's 
 
 3 Lucas V. Parsons, 24 Ga. G40 ; see Will, 4!) Wis. 179. 
 
 White z'.Wilson, 13Ves. Jr. 87 ; Jenckes * Clai>p r. Fullerton, 34 N. Y. 190 ; 
 V. Smitlifield, 2 R. I. 255; Stanton r. see Colo's Will, 49 Wis. 179. 
 Wetherwax, 16 Barb. 259; Coit v. Patch- 
 
 41
 
 § 41.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 capacity be considered as destroyed by any delusion not actually 
 insane.' 
 
 § 41. The English rule was for a long time considered settled 
 
 on the same basis, and was set forth with great fulness 
 England ^'J ^'^^ prerogative court, during Sir J. Nicholls' presi- 
 fr^^TT^i^ dency.^ The question there was as to the testamentary 
 sions must Capacity of a gentleman named Stott, an eminent electri- 
 tnm ot will cian, who had an only child, against Avhom he had, with- 
 citate'^^'*^' out causc, imbibed an uncontrollable disgust and aversion, 
 
 which manifested itself in acts of great cruelt}^ and oppres- 
 sion, and ultimately in a will by which she was cut off in favor of 
 collateral relations. Sir J. Nicholls pronounced against the will, in 
 an opinion distinguisiied for its elaborate fulness as well as for its 
 judicial strength. " It has been said repeatedly by the counsel for 
 the residuary legatees," so he argues at the outset, "that this ' par- 
 tial insanity' is a something unknown to the law of England. Now, 
 if it be meant by this, that the law of England never deems a per- 
 son both sane and insane at one and the same time, upon one and 
 the same subject, the assertion is a mere truism (as well, indeed, in 
 reason as in law), and as such is incapable of being effectively op- 
 posed. At the same time, as no such sort of partial insanity is set 
 up by the daughter, the case of partial insanity which she has really 
 undertaken to sustain is at no risk from the truth of that position, 
 so understood, being conceded. But if, by that position, it be 
 meant, and intended, that the law of England never deems a party 
 both sane and insane at different times, upon the same subject ; and 
 both sane and insane at the same time upon different subjects — (the 
 most usual sense, this last, of the phrase '■partial insanittj,^ and the 
 one in which I take it to have been used throughout, by the counsel 
 for the next of kin), there can scarcely be a position more destitute 
 of legal foundation ; or rather, there can scas'cely be one more ad- 
 verse to the streams and current of legal authority." The learned 
 judge sustains himself by the authority of Locke, who says: " A 
 man who is very sober, and of a right understanding in all other 
 things, may in <i)ie particular be as frantic as any man in Bedlam;" 
 and of Lord Hale, who expressly declares "there is a partial in- 
 
 I Hall V. Hall, 38 Ala. 131 ; Hall v. 2 Dew v. Clark, 3 Add. 79 ; see 1 
 linger, 2 Abbott (U. S.) 507 ; affirmed, Ibid. 279 ; 2 Ibid. 102. 
 Dexter v. Hall, 15 Wall. 9. 
 
 42
 
 WILLS. [§ 41. 
 
 sanity of mind, and a total insanity*. The foraier is either in re- 
 spect to things l^quoad hoc, vel quoad illud insmiire — some persons 
 that have a competent use of reason in respect to some subjects, are 
 yet under a particular dementia in respect of some particular dis- 
 courses, subjects, or applications}, or else it is partial in respect of 
 degrees ; and this is the condition with very many, especially mel- 
 ancholy persons, who, for the most part, discover their defect in 
 excessive fears and grief," and yet are not wholly destitute of the 
 use of reason. lie concludes as follows; "The deceased's state of 
 mind at the time of making his will is intimately, I think, connected 
 ■with his state of mind on tiie subject matter of his will — understand- 
 ing by this the disposal, by will, of his property. If the deceased 
 Avere at all times of unsound mind on the subject matter of his will, 
 he must have been of unsound mind at the time of making his will. 
 To suppose the contrary would be to suppose the deceased both 
 sane and insane at the same time and on the same subject; a sup- 
 position, I apprehend, equally absurd in a legal and moral point of 
 view. And, subject to tliese considerations, the question in the end 
 to be determined — the point at final issue — is not whether the de- 
 ceased's insanity in certain othe^' particulars, as proved by the daugh- 
 ter, sliould have the eflFect of defeating a will, (jeneralhf, of the de- 
 ceased, or even this identical will, but it is whether his insanity, on 
 the subject of his daughter, as also proved by the daughter, sliould 
 have the efiect of defeating, not so much any will (a will generallyy 
 of the deceased, as this identical will ; and to the decision of that 
 ({uestion I am to be understood as solely addressing myself in the 
 following observations: — 
 
 "Now, the daughter being in this case the sole next of kin, the 
 deceased's only child, it is quite impossible, I think, to disconnect 
 the daughter from the subject matter of his will — that is, of his 
 property; they are subjects, in eflFect, identified. Hence, the de- 
 ceased's insanity on the subject of his datighter, (jenerally speak- 
 inei, being proved at all times in my judgment, it follows that his 
 insanity, at the time of making his will, is also proved, in my judg- 
 ment, unless the contrary is to be inferred from the will itself. 
 But the inference furnished by the Avill itself (and it is for this only 
 that I refer to the dis})0sative part — to tiie contents of the will at 
 all) is quite the other way. For the prominent feature of the de- 
 ceased's insanity, in respect to the daughter, was aversion or an- 
 
 43
 
 ^ 42.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 tipathy to the daughter, so pleaded and so proved ; and the will is 
 a will plainly inofficious, so far as regards the daughter, being a 
 will by which she is, in effect, disinherited — disinherited, too, in 
 favor of parties nearly utter strangers to the deceased (for so it 
 appears), though not remotely connected with him by blood, being 
 his sister's children. Therefore it follows that, in my judgment, 
 the deceased is proved, upon the whole matter, to have been insane 
 at the time of his making this will: Avhich was the daughter's case. 
 . . . Had the contents of the will furnished a contrary inference 
 — had the will, so far as respects the daughter, been in all parts of 
 it an officious will, the conclusion on this head, and so upon the 
 whole case, mi</Iit have been different; the very contents of the will 
 would in that case have inferred that, however partially insane (in- 
 sane on the subject of his daughter) the deceased might have been, 
 generally speaking, still, that such partial insanity was not in ac- 
 tual operation at the time of his making the will, in which respect 
 the will might have been valid. "^ 
 
 § 42. It is true, that, when in the same case a bill of review Avas 
 applied for to Lord Chancellor Lyndhurst, he limited 
 
 Tin's view . , . . ... i r- i • i p o- 
 
 only par- '^^'ith evident caution Ins approval ot the judgment ot feir 
 provla'hv '^ ' -^icholls in such a way as to reserve the question of 
 Loni Lyud- partial insanity, as above stated. "I have read his iudg- 
 
 burst. ^ . ' Jo 
 
 mcnt," he says,^ "with great attention; and I collect 
 from it that his meaning is this : that there must be unsoundness of 
 mind to invalidate a will, but that the unsoundness may be evidenced 
 in reference to one or more subjects. All that the learned judge 
 meant to convey was, that it was no objection to the imputation of 
 unsoundness, that it manifested itself only or principally with refer- 
 ence to one particular ((uestion, or one particular person." 
 
 ' A man moved by capricious, frivo- cxliibits to Ins chililren must be held 
 lous, mean, or even bad motives, may to proceed from some mental defect. 
 disinherit wholly or partially his chil- If such repulsion, amounting to delu- 
 dren, and leave his property to stran- sion as to character be shown, the bur- 
 gers. He may take an unduly harsh den will be cast on those propounding 
 view of the character and conduct of the will. Boughton r. Knight, L. R. 3 
 his children ; but there is a limit be- P. & D. G4. The American cases do 
 yond which it will cease to be a ques- not go to this extent. See cases cited 
 tion of harsh, unreasonable judgment, supra, § 40. 
 and then the repulsion which a parent 2 ]jy,y j._ Clarke, 5 Iluss. Ch. C. 163. 
 
 44
 
 WILLS. [§ 43. 
 
 § 43. But in 1848, in a very remarkable case before the privy 
 council, an opinion was delivered, without dissent, by 
 Lord Brougham, as the judgment of himself. Lord Lang- g^ntedfrom 
 dale. Dr. Lushington, and Mr. T. Pemberton Leicrh, in t)y Lord 
 
 . .... . . Brouo-ham, 
 
 which the notion of partial insanity on one point, as con- Warinr/ v. 
 sistent with testamentary capacity, was explicitly repu- ""'*^- 
 diated.^ It is true that the case Avas one in Avhich the same result 
 could have been reached even on Sir J. Nicholls' reasoning. The 
 testatrix, who was advanced in years, was excessively penurious 
 and eccentric, was extremely irritable, wrangled with her servants 
 to an excess, at times indulged in very obscene conversation, 
 believed herself the object of various amorous enterprises, and 
 among others from Lord Melbourne, and Lord J. Russel, who she 
 believed prowled about the house as fishwomen. All this, and 
 more, on Sir J. Nicholls' hypothesis, might have been consistent 
 with a testamentary capacity. But, in addition to this, it was 
 shown that the testatrix had an insane delusion that her brother, 
 whom she disinherited, had joined the Catholics, to whom she had 
 an aversion, and haunted her house, also in disguise. Certainly, 
 even on the theory of partial insanity, this, coupled as it was with 
 an inquisition of lunacy, would have been enough to vacate the will. 
 But Lord Brougham, in delivering the judgment of the privy 
 council, went further. '' The question being," he said, " whether 
 the will was duly made by a person of sound mind or not, our 
 inquiry, of course, is, whether or not the party possessed his facul- 
 ties, and possessed them in a healthful state. His mental powers 
 may be still subsisting, no disease may have taken them away, and 
 yet they may have been aft'ected with disease, and thus may not 
 have entitled their possessor to the appellation of a person whose 
 mind was sound. 
 
 " Again, the disease affecting them may have been more or less 
 general ; it may have extended over a greater or less portion of the 
 understanding, or, rather, we ought to say, that it may have 
 affected more or it may have affected fewer of the mental faculties. 
 For we must keep always in view that which the inaccui'acy of 
 ordinary language inclines us to forget, that the mind is one and 
 indivisible ; that when we speak of its different powers or faculties, 
 
 ' Waring v. Waring, 6 Moore P. C. C. 341 at p. 349. 
 
 45
 
 ^ 43.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 as memory, consciousness, we speak metaphorically, likening the 
 mind to the body, as if it had members or compartments, whereas, 
 in all accuracy of speech, we mean to speak of the mind acting 
 variously, that is, remembering, fancying, reflecting, the same mind 
 in :ill these operations being the agent. We, therefore, cannot in 
 any correctness of language speak of general or partial insanity ; 
 but we may most accurately speak of the mind exerting itself in 
 consciousness without cloud or imperfection, but being morbid when 
 it fancies; and so its owner may have a diseased imagination, or the 
 imagination may not be diseased, and yet the memory may be im- 
 paired, and the owner be said to have lost his memory. In these 
 cases we do not mean that the mind has one faculty, as conscious- 
 ness, sound, while another, as memory or imagination, is diseased ; 
 but that the mind is sound when reflecting on its own operations, 
 and diseased when exercising the combination termed imaginary, or 
 casting the retrospect called recollecting. 
 
 " This view of the subject, though apparently simple, and almost 
 too unquestionable to require or even to justify a formal statement, 
 is of considerable importance when we come to examine cases of 
 what are called, incorrectly, ' partial insanity,' which would be 
 better described by the phrase ' insanity,' or' unsoundness,' always 
 existing, though only occasionally manifest. 
 
 " Nothing is more certain than the existence of mental disease of 
 this description. Nay, by far the greater number of morbid cases 
 belongs to this class. They have acquired a name — the disease 
 called familiarly, as well as by physicians, 'monomania,' on the 
 vsupposition of its being confined, which it rarely is, to a single 
 faculty or exercise of the mind ; a person shall be of sound mind, to 
 all apjiearance, upon all subjects save one or two, and on these he 
 shall be subject to delusions — mistaking for realities the sugges- 
 tions of his imagination. The disease here is said to be in the 
 imagination ; that is, the patient's mind is morbid or unsound 
 when it imagines ; healthy and sound when it remembers. Nay, 
 he may be of unsound mind when his imagination is employed on 
 some subjects, in making some combinations, and sound when making 
 others, or making one single kind of combination. Thus he may 
 not believe all his fancies to be realities, but only some or one. Of 
 such a person we usually predicate that he is of unsound mind only 
 upon certain points. I have qualified the proposition thus on pur- 
 46
 
 WILLS. [§ 43. 
 
 pose ; because, if the being or essence which we term the mind is 
 unsound on one subject, provided that unsoundness is at all times 
 existing on that subject, it is quite erroneous to suppose such a mind 
 really sound on other subjects. It is only sound in appearance ; 
 for if the subject of the delusion be presented to it, the unsoundness 
 which is manifested by believing in the suggestions of fancy, as if 
 they were realities, would break out ; consequently, it is absurd to 
 speak of this as a really sound mind (a mind sound when the sub- 
 ject of the delusion is not presented), as it would be to say that a 
 person had not the gout, because, his attention being diverted from 
 the pain by some more powerful sensation by which the person Avas 
 affected, he, for the moment, was unconscious of his visitation. It 
 follows, from hence, that no confidence can be placed in the acts, or 
 in any act, of a diseased mind, however apparently rational that act 
 may appear to be, or may in reality be. The act in question may 
 be exactly such as a person without mental infirmity might well do. 
 But there is this difference between the two cases ; the person uni- 
 formly and always of sound mind could not, at the moment of the 
 act done, be the prey of morbid delusion, whatever subject was pre- 
 sented to his mind ; whereas, the person called partially insane — 
 that is to say, sometimes appearing to be of sound and sometimes of 
 unsound mind — would inevitably show his subjection to the disease 
 the instant the topic was suggested. Therefore, we can, with per- 
 fect confidence, rely on the act done by the former, because we are 
 sure that no lurking insanity — no particular, or partial, or occa- 
 sional delusion — does mingle itself with the person's act and mate- 
 rially affect it. But we never can rely on the act, however i-ational 
 in appearance, done by the latter, because we have no security that 
 the lurking delusion, the real unsoundness, does not mingle itself 
 with or occasion the act. We are wrong in speaking of partial un- 
 soundness ; we are less incorrect in speaking of occasional unsound- 
 ness ; we should say that the unsoundness always exists, but it 
 requires a reference to the peculiar topic, else it lurks and appears 
 not. But the malady is there, and, as the mind is one and the 
 same, it is really diseased, while apparently sound ; and really its 
 acts, whatever appearance they may put on, are only the acts of a 
 morbid or unsound mind. Unless this reasoning be well founded, 
 we cannot account for the unanimity witii which men have always 
 agreed in regardin;r as tlie acts of an insane mind those acts, to all 
 
 47
 
 § 43.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 appearance rational, which a person does who labors under delu- 
 sions of a plainly extravagant nature, though there is nothing in the 
 act done, and nothing in the conduct of the party Avhile doing it, at 
 all connected with the morbid fancies. If these fancies only alFect 
 the party now and then, if for some months he is free from them — 
 laboring under them at other times, then his acts apparently rational 
 would not be regarded as those of a person mentally diseased. But 
 if we were convinced that at the time of doing the acts the delusion 
 continued, and was only latent by reason of the mind not having 
 been pointed to its subject, and would have instantly shown itself 
 had that subject been presented, then the act is at once regarded as 
 that of a madman. Thus there have been many cases of persons 
 laboring under the delusion that they were otlier than themselves ; 
 have believed themselves deceased emperors or conquerors ; others, 
 supernatural beings. Suppose one who believed himself the em- 
 peror of G-ermany, and on all other subjects was apparently of sound 
 mind, did any act requiring mind, memory, and understanding. 
 Suppose he made his will, and either did not sign it (before signing 
 was required), or, if he did, signed it with his own name ; but sup- 
 pose Ave were ((uite convinced that, had any one spoken on the Ger- 
 man Diet, or proceeded to abuse the German emperor, the testator's 
 delusion would at once break forth, then we must at once pronounce 
 the will void, be it as officious and as rational, in every respect, as 
 any disposition of property could be. Of course, no one could pro- 
 pound such a will with any hopes of probate, if it happened that 
 while making it the delusion had broken out, even although the 
 instrument bore no marks of its existence at the time of its concoc- 
 tion. It must always be a question of evidence, on the whole facts 
 and circumstances of the case, whether or not the morbid delusion 
 existed at the time of i\\o fact urn ; that is, whether, had the subject 
 of it been presented, the cord been struck, tliere would have arisen 
 the insane discord which is absent, to all outward appearance, from 
 the cord not having been struck. The principles which have been 
 laid down do not at all differ from those on which the courts have 
 acted, which text writers have construed, and which scientitic men, 
 both moralists and physicians, have approved. In the well-known 
 case of Dew i'. Clark, reported 3 Addams, 1)7, but also reported, 
 with the great advantage of the learned judge's corrections, and 
 published separately by Dr. Haggard, we find Sir John Nicholl 
 48
 
 WILLS. [§ 44. 
 
 stating that mere eccentricity is not enough to constitute mental 
 unsoundness, nor great caprice, nor violence of temper, but that 
 there must be an aberration of reason ; and he adopts a definition 
 of delusion given by the learned counsel in the cause (now a mem- 
 ber of this court), deeming it well described by the expression that 
 ' it is a belief of facts which no rational person would have believed.' 
 Perhaps, in a strictly logical view, this definition is liable to one 
 exception, or, at least, exposed to one criticism, namely, that it 
 gives a consequence for a definition ; and it may be more strictly 
 accurate to term ' delusion' the belief of things as realities whicii 
 exist only in the imagination of the patient. The frame or state of 
 mind which indicates his incapacity to struggle against such an erro- 
 neous belief, constitutes an unsound mind. Sir John NichoU justly 
 adds that such delusions are generally attended with eccentricities, 
 often with violence, very often with exaggerated suspicions and 
 
 jealousies The existence of delusions being proved, and 
 
 their continuance proved or assumed, at the date of the factum, so 
 that the court is satisfied of the testatrix then laboring under their 
 influence, it is wholly immaterial that they do not appear in the will 
 itself. The party propounding often approached this point in argu- 
 ment, and repeatedly adverted to the fact — perhaps we should say 
 the assertion or assumption — that this will betrays no marks of the 
 alleged delusions, or generally of an unsound mind. There was a 
 manifest disposition to lay down a rule that no person laboring under 
 monomania, or partial insanity, can be deemed intestable, unless 
 the kind of insanity appears on the face of the will. But there was 
 wanting the courage to lay down a proposition which would at once 
 have been rejected, and must have been met with the question, 
 Could any court admit to probate the will of the man who said (in 
 the case cited by Sir John Nicholl in Dew v. Clark), 'I am the 
 Christ,' although that will bore no marks whatever of an unsound 
 mind, still less of the dreadful delusion under which the party la- 
 bored ?" 
 
 § 41. So far, indeed, has this doctrine been pushed that an 
 extravagant and absurd passion for pets has been, in 
 England, regarded as proof of incapacity. In one case j,usiu!d to. 
 this rule was applied to an unmarried woman who kept, !■'''' ^^' 
 in kennels in her drawing-room, fourteen dogs, of both 
 VOL. I. — 4 49
 
 § 45.1 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 sexes ;^ and to another, who kept in lier house a great multitude of 
 cats, -which were provided with regular meals, and w^ere furnished 
 with plates and napkins.^ But are such extravagances necessarily 
 proofs of insanity ? May they not be sometimes marks simply of 
 the desire to produce a sensation, such as that Avhich led to the dog 
 tea-parties wiiich some years ago w^ere got up as. new excitements 
 by the leaders of fashion in Rome ? Or, if it Avere possible for a 
 jury to put itself in the place of an unmarried and solitary woman 
 of advancing years, would such capricious indulgence in pets appear 
 anv more inconsistent with sanity, tlian wovild an analogous indul- 
 gence, by a young man of dash and wealth, in hounds, horses, and 
 foxes ? 
 
 ^ 45. In 18()T, in the court of probate and divorce, the position 
 
 that a collateral insane delusion invalidates a will which 
 Followca 
 
 by Lord "was not directly the product of such delusion, was re- 
 .sw/! v^ ' newed by Sir J. P. Wilde (Lord Penzance) on the fol- 
 ^'^'-'^''''- lowing state of facts :— 
 
 Ann Thwaytes, a Avidow, died in London on April 8, 180(3, pos- 
 sessed of a fortune, left to her by her husband, of ^£500,000. By 
 a will dated ^larch 6, 1866, she left legacies amounting to ^£45,000 
 to her husband's family ; legacies of the same amount to the family 
 of her sister, Mrs. Tebbitt; legacies to a considerable amount to 
 persons whom she had become acquainted with in the latter period 
 of her life, to servants, and to charities ; and the residue to John 
 Simms Smith and to Samuel Smith. The will was contested by 
 Mrs. Tebbitt; and on August 6, 1867, judgment was delivered by 
 Sir J. P. Wilde.^ He began by stating tliat "volition" to give 
 disposing power " should be that of a mind of natural capacity, not 
 unduly impaired by old age, or tainted by morbid influence. The 
 in(piiry before the court has relation only to the last of these con- 
 ditions ; and the subject is again narrowed by the nature of the 
 morbid influence or mental disorder imputed ; for it is not an obvious 
 and general perversion of the mind from reason, nor of language or 
 conduct generally irrational, that the testatrix is here accused ; but 
 oidij of that 2)ecuUar form of mental nialadij which iised to be called 
 
 • Yglosias r. Dyk<^ I'r.T. Court, May, 2 ii,i,i. 
 1852, Taylor, 2(1 cd., ii. nalj. HwUield 3 t^mith v. Tebbitt, L. R. 1 P. & D. 
 on Wills, I. chap. iii. § 11. 3S)S. 
 
 50
 
 AYILLS. [§ 45. 
 
 partial insanity, and which, in the more exact language of modern 
 science, has obtained the name of monomania. A person who is 
 affected hy monomania, although sensible and prudent on subjects 
 and occasions other than those upon which his infirmity is com- 
 monly displayed, is not in laiv capable of making a ivill. This has 
 been clearly decided in the several cases quoted at the bar, of ivhieh 
 it is 07ily necessary to 7iame that of Waring v. Waring. It is 
 needless to travel over the paths by which this conclusion has been 
 reached. It is properly the starting-point in such an inquiry as 
 the present. For I conceive the decided cases to have established 
 this proposition : that if disease be once shown to exist in the mind 
 of the testator, it matters not that the disease be discoverable only 
 when the mind is addressed to a certain subject, to the exclusion of 
 all others, the testator must be pronounced incapable. Further, 
 that the same result follows, though the particular subjects upon 
 tvliich the disease is manifested have no connection whatever with 
 the testamentary dispositio7i before the courty It is true that evi- 
 dence as to Mrs. Thwaytes showed her mind to have been generally 
 diseased. She called herself " the third person in the Trinity. 
 She was the Holy Ghost, and Mr. Simms Smith Avas the Father." 
 She believed she was the victim of attempts to poison. She was 
 attended by the spirits of deceased friends. Her husband was 
 " the devil," for whom she would not go into mourning. Her heirs- 
 at-law were " doomed to perdition." She could "never die." She 
 was " above God." She had a tiara of jewels made, in w^hich she 
 was to ascend to heaven. Her London drawing-room was furnished 
 at an expense of .£15,000 for the " day of judgment." While her 
 husband was lying dead, and before his funeral, she made a draft 
 will by which, with the exception of about je50,000, she bequeathed 
 all her vast property to Dr. Smith. This was followed by an 
 annuity of j62000 a year, and in after years by donations to the 
 amount of <£50,000. Yet Dr. Smith " was a stranger in blood to 
 her, and is not shown," so speaks Sir J. P. Wilde, " up to the time 
 of the above w^ill, to have rendered her any service beyond ordinary 
 medical advice, or filled any other relation to her than medical 
 adviser. In after years he added to his medical advice the trouble 
 of receiving her dividends, and paying them in to her bankers." 
 Certainly evidence such as this does not show simply a " mono- 
 mania" on any one special and isolated topic, disconnected with the 
 
 51
 
 § 46.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 subject matter of testamentary disposition. If Mrs. Thwaytes was 
 not insane, in the general sense of the term, she cherished insane 
 delusions as to those who were the subjects on whom her will was 
 to act. Hence, on the principle that " partial" insanity defeats a 
 will which is its direct offspring, Mrs. Tliwaytcs's will, viewing her 
 insanity as partial, would have been inoperative. But, as has 
 been seen, the langua^^c of Sir J. P. Wilde goes beyond this. , For 
 he declares that mental disease destroys testamentary capacity 
 " tiiough the particular subjects upon whicii the disease is mani- 
 fested have no connection whatever with the testamentary disposi- 
 tion before the court.' '^ 
 
 § 4(5. But in July, 1870, the general legal proposition thus 
 
 stated was expressly repudiated by the court of queen's 
 
 at"di)ythe bench. ^ The will in dispute was one in favor of the 
 
 bem-it'* testator's niece. It was made in 18(,)3. lie had been 
 
 jjauh-sw confined as a lunatic for some months in 1841. He was 
 
 GoodfcUoio. . 
 
 subject, down to the date of the wul, to particular 
 delusions — he was personally molested by a person who had 
 been long since dead, and he was pursued by visible evil spirits 
 As to his general capacity the evidence was contradictory, but it 
 was admitted tiiat at times he was incapable of making a will. The 
 jury were directed to consider whether,, at the time of making the 
 will, the testator was capable of having such a knowledge and ap- 
 preciation of facts, and was so far master of his intentions, free from 
 delusions, as would enable him to have a will of his own in the dis- 
 position of his property, and act upon it; and they were further 
 directed that the mere fact of his being able to recollect things, or 
 to converse rationally on some subjects, or to manage some business, 
 would not be sufficient to shoAV he was sane; while, on the other 
 hand, slowness, feebleness, and eccentricities, would not be suffi- 
 cient to show lie was insane ; and that the whole burden of showing 
 that the testator Vt'as lit at the time, was on the party claiming un- 
 der the will. It was ruled by the court in banc that the direction 
 was i)ractically right, for that it was immaterial whether the delu- 
 
 ' Soc a notic<' of this dcK'isioii in the lor, and Ilannon, JJ. Tliis has beon 
 
 British and Forci^'u M(.'dico-(Jhir. Re- fbUovvcd in Boughton y. Knight (1873), 
 
 vii'W for Octob(;r, ltS(!7. L. R. 3 P. & D. 64, and Sniec v. Smee 
 
 2 Banks r. Goodfellow, L. R. f) Q. B. (187i)), L. R. f) P. D. 84,' both by Sir 
 
 540 ; ("ockburn, C-. J., Blackburn, Mel- Jarn(;s liannon, P. .1. 
 
 52
 
 WILLS. [§ 46. 
 
 sions remained latent or not at the time, if the testator was other- 
 wise competent to make a will, as neither of the delusions — the 
 deail man being in no way connected with the testator — had, or 
 could have had, any influence upon him in disposing of his property. 
 Lord Cockburn, C. J., in delivering judgment, said that "it was 
 necessary to consider how far such a degree of unsoundness of mind 
 as is involved in the delusions under which this testator labored 
 would be fatal to testamentary capacity ; in other words, whether 
 delusions arising from mental disease, but not calculated to prevent 
 the exercise of those faculties essential to the making of a will, or 
 to interfere with the consideration of the matters which should be 
 weighed and taken into account on such an occasion, and which de- 
 lusions had, in point of fact, no influence whatever on the testamen- 
 tary disposition in question, are sufficient to deprive a testator of 
 testamentary capacity and to invalidate a will." 
 
 He then analyzed the proof of the existence of partial insanity in 
 the testator, and after an extended review of the law, both English 
 and American, he said: "No doubt, when the fact that the testator 
 had been subject to any insane delusion is established, a will should 
 be regarded with great distrust, and every presumption should in 
 the first instance be made against it. When insane delusion has 
 once been shown to have existed, it may be difficult to say whether 
 the mental disorder may not possibly have extended beyond the 
 particular form or instance in which it has manifested itself. It 
 may be equally difficult to say how far the delusion may not have 
 influenced the testator in the particular disposal of his property; 
 and the presumption against a Avill made under such circumstances 
 becomes additionally strong where the will is, to use the term of 
 the civilians, an inofficious one, that is to say, one in which natural 
 aftection and the claims of near relationship have been disregarded. 
 But when in the result the jury are satisfied that the delusion has 
 not affected the general faculties of the mind, and can have had no 
 effect upon the will, we see no sufficient reason why the testator 
 should be held to have lost his right to make a will, or why a will 
 made under such circumstances should not be upheld. Such an in- 
 ({uiry may involve, it is true, considerable difficulty, and re(|uire 
 much nicety of discrimination ; but we see no reason to think tiiat 
 it is beyond the power of judicial investigation and decision, or may 
 not be disposed of by a jury directed or guided by a judge. In 
 
 53
 
 § 47] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 the case before us, two delusions disturbed the mind of the testator, 
 the one that he was pursued by spirits; the other that a man, long 
 since dead, came personally to molest him. Neither of these delu- 
 sions, the dead man not having been in any way connected with 
 him, had, or could have had, any influence upon him in disposing 
 of his property. Under these circumstances, then, we see no ground 
 for holding the Avill to be invalid." The rule, therefore, which was 
 applied for on the ground that the judge misdirected the jury, and 
 that the verdict was against the weight of evidence, was discharged. 
 ^ 47. We have, therefore, an apparent conflict in the English 
 decisions as above recorded. On the one hand, in the 
 tiK'.ie'iU I'l- view of Sir J. Nicholl, Chief Justice Cockburn, and Sir 
 6ioiii< Lord jjji^^es Ilanncn,^ '• partial insanity," consisting of delu- 
 
 am'sthe- sions and hallucinations not connected with the subject 
 orv. , . . . - 
 
 matter of a will, does not invalidate such wdl. On the 
 
 other hand, in the o{)inions (|uoted from Lord Brougham and Lord 
 Penzance, it is held that insanity or "mental disease," when it ex- 
 ists at all, destroys testamentary capacity, though it displays itself 
 in delusions which in no way touch the subject matter of the will. 
 If we view the question psychologically, as will hereafter be more 
 fully done,' it will be difficult to overthrow the reasoning of Lord 
 Brougham and Lord Penzance. We cannot hold one department of 
 the mind to be sane, and the others insane, unless we adopt the com- 
 partment theory, which, as will liereafter be seen, is absurd. 
 
 ' " A few years ago it was generally This is an extremely delicate and diffi- 
 
 considered that if a man's mind were cnlt investigation, and may be illus- 
 
 unsound in one particular, t\n' mind trated l)y reference to the physical 
 
 being one and indivisible, his mind world. There might be a little crack 
 
 was altogether unsound, and therefore in some geological stratum of no im- 
 
 tliat he could not be held capable of portance in itself, and nothing more 
 
 performing i-ationally such an ai't as than a chink through which water 111- 
 
 the making of a will. A dilfcrent doc- ters into the earth ; but it might be 
 
 trine subsequently prevailed. If the shown that this flaw had a direct intlu- 
 
 delusions could not reasonably be con- ence upon the volume, or color, or 
 
 ceived to hav<^ had anything to do with chemical (qualities of a stream that is- 
 
 the deceased's power of considering the sued from the earth many miles away, 
 
 claims of his relations upon him and Ho with the mind." Sir J. Hannen in 
 
 the manner in which ht; should dispose Smee v. Smee, L. R. r> P. D. 84, at p. 
 
 of his property, then the jiresence of a i>0. 
 
 particular delusion would not iiicapaci- 2 /,i/)a^ §j .533-572. 
 tate him from making a will. 
 
 54
 
 WILLS. [§ 49. 
 
 § 48. In a modified form the compartment theory is thus exhibited 
 in detail by Lord Chief Justice Cockburn.^ " It is not 
 given to man," he says, "to fathom the mystery of the Cockburn 
 human intellis-ence, or to ascertain the constitution of our C. J.'s, 
 
 _^ _' _ compart- 
 
 sentient and intelligent being. But whatever may be its °ient t^e- 
 essence, every one must be conscious that the faculties 
 and functions of mind are as various and distinct as are the powers 
 and functions of our physical organization. The senses, the instincts, 
 the affections, the passions, the moral qualities, the ivill, perceptioyi, 
 thought, I'easdn, imagination, memory, are so many distinct facul- 
 ties or functions of mind. The pathology of mental disease, and 
 the experience of insanity in its various forms, teach us that while, 
 on the one hand, all the faculties, moral and intellectual, may be 
 involved in one common ruin, as in the case of a raving maniac; in 
 other instances, one or more only of these faculties or functions 
 may be disordered, while the rest are left unimpaired and undis- 
 turbed ; that, while the mind may be overpowered by delusions 
 which utterly demoralize it, and unfit it for the perception of the 
 true nature of surrounding things, or for the discharge of the com- 
 mon obligations of life, there often are delusions which, though the 
 offspring of mental disease, and so far constituting insanity, yet 
 leave the individual in all other respects rational, and capable of 
 transacting the ordinary aftairs and fulfilling the duties and obliga- 
 tions incidental to the various relations of life. No doubt, when 
 delusions exist which have no foundation in reality, and spring only 
 from a diseased and morbid condition of the mind, to that extent the 
 mind must necessarily he taken to he unsound, just as the hody, if 
 any of its parts or functions is aff'ected hy local disease, may he 
 said to he unsound, though all its other memhers may he liealtliy 
 and their powers or functions unimpaired.'''' 
 
 § 49. If we take the last qualification, which is here placed in 
 italics, as conceding the general unsoundness of such a „, . ,. 
 mind, there is no practical difterence between the opinion to tins 
 
 view. 
 
 of Chief Justice Cockburn, on tlie one side, and the views 
 of Lord Brougham, and of all sound modern psychologists, on the 
 other side. But, going back to the beginning of the above extract, 
 if it were the opinion of its able and eminent author, that (1) the 
 
 ' I'cr Cockliurn, C. J., Bunks v. Goodf(.'llo\v, ubi sujim. 
 
 55
 
 § 50.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 senses, (2) the instincts, (3) the affections, (4) the passions, (5) 
 the moral quattties, (tJ) the will, (7) the perception, (8) the thought, 
 (9) the reason, (10) the imagination, and (11) tiie memory, are 
 independent and separate portions of the mind, so that one of these 
 may be insane, and yet the individual may be in all other respects 
 rational, we must reject such a position as not only philosophically 
 incorrect, but as fraught with consequences dangerous to public 
 justice. That such is the case will be hereafter fully shown. ^ It 
 is enough now to say, that if we suppose a person to have an insane 
 delusion of the "senses" (the first of C.J. Cockburn's "distinct 
 faculties or functions of mind"), it is hard to conceive how such a 
 delusion can continue to exist, if the other faculties remain in vigor. 
 In fact, all men have, sleeping or waking, such delusions; and the 
 question of sanity depends, not on the liability of the "senses" to 
 delusion, but on the capacity of the other mental faculties to dispel 
 the delusion. Thus, for instance, De Boismont tells us that, at a 
 soiree given by M. Bellart, in Paris, some days before the execu- 
 tion of Marshal Ney, Prince of Moskowa, the usher, having the 
 name of M. Marechal Aiite to aimounce, pronounced it "M. le Mare- 
 chal Ney.''"' "An electric shudder ran through the assembly, and, 
 for my own part, I own tliat the resemblance to the prince was for 
 a moment as perfect to my eyes as reality." The delusion Avas the 
 effect of a highly excited imagination, seizing upon an association 
 of sounds. The dispelling of this delusion was the result of "per- 
 ception," " thought," " reason, "-and "memory," acting healthily. 
 The delusion could not have continued to exist while these latter 
 functions of mind continued in a healthy state. If it had continued 
 to exist, this would have been a proof that these functions were dis- 
 eased. Or, to state the proposition generally, no insane delusion 
 can continue to operate, when proper modes have been taken to dis- 
 pel it, while the reason is unimpaired. The fact that such a delu- 
 sion continues to operate, under such conditions, proves the unsound- 
 ness of the reason. 
 
 § 50. That such, indeed, is C. J. Cockburn's own conclusion, 
 we gather from the concluding and italicized portions of the extract 
 just (pioted ; and the apparent conflict of opinion to which we have 
 adverted may therefore be reconciled when we recollect that as in 
 
 ' Infra, §§ 142, 533-572 
 
 56
 
 WILLS. [§ 51. 
 
 sanity, so in insanity, there are various gradations, and that sanity 
 and insanity, therefore, have a region in which they 
 melt into each other imperceptihly.^ To adopt an illus- reconciled 
 tration that Lord Penzance horrows from i\Ir. Burke, we gjtion'^of'' 
 know what nisiht is, and we know what day is, but it is mentaitwi- 
 
 . . . light. 
 
 hard for us to say when either day or night becomes twi- 
 light. Hence, just as some sane persons (e. r/. in sleep or when 
 acting under compulsion) may be irresponsible, so some insane 
 persons may be responsible, and be legally viewed as such. A 
 person may be of diseased mind, yet may be capable of testifying, 
 in cases when such evidence is necessary ,2 in a court of justice ; 
 may make contracts, as has just been seen, which, when there is no 
 unfairness, and the party contracted with is without notice, will be 
 held binding; and may be responsible, though it may be in a dimin- 
 ished grade, for crime. ^ And it is clear that a person of a very low 
 degree of intelligence, even when the mind is debilitated by old 
 age, may make a will which, if not unduly influenced, will be good. 
 Several cases to this eff"ect have been already cited ; and such cases, 
 in fact, are relied on by Chief Justice Cockbui-n for the maintenance 
 of the position that persons of " unsound mind" may, under cer- 
 tain circumstances, when they have a disposing memory, and when 
 they have no delusion as to the testamentary subject matter, make 
 a valid will. 
 
 § 51. If we accept the position just stated — that there may be 
 degrees of mental disease which do not destroy testa- 
 mentary capacity, provided the testator has at the time iJjivi'Ji"*iJ* 
 a disposing memory, and is not influenced by fraud or 
 imposition — then we not only reconcile the cases which have 
 been cited above, but we avoid a very embarrassing alterna- 
 tive. For, unless we concede that there may be grades in mental 
 disease, and that in the lesser and more qualified grades there may 
 be testamentary capacity, we must, in cases of collateral mono- 
 manias, hold either that the mind is divisible, so that one part may 
 be sane and the other insane, or, as maintained by Lord Brougham 
 
 > See The Borderlands of Insanity, v. Walton, 40 L. J. Ch. 3U8. Injra, § 
 
 by Andrew Wynter, M.D., N. Y. ISTf). 242. 
 
 2 R. V. Hill, 2 Den. C. C. 254 ; F.ni- 3 See infra, § 122. 
 nel V. Tait, 1 C. M. & 84 ; Spittle 
 
 57
 
 § 53.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 and Lord Penzance, that a single such monomania destroys capacity 
 in tuto. Let us examine these hypotheses singly. 
 
 First, that the mind is divisible, so that one part may be sane and 
 the other insane. The psychological error of this hypothesis is 
 elsewhere displayed.* Its practical absurdities may be here briefly 
 noticed. If it be true, a testator, instead of being one person, is 
 a combination of two, one sane, and another insane. His Avill, like 
 himself, is divisible. That part which emanates from his insane 
 delusions is void ; the part that emanates from his sane judgment is 
 valid. So as to his contracts. Supposing we assume this duality, 
 we have, instead of 07ie obligor, two — the insane part of the obligor, 
 making obligations which are void ; the sane part, making obliga- 
 tions which are valid. Or, if we hold that the will or the contract 
 is avoided when the insane elements in the testator's or obligor's 
 mind affect such contract or will, we must enter on the still more 
 difficult task of deciding the extent to which such insane elements 
 operate. "What tests can we have for such an examination ? Who 
 can undertake to limit the operation of motives admitted to be in- 
 sane, and therefore incapable of rational measurement ? Who can 
 undertake to say that these insane influences at a particular moment, 
 by yielding to a sound judgment, become virtually sane ? 
 
 § 52. On the other hand, if we hold that insane delusions, dis- 
 Y . |.j connected with the subject matter of a will, destroy tes- 
 sioiis need tamcutary capacity in tofo, we are embarrassed with 
 
 not destroy ,.„,., tvt i 
 
 eapaeity iu difficulties at Icast equally great. Many men whose 
 
 ''*'"' testamentary capacity it would be monstrous to dispute, 
 
 have confessed delusions whose sanity it would be equally mon- 
 strous to maintain." Thus, Dr. Johnson was confident that he heard 
 his deceased mother's voice, crying " Samuel ;" nor was this hallu- 
 cination ever corrected ; and yet no one would maintain that he was 
 incapable of making a will. 
 
 § 58. Lord Castlereagh, a short time before his suicide, gave a 
 Thi*i»rovcd ii'^ii'^'^tive of a supposcd apparition, in which he firmly 
 I'.v in- believed, and which exercised a material influence on his 
 
 stances of 
 
 delusions life. When in the Irish Parliament, he went to visit a 
 
 » See infra, §§ 532-572. Illusions, hy Jas. Sully, N. Y., 1881. 
 
 2 See Visions, a Study of False Light, And see an article on Auditory Ilallu- 
 bv E. A. Clarke, M.D., Boston, 1878; cinatlous, iu 8 Journ. Med. Sci. 597. 
 
 58
 
 WILLS. [§ 53 a. 
 
 friend at a castle in the north of Ireland. Shown into a affecting 
 dark and venerable chamber, where there existed every minded 
 material which would excite a superstitious imagination, Persons. 
 having dismissed his valet, he went to bed. Hardly, however, was 
 his candle extinguished, when he became aware of a glimmer of 
 light in his room. No fire had been lighted — the curtains were 
 closed — and no explanation affording itself of this phenomenon, he 
 rose from the bed, when, to his surprise, on turning to the point 
 whence the light proceeded, he perceived the figure of a young and 
 beautiful child, with a halo encircling its brow. With perfect con- 
 fidence in the reality of the object, but believing it had been got 
 up artificially as a joke, he followed it until it nestled in the arch 
 of the great chimne}', and at last sunk beneath the fireboard. The 
 next morning he sought in vain for a clue by which the mystery 
 could be dispelled. It was a subject which his host evidently 
 shunned. On putting the question pointedly, however. Lord Cas- 
 tlereagh was informed that it was true that such a spectre as that 
 had been reported in former times to have appeared under the title 
 of the "Radiant Child." Once again the phantom appeared to the 
 same noble and capable statesman — but no longer, it is said, with a 
 radiant crown. This last appearance was not long before his own 
 self destruction, and yet, if the exterior alone was considered, when 
 he was at the height of his power and fame. Certainly the spectre 
 can now be easily explained, because a man Avho is weak enough to 
 commit suicide is not too strong to be haunted in a dream by an 
 apparition of Avhose traditional reputation he had undoubtedly 
 heard, though the recollection afterwards escaped him. And yet 
 we have here a case of an hallucination so entire as to produce 
 partial insanity on that point, and perhaps to have been a motive 
 power in suicide. Still, it would hardly have been maintained that 
 Lord Castlereagh, than whom no man of his day exhibited, when in 
 public life, greater coolness or business clearness, was incapable, 
 because of this single delusion, of making a contract or will. 
 
 § 58 a. A similar anecdote is related of the late President Lin- 
 coln : " It w^as just after my election in 18(!0," so he is reported to 
 have said to his secretary, Mr. John Hay, " when the news had 
 been coming in thick and fast all day, and there had been a great 
 ' hurrah, boys !' so that I w^as well tired out, and went home to rest, 
 throwing myself on a lounge in my chamber. Opposite to where I 
 lay was a bureau, with a swinging-glass upon it ; and, in looking in 
 
 69
 
 § 53 rt.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 that glass, I saw myself reflected nearly at full length ; but my 
 face, I noticed, had two separate and distinct images, the tip of the 
 nose of one being about three inches from the tip of the other. I 
 was a little bothered, perhaps startled, and got up and looked in 
 the glass ; ])ut the illusion vanished. On lying down again, I saw 
 it a second time — plainer, if possible, than before ; and then I 
 noticed that one of the faces was a little paler— say five shades — 
 than the other. I got up, and the thing melted away, and in the 
 excitement of the hour I forgot all about it — nearly, but not quite, 
 for the thing would once in a Avhile come back again : but I never 
 succeeded in bringing the ghost back after that, though I once tried 
 very industriously to show it to my wife, Avho was worried about it 
 somewhat. She thought it was a ' sign' that I was to be elected to 
 a second term of office, and that the paleness of one of the faces 
 was an omen tiiat I should not see life through the last term."^ 
 Nor was this a single case of morbid cerebral action in the life of 
 this remarkable man. " He was," says his biographer, Mr. Lamon, 
 "readily impressed with the most absurd superstitions." "He 
 lived constantly in the serious conviction that he was himself the 
 subject of a special decree, made by some unknown and mysterious 
 power, for which he had no name." " lie had great faith in the 
 virtues of the ' mad stone,' although he could give no reason for it, 
 and confessed it looked like superstition." Twice was his nervous 
 system so disordered, that it was necessary, according to the same 
 authority, to withdraw him from his business associations, and place 
 him, as had been the case with Lord Chatham, in seclusion.^ Yet 
 Mr. Lincoln was eminent for shrewd sense, for cool judgment, and 
 for wise forethought in business, private as well as public. lie 
 enjoyed, to an almost unparalleled degree, the confidence not merely 
 of those who knew him oidy by public reputation, but of those who 
 thoroughly knew his private iiistory. By both classes was he 
 trusted with the highest stakes, lie possessed in singular fulness, 
 if we should judge from this estimate, the very qualities which con- 
 stitute testamentary capacity. Yet Mr. Ijincoln, on the strictest 
 test above laid down, would have been incapable of making a will. 
 
 ' TIh' Life of Abraham Lincoln, etc., ^ Ibid., pp. 104, 241, 503. See Wash- 
 by Ward II. Lanion. Boston : J. R. inj^ton Irving's Life, by Pierre Irving, 
 Osgood & Co., 1872, p. 47(). Sec, as to vol. iii. 141. 
 peculiarities of Mr. (Jarfield, North Am. 
 Rev. for Jan. 1882, p. 10. 
 
 60
 
 WILLS. [§ 56. 
 
 § 54. It was the firm belief of Lord Herbert, of Cherbury, that a 
 divine vision had indicated to him the correctness of a particular 
 course of religious speculation which, on the faith of the supposed 
 vision, he published, and which he made the basis of his future ac- 
 tion. The second Lord Lyttleton was equally persuaded that a 
 divine warning had admonished him of his approaching death. And 
 no less confident, though less serious in its consequences, was the 
 conviction of Philip, second Earl of Chesterfield, of the reality of a 
 similar preternatural interference. One night, in the year 1652, he 
 saw something white, like a spread sheet, at the head of his bed. 
 He tried to seize it, but it slid away and disappeared. His thoughts 
 immediately turning to his wife, who was at Networth, Avith her 
 father, he hurried there, but was met by a servant with a letter from 
 his Avife, which informed him that precisely the same apparition had 
 appeared to her, and had been the cause of the journey of the mes- 
 senger whom she had dispatched to inquire as to his health. 
 
 § 55. Abercombie gives an illustration of habitual hallucination 
 which at the same time was consistent with reason. The patient, 
 when he met a person in the street, Avas uncertain whether the lat- 
 ter was a real person or a phantom, though with close observation 
 he was able to detect the dissimilarity. The features of the real 
 person Avould be more decided, and more complete than those of the 
 phantom ; but the power of discrimination by this process Avas too 
 uncertain to be relied on, and the only test of which the patient felt 
 certain Avas that of the voice, footstep, or touch. The phantom had 
 none of these ; the substance, of course, had all. He had the faculty 
 of recalling his visions at Avill, by powerfully fixing his attention 
 on the conceptions of his mind, but while the hallucination could be 
 invoked at will, it could not be arbitrarily dispelled. That it loas 
 an hallucination, he Avas perfectly convinced ; and that it was en- 
 tirely consistent with general reason was demonstrated by his clear- 
 ness of head and business capacity.^ 
 
 § 56. A recent case in this country illustrates the same position 
 with remarkable point. A merchant, who had for years managed 
 Avith shrewdness and success an extensive business, became thor- 
 oughly imbued with the spirit rapping and spirit conversing halluci- 
 
 ' In this connection, see The Athenaeum for Jan. 17, 1880, and 20 Journ. 
 Ment. Sci. 147. 
 
 61
 
 § 57.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 nation. Though he conducted his business as well as those who 
 
 Avere not thus afflicted, his family conceived that this and cognate 
 
 eccentricities made him a fit subject for a commission of lunacy. 
 
 This he soon discovered, and laid his plans accordingly. He had 
 
 theretofore done a cash business, and his punctuality and accuracy 
 
 had won him extensive credit, lie immediately proceeded to buy 
 
 a large stock of goods from a number of the most sagacious business 
 
 men within his reach, and gave long notes in exchange. " I do not 
 
 know how it strikes you," was the way he broached the matter to 
 
 his family, " but whatever may have been your chances once, they 
 
 are light now. All I have to do is to subpoena my friends to whom 
 
 I have just given my notes, and you may depend upon it, they will 
 
 not only testify strongly as to their opinion of my sanity, but will 
 
 bring that opinion down to this particular hour."^ 
 
 § 57. The cases which have just been noticed comprise chiefly 
 
 Important ^^losc in which, while the hallucination is positive, the 
 
 modiiica- practical deflection of conduct produced may be slight. 
 
 tious of ^ . . ' . 
 
 conduct This, however, cannot be said to be the case with those 
 
 liave been . , .... , ... 
 
 caiused by instances in which a supposed supernatural vision or 
 visions. monitor is received as a guide on the most momentous 
 actions of life. Napoleon declared on many critical occasions 
 that he was conscious of the preternatural vision of a star, which 
 sometimes even appeared in his own cabinet, by wiiich he allowed 
 himself to be guided. Bernadotte, beyond doubt, on one important 
 movement at least, was swerved from his course by the vision of an 
 old woman. Constantino felt or feigned a similar impressibility. 
 These cases, it is true, may be suspected; but suspicion cannot be 
 thus cast ou the multitudes of brave men who were driven in border 
 or highland contests from the battle-field by a threatening wraith, 
 or who were encouraged to the wildest sacrifices by the beckoning 
 jf an imaginary finger or the invocations of a preternatural voice. ^ 
 
 ' See ail article on The Hallucina- vision seen by the Rev. D. .Jessoi^p, 
 
 tious of Mahomet and otliers, 20 .Journ. Ath(ai?euin, Jan. 17, 1880; and 26 
 
 Ment. Sci. ^>6l. Journ. Med. Sci. 147; an article on 
 
 2 In this connection may he referred the Visions of Sane Persons, in Lit- 
 
 to, Visions, A Study of False Light, by tell's Living Age, No. 1895, from the 
 
 Edward H. Clarke, M.D., Boston, 1878 ; Fortnightly Review ; Hallucinations of 
 
 Illusions, by James Sully, New York, Hearing, article by Frederick Joly, 
 
 1881; communications relating to a M.D., 22 Journ. Med. Sci. 475. 
 
 62
 
 WILLS. 
 
 [§ 59. 
 
 § 58. There are, however, other cases in which there is a general 
 morbid derangement of all, or of a material portion, of j^^^ ^^^^ 
 the organs. To these, as well as to the great mass of morbid de- 
 
 1 n • • f range meiit 
 
 instances where hallucmation forms the groundwork, the need not in- 
 observations of De Boismont, on the case of a man who ^^'^^^^ ^ ®- 
 supposed that he had sunk all his wealth at the bottom of a well, 
 apply with great force. "It may be asked whether, in the state of 
 mind in which the patient w^as, whose history we have related, he 
 Avas capable of making a will. This is a very difficult question ; 
 but its solution is not an impossibility. When the conduct of the 
 individual does not depart from received usages, when it is not con- 
 trolled by one of those false ideas that make him hate his relations 
 and friends without any motive, and when he regulates his expenses 
 prudently, we do not think that whimsical actions, or words, the 
 results of an erroneous belief, but having no influence on the promi- 
 nent acts of his life, should deprive a person of his civil liberties, 
 and of the power of making his will." 
 
 ^ 59. In conformity with what has been said, spiritual- Spirituaiis- 
 
 : , , "^ . ' '^ , tic delu- 
 
 istic opinions, no matter how wild and unfounded they siousdonot 
 
 are, or how completely the party holding them may be tate uuies? 
 
 the victim of the fraud and impositions of others, do not tpllj'li^to'r'to 
 
 of themselves, if not producino- special provisions based undue in- 
 
 . ' ^ =" ^ '■ fluence or 
 
 on information thus erroneously held to have been re- affecting 
 ceived, or subjecting the testator to a special fraudulent provisk)ns. 
 influence swaying his will, work testamentary incapacity.^ 
 
 But the influence that may be gained by a "medium," or by one 
 practising on visionary and sentimental beliefs, is to be jealously 
 scrutinized.^ 
 
 ' Robinson r. Adams, 62 Me. 3G9 ; 
 see a note to this case, Redfield's Cases 
 on the Law of Wills, 384; La Ban v. 
 Vanderbilt, 3 Redf. N. Y. 384 ; Bonard's 
 Will, l(j Abb. (N. Y.) Pr. N. S. 128 ; 
 Norton v. Relley, 2 Eden, 286 ; Brown 
 V. Ward, 53 Md. 376. 
 
 2 See Lyon v. Home, L. R. 6 Eq. 
 650. In this case, wherein a deed of gift 
 without consideration was given by an 
 aged widow to Home, the spiritualist, 
 (Jiflord, V. C, spoke of spiritualism as 
 
 being '"as presented by the evidence" 
 (at all events), " mischievous non- 
 sense, well calculated, on the one hand, 
 to delude the vain, the weak, the fool- 
 ish, and the suj)erstitious ; and, on the 
 other, to assist the projects of the needy 
 and of the adventurer." See Norton 
 1-. Relley, 2 Eden, 286. 
 
 In Smith's Will, Wise. Sup. Ct. 1881, 
 8 N. W. Rep. 602, it was held that mere 
 belief in spiritualism does not by itself 
 incapacitate, though accompanied with 
 
 03
 
 §60.] 
 
 MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § 00. We may therefore hold, in accordance with the tenor 
 of the great body of American decisions, as well as with those 
 
 many eccentricities. From the ()j)inion 
 of the court we take the following : 
 *' Tlie deceased was a person of vigorous 
 intellect and will, had unbounded faith 
 in the accuracy and soundness of his 
 own judgment, and was moved to action 
 by an earnest, sanguine temperament. 
 In such a man we should naturally 
 expect some peculiarities or eccentrici- 
 ties of conduct, but we find fi;wor of 
 these disclosed in the evidence than 
 might reasonably be looked for. It 
 appears that for a short time — perhaps 
 two or three months, but during what 
 year is not shown — he advertised one 
 of his callings by wearing on the front 
 of his hat a small paper on which were 
 printed the words, 'Solicitor of Pat- 
 ents.' Also, that he was seen at dif- 
 ferent times on skates in a public 
 street of the city. It seems, howi^ver, 
 that he was testing a new kind of skate 
 wliich he had invented. Thus far we 
 find no evidence that tli(! dcceastnl was 
 not of sound mintl wIkui he execut(!d 
 the instrument j)ropounded as his last 
 will and testament. Jkit there was 
 another ])eculiarity of the decc^ased 
 which will now be considered. He was 
 what is commonly called a spiritualist. 
 lie had come to believe, that through 
 C(!rtain nuidiums, he could communi- 
 cate with the s])iritsofdeci!ased j)ersous. 
 1I(^ received, througli one of tliese me- 
 diums, what purport('d to b(! a message 
 from his deceased wife, advising him 
 to marry the apjiellant, to whom he 
 was then paying liis addressi?s. H(i 
 doubtless believed the message was 
 from his deceased wife, lie also con- 
 sulted mediums quite frequently con- 
 cerning his business and proposed in- 
 ventions, lie once engaged in wheat 
 speculations on advice froua such 
 sources. At first he was successful, 
 
 64 
 
 but later operations were not so suc- 
 cessful. It does not appear that he 
 persisted in these speculations very 
 long after fortune turned against him. 
 During the French and German war 
 he believed rejjorts of the condition of 
 the contest which he received from 
 mediums, although different from the 
 current newspaper reports. But when 
 the evidence of the truth of the news- 
 paper reports became strong, his confi- 
 dence in the infallibility of the other 
 reports was weakened. He received a 
 communication purporting to be from 
 his deceased wife after his last mar- 
 riage, and after he had trouble with 
 some of his children, approving of what 
 he had done. This was evidently after 
 he had executed his will. It does not 
 appear whether or not he regarded the 
 communication as genuine, but jiroba- 
 bly he did so regard it. But the in- 
 tense faith of the deceased in the 
 accuracy of his own judguient was a 
 counterpoise to his belief in the possi- 
 bility of obtaining direct messages frpra 
 the other world. It led him to admit 
 another element in his belief which 
 would leave him free to follow his own 
 judgment in a given case, no matter 
 how strongly he might be pressed by 
 supposed supernatural advice or en- 
 treaty to act against it. So he cauie to 
 believ(!, as one witness states it, ' that 
 there was more than one kind of spirits 
 — some might try to fool liim, and oth- 
 ers might not.' It is jjerfectly obvious 
 from the whole testimony that the in- 
 fallible test wliich he applied to deter- 
 mine from which of these classes of 
 spirits a given message came was this : 
 If it accorded with his judgment, it 
 cam(! from the reliable class ; if not, 
 then it came from the other class and 
 was to be disreirarded."
 
 AVILLS. 
 
 [sS 60. 
 
 just cited of Sir J. Nicholl and of Chief Justice Cockburn, that 
 mental unsoundness, exhibiting itself in insane delusions 
 collateral to the subject matter of the will, does not per ^"^n'thar"' 
 i<e destroy testamentary capacity. Such delusions are, delusions 
 indeed, incompatible with entire sanity. They would se destroy 
 destroy any will made under their influence. They can- ^^^ ^' 
 not be regarded as diseases of special organs exclusively, but 
 are the results of mental disease as an entirety. But they may 
 nevertheless exist in a mind which has sufficient intelligence to be 
 invested with testamentary power in respect to all subjects except 
 those on which such delusions usually operate.^ 
 
 Nor should it be forgotten that the effects of such incapacitation 
 would be most cruel to the suff'erer himself. Society is prone 
 enough to make eccentricities and weaknesses the subject of con- 
 
 In Bonard's Will, ut supra, the testa- 
 tor held to Pythagorean doctrines, 
 and, dying without kindred, left his 
 property to the Society for Prevention 
 of Cruelty to Animals. Held, that this 
 was not evidence of insane delusion, 
 even though the testamentary intention 
 might not, otherwise than for the alleged 
 delusion, have been entertained. 
 
 ' See infra, §§ 125,-723, 740, Dr. 
 Hammond, in an interesting tract on 
 this particular question, has reached 
 conclusions which, though we may dis- 
 sent from some of his postulates, are in 
 entire coincidence with the present 
 state of oar law. The results, as he 
 states them, are as follows : — 
 
 1. That there is a form of insanity 
 known as monomania, which is charac- 
 terized by a perversion of the under- 
 standing in regard to a single object, 
 or a limited series of objects. 
 
 2. That one of the most prominent 
 features of this species of insanity is a 
 morbid f(!eling of hatred to friends and 
 relatives, and a disposition to do them 
 injury. 
 
 3. That it is especially a symptom of 
 monomania to imbibe delusions which 
 exercise a governing influence over the 
 
 VOL. I. — 5 
 
 mind of the affected individual, and 
 force him to the commission of acts 
 which in a state of sanity he would not 
 perpetrate. 
 
 4. That the monomaniac has power 
 to conceal his delusions, and to arrest 
 the paroxysms of delirium to which he 
 may be subjected. 
 
 5. That the testator, James C. John- 
 ston, was affected with monomania ; 
 that he had conceived a dislike to his 
 relatives ; that he was subject to delu- 
 sions in regard to them ; that he was, 
 in consequence, not free to make a will 
 such as he would have made had he 
 been sane ; and that he had power to 
 conceal his delusions, and to control 
 his paroxysms of delirium. 
 
 6. That there could not possibly have 
 been a lucid interval when the will 
 was written, signed, acknowledged, 
 and reafiirmed, because all these acts 
 show a continuance of the delusions 
 under which the testator labored. — In- 
 sanity in its Medico-legal Relations. Opin- 
 ion Relative to the Testamentary Ca- 
 I)acity of the late James C. Johnston, 
 of Chowan County, North Carolina. 
 New York, 1866. See also Boardmau 
 V. Woodman, 47 N. H. 120. 
 
 05
 
 § 61.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 tempt, ridicule, or insult. The courts should be cautious how, by 
 taking away the power to insure respect, they thus increase the 
 misfortune of a class into which no man can assure himself he may 
 not fall, which includes almost the whole of those whose lot it is to 
 reach extreme old age, and which already carries a burden suffi- 
 ciently heavy. If such persons cannot reward by their bounty 
 those by whom they are treated with tenderness, and by whose 
 means their comfort is guarded, they will lose, in most instances, 
 the only means remaining to them of self-preservation. As society 
 at present stands, the only remedy seems to be to throw the same 
 tender guardianship around the feeble-minded and the eccentric as, 
 in a passage elsewhere cited, has been so touchingly invoked by 
 Chancellor Kent for the old. 
 
 III. LUCID INTERVALS.^ 
 
 § 61. Unless wdiat in the courts has been called hahitual insanity 
 Where ^^ shown, i. e., such insanity as is, in its nature, continu- 
 
 habituai qus and chronic, the fact of the existence of a prior period 
 
 iiisanitv is ^ ^ 
 
 shown ju- of lunacy does not suffice even to throw the burden of 
 vais mu8t proof on the party setting up competency.^ The case, 
 be proved, however, is otherwise, Avhen such habitual insanity is 
 shown to have existed ; in which case the presumption is that the 
 party was insane at the time, and the burden is on those seek- 
 ing to prove the contrary.^ " If you can establish," says Sir Wm. 
 Wynne, as cited by Mr. Jarman,^ " that the party afflicted habit- 
 ually by a malady of the mind has intermissions, and if there was 
 an intermission of the disorder at the time of the act ; that, being 
 
 • See, for tlie psychological view of an, 3 Wash. C. C. R. 580 ; Stevens i'. 
 
 this question, infra, § 744. Vancleve, 4 Wash. C. C. R. 2(j2 ; Frazer 
 
 2 State V. Wellington, 58 Me. 453; v. Frazer, 2 Del. Ch. 2«0 ; Taylor v. 
 Lewis V. Baird, 3 McLean, 55 ; Turner Creswell, 45 Md. 422 ; Carpenter i'. Car- 
 V. Rusk, 53 Md. 65 ; Carpenter v. Car- penter, 8 Bush. 283 ; Rush v. Megee, 
 penter, 8 Bush, 283 ; Acheyy. Stephens, 36 Ind. 69; State v. Reddick, 7 Kans. 
 8 Ind. 411 ; Menkins v. Lightner, 18 143 ; White v. Wilson, 13 Ves. 87 ; 
 111. 282 ; Brown v. Riggin, 94 111. 560. White v. Driven-, 1 Phill. 84; Hoge v. 
 
 3 Halley v. Webster, 21 Me. 461; Fisher, 1 P. C. C. R. 163; Smith v. 
 Clark V. Fisher, 1 Paige, 171 ; .Jackson Tebbitt, L. R. 1 P. & D. 398 ; Ayreyr. 
 V. Vandusen, 5 Johns. 144; Gonibault Hill, 2 Add. 206. For other cases, see 
 V. Public Adnir., 4 Bradf. 226 ; Harden infra, §§ 246-269. 
 
 V. Hays, 9 Pa. St. 151 ; Aurentz v. An- * 1 .Tarm. on Wills, 5th Am. ed., Bige- 
 derson, 3 Pitts. 310 ; Harrison v. Row- low, *37, R. & T. 72. 
 
 66
 
 WILLS. [^ 62. 
 
 proved, is sufficient, and the general habitual insanity will not affect 
 it ; but the effect of it is this : it inverts the order of proof and pre- 
 sumption ; for, until proof of habitual insanity, the presumption is, 
 the party agent, like all human creatures, was rational ; but when 
 an habitual insanity in the mind of the person who does the act is 
 established, then the party who would take advantage of the fact of 
 an interval of reason must prove it." And in a Massachusetts case, 
 Dewey, J., said, " neither observation nor experience shows us that 
 persons who are insane from the effect of some violent disease, do 
 not usually recover the right use of their mental faculties. Such 
 cases are not unusual, and the return of a sound mind may be an- 
 ticipated from the subsiding or removal of the disease which has 
 prostrated their minds. It is not, therefore, to be stated as an 
 unqualified maxim of the law, ' once insane, presumed to be always 
 insane ;' but reference must be had to the peculiar circumstances 
 connected with the insanity of an individual, in deciding upon its 
 effects upon the burthen of proof, or how far it may authorize the 
 jury to infer that the same condition or state of mind attaches to the 
 individual at a later period. There must be kept in view the dis- 
 tinction between the inferences to be drawn from proof of an habitual 
 or apparently confirmed insanity, and that which may be only tem- 
 porary."^ 
 
 § 62. When a lucid interval is set up as the period in which a 
 will was executed, it being established that the testator 
 was previously habitually insane, it is necessary to show ofdis*posiu" 
 not merely a cessation of the more violent symptoms of n^'"*^ ^^^^ 
 
 •' _ . be shown. 
 
 the disease, but a restoration of the faculties, at the very 
 period of such execution.^ But it is not necessary that the restora- 
 tion be to a state of mind equal to that originally possessed by the 
 patient. It is enough if he have a disposing mind.^ 
 
 ' Hix V. Whittemore, 4 Mete. 545. Ves. Jr. 605 ; Holyland ex parte, 11 
 
 See Turner v. Rusk, 53 Md. 65 ; Wil- V<^s. Jr. 10 ; Steed v. Galley, 1 Keen, 
 
 liams on Exrs., 6th Am. ed., 34. 620 ; Brogden v. Brown, 2 Add. 441 ; 
 
 2 Halley v. Webster, 21 Me. 261 ; Ayrey v. Hill, 2 Add. 206 ; White v. 
 
 (iomhault V. Public Adinr., 4 Bradf. Driver, 1 I'hill. 84; Sutton r. Sadler, 
 
 Sur. 226; Boyd v. Eby, 8 Watts, 6{i ; 3 C. B (N. S.) 87. See infra, § 246. 
 
 Harden v. Hays, 9 Peyn. St. 151 ; Gang- Jar. Wills, 5th Am. ed., R. & T. 77. 
 
 were's Est., 14 Penn. St. 417; Chandler <> See cases supra; Clark v. Fisher, 
 
 r. Barrett, 21 La. Ann. 58 ; Rush v. 1 Paige, 171 ; Jackson v. Vanduson, 5 
 
 Megee, 36 Ind. 69; Hall v. Warren, 9 Johns. 144; Lucas v. Parsons, 24 Ga. 
 
 67
 
 § 64.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § Go. Where no extraneous influence is shown to have been ex- 
 erted, the character of the act itself, as will soon be 
 character of noticecl, gocs far to determine the capacity of the party 
 act aftoids ^ ^j particular time. Thus Dr. Lushinfi;ton said :* " In 
 tion of the opinion of a very great judge, Sir William Wynne, 
 
 '^ " ' in the celebrated case of Cartwright v. Cartwright, he 
 
 said where a rational act was done in a rational manner, such was 
 the strongest and best proof which could arise even as to a lucid 
 interval. Now, I cannot say that I subscribe altogether to this 
 observation of Sir William Wynne, for I do not, but it is entitled to 
 srreat weight : and, to a certain extent, a rational act done in a 
 rational manner, though not, I think, the strongest and best proof 
 of a lucid interval, does contribute to the establishment of a lucid 
 interval." And, generally, the rational character of a will, ema- 
 nating directly from a testator afflicted Avith insanity, gives in itself 
 a strong presumption of a lucid interval.^ 
 
 § G4. The hypothesis of idiocy is negatived by proof of business 
 capacity. Thus in an English case elsewhere noted, the 
 idiocy a evidence showed that the deceased was, in 1815, placed 
 '^'"° ■ in confinement as an idiot, and there remained till 1817, 
 
 when he was released. In 1820, about which time he was proved 
 to have committed certain rational acts of business, he made a 
 rational will. In 1822, he was again placed in confinement, and so 
 remained till his death, in 1840. In 1838 he was found, on a 
 commission, to have been of unsound mind, without lucid intervals, 
 since 1815. The will was sustained, on the ground, that, though 
 
 ()40 ; Lilly ?-. Waggoner, 27 111. 395. ■ IJaiiiiatyne r. Rannatyne, supra, § 
 Hut wliere a party is assumed to be in- 21. See Clark r. Fisher, 1 Paige, 171 ; 
 sane at the time of placing a holograph Young v. Barner, 27 Gratt. 96 ; Kings- 
 will among his valuable papers, there bury v. Whitaker, 37 La. Ann. 1055; 
 must be clear proof of his retaining it C'hambers v. Que(ni's Proctor, 2 Curt, 
 therein in a lucid intc^rval, to give it 415 ; McAdams v. Walker, 1 Dow, 148, 
 efl'ect as a valid disposition of his pro- at p. 178. A discharge from a lunatic 
 perty. It would be too broad to say asylum is prima facie evidence of resto- 
 that if at any time after he was of sound ration. Haynes v. Swann, 6 Heisk. 
 mind, and tlu^n rc^tained it among his (Tenn.) StiO. 
 
 ])apers, it would be conclusive that he ^ Nichols v. Binns, 1 Sm. & Tr. 239. 
 
 intended it to be his will. Port<'r c. See infra, § 83. 
 Campbell, 58 Tenn. 81. See infra, § 
 714. 
 
 C8
 
 WILLS. f § 68. 
 
 it is otherwise with regard to lunacy, yet, when idiocy is set up, 
 it is disproved by contemporaneous intelligent acts of business.^ 
 
 IV. INTOXICATION. 
 
 & 65. As has been already shown,^ intoxication, when Drunken- 
 
 . , , . ,. ness to de- 
 
 complete, renders a party incompetent to make a binding stroybusi- 
 
 contract, although a contract made by him when intoxi- city^m'ust' 
 
 cated, and voidable on this ground, may be ratified by ^^ ^°"^^' 
 
 him when sober. 
 
 § 66. On the same principle it is held that to avoid a will there 
 must be proved drunkenness to such an extent as to 
 have rendered the party unconscious of Avhat he was ^^^^^^^ ° 
 doing.^ If he know what his estate consists of, and who 
 are the proper objects of his bounty, the mere fact that he is under 
 stimulants at the time of making the will does not afiect its validity. 
 
 § 67. "Where, however, in addition to the fact that the party Avas 
 intoxicated at the time, he was then under the influ- 
 ence of others, a degree of intoxication sufficient merely case^^of ^un- 
 to subiect him to such influence may be ground for due influ- 
 . . . .... euce. 
 
 avoidino; the will, althouo;h such intoxication, Avithout 
 
 such proof of undue influence, would not have that effect.^ 
 
 § 68. Where, again, a will is executed under the influence of 
 drink intentionally and fraudulently administered, it is 
 invalid, by the operation of a rule already noticed with is inten- " 
 regard to contracts ;^ but where neither fraud nor undue ^°^e^'^ 
 
 influence is shown, actual derangement of the reasoning drunk, will 
 
 . , . ' °. '^ is void. 
 
 faculties, arising from undue excitement, must be estab- 
 lished. If the mere existence of excitement produced by stimulants 
 be held to vitiate any act performed during its continuance, many 
 
 ' Bannatyne r. Bannatyiie, ut supra, lass, 2 Yeates, 48 ; Andress v. Weller, 
 
 2 Supra, § 16. See an article en- 3 N. J. Eq. 604 ; Turner r. Cheeseman, 
 titled " The Quality of Mental Opera- 15 N. J. Eq. 243 ; Pancoast v. Graham, 
 tions Debased by the Use of Alcohol," id. 294 ; Pierce v. Pierce, 38 Mich. 412 ; 
 byT. L.Wright, M.D., in "The Alien- Temple v. Temple, 1 Hen. & Munf. 
 ist and Neurologist." St. Louis, July, 476; Hebert v. Winn, 24 La. Ann. 
 1881. 346 ; Key v. HoUoway, 7 Baxt. 575 ; 
 
 3 Shelford on Lunacy, 276 ; Gardner Gore v. Gibson, 13 M. & W. 623. 
 V. Gardner, 22 Wend. 526; Peck r. * Shelford on Lunacy, 274, 304. 
 Carey, 29 N. Y. 9 ; Starrett i: Doug- ^ Wheeler r. Alderson, 3 Hagg. 602. 
 
 69
 
 § 70.J MENTAL UNSOUNDNESS IN ITS LEfiAL RELATIONS. 
 
 meritorious wills, whose terms are peculiarly calculated to maintain 
 the peace and well-being of a family, as well as to carry out the 
 testator's mature intentions, would be set aside. 
 
 ^ GO. And not even long continued habits of intoxication will of 
 „ , .. , themselves afford a presumption of incapacity, unless the 
 
 Habitual ' ' 1 ./ 
 
 aruiikani tcstator was proved to have been so drunk at the time 
 8ariiy im-a- as to bc ignorant of what he was doing, or to have been 
 pacitateti. ^j,-i(|e,. undue or fraudulent influence. Unless the latter 
 conditions exist, there must bo a downright incapacity, an entire 
 loss of control over mind and body, in order to invalidate a will.' 
 § 70. As has already been incidentally shown, the fact that a 
 party making a will is at the time under the iniiuence of 
 
 Merc stim- i ./ o .... 
 
 uiation stimulants does not invalidate the will, lo work inca- 
 
 iucapaci- pacity his judgment must be affected or his affections per- 
 ^''^^^' verted by the stimulant. The reason of this distinction 
 
 between drunkenness and insanity is well pointed out by Sir John 
 Nicholl. Insanity, he argued, may often be latent, whereas there 
 can scarcely be such a thing as latent ebriety ; and, consequently, 
 all that is reiiuired to be shown, in ordinary cases, is the absence 
 of excitement at the time of the act done ; at least, the absence of 
 excitement in any such degree as would vitiate the act done ; "for," 
 he said, " I suppose it will be readily conceded that, under a mere 
 slight degree of that excitement, the memory and the understanding 
 may be, in substance, as correct as in the total absence of any ex- 
 citing cause. Whether, where the excitement in some degree is 
 proved to have actually subsisted at the time of the act done, it did 
 or did not subsist in the recpiisite degree to vitiate the act done, 
 must depend, in each case, upon a due consideration of all the cir- 
 cumstances of that case in particular ; it belonging to a description 
 of cases that admits of no more definite rule, applicable to the de- 
 termination of them, than the one I have suggested, that I am 
 aware of."^ 
 
 > Ayroy v. Hill, 2 Add. 206 ; Gard- N. ,J. Eq. 8 ; Andress v. Weller, 3 N.J. 
 
 ner r. Gardiior, 22 Weud. 52(j ; Jtilke Eq. (j04 ; Pierce v. Pierce, 38 Mich. 
 
 V. Adam, 1 Redf. 454; McLau-hliirs 412: Black r. Ellis, 3 Hill (S. C.) 68. 
 
 Will, 2 Kedf. 504; Thompson r. Kyiier, See, also, Shelford on Lunacy, 276. 
 
 65 I'lmn St. 368; Hitter's App. 5!) 2 Ayrey c. Hill, 2 Add. 206; S. P. 
 
 Penu. St. 9 : Whitenack v. Stryker, 2 Key r. HoUoway, 7 Baxt. 575. 
 70
 
 WILLS. [§ 72. 
 
 § 71. In the end, however, habitual drunkenness may produce 
 either continued insanity or an imbecile condition, which 
 renders the party unfit for the transaction of any busi- drunken- 
 ness. As is well said by IIarnno;ton, J., in the often "^-^^ "i^y 
 
 J » 5 9 produce in- 
 
 quoted case of Duffield v. Morris,' " the probable cause sanity or 
 of insanity often affords valuable aid in determining its 
 character. Drunkenness is itself a species of insanity . . . but 
 long-continued habits of intemperance may gradually impair the 
 mind and destroy the memory and other faculties, so as to produce 
 insanity of another kind. . . . The form of insanity usually pro- 
 duced by intemperance is mania ci potu or delirium tremens, which 
 is a raging and decided insanity that cannot be mistaken, temporary 
 in its duration, and when off is followed not only by a lucid inter- 
 val, but by permanent restoration to reason. Yet it is not impro- 
 bable that drunkenness, long-continued or much indulged in, may 
 produce on some minds and with some temperaments permanent de- 
 rangement, fixed insanity." Under such circumstances capacity 
 will be permanently destroyed. 
 
 § 72. In a recent (1878) case in Michigan^ a will was determined 
 against by a iury on the grounds of intoxication and un- 
 
 *= . "^ *^ *L *=> Illustrative 
 
 due influence. But the supreme court ordered a new cases. 
 trial, partly on the ground that the jury had plainly de- pierce. 
 cided against the weight of the testimony. " Intoxication," 
 said Campbell, C. J., "is a term capable of no precise definition, and 
 there may be many degrees of it. If it exists to such an extent as 
 to deprive a testator of the power of controlling his conduct, and 
 knowing what he is about, it Avill, of course, have a very evident 
 bearing on his capacity. But if, on the other hand, the act which 
 he does is one which his intoxication does not prevent him from 
 doing with comprehension, it cannot of itself avoid it. . . . It is 
 not impossible for a person more or less intoxicated to make a will 
 which is not the product of the intoxication. . . . Inasmuch as it is 
 a temporary condition, the testimony must be confined to the time 
 involved in the transaction in controversy. If Pierce was not over- 
 
 • 2 Harr. 375. See, also, Gardner v. 2 pierce v. Pierce, 38 Micli. 412, at 
 Gardner, 22 Wend. 526 ; M'Sorley v. p. 417. 
 M'Sorley, 2 Bradf. Sur. 188; Kings- 
 bury V. Whitakor, 32 La. Ann. 1055. 
 
 71
 
 § 76.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 come by drunkenness when he made his will, it is not important 
 what his condition was on other occasions." 
 
 § 73. In a trial before Lord Campbell, at nisi prius, a wilP be- 
 Handieyv ^"S impeached on the ground the testator's mind was im- 
 Staccy. paired by drinking, it appeared that the testator had 
 
 been frequently drunk, had had an attack of delirium tremens a few 
 days before the execution of the will, and that the will was drawn 
 bv a son of the principal devisee, at the latter's house, he being an 
 old friend of the testator. Lord Campbell ruled that the question 
 was simply whether the testator was sane and sensible at the time 
 of making the will, and able to understand its contents. If so, and 
 if the will was his spontaneous act, free from force or fraud, it was 
 valid. 
 
 ^ 74. In Peck v. Carey, the probate was contested on the ground 
 Peck V. ^1^^^ ^^^^ testator was intoxicated at the time the will was 
 
 Carey. made. The case came before the court of appeals in 
 
 1863, and on this point C. J. Denio said: "It is not to be 
 understood that a will made by one, who is at the time under the 
 influence of intoxicating li([uor, is, for that reason, void. Intoxica- 
 tion is said to be temporary insanity. The brain is at the time 
 incapable of performing its proper functions ; but that species of 
 derangement ceases, when the exciting cause is removed, and 
 sobriety brings with it a return of reason. In order to avoid a will 
 made by an intemperate person, it must be proved that he was so 
 excited by liquor, or so conducted himself during the particular 
 act, as to be, at the moment, legally disqualified from giving effect 
 to it. "2 
 
 l^-f^e of § "'J- It^ analogy with the principles stated above, it 
 
 medicines j,j^g j^^g^^ ^^^^iX that mental incapacity on the part of the 
 duce inca- testator, wheu ])roduced by the use of medicines, is suffi- 
 cient to invalidate his will.^ 
 
 Y. UXDUE INFLUENCE AND FRAUD. 
 
 § 76. While the learned judge who tried Lord Portsmouth's case, 
 which has just been cited, came to tfie conclusion that Lord Ports- 
 
 ' Handley v. Stacey, 1 F. k F. 574. laii r. Cohl), 85 111. 296. See an article 
 
 * Peck v. Carey, 27 N. Y. 17. in Am. Jouru. of Insanity for 1872, p. 
 
 3 Stedham r. Stedliam, 32 Ala. 525 ; 13. 
 Garri.son r. Blanton, 48 Tex. 299 ; Scaii- 
 
 72
 
 WILLS. [§ 76. 
 
 mouth was of " unsound mind," the position was broadly taken by 
 
 him that weakness alone, when circumvented by fraud, 
 
 , Fraud act- 
 
 would be sufficient to invalidate even so solemn a contract inp: on 
 
 1 ... . . , . , . . . ^ weakness 
 
 as marriacre, and on this position his decision in part invalidates 
 
 rested. Still more uneciuivocal was the decree of the contracts 
 1 and deeds. 
 
 privy council in dismissing an appeal from the court 
 of chancery of the Isle of Man, setting aside two deeds, on the 
 ground that the grantor in both of them was of unsound mind at 
 the time he executed them, and that they were obtained from him 
 by fraud and undue means. The evidence showed that the grantor, 
 an old man, feeble both in body and mind, separated from all his 
 relations, without a friend to advise him, and surrounded by those 
 only who were contriving to get his fortune, conveyed away nearly 
 all that he was possessed of, even the house he lived in, to persons 
 not related to him, either by blood or marriage ; and all his estate 
 in lease was to become the property of the same strangers after his 
 death. The consideration of jGlOO was inserted for conveying 
 away property worth ^1400 ; and this was not to be paid to the 
 grantor, but to his executor after his death, without any interest 
 being charged on it in the mean time. Lord Wynford, in giving 
 the opinion of the privy council, said, that the law would " not assist 
 a man who is capable of taking care of his own interests, except in 
 cases where he has been imposed upon by deceit, against which 
 ordinary prudence could not protect him. If a person of ordinary 
 understanding, on whom no fraud has been practised, makes an 
 improvident bargain, no court of justice can release him from it. 
 Inadequacy of consideration is not a substantial ground for setting 
 aside a conveyance of property. But those who, from imbecility 
 of mind, are iracapable of taking care of themselves, are under the 
 special protection of the law. The strongest mind cannot always 
 contend with deceit and falsehood ; a bargain, therefore, into which 
 a weak one is drawn under the influence of either of these, ought 
 not to be held valid, for the law requires that good faith should be 
 observed in all transactions between man and man. If tiiis con- 
 veyance could be impeached on the ground of the imbecility of the 
 grantor only, a sufficient case has not been made out to render it 
 invalid; for tiic imbecility must be such as to justify the jury, 
 under a commission of lunacy, in putting his property and person 
 under the protection of the chancellor ; but a dcijrcc of weakness of 
 
 78
 
 § 77.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 intellect far below that ivhich would justify such a proceeding, 
 coupled ivith other circuniHtances to shoiv that the weakness, such as 
 it ivas, had been taken advantage of , will be sufficient to set aside 
 any important deedy^ This same view has been uniformly acted 
 on in the English and American courts, and it is expressed by Mr. 
 Justice Story with his usual felicity .^ " The acts and contracts of 
 persons who are of weak understandings, and who are thereby liable 
 to impositions, will be held void in courts of equity, if the nature 
 of the act or contract justify the conclusion, that the party has not 
 exercised a deliberate judgment, but has been imposed upon, cir- 
 cumvented, or overcome by cunning or undue influences."^ But, 
 when articles furnished are suitable necessaries, the estate of a 
 person of weak mind is liable, if there be no fraud.* 
 
 § 77. With even greater emphasis has the same doctrine been 
 Still more announced by courts of law in respect to wills. Pecu- 
 so wills. liarly liable as is a dying man, even though his intellect 
 be of average strength, to have his comfort destroyed, if not his 
 purpose overturned, by those in Avhose society he is placed, the 
 policy of the law has anxiously sought for every safeguard by 
 which such intrusions upon the sanctity of dissolution, as well as 
 upon the rights of families, can be deprived of motive. " The 
 same memory for the making of a will," agreed all the judges of 
 England at an early date, " is not at all times Avhen the party can 
 ansAver to anything with sense, but he ought to have judgment to 
 discern and to be of perfect memory, otherwise the will is void."^ 
 " He ought to have a disposing memory," said Lord Coke, " so 
 that he is able to make a disposition of his lands with understand- 
 ing and reason ; and that is such a memory as the law calls sane 
 and perfect."^ While, therefore, it is only necessary that there 
 
 ' Blackford v. Christian, 1 Knai)p, is thus put by Judge Washington : 
 
 73 ; Shelford on Lunacy, 272. " Had he a disposing memory — was lie 
 
 2 1 Story Eq. Juris. § 238. capable of recollecting the property he 
 
 2 See also 1 Fonbl. Eq. B. 1, ch. 2, was about to bequeath, the manner of 
 
 § 3; Holland v. Milhn-, 12 La. Ann. distributing it, and the objects of his 
 
 624. bounty?" (Stevens v. Vancleve, su/jra, 
 
 * Skidmore v. Romaine, 2 Bradf. § 25 and note). Proof, however, of 
 Sur. 122. intellect having been impaired by dis- 
 
 * Combo's case, Moore, 759. ease, or of intellectual feebleness alone, 
 
 * Marquis of Winchester's case, 6 will not avail by itself to defeat a 
 Rep. 23a ; 2 Buls. 211. The same point will, when adequate capacity remains. 
 
 74
 
 WILLS. 
 
 [§77. 
 
 should be the capacity of reasonable disposition, great jealousy has 
 been exercised for the correction of extraneous influence on the 
 testator. Thus wills have been set aside when they were preceded 
 by over-iraportunity of friends standing in confidential relations/ 
 where the housekeeper and physician were shown to have earnestly 
 urged a non-natural scheme of distribution f wdiere the wife in fact 
 dictated the will, the testator being at the time unable to speak, 
 she pretending to understand him, and making herself the sole 
 devisee for life, and imposing as a devisee in remainder a fictitious 
 niece ;' where one relation produced the disinheritance of another 
 by false representations as to his character ;•* where the testator was 
 old and feeble, and the will was I'n'ide under the directions and to 
 suit the purposes of a colored w^man in the family; and where a 
 husband exercised coercion.^ In short, whenever the provisions of 
 a will arc inconsistent with natural justice, it will require strong 
 proof of capacity and volition to sustain it, and .slight proof of undue 
 influence or fraud to set it aside. '^ To authorize a will in favor of 
 
 Sloan V. Maxwell, 2 Green Ch. 563 ; 
 Andresg v. Weller, ibid. 604; Dornick 
 V. Reichenback, 10 S. k R. 84. The 
 cases will be found enumerated in 1 
 Powell on Devises, 127; Shelford on 
 Lunacy, 275-6 ; 4 Kent's Com. 566 ; 1 
 Jarman on Wills, 28. See, also. Con- 
 verse V. Converse, 21 Vt. 168 ; Home 
 V, Home, 9 Ired. 99 ; Harrison v. 
 Rowan, 6 W. C. C. R. 580 ; Grabill r. 
 Barr, 5 Penn. St. 441 ; Den v. Johnson, 
 4 N. .J. L. 454 ; Kinne v. Kinne, 9 
 Conn. 102; Ford r. Ford, 7 Humph. 
 92 ; Howard v. Coke, 7 B. Mon. 665 ; 
 Blanchard v. Nestle, 3 Denio, 37 ; 
 Modem Probate of Wills, 91. In Scot- 
 land an arbitrary test is applied, it 
 being there provided that no settle- 
 ment or gift executed after the com- 
 mencement of the disease of which a 
 person di(!S, excej^t those in the ordi- 
 nary administration of the estate, shall 
 be valid. If the testator survives sixty 
 days afterwards, or has be(!n to mar- 
 ket unsupported, the will is validated. 
 Bell's Diet. "Death Bed " 
 
 ' Hacker v. Newborn, Style, 427 ; 
 Bates V. Bates, 27 Iowa, 110. 
 
 2 Fearon ex parte^ 5 Ves. Jr. 633. 
 
 3 Scribner v. Crane, 2 Paige C. C. R. 
 147. 
 
 < Dietrick v. Dietrick, 5 S. &R. 207 ; 
 Nussear v. Arnold, 13 S. & R. 323; 
 Patterson v. Patterson, 6 S. & R. 54. 
 
 5 Denton v. Franklin, 9 B. Mon. 28. 
 
 « Marsh r. Tyrrell, 2 Hag. Ecc. 84. 
 
 7 Brydges i\ King, 1 Hag. Ecc. R. 
 256 ; Rollwagen v. Rollwagen, 63 N. Y. 
 504 ; Kinne v. Johnson, 60 Barb. 69 ; 
 Brick V. Brick, 66 N. Y. 144 ; Snyder 
 V. Sherman, 23 Hun, 139 ; Baker v. 
 Lewis, 4 Rawle, 356 ; Bitner v. Bitner, 
 65 Penn. St. 347 ; Goble v. Grant, 3 N. 
 J. Eq. 629 ; Lyons v. Van Riper, 26 N. 
 J. Eq. 337 ; Cadwallader v. West, 48 
 Mo. 483 ; Tobin r. Jenkins, 29 Ark. 
 151. In a case in Connecticut D. gave 
 $4000 out of $14,000 to relatives, and 
 the rest to a church. The will was 
 drawn by H. who was a vestryman of 
 the church, and who was left sole exe- 
 cutor. D.'s family were not notified 
 
 75
 
 § 77.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 a wife, however, to be set aside, the influence alleged to have been 
 exerted must be shown to have reached coercion, impairing the 
 husband's free agency,^ or fraud must be proved.^ In ordinary 
 cases also, it will not be enough to prove mere influence, without 
 proof of fraud or contrivance, or such coercion as destroys free 
 agency. " Honest intercession and persuasion," " and fair and 
 flattering speeches," though abundantly proved to have been used, 
 do not affect the instrument's validity.^ The fact of the paper 
 being entirely in a party's handwriting gives a strong presumption 
 of cotemporaneous sanity, which is not effaced by proof of generally 
 impaired intellect, nor by the fact, that, when the j)aper is a will, it 
 is marked by omissions of property.* The same presumption exists 
 when the testator has a distine' recollection, at the time of the 
 execution of the will, of the terms he directed at the time it was 
 prepared.' 
 
 of his dangerous illness till after the 
 execution of the will, which was wit- 
 nessed by H. and another vestryman 
 and H.'s brother-in-law, and which 
 misdescribed certain relatives of D. 
 Ihld, that these were circumstances re- 
 quiring explanation on the part of the 
 propounders of the will, and that the 
 jury might consider the question of 
 undue influence without any dir(^ct 
 proof of such influence. Hovey and 
 Pardee, J.J., dissenting. Drake's Ai)p., 
 45 Conn. 9. 
 
 ' Barnes v. Barnes, 60 Me. 28(5 ; 
 Clark V. Sawyer, 3 Sandf. Ch. 851 ; 
 Gardner v. Gardner, 22 Wend. 526; 
 sec RoUwagen v. RoUwagen, 63 N. Y. 
 504, for a case whore there was such 
 coercion and fraud ; Bicknell v. Bick- 
 nell, 2 T. & C. 96 ; Zimmerman v. Zim- 
 merman, 23 Penn. St. 375 ; Hopple's 
 Est., 7 W. N. C. (Pa.) 523 ; Pingree v. 
 .Jones, 80 111. 177 ; Tingley r. Cowgill, 
 48 Mo. 291 ; Rankin v. Rankin, 61 Mo. 
 295 ; Boyse v. Rossborough, 6 H. L. C. 
 47; 1 Redf. Wills, chap. x. section 2 ; 
 Wisener v. Maupin, 58 Tenn. 342. See 
 Stultz V. Schaefilc, 16 .Jur. 9u!) ; IS Kng. 
 L. k Kq. 576. 
 
 76 
 
 * Scribner v. Crane, 2 Paige, 147. 
 
 3 In general, the persuasion and in- 
 fluence of friends and attendants are 
 not such as to properly constitute un- 
 due influence. Hoge's Will, 2 Brewst. 
 (Pa.) 450 ; Williams's Est., 8 W. N. C. 
 (Pa.) 202; Gleespin in re, 26 N. J. 
 Eq. 523 ; Hughes v. Murtha, 32 N. J. 
 Eq. 288 ; Eddy's Case, id. 701 ; Chand- 
 ler V. F.-rris, 1 Ilarr. (Del.) 454; Sut- 
 ton V. Sutton, 5 Ilarr. 459 ; Sechrest 
 ?•. Edwards, 4 Mete. (Ky.) 163; Har- 
 rison's Will, 1 B. Mon. 351 ; Lucas v. 
 Cannon, 13 Bush, 650 ; Roe v. Taylor, 
 45 111. 485 ; Yoe v. McCord, 74 III. 33 ; 
 Allmon V. Pigg, 82 111. 149 ; Mclntyre 
 V. McConn, 28 Iowa, 480 ; Rabb v. 
 Graham, 43 Ind. 1 ; Gilreath v. Gil- 
 reath, 4 .lones' Eq. (N. C.) 142; Mc- 
 Danicl v. Crosby, 19 Ark. 533 ; Jack- 
 man's Will, 26 Wis. 104; Carroll's 
 Will, 50 Wis. 437. Even importunate 
 persuasion is not undue influence. 
 Tavvney r. Long, 76 Penn. St. 106. 
 
 * McDaniel's Will, 2 J. J. Marsh. 
 331 ; Fiilleck r. Allison, 3 Hagg. 527. 
 
 5 llathorn v. King, 8 Mass. 371.
 
 WILLS. 
 
 [§79. 
 
 § 78. In an issue, tried in Pennsylvania in 1862, on the validity 
 of a writing purporting to be a will, a party set up as a ^ , 
 defence great imbecility in the testatrix, and undue influ- influence 
 ence and actual duress. The case came before the amouDt to 
 supreme court on a writ of error, and on the point of ^o^"'^'"'^''^^- 
 undue influence Judge Strong said: " Now, that is undue influence 
 which amounts to constraint, which substitutes the will of another 
 for that of the testator." " It may be either through threats or 
 fraud, but, however exercised, it must, in order to avoid a will, de- 
 stroy the free agency of the testator at the time when the instrument 
 is made,"^ 
 
 So, in Alabama, it has been said, that to set aside a will on the 
 ground of undue influence, it must be shown that the influence ex- 
 erted on the mind of the testator was equivalent to moral coercion, 
 and constrained him, through fear, the desire of peace, or some 
 other feeling than affection, to do that which was against his will.^ 
 
 § 79. The question is not one of undue influence, for if so, there 
 are few wills which would not be put in peril. A testator is natu- 
 
 • Eckert v. Flowry, 43 Penn. St. 46. 
 
 2 fLall V. Hall, 38 Ala. 131. Undue 
 influence must amount to a moral con- 
 straint, destroying free agency. Barnes 
 v. Barnes, 66 Me. 286 ; Breed v. Pratt, 
 IS Pick. 115; Sliailer v. Bumstead, 99 
 Mass. 112 ; Comstock v. Hadlyme, 8 
 Conn. 261 ; Gardiner v. Gardiner, 34 
 N. Y. 155; Brick v. Brick, 66 N. Y. 
 144 ; Children's Aid Soc'y v. Love- 
 ridge, 70 N. Y. 387 ; Horn v. Pullman, 
 72 N. Y. 2G9 ; Kinne v. Johnson, 60 
 Barb. 69 ; Hazard v. Hefford, 2 Hun, 
 445 ; Snyder v. Sherman, 23 Hun, 139 ; 
 Seguine v. Seguine, 4 Abb. (N. Y.) 
 App. Dec. 191 ; Marvin v. Marvin, 3 Id. 
 192 ; Burk's Will, 2 Redf. 239 ; Booth 
 V. Kitchen, 3 Redf. 52 ; Lyncli i\ Clem- 
 ents, 24 N. J. Eq. 431 ; Browne v. Mol- 
 liston, 3Whart. 129 ; McMahon v. Ryan, 
 20 Penn. St. 329 ; Thompson v. Kyner, 
 65 Penn. St. 368; Tawney v. Long, 76 
 Penn. St. 106 ; Ilopple's Est., 7 W. N. 
 C. 523 ; Chandler r. Ferris, 1 Harr. 
 
 (Del.) 454 ; Higgins v. Carlton, 28 Md. 
 115; Tyson v. Tyson, 37 Md. 567; 
 Griffith V. Diffenderflrer, 50 Md. 466 ; 
 Monroe r. Barclay, 17 0. St. 302 ; Rabb 
 V. Graham, 43 Ind. 1 ; Harrington v. 
 Stees, 82 111. 50; Allraon r. Pigg, id. 
 149 ; Sechrest v. Edwards, 4 Mete. (Ky.) 
 163 ; Marshall v. Flinn, 4 Jones (N. C.) 
 L. 199 ; Wright r. Howe, 7 Jones L. 
 412 ; Lee v. Lee, 71 N. C. 139 ; O'Neall 
 V. Farr, 1 Rich. 80; Harrel v. Harrel, 
 1 Duv. 203 ; Thompson v. Davitte, 59 
 Ga. 472 ; Leverett v. Carlisle, 19 Ala. 
 80 ; Pool V. Pool, 35 Ala. 12 ; Leeper v. 
 Taylor, 47 Ala. 221 ; Rogers v. Dia- 
 mond, 13 Ark. 474 ; McDaniel v. Cros- 
 by, 19 Ark. 533 ; Tobin r. Jenkins, 29 
 Ark. 151 ; Williams r. Goiide, 1 Hagg. 
 577 ; Partitt r. Lawless, L. R. 2 P. & D. 
 462; I'urdou r. Longford, L. R. 11 Ir. 
 C. L. 269 ; Stultz c. Schaeltte, 18 Eng. 
 L. & Eq. 576. And it must be connected 
 with th(^ document. Todd r. Fenton, 
 66 Ind. 25. 
 
 77
 
 § 80.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 rally more or less influenced by those about him. Selfishness may 
 
 lead them to attempt to influence him in their favor ; or 
 
 omfof"" '^ a feeling of chivalric generosity may induce those who 
 
 capacity ^ home to undulv promote the interests of the ab- 
 
 t.o resist. '' ^ 
 
 sent. Rich men, also, are beset by numerous applicants 
 for aid, some of whom are importunate, and often present their 
 claims unfairly. If wills were set aside because such influences 
 were applied, the privilege of testamentary disposition would be 
 seriously impaired. The question is, therefore, not whether there 
 were influences about the testator which, if not resisted, would un- 
 duly sway him, for there is no testator about whom there are no 
 such influences ; but whether the testator had capacity to resist 
 such influences. If he had not, then the will, supposing the influ- 
 ences to have been applied, must fail at least pro tanto} 
 
 § 80. Mere mental debility, caused by sickness or extreme old 
 
 age, does not itself justify the conclusion that undue 
 weakness influence has been submitted to. " It is argued," said 
 proviMin- ^lulli", J-. in a case in New York, in 18(52,2 " that while 
 
 due iiifiu- a, man's intellect may not be so weak as to render him 
 ence. . ... 
 
 incapable of making a will, yet it may be in that feeble 
 
 state that he readily and easily becomes the victim of the improper 
 
 influences of such unprincipled and designing persons as see fit to 
 
 practise on him. The proposition is doubtless correct, but mere 
 
 weakness does not prove undue influence. Tliere must be some 
 
 evidence of the influence, and of its improper exercise, to justify the 
 
 rejection of a will on that ground." 
 
 ' Glover V. IL-iydeii, 4 Cusli. 580; St. 46. Hence it must be shown that 
 
 Hahlwin v. Parker, 99 Mass. 79 ; Hunt tlu; undue influence took effect. See 
 
 r. Hunt, lit) Mass. 237 ; Davis v. Davis, Jarman on Wills, Randolph & Talcott's 
 
 123 Mass. 590; May v. Bradlee, 127 note, 733, and cases there cited; Kiu- 
 
 Mass. 414; Wait v. Breeze, 18 Hun, leside w. Harrison, 2 Phill. 449 ; Boyse 
 
 4U3 ; Hughes v. Murtha, 32 N. J. Eq. v. Rossborough, G H. L. C. 47 ; Com- 
 
 288; Wainwright's App., 89 Penn. St. stock v. Hadlyme, 8 Conn. 2G1 ; Roll- 
 
 220 ; Clark v. Stansbury, 49 Md. 34G ; wagen v. RoUwagen, 63 N. Y. 504 : 
 
 Pierce r. Pierce, 38 Mich. 412; Hub- Brick v. Brick, (jG N. Y. 144; Eckert 
 
 bard v. Hubbard, 7 Oregon, 42. v. Flowry, 43 Penn. St. 4G ; Leverett 
 
 2 Reynolds v. Root, G2 Barb. 250, at v. Carlisle, 19 Ala. SO. 
 p. 253 ; Eckert i\ Flowry, 43 Penn. 
 
 78
 
 WILLS. [§ 81. 
 
 VI. PRESUMPTIONS. 
 
 1. From act and surroundings. 
 
 § 81. It must be remembered that the justice of testamentary 
 dispositions is to be determined from the testator's stand- 
 point, not from the standpoint of the adjudicating tribu- ^°ii*^°^y^^ 
 
 nal. Provisions which may strike us as very unjust, may indicate 
 , ,. ^ '' ,.,.*^ incapacity, 
 
 have seemed just to the testator, and might seem just to 
 
 us if we were possessed of all the facts of which he was possessed. 
 Notions of justice also vary as much as do the conceptions of facts 
 to which these notions are applied. To one mind it may seem very 
 unjust to give a preference to an older son; to another it would 
 appear that daughters should be preferred, as the most helpless ; to 
 another, bequests to collateral relatives may seem a matter of duty ; 
 to another it may appear a matter of duty to give largely to educa- 
 tional and religious institutions. The law, in reserving to all sane 
 persons the right of testamentary disposition, and in declining to 
 establish a universal compulsory rule for the disposition of property 
 after death, recognizes a variety of judgment among sane persons 
 as to the way their property should be distributed. That a will is 
 not the kind of will that the adjudicating tribunal would make, is 
 therefore no reason for setting it aside. On the other hand, it is 
 a sufficient reason for setting aside a will that it contains provisions 
 whose monstrosity can only be explained on the hypothesis of insan- 
 ity or of submission to undue influence.^ In cases not of so extreme 
 a type, inequality of disposition is not enough to warrant the 
 setting aside of a will on the supposition of undue influence; there 
 
 ' See Parfitt i\ Lawless, L. R. 2 P. & admissible to show the state of his 
 
 D. 462; Horn r. Pullman, 72 N, Y. mind, see 1 Redf. on Wills, ch. x. sec- 
 
 269 ; Cudney v. Cudney, 68 N. Y. 148 ; tion iii. The following additional au- 
 
 Booth V. Kitchen, 3 Redf. (N. Y.) 52; thorities may be referred to: May r. 
 
 Higgins V. Carlton, 28 Md. 115; Kevil Bradlee, 127 Mass. 414; Canada's App., 
 
 V. Kevil, 2 Bush, 614 ; Carpenter v. Cal- 47 Conn. 450 ; Griffith v. Diffondertfer, 
 
 vert, 83 III. 62 ; Tingley i-. Cowgill, 48 50 Md. 466 ; Dennis v. Weekes, 51 Ga. 
 
 Mo. 290 ; Thomas r. Stump, 62 Mo. 275 ; 24; Lucas f. Carman, 13 Bush, 650; 
 
 Convey's Will, 52 Iowa, 197. But see Reynolds u. Adams, 90 111. 134; Todd 
 
 Fulton V. Andrews, L, R. 7 H. L. Cas. v. Fenton, 66 Ind. 25 ; Convey's Will, 
 
 448. Courts may go too far in the en- 52 Iowa, 197 ; MuUer v. The Assoc, 5 
 
 deavor to stand in the testator's place. Mo. App. 390; Mooney v. Olsen, 22 
 
 That the testator's declarations are Kan. 69. 
 
 79
 
 § 82.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 must be independent proof that such influence has been applied.* 
 But always as one of the factors in determining a case,^ the gross 
 inequality of a Avill may be considered, and if undue influence 
 be shown aliunde, the disinheritance of those entitled by nature 
 to the testator's estate may be taken to be the eftect of that influ- 
 ence.' 
 
 § 82. It has been already noticed that a will will not be set aside 
 T . simply because the testator was subiected to influence, 
 
 Inference ^ •' '> ' 
 
 from abuse even amounting to importunity, supposing that he had 
 
 ofeontideu- . . , . . „ ... 
 
 tiai reia- Capacity to resist this influence, and was not the victim 
 '""''"^^' of coercion or fraud. If either coercion or fraud be 
 shown, the will must fall.^ And when a party claiming under a 
 will is shown to have possessed, from confidential relations, undue 
 influence over a testator, such party has the burden on him of 
 showing, supposing that this influence was exerted for his own 
 benefit, that he acted fairly, and that the testator acted freely. It 
 is true that in a recent English case,* where a priest, the confessor 
 and chaplain of the testatrix, was left all her property, and was 
 made executor, Lord Penzance, upon a rule nisi for a new trial 
 being argued, drew a distinction between the presumption in the 
 case of gifts i7ifer vivos, in favor of parties standing in a certain 
 relation to the donor, and in the case of testamentary gifts in favor 
 of the same parties. In the first case, the presumption, he held, is 
 that these parties have used undue influence, and on them lies the 
 burden of proof, while a stranger is not required to show that the 
 donor was uninfluenced ; while in the second case the presumption 
 disappears against the parties standing in the confidential relation. 
 
 ' Cudney v. Cudney, (JS N. Y. 148. Hon, 139. That any circumstances, 
 
 But sec^ Fulton v. Andrews, L. R. 7 H. however slight, will be admitted, see 
 
 L. C. 44S, contra. Clark r. Stansbury, 49 Md. 34(j ; 
 
 2 Any circumstances may ho consid- Mooney r. Olsen, 22 Kan. 69. And it 
 
 ered which lead to the inference of un- is said that wherever suspicious cir- 
 
 due influence. Barnes r. Barnes, GG cumslances, jjointing to undue iuflu- 
 
 Me. 28G ; Marvin v. Marvin, 3 Abb. ence, exist, it is due to the parties to 
 
 App. Dec. (N. Y.) 192; Rutherford v. frame an issue for a jury. Reynolds v. 
 
 Morris, 77 111. 397 ; Cadwallader r. Root, 62 Barb. 25U. 
 
 West, 48 Mo. 483. But the; circum- ^ Clark r. Fisher, 1 Paige, 171. 
 
 stances must be such as to lead logically * Bundy r. McKnight, 48 Ind. 502. 
 
 to that inference. Brick v. Brick, iiti ^ Parfitt c. Lawless, L. R. 2 P. & D. 
 
 N. Y. 144; Snyder v. Sherman, 23 462. 
 
 80
 
 WILLS. 
 
 [§82 
 
 " Th^ natural influence," he said, " of the parent or guardian over 
 the child, or the husband over the wife, or the attorney over the 
 client, may lawfully be exerted to obtain a will or legacy, so long 
 as the testator thoroughly understands what he is doing and is a 
 free agent. "^ In such cases the party benefited, he held, must 
 show, affirmatively, that the other party could have formed a free 
 and intelligent judgment in the matter,^ To the extent of allowing 
 the wife,^ husband, parent, or child to exert influence, the American 
 cases approve of this ruling. To persons standing in these relations 
 the estate of the testator should naturally descend, and so long as 
 the testator's mind is sufficiently balanced to remember the condi- 
 tion of the family and the demands of all upon him, there is no rule of 
 law to prevent the persuasion of relatives.* But in this country, gifts 
 by will, as well as other gifts to guardians,^ attorneys,^ physicians,'^ 
 
 ' Parfitt V. Lawless, iit supra, p. 470. 
 
 2 See Jarman, by Randolph & Tal- 
 cott, 144, 
 
 ' Supra, § 77. Illicit cohabitation is 
 not enough of itself to raise a pre- 
 sumption of nndne influence. Rudy i\ 
 lUrich, 69 Penn. St. 177 ; Wainwright's 
 App., 89 Penn. St. 220. But it may be 
 taken into consideration with other 
 circumstances and produce undue in- 
 fluence. Dean r. Negley, 41 Penn. 
 St. 317 ; Main r. Ryder, 84 Penn. St. 
 217; Kessinger v. Kessinger, 37 Ind. 
 341. 
 
 * The reliance of a mother upon a 
 daughter for the management of her 
 jjecuniary and domestic affairs is no 
 ground for imputation of fraud by the 
 daughter. To imply fraud from filial 
 virtue would be monstrous. Bleecker 
 V. Lynch, 1 Bradf. 4.58. But it has 
 been held that tlie relation of parent 
 and child is proper to be taken into 
 consideration by the jury. Gaither v. 
 GaitlKT, 20 Ga. 709. The fact that the 
 children who were present while the 
 will was executed in the absence of the 
 plaintiff were the principal benefici- 
 ariiis cannot be held to raise a pre- 
 VOL. I. — 6 
 
 sumption of undue influence. Bundy 
 V. McKnight, 48 Ind. 502. See Tingley 
 i: Cowgill, 48 Mo. 291; Coit v. 
 Patchen, 77 N. Y. 533. 
 
 5 That such gifts are void, see Breed 
 r. Pratt, 18 Pick. 115 ; Garvin v. Wil- 
 liams, 44 Mo. 465 ; Meek v. Perry, 36 
 Miss. 190 ; but that they only excite 
 suspicion, Daniel v. Hill, 52 Ala. 430. 
 
 6 St. Leger's App., 34 Conn. 450; 
 Wilson r. Moran, 3 Bradf. 172 ; Boyd 
 V. Boyd, 66 Penn. St. 283 ; Riddell v. 
 .Johnson, 26 Graft. 152. Sed contra, 
 Griflith r. Diflenderffer, 50 Md. 466, 
 which follows Parfit v. Lawless. There 
 is no presumj^tion against an agent. 
 Lee V. Lee, 71 N. C. 139. Contra, 
 where the agent was princijjal devisee 
 and wrote the will himself, Harvey v. 
 SuUens, 46 Mo. 147. See Wright v. 
 Howe, 7 .Jones L. 412. 
 
 7 Crispell v. Dubois, 4 Barb. 393 ; 
 Colhoun V. Jones, 2 Redf. (N. Y.) 34; 
 Cadwallader r. West, 48 Mo. 483. In 
 England, prior to Lord Penzance's 
 ruling, several cases disapproved of 
 large bi'qucsts to mi'dical advisers, and 
 lield that tlie Imrden of proof would 
 be thrown on those to whom thev 
 
 81
 
 § 83.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 and spiritual advisers,^ will be most carefully scrutinized by the 
 courts, and will raise an inference of undue influence which it will 
 be relevant to support by any pertinent corroborative evidence. 
 And in general, when tlie executor of the will, or the party by 
 whom it was written or suggested, is a devisee to a large extent, 
 though not a relative, the onus Avill lie heavily upon him to main- 
 tain the will.^ The presumption will, of course, depend upon the 
 amount of the legacy. The result, then, of the cases, and the better 
 view of the principles, may be taken to be as follows : No presump- 
 tion of undue influence can be justly formed from the fact, by itself, 
 that the testator has disinherited his relatives. But such inequality 
 of distribution is an important factor in the case, and when it ap- 
 pears that the party to whom large benefits under the will are to go 
 is one who, though not a relative, stood to the testator in a rela- 
 tion of trust and confidence, we are entitled to require proof that 
 that confidence has not been abused. Stronger proof of fairness 
 and of intelligent freedom on the part of the testator will be exacted 
 when the beneficiary is a stranger in blood, than when he is a rela- 
 tive.^ And in cases where the beneficiary is not a relative " stricter 
 proof will be required of the testator's capacity, though not as to 
 his knowledge of the contents of the will."* 
 
 § 88. We are therefore to conclude that the inference from the 
 
 contents of a will, unless in those extreme cases in which 
 IurcrGnc6 
 from con- the will itsclf is so preposterous as to exclude the hypothe- 
 
 conduslve. ^^^ ^^ sanity, is not by itself suflScient to determine the 
 issue of devimvit vel non. At the same time a will mak- 
 ing a just distribution of an estate will be held per se strong evi- 
 dence of disposing capacity,^ while one turning the testator's prop- 
 were given. 1 Jiinn. Wills, Sth Am. house r. Godwin, 17 Barb. 236; Lee c. 
 ed., by Bigelow, *3r)-3(), and notes. Dill, 11 Abb. Pr. 214; Cuthbertson's 
 See the case of Audenried's App., 89 App., Sup. Ct. of Pa. 1881, Central Law 
 Peiin. St. lU, reported 33 Am. Rep. Journal, 1881, p. 352; Duffield v. 
 731. Robeson, 2 Harr. (Del.) 384; Clark 
 
 ' St. Leger's App., 34Conn. 434. See r. Stansbury, 49 Md. 34(3; Harvey v. 
 Drake's App., 45 Conn. 0, and supra, § Sullens, 4() Mo. 147. 
 77. For a case wliere a bequest to a " Supra, § 79. 
 
 hospital was avoided, see Muller v. * 1 Jarm. Wills, 5th Am. ed. ; Bige- 
 The Assoc, 5 Mo. App. 390, low, *35, Randolph & Talcott, p. 08. 
 
 2 Paske v. Ollatt, 2 Pliill. 323 : Dur- 5 Nichols v. Binns, 1 Sw. & Tr. 239 ; 
 ling V. Loveland, 2 Curt. 225 ; New- Baunatyne v. Baunatyne, 2 Rob. 475 ; 
 82
 
 WILLS. [§ 84. 
 
 erty into an unnatural channel affords, though not a direct presump- 
 tion to the contrary, at least a circumstance of some suspicion, 
 proper to be put before a jury in connection with other facts, as 
 tending to determine the testator's capacity.^ This is broadly stated 
 by Sir John Nicholl, in a case^ where he declares, that, where 
 a will is traced into the hands of a testator whose sanity is fairly 
 impeached, but of whose sanity or insanity at the time of doing or 
 performing some act with relation to the will there is no direct evi- 
 dence, the agent is to be inferred rational, or the contrary, from 
 the character of the act.^ 
 
 § 84. But, while the apparent injustice of a testator to members 
 of his family is a circumstance to be taken into considera- 
 tion in examining the (question of his soundness of mind not neces- 
 at the time of making a disposition of his property by ^^'jl'd '"^" 
 will, it must not be forgotten that a man has a right by 
 law to make whatever disposition of his property he chooses, how- 
 ever absurd or unjust.* 
 
 Thus, in a case in 1859 in New Jersey, an issue was raised as to 
 the sanity of a testator at the time he made his will under which 
 the defendants claimed title, and in his opinion Judge Whelpley 
 said : " If he had capacity to make a will, that capacity was suffi- 
 cient to enable him to make any will, no matter how unjust or un- 
 reasonable its provisions may seem to others. A testator has a 
 right to make an unreasonable, unjust, injudicious will, and his 
 neighbors have no right, sitting as a jury, to alter the disposition 
 of his property, simply because they think he did not do justice to 
 his family connections. Unless the will on its face carries clear 
 
 supra, § 21; Clarke r. Fisher, 1 Paige, will in half under circnmstancesstrong- 
 
 171 ; Thompson v. Kyner, G.') I'enn. St. ly indicating insanity. The will was 
 
 3G8 ; Stevens i\ Vancleve, 4 Wash. C. admitted to probate. 
 
 G. R. 262 ; Harris v. Betson, 28 N. .J. ^ See generally 1 Jarman on Wills 
 
 Eq. 211 ; Young v. Earner, 27 (iratt. (5th Am. ed.) chap. iii. and notes, 
 
 96 ; Means v. Means, 5 Strobh. 167 ; and supra, § 61. 
 
 Couch V. Couch, 7 Ala. 519 ; Elliott's < Gamble v. Gamble, 39 Barb. 273. 
 
 Will, 3 J. J. Marsh. 340 ; Weir's Will, See also Trumbull v. Gibbons, 22 N. .J. 
 
 9 Uana, 434. L. 117 ; Gleespin in re, 26 N. J. Eq. 323 ; 
 
 ' See supra, §§ 82-83. Roberts v. Wintermute v. Wilson, 28 N. ,J. Eq. 
 
 Trawick, 13 Ala. 68. 437 ; Rutherford v. Morris, 77 111. 
 
 2 Scruby V. Fordham, 1 Add. 90. 397; Higgins r. Carlton, 28 Md. 115; 
 
 This was a case where a party tore his Coleman v. Robertson, 17 Ala. 84. 
 
 83
 
 § 86.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 marks of beinij; the product of a diseased mind, its injustice, its 
 unreasonableness, ought not to be the foundation of a verdict against 
 
 it."i 
 
 § 85. Erskine, J., in the case of Ilarwood v. Baker,^ where a will 
 
 had been executed in favor of a second wife, to the ex- 
 Disposiii? ... ... L c 
 
 mind free clusion of other relatives, the testator bemg in a state ot 
 
 ^ ^" ^' weakened capacity, rendering him incapable of exertion 
 unless roused, said: "Tiieir lordships arc of the opinion, that, in 
 order to constitute a sound disposing mind, a testator must not only 
 be able to understand that he has, by his will, given the whole of 
 his property to one object of his regard, but he must also have ca- 
 pacity to comprehend the extent of his property, and the nature of 
 the claims of others whom, by his will, he is excluding from all 
 participation in that property, and that the protection of the law is 
 in no cases more needed than it is in those where the mind has been 
 too much enfeebled to comprehend more objects than one, and more 
 especially when that object may be so forced upon the attention of 
 tlie invalid as to shut out all others that might require considera- 
 tion. And then — for the question which their lordships propose to 
 decide in this case is, not whether Mr. Baker knew when he exe- 
 cuted this will tliat he was giving all the property to his wife, and 
 excluding all his other relations from any share in it, but whether 
 he was at that time capable of recollecting who those relations were, 
 of understanding their respective claims upon his regard and bounty, 
 and deliberately forming an intelligent purpose of excluding them 
 from any share of his property — if he had not the capacity required, 
 the propriety of the disposition made by the will is a matter of no 
 importance. If he had it, the injustice of the exclusion would not 
 affect the validity of the disposition, though the justice or injustice 
 of the disposition might cast down some light upon the question as 
 to his capacity." 
 
 § 86. Eccentric and even whimsical clauses in a will do not ope- 
 rate, per sc, to annul it, the testator's capacity being 
 clauses do Otherwise indisputed. Thus, in England, and by Sir 
 datVr>er\'e Herbert .Tenner Fust, it was held to be not destructive of 
 the hypothesis of sanity, that the testator should have 
 directed that his executors should "cause some parts of his bowels 
 
 1 iJoylan v. Meeker, 4 Dutclier, 274. 2 3 Uoore V. C. 282. 
 
 84
 
 WILLS. 
 
 [§86. 
 
 to be converted into fiddle-strings — tliat others should be sublimed 
 into smelling salts, and that the remainder of his body should be 
 vitrified into lenses for optical purposes." The court, in admitting 
 the will to probate, was governed by evidence that the testator had 
 been marked by great business shrewdness, and that he was regarded 
 by his associates as a man of indisputable capacity. His own ex- 
 planation of this extraordinary provision, given in a letter attached 
 to the will, was that "the w^orld may think this to be done in a 
 spirit of singularity or whim, but I have a mortal aversion to funeral 
 pomp, and I wish my body to be converted into purposes useful to 
 mankind."^ 
 
 ' Morgan v. Boys, Taylor, Med. Jur. 
 657, cited 1 Redfield on Wills, chap, 
 xiv. § 11. Judge Redfield thinks that 
 "this must be regarded as a most 
 charitable vie^v of the testator's men- 
 tal capacity, and which an American 
 jury would not readily be induced to 
 adopt." See, also. Bird v. Bird, 2 
 Hagg. 142 ; Kinleside i\ Harrison, 2 
 Phill. 449 ; Griffiths v. Robins, 3 Madd. 
 191 ; Horn r. Pullman, 72 N. Y. 269 ; 
 Crolius i: Stark, 64 Barb. 112 ; Reyn- 
 olds r. Root, 62 Barb. 250 ; Creely r. 
 Ostrander, 3 Bradf. 107 ; Browne v. 
 Malliston, 3 Whart. (Pa.) 129; An- 
 dress v. Weller, 3 N. .1. Eq. 604 ; Sloan 
 V. Maxwell, 3 N. J. Eq. 563 ; Higgins 
 V. Carlton, 28 Md. 115 ; Kirkwood i\ 
 Gordon, 7 Rich. 474 ; Potts r. House, 6 
 Ga. 324. And see supra, § 44. 
 
 That mere eccentricity in a will is 
 compatible with fall testamentary ca- 
 pacity is illustrated by the fact that 
 eccentric provisions are sometimes 
 found in the wills of men whose sanity 
 no one would doubt. Thus Mr. Hume, 
 the historian, left in his will to his old 
 friend Mr. .John Home, of Kilduff (who 
 ilisliked port, and used to contend that 
 " Home" was the correct spelling both 
 for his name and Hume's), " ten dozen 
 of my old claret at his choice, and one 
 singh; bottle of that other licjuor called 
 port. I also leave to him six dozen of 
 
 port, provided that he attests under 
 his hand, signed John Hume, that he 
 has himself alone finished that bottle 
 at two sittings. By this concession he 
 will at once terminate the only two 
 differences that ever arose between us 
 concerning temporal affairs." 
 
 Jeremy Bentham gave directions in 
 his will that his body should be em- 
 balmed and kept stuffed in a chair in 
 one of his old apartments. 
 
 The London Illustrated News, in 
 1878, gave a series of articles on uncon- 
 tested eccentric wills, among which 
 may be noticed the following : — 
 
 Mr. Henry Budd, by his will, proved 
 in February, 1862, declares "that in 
 case my son Edward shall wear mous- 
 taches, then the devise hereinljefore 
 contained in favor of him, his ap- 
 pointees, heirs, and assigns, of my said 
 estate called Pepperjiark, shall be void; 
 and I devise the same estate to my son 
 William, his appointees, heirs, and 
 assigns. And in case my said son Wil- 
 liam shall wear moustaches, then the 
 devise hereinbefore contained in favor 
 of him, his appointees, heirs, and as- 
 signs, of my estate called Twickenham- 
 park, shall be void, and I devise the 
 said estate to my son Edward, his ap- 
 point(u>s, heirs, and assigns." 
 
 Mr. FltMuing, an appraiser and up- 
 holsterer of Pimlico, by liis will, proved 
 
 85
 
 § 87.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS, 
 
 2. From old age. 
 § 87. Testamentary incapacity does not necessarily presuppose 
 Old age tl^c existence of insanity, in its technical sense. Weak- 
 does not ness of intellect from extreme old age, whether arising 
 per se inca- ... . . 
 pacitate. from great bodily infirmity, or from intemperance, when 
 
 in April, 1869, gives to the different 1802, expresses her "wish to be buried 
 men in his employ 10/. each ; " but to decently and quietly — no undertaker's 
 tliose who persist in wearing the mous- frauds or cheating, no scarfs, hatbands, 
 tache, 5/. only." Mr. James Robbins, ornonsense." Mrs. Kitty Jenkyn Packe 
 Avhose will was proved in October, Heading, although evidently possessed 
 1864, declared " that, in the event of of sufficient means, appears by her will, 
 my dear wife not complying with my proved in April, 1870, to have been very 
 request to wear a widow's cap after my anxious that one part at least of the ex- 
 decease, and in the event of her mar- penses attending her funeral should be 
 rying again, that then and in both kept as low as possible. After saying 
 cases the annuity which shall be pay- she is to be placed first in a leaden and 
 able to her out of my estate shall be then in a wooden coffin, she provides 
 20/. per annum, and not 30/." Mr. that "if I die away from Branksome, 
 Edward Concanen, in a will proved in I wish my remains, after being duly 
 May, 1868, says: "And I hereby bind placed in the proper coffins, to be in- 
 m}' said wife that she do not after my closed in a plain deal box so that no 
 decease offend artistic taste, or blazon one may know the contents, and con- 
 the sacred feelings of her sweet and veyed by a goods train to Poole, which 
 gentle nature, by the exhibition of a will cost no more than any other i:)ack- 
 widow's cap." A very peculiar obli- age of the same weight ; from Poole 
 gation was imposed on two of his lega- station said box to be conveyed in a 
 tees by Sir James South, the astrono- cart to Branksome Tower." Mr. Wil- 
 mer, whose will, with several codicils, liam Kensett, by his will, proved in 
 was proved in 1868. By his will he October, 1855, recites that, "believing 
 gav<! a pocket chronometer each to the in the impolicy of interring the dead 
 Earl of Shaftesbury, the Earl of Piosse, amid the living, and as an example to 
 and Mr. Archibald John Stevens ; and others, I give my body, four days after 
 in one of his codicils he states they death, to the directors of the Imperial 
 were so given to them in the fullest Gas Company, London, to be placed in 
 confidence that they would respectively one of their retorts and consumed to 
 use and wear them in the same man- ashes, and that they will be paid £10 
 ner as "I am in the habit of wearing by my executors for the trouble this 
 my chronometer, nauKdy, in my pan- act will impose on them in so doing, 
 taloon pocket, properly so called" — a Should a defence of fanaticism and su- 
 sort of premium to try and perpetuate pcsrstition prevent their granting this, 
 the old fashion of carrying a watch in my recjuijst. then my executors must 
 the fob pocket, in vogue when Sir James submit to have my remains buried, in 
 South was a young man. the plainest manner possible, in my 
 The Countess Dowager of Sandwich, family grave at St. John's-wood Ceme- 
 in her will, written l)y herself at the tery, to assist in poisoning the living 
 age of eighty, proved in November, in that neighborhood." 
 
 86
 
 * WILLS. [§ 88. 
 
 it disqualifies the testator from knowing or appreciating the na- 
 ture, effect, or consequences of the act he is engaged in, works 
 a similar disability.^ Great caution, indeed, should be used, lest 
 the existence of extreme old age should lead the medical witness to 
 presume consequent imbecility. Against such a sequence the policy 
 of the law and the interests of humanity unite in protesting. " It 
 is one of the painful consequences of extreme old age," beauti- 
 fully said Chancellor Kent, in one of his earlier judgments, "that 
 it ceases to excite interest, and is apt to be left solitary and neg- 
 lected. The control which the law still gives to a man over the 
 disposal of his property, is one of the most efficient means which he 
 has in protracted life to command the attention due his infirmities. 
 The will of such an aged man ought to be regarded with great ten- 
 derness, when it appears not to have been procured by fraudulent 
 acts, but contains those very dispositions which the circumstances 
 of his situation and the course of the natural affections dictated."^ 
 
 § 88. "Great age, alone," adds a very enlightened and humane 
 jurist. Judge Bradford, " does not constitute testamentary „ 
 disqualification ; but, on the contrary, it calls for protec- rather be 
 tion and aid to further its wishes, when a mind capable 
 of acting rationally, and a memory sufficient in essentials, are shown 
 to have existed, and the last will is in consonance with definite and 
 long-settled intentions, is not unreasonable in its provisions, and has 
 been executed with fairness."^ Nor, was it ruled by the same 
 learned judge, does loss of memory incapacitate, unless it be total, 
 or appertains to things essential.* 
 
 In connection with these passages, the remarks of Lord Cockburn, 
 C, J., in the case of Banks v. Goodfellow,* are worthy of attention. 
 " In these cases," he says, " it is admitted on all hands that though 
 mental power may be reduced below the ordinary standard, yet, if 
 there be sufficient intelligence to understand and appreciate the tes- 
 tamentary act in its different bearings, the power to make a will 
 remains. It is enough if, to use the words of Sir Edward Williams, 
 
 1 Leech r. Leech, 21 Penn. St. 67. » Van Alst v. Hunter, 5 Johns. Ch. 
 
 See in this connection Dr. Day's " Prac- 148. See /ws^, § 104. 
 
 tical Trc^atise on the Domestic Manage- ' Maverick v. Reynolds, 2 Bradf. 3G0. 
 
 mentofthe Most Important Disi^ases of * Bleeckcr v. Lyncli, 1 Bradf. 300. 
 
 Advanced Life." T. k W. Boome, 5 j,. k. 5 q_ jj_ r^^c^^ 
 London, 1849. 
 
 87
 
 § 90.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIQNS. 
 
 in his Avork on ' Executors,' ' tlie mental faculties retain sufficient 
 strength fully to comprehend the testamentary act about to be done.' 
 ' Non sani tantum,' says Voet, in his ' Commentary on the Pandects,' 
 founding iiimself on the language of the code, ' sed et in agone mor- 
 tis positi, seminece ac balbutiente lingua voluntatem promentes, 
 recte testamentas condunt, si modo mente adhuc valeant.' " 
 
 § 89. In harmony Avith those views, wills have been sustained 
 •wlicu the testator was eighty years of age, very deaf, 
 tiai idss of and partially blind ;* where he was of the same age, and 
 faeuitu's. ^^.^^g afflicted with a palsy, so that he could neither write 
 nor feed himself;- and when he was between ninety and a hundred, 
 and greatly debilitated.^ It is true that Avhen in old age the tes- 
 tator is shown to have been imposed upon or coerced, the will will 
 be set aside ; but this rather tends to strengthen than invade the 
 sanctity of the testamentary privilege.^ 
 
 § 90. The same view is to be taken of the bodily infirmities pecu- 
 liar to old age. If they produce mental impotence, of 
 intirniities. course they work incapacity.^ But their mere existence 
 will not be sufficient to produce this result.'' As long as 
 
 « Lowo r. Williamson, 2 N. J. Eii- 82. 
 
 2 liccd's Will, 2 B. Moil. 19. 
 
 ^ Yau Alst (". Hunter, 5 Jolins. Ch. 
 148. ScM! Collins v. Townley, 21 N. J. 
 Eq. 353. 
 
 * 1 Jarm. on Wills (5th Am. ed.), 
 cliap. iii. 
 
 5 Harvey r. Snllcns, 46 Mo. 147. 
 
 6 Vanauken ex /xtrte, 10 N. J. E(|. 
 186. Thus, mere impairment of intel- 
 lect is not unsoundness of mind. Den 
 ?'. Johnson, 4 N. J. L. 454 ; Collins v. 
 Townley, 21 N. J. Eq. 353; Winter- 
 mute r. Wilson, 28 N. J. l^i- 437 ; 
 Jamison r. Jamison, 3 Houst. (Del.) 
 108 ; W\-itson r. Watson, 2 B.Mou. 74; 
 Reed's Will, 2 1$. Mou. T.) : Rutherford 
 11. Morris, 77 111. 31)7. Nor is failure of 
 memory, Reynolds v. Root, 62 Barb. 
 250; Eddy's case, 32 N. J. Eq. 701; 
 Lowder r. Lowder, 58Iiid.538; though 
 attended l)y slight delusions, C'liildren's 
 Aid. Soc. v. Loveridge, 70 N. Y. 387. 
 But old age and sickness are projjcr 
 
 circumstances to be considered in de- 
 termining capacity, Willemin v. Dunn, 
 t>3 111. 511 ; and when a grantor is in 
 such a condition, and is ignorant, it is 
 tbe duty of the ollicer authenticating 
 tlie executiini of his deed to explain its 
 contents to him, Lyons r. Van Riper, 28 
 N. J. E(i. 437. Where such was the 
 condition of a testator, it has been held 
 that it must be affirmatively shown 
 that he knew the contents of the will, 
 Wisener r. Maupin, 58 Tenn. 342 ; and 
 it has l)een held that the burden is on 
 those propounding the will of an aged 
 person who is of impaired mind and 
 body. Phipps r. Van Kleeck, 22 Hun, 
 541 ; Ames' Will, 51 Iowa, 596. See 
 Shakespeare v. Markham,72 N. Y. 400. 
 No person ought to subscribe as witness 
 to a will unless he knows from the tes- 
 tator himself that he understands what 
 he is doing. Scribner )'. Crane, 2 Paige, 
 147, Walworth, C. A will has been set 
 aside in submission to the opinions of
 
 WILLS. [§ 92. 
 
 it can be done consistently with public justice, the policy of the law 
 requires that the protection to old age, afforded by the right of tes- 
 tamentary disposal, should continue unimpaired ; and it is permitted 
 to cease only when actual wrong would be done to third parties by 
 its continuance, or where by exposing the possessor to undue so- 
 licitation or to imposition, it proves an annoyance rather than an 
 advantage. Nor is this rule without its foundation in the results of 
 observation. The truth that the mind is not necessarily affected by 
 bodily infirmity, is illustrated by numerous cases, one of the most 
 striking of which is that of Dugald Stewart, who, when unable from 
 disease to take general exercise, to use his right hand, or to articu- 
 late distinctly, composed the third and fourth volumes of his Phi- 
 losophy of the Human Mind. 
 
 § 91. In a case in 18G9 in Illinois, where a bill was filed to set 
 aside a deed made by a man eighty-seven years old to liis 
 son, on the ground of mental imbecility, the court held weak'uess 
 that in order to entitle the plaintiffs to the relief sought, '""■''* ^*f 
 
 1 o 7 show 11 to 
 
 they must show such a degree of mental weakness as to ini^'upiici- 
 
 . . tiite. 
 
 render the party incapable of understanding and protect- 
 ing his own interests. The circumstance that the mental powers 
 have been somewhat impaired by age is not sufficient, if the con- 
 tracting party still retains a fu|l comprehension of the meaning, 
 design, and effect of his acts.^ 
 
 § 92. In an English case reported by Mr. Browne,' the evidence 
 was that Andrew Harrison made a will and several codi- 
 cils ; the will and the first four codicils were not opposed, ^|^[" ^°^' 
 the other codicils Avere contested. The contested codicils 
 were set up by Mr. Kinleside, who was one of the executors and 
 the residuary legatee named in the will, and they were opposed by 
 Mr. Benjamin Harrison, whose appointment as an executor and the 
 benefits he derived under the will were revoked by these codicils. 
 All these instruments were regularly executed, and the grounds of 
 opposition were, that the deceased labored under dementia (mental 
 
 tli« subscribing witnesses and tbe fact ' Lindscy ?'. Linrlsey, fjO 111. 79. 
 tliat some time; aftc^r the testator forgot * Kinleside i\ IL'irrison, 2 I'liill. 449. 
 
 liis cliililrcii. Dumond i'. Kiff, 7 Lans. See Browne's Med. .lur., Jjoiidoii, 1871, 
 
 (N. Y.) 4(;5. S.'e, generally, 1 .Tarin. p. 212. 
 on Wills, 5th Am. ed., chap. iii. ; 1 
 Kedf. Wills, chap. iii. sectiori xii. 
 
 89
 
 § 92.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 imbecility), so as to be incapable of any testamentary act whatever; 
 and with regard to two of the codicils, it was asserted that they 
 were obtained from the deceased by fraud, circumvention, and im- 
 portunity. 
 
 It was proved that the testator was eighty-six or eighty-eight 
 when the contested codicils were made. It was also proved that the 
 deceased was liable to certain nervous attacks, and it was admitted 
 that during these attacks he was incapable of any rational act. The 
 deceased was admitted to be deaf, to be nervous and low-spirited 
 when anything affected him. His eyesight was perfect, his bodily 
 powers were not much impaired. It was proved that he could run 
 up stairs. These points were not controverted. 
 
 Thirteen witnesses were examined to prove the incapacity of the 
 testator. Most of them spoke of a failure of memory, of a defective 
 power of recognizing people, of his being regarded by those about 
 him as a person of weak mind, and of his appearing to be " lost." 
 But their evidence brought out the fact that he was in many ways 
 vigorous in mind and body, and that he was able to transact business 
 without assistance. They were strongly of opinion that the testator 
 was of unsound mind, and incapable at the time the contested codi- 
 cils were made of making a valid testamentary instrument. 
 
 The evidence of Mr. Boodle, the solicitor, who was concerned in 
 the execution of the codicils, was that at the time of their execution 
 Mr. Boodle, although he thought the deceased's memory defective, 
 did not regard him as permanently incapable ; and, when taken in 
 connection with the evidence of other Avitnesses, led to the conclu- 
 sion that the testator did not labor under such mental defect as to 
 render him incapable of a valid testamentary act. It was satisfac- 
 torily proved that he was able to settle bills, to draw his own drafts, 
 to write letters, to play cards, to go about by himself, and that he 
 comprehended the state of his aftairs ; and many of the witnesses 
 summoned in support of the codicils asserted that they regarded him 
 as a person of sound mind, whose memory and understanding were 
 unimpaired. 
 
 With regard to this part of the case the learned judge says: 
 " Now, these accounts, with the bills regularly paid and indorsed, 
 these drafts drawn, these counterchecks registered and marked with 
 the date and sum for which they were drawn, the corresponding en- 
 tries in the book of expenditure, prove mind and understanding, and 
 90
 
 WILLS. [§ 95. 
 
 thought, judgment, and reflection very strongly, and, in a person of 
 
 his great age, of a most extraordinary and unusual degree 
 
 It is proved to my satisfaction that he possessed his mental faculties 
 in an extraordinary degree, considering his great age, and that he 
 had a testamentary capacity quite equal to a testamentary act of no 
 very complicated nature." 
 
 § 98. Sir J. Wilde (now Lord Penzance), in pronouncing judg- 
 ment in the case of West v. Sylvester, against a will pro- 
 pounded as that of an aged lady, said, " At the time she ^^furTof 
 
 executed the will of October, 18(33, altliough for many memory 
 
 ' . . * '' invalidates, 
 
 purposes she might be said to be in her right senses, she 
 
 was, nevertheless, suffering from that failure and decrepitude of 
 
 memory which prevented her having present to her mind the proper 
 
 objects of her bounty, and selecting those she wished to partake 
 
 of it." On this ground the will was set aside. 
 
 § 94. It is also to be observed that a party in exti-eme old age 
 
 may fall under the subjection of relatives or attendants 
 
 , " ^ • ^ ■ n n ^ fi- ^"^^ Senile 
 
 to such an extent as to deprive him ot ireedom oi voli- dread of 
 tion. His mind " may be quite intelligent, his under- 
 standing of business clear, his competency to converse upon and 
 transact business undoubted, and his bodily strength good ; but 
 there may grow upon him a fear and dread of relatives or servants 
 who may have surrounded him, and on whom he may have become 
 so perfectly dependent that his nervous system is wholly overcome, 
 so that he has no power to exert his mind in opposition to their 
 wishes, or to resist their importunities. His mind is enslaved by 
 his fear and a feeling of helplessness, so that, to that extent, and 
 in matters in which he may be moved by them, he really is facile 
 and imbicile. This state of things seems to be easily brought on 
 in old age, when the faculties are otherwise entire, and the bodily 
 strength considerable."^ 
 
 3. From pJit/siml causes. 
 
 \_tSe<' this question viewed psi/ehologicall i/ , infra, §§ 4G1-469.] 
 
 § 95. In cases of blindness, or of deaf-and-dumbncss, the party 
 offering a will has the burden of proving that the testator knew the 
 
 ' See Taylor's Mod. Jur. 2d ed. (1873), ii. fj^S. 
 
 91
 
 § 96.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Coiiipe- contents of the will, and was not imposed upon.^ It has 
 in'cast's of^ been questioned whether a person who was both blind and 
 dcaf-iuutcs, (Jeaf and dumb, is competent to execute any instrument 
 
 but know- ' '■ .1, 1 , , . 
 
 leiiuc of iu- requiring consideration,^ though, as will be seen,^ this 
 mu'nje cannot now be considered to be the law, when to that un- 
 shown. fortunate class methods of communication have been 
 
 opened which may fit them to sustain and appreciate the relations 
 of society. 
 
 § 90. "We regard this class of persons," says Judge Redfield, 
 ^ ,. in his excellent treatise on wills, ^ " as standing precisely 
 
 Question ' o i j 
 
 depends on Uke all othors in that respect (testamentary capacity), 
 
 education. . , ,, . -.^ , ,, , , .. ,i , 
 
 With this difference, perhaps, that, where it appears that 
 the testator was a deaf-mute, it will impose upon those who claim 
 to establish the will the burden of showing, in the first instance, 
 that the testator made the instrument understandingly." But even 
 this (pialification, the same learned author seems to think, vanishes, 
 " in the case of educated mutes, who are capable of communicating 
 by writing." " The fact that the testator wrote the will might 
 fairly ])e regarded as sufficient evidence, ijrhnd facie at least, that 
 he made it understandingly." And the deaf and dumb testator 
 may communicate his intention to execute by signs,^ or by writing.^ 
 "Whatever may once have been thought, it is now clear that even a 
 concurrence of blindness with deafness and dumbness, necessarily 
 works no incapacity.'^ 
 
 The question depends upon the education of the party afflicted 
 with this calamity. Under recent improved culture deaf-mutes 
 
 ■ 1 Janu. Wills, Sth Am. od. cli. ill. deaf, and dumb. See Harrison v. 
 
 2 Il)id. Rowan, 3 Wash. C. C. R. 580 ; Lewis 
 
 3 rnfra, § DH. v. Lewis, (j S. & R. (Pa.) 489 ; Day c. 
 * I. eh. iii. § 5. Day, 3 N. J. E(i. 444 ; Davis i\ Rogers, 
 
 5 Owston in re, 2 Sw. & Tr. 4(il ; 1 lloust. (Del.) 44; Wampler c. 
 Geale in n; 3 Sw. & Tr. 431. Wampler, !l Md. 540 ; Clifton r. Mur- 
 
 6 Moore r. Moore, 2 Bradf. 2G5. See ray, 7 <Ja. 5G4; Martin r. Mitehell, 
 Christmas v. Mitchell, 3 Ired. Ch. 535. 28 Ga. 382 ; Ray v. Hill, 3 Strobh. 297 : 
 
 ■ Weir r. Fitzgerald, 2 Bradf. 42. See Guthrie r. Price, 23 Ark. 396; Bar- 
 Oliver V. Berry, 53 Me. 206 ; Reynolds ton ?•. Robins, 3 Phill. 455 ; Long- 
 r. Reynolds, 1 Spear, 253. But, as with champ r. Fisli, 2 Bos. & Pul. N. R. 
 deaf-mutes, it must be shown tliat 415; I'Mwards r. Fincliam, 3 Curt. 63 ; 
 the testator understood the contents of Mitchell v. Thomas, 6 Moore P. C. C. 
 the will ; ') fortiori, when he is blind, 137. 
 
 92
 
 WILLS. 
 
 [§98. 
 
 are enabled to receive instruction freely, and freely to commu- 
 nicate their views ; and, when this is the case, their testamentary 
 capacity cannot be questioned on the ground that they are deaf- 
 mutes.^ T^ f 
 
 Deaf-mutes 
 
 § 97. If compos mentis, deaf and dumb persons can "i"-y marry 
 
 . when corn- 
 
 contract matrimony." pos mentin. 
 
 § 98. Whether a deaf-and-dumb person is capax 7iegotii Question is 
 
 is, under the instruction of the court, a (question to be [*u7y^°' 
 
 determined by the conditions of the concrete case.^ 
 
 ' The earlier cases will be found in 3 ^^ to pleading, see R. v. Pritchard, 
 
 a learned essay by Dr. H. P. Peet, in 7 C. & P. 303 ; R. r. Whitfield, 3 C. & 
 
 the 13th vol. of the Am. Journ. of In- K. 121 ; Wh Cr. PI. & Pr. § 417 ; and 
 
 sanity. See Oliver v. Berry, 53 Me. see Ordronaux Jud. Asi)ects of Insan. 
 
 20G. 225. For other jjoints in this connec- 
 
 2 Swinburne on Spousals, cited 13 tion see supra, § 4(jl. 
 Am. Journ. Insan. 127. 
 
 93
 
 § 100.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 CHAPTER III. 
 
 COMMISSIONS OF LUNACY. 
 
 Process to det(M-mine luiic'icy by a com- 
 mission, § 99. 
 
 General manner of issuing, § 100. 
 
 Issue before a commission is general 
 incompetency, § 101. 
 
 Opinions of witnesses admissible, § 102. 
 
 Ability to manage business the test of 
 competency, § 103. 
 
 But mere old age does not incapacitate, 
 § 104. 
 
 Harmless lunatic confined when neces- 
 sary, § 104 II. 
 
 What constitutes habitual drunkard, 
 § 105. 
 
 Extravagance and profligacy need not 
 constitute incompetency, § 106. 
 
 Proceedings may be set aside if irreg- 
 ular or inequitable, § 107. 
 
 § 09. In most of the United States, as in England, process exists 
 Process to ^^ wliich, wlicn a party is incapable of the management 
 
 deterniiue of his estatc, whether from mental unsoundness or from 
 lunacy by a . . 
 
 commis- habitual drunkenness, a committee may be appointed to 
 
 *^°°' Avhom the custody of his property is committed. It would 
 
 be out of place to set forth here the statutes by which this process 
 is defined and settled ; it is enough now to notice the general 
 scheme of practice which exists in England, and which has been, 
 •with the exceptions of only slight alterations of detail, adopted in 
 this country.' 
 
 § 100. When there is reason to believe that a party, from un- 
 soundness of mind or habitual drunkenness, is incapable 
 manner of of managing his affairs, a petition lies, generally from 
 iKsumg. j^j^y person interested in his person or estate, for the 
 issuing of a commission.- Upon the reception of the 
 
 ' See Ordronaux's Judic. Aspects of York, was sent home to liis family 
 
 Insan. (1877) 2 et seq. under the charge of a committee, tlie 
 
 2 The 2>etition must be sustained court having refused to entrust him to 
 
 by affidavits. Persse ex parte, 1 Moll, the care of his father-in-law, who came 
 
 219 ; Lincoln ex parte, 1 Brewst. 392. from India to seek him, see Colah in 
 
 For an interesting case where an East re, 3 Daly, 529 ; S. C, 11 Abb. Pr. N. 
 
 Indian, temporarily insane in JS'ew S. 209. The court rested the inherent 
 
 94
 
 COMMISSIONS OF LUNACY. [§ 101. 
 
 petition, the court directs a commission to issue to one or more 
 persons — generally required to be learned in the law — directing the 
 inquiry by commissioner and jury, as to the facts of the petition. 
 The commissioner, being thus authorized, directs a precept to the 
 sheriff, commanding him to summon a jury, who, when they meet, 
 hear testimony — on both sides if desired — on the matter submitted 
 to them, and, after being charged by the commissioner as to the 
 law of the case, return a finding as to whether, from the lunacy or 
 habitual drunkenness complained of, the respondent is incapable of 
 managing his estate.^ Should the finding be in the affirmative, the 
 court will appoint a committee, who will take charge of the respond- 
 ent's estate,^ subject, however, to the absolute right^ of the 
 respondent to traverse the finding, i. e. , to put in a formal denial of 
 it, in which case the question is determined before a court and jury, 
 in the same way as any other contested fact. Whether the alleged 
 lunatic really is capable of volition as to a traverse, and desires 
 that a traverse should be entered, will be determined, it seems, by 
 the chancellor himself, by personal examination or otherwise.* 
 
 § 101. It will be seen that the point at issue under a commission 
 of lunacy or habitual drunkenness, is the general, and issue before 
 not the partial ov particular, incompetency of the party, gjon"!™'' 
 who is the subiect of the inquiry.^ It is a matter of general in- 
 
 '' . . compe- 
 
 some moment, also, that the fullest opportunity of exami- teucy. 
 
 jurisdiction of the state over lunatics in re, 4 Baxt. (Tenn.) 81. Subsequent 
 
 and persons of unsound mind within proceedings, in the absence of this, 
 
 its limits, whether citizens or aliens, would be void. Moody v. Bibb, W 
 
 on two grounds : First, the duty to pro- Ala. 245 ; Molton v. Henderson, t!2 Ala. 
 
 tect the community from the acts of 426. 
 
 those who are not under the guidance ^ The New York practice is given in 
 
 of reason ; and, secondly, its duty to Ordronaux's Judic. Aspects of Insan. 
 
 protect them as a class incapable of pro- (1877) 14. See, as to the practice in re- 
 
 tecting themselves, which duty has its gard to the appointment and removal of 
 
 foundation in the reciprocal obligation committees. Black's Est., 18 Penn. St. 
 
 of allegiance and protection, and which 434; Rulings v. J^aird, 21 Penn. St. 
 
 extends to aliens and strangers who 205. 
 
 owe a temporary and local allegiance. ' Gumming in re, 11 I'ng. h. & Va\. 
 
 That the petition is necessary to juris- 202 ; 1 De (J. M. k (J. 0;57. 
 
 diction, see Payn in re, 8 IIow. Pr. * Ibid. 
 
 220 ; Mason in re, 1 Barb. 436. ^ Watson's Iiitcndiclioii, 31 La. Ann. 
 
 ' Personal service on the alleged 757. 
 lunatic is always necessary. Dozier, 
 
 95
 
 § 101.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 nation be given. When a particular instrument is sought to be 
 vacated, or a particular crime to be excused, the testimony of the 
 medical witness is necessarily drawn from but casual observation, 
 made in some cases at a time when he had no reason to suspect the 
 existence of the disease. In such cases, also, great incentives to 
 fraud exist ;^ and it is well known how acute must be the penetra- 
 tion, and how sharp the tests which are not sometimes baffled by the 
 simulation of mental unsoundness. On the other hand, a commis- 
 sion of lunacy is executed with deliberation, after a calm and full 
 review of the previous life of the party under consideration. Nor 
 is he likely, as in criminal defences, to obtain a verdict of insanity 
 through undue sympathy, for his interests and his pride are both 
 enlisted in resisting his. moral and intellectual disfranchisement. It 
 becomes, therefore, a simple test, Is the respondent prevented by 
 mental unsoundness or habitual drunkenness from managing his 
 own estate r^ If he is, no matter how responsible he may be for 
 crime, or capable at particular times of making a bargain, the find- 
 ing must be against him. 
 
 Upon a recovery of competency, the commission, on due cause 
 shown, Avill be superseded.^ 
 
 1 111 actions for the interdiction of a 
 party for insanity, investigation of tlie 
 motives of those who are i^rovoking the 
 interdiction is of the iitraost conse- 
 quence. Fran eke i\ His Wife, 29 La. 
 Ann. 302. 
 
 2 Titcomb r. Vantyle, 84 IlL 371 ; 
 Jacox V. Jacox, 40 Mich. 473 ; Fen- 
 tress V. Fentress, 7 Heisk. (Tenn.) 
 428 ; Gray r. olicar, 59 Ga. 615. 
 
 3 See Lackey r. Lackey, 8 B. Mon. 
 107; Rnssel in rf, 1 Barb. Ch. 38; 
 Lasher in rt, 2 Barb. Ch. 97 ; Mason 
 in re, 1 Barli. 43(J ; Beaumont's case, 1 
 Whart. 52. 
 
 Prof. Ordronaux, in his treatise on 
 the .Judicial Asi^ectsof Insanity (N. Y., 
 1877), 229, shows satisfactorily the pro- 
 cesses by whicli English chanceUors 
 gradually reached the conclusion that 
 the test is business capacity. "Thus 
 in Gibson r. Jeyes, (3 Ves. Jr. 2(3(5 «, at 
 
 96 
 
 p. 272, which was a case of imbecility. 
 Lord Kldonol»served that it was a ques- 
 tion 'whetlier tliis case might not sup- 
 port a commission, not of lunacy, but 
 in the nature of a writ de lunalicn, in 
 which, it must be remembered, it is 
 not necessary to (establish lunacy, but 
 it is sufficient that tlie party is incapa- 
 ble of managing his own affairs.' And 
 in another similar case this same high 
 authority said that 'a commission of 
 lunacy' is not confined to strict insanity, 
 but is applied to cases of imtjecility of 
 mind, to the extent of incapacity from 
 any cause, as disease, age, or habitual 
 intoxication. Ridgeway i\ Darwin, 8 
 Ves. Jr. 65. 
 
 " Lord Erskine in ex parte Cranmer, 
 12 Ves. Jr. 445, reiterated the views ex- 
 pressed by Lord Eldon, and held that a 
 commission of lunacy was applicable to 
 incapacity from causes distinct from
 
 COMMISSIONS OF LUNACY. 
 
 [§ 102. 
 
 & 102. Opinions of witnesses as to the party's capacity Opinionsof 
 
 witiicssGs 
 
 are as admissible as in other cases of contested sanity.^ admissible. 
 
 lunacy. It will he evident from these 
 rulings how strongly the tide had turned 
 since Lord Hardwicke in ex parte Barns- 
 ley, 3 Atk. 169, A. D. 1744, decided 
 that, although there might be mental 
 incapacity in a party, still no return to 
 the inquisition would be good which 
 did not llnd the party of unsound mind. 
 And the ground upon which he rested 
 this ruling was, that while he was de- 
 sirous of maintaining the prerogative 
 of the crown in its just and proj^er 
 limits, yet, at the same time, he must 
 take care not to make a precedent of 
 extending the authority of the crown, 
 so as to restrain the liberty of the sub- 
 ject and his power over his own person 
 and estate, further than the law would 
 allow. 
 
 " In our own state. Chancellor Kent 
 gave an early assent to the doctrine 
 announced in the English decisions, 
 and on a similar question coming be- 
 fore him, in the case of Barker, 2 Johns. 
 Ch. 233, gave his entire approbation to 
 the course pursued by Lords Eldon and 
 Erskine. Barker was not a lunatic, 
 nor yet an idiot, but a feeble-minded 
 old man, incapacitated by advanced 
 age for the management of his own 
 affairs. A commission was accordingly 
 issued and a finding of unsound mind 
 returned. In referring to the duty of 
 courts of equity to issue commissions in 
 the natureof writs t/e lunatico, wherever 
 there was a reasonable doubtof a party's 
 capacity to manage his own affairs, the 
 chancellor, while reviewing the English 
 authorities, said : — 
 
 " Lord Hardwicke disclaimed any ju- 
 risdiction over the case of mere weak- 
 ness of mind, yet it is certain that wlien 
 
 a person becomes mentally disabled, 
 fi'om whatever cause the disability may 
 arise, whether from sickness, vice, cas- 
 ualty, or old age, he is equally a fit and 
 necessary object of guardianship and 
 protection. The court of chancery is 
 the constitutional and appropriate tri- 
 bunal to take care of those who are in- 
 competent to take care of themselves. 
 There would be a deplorable failure of 
 justice without such a power. The 
 object is protection to the helpless, and 
 the imbecility of extreme old age, when 
 the powers of memory and judgment 
 have become extinct, seems, as much as 
 the helplessness of infancy, to be within 
 the reason and necessity of the trust. 
 
 "And proceeding further to justify 
 the issuing of commissions in cases of 
 general mental incapacity without the 
 presence of actual insanity, he observed: 
 ' It is evident that Barker is not a luna- 
 tic, within the legal meaning of the 
 term. He is not a person who some- 
 times has understanding and sometimes 
 not. He is, rather, of that class de- 
 scribed by Lord Coke as non compos 
 mentis.' Co. Litt. 246 b. 
 
 "An inquisition may, therefore, be 
 awarded for any cause which substan- 
 tially incapacitates a party to manage 
 his affairs. It matters not, therefore, 
 whether the party be reduced to tliis 
 condition by disease, or old age, or ha- 
 bitual intoxication. Ex parte Tracy, 1 
 Paige, 580. 
 
 " Any thing which reduces the misn- 
 tal capacity of an individual to such a 
 degree as to permanently unfit him to 
 comprehend the nature and necessities 
 of his own affairs, to tak(i in the posi- 
 tion whicli those aO'aii'S occupy toothers. 
 
 ' See Wh. on Ev. § 451 ; Winslow on Med. Leg. Ev. in Insan. 129. 
 
 VOL. I. — 7 97
 
 § 103.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 ^103. In a trial in 18G8, in Pennsylvania, proceedings were 
 commenced by the commonwealth to inquire whether Elizabeth 
 
 and the provision necessary to be made 
 to secure himself against the ordinary 
 risks and contingencies of business, 
 may be said to render him, in contem- 
 plation of law, unfit to manage his 
 affairs. Although not properly a luna- 
 tic, he is still in the eye of the law 7ion 
 compos mentis, and a proper subject for 
 an inquisition of lunacy. 
 
 "However probable maybe the ex- 
 istence of the fact of lunacy, it must 
 still be sufficiently well substantiated 
 to satisfy the judgment of the court to 
 which application for a commission is 
 made, since the court cannot act on con- 
 jecture alone. Therefore, in Sherwood 
 V. Sanderson, 19 Ves. 286, Lord Eldon 
 observed that ' before a connnission 
 issues, the duty of that person who has 
 authority to issue it requires him to 
 have evidence that the object of the 
 commission is of unsound mind and in- 
 capable of managing his affairs, and 
 for that puri)ose the evidence of medical 
 men is gcn(;rally produced.' 
 
 " But it is not every case of mental 
 weakness or imbecility which will au- 
 thorize a court of equity to exercise the 
 power of appointing a committe(i of the 
 person and estate. In order to justify 
 the exercise of such a power, it has 
 been held tliat the mind of tin; indi- 
 vidual must be so far impaired as to be 
 riniuced to a state which, as an original 
 incapacity, would have constituted a 
 case of idiocy. Matt(ir of Morgan, 7 
 Paige, 236; Matter of Shaul, 40 How. 
 I'r. 204. Although there certainly are 
 degrees in idiocy, it is doubtful whetlier 
 the standard tlius selected, as popularly 
 understood, is not a lower one than 
 courts could generally or even safely 
 adopt in exercising guardianship over 
 tiie feeble-minded. Every day fur- 
 nishes evidence of the existence of cer- 
 
 98 
 
 tain minds wliich, far above idiocy in 
 intensity and extensity of power, are 
 yet shown by experience to be incapable 
 of governing themselves or managing 
 their affairs. "Without being idiots, 
 they are still capable of being included 
 among the non compos class. It was to 
 this feeble class that Lord Hardwicke 
 referred, when he observed that it 
 might be well if a curator or tutor 
 should be set over prodigal and weak 
 persons, as in the civil law. Ex parte 
 Barnsley, 3 Atk. 169," 
 
 See, to same effect, Nailor v. Nailor, 
 4 Dana, 339 ; Shaw v. Dixon, 6 Bush, 
 G44. It is competent, under the stat- 
 ntes, to appoint a conservator for the 
 estate of an insane married woman, 
 and, upon proper showing, to decree a 
 sale and conveyance of her estate, al- 
 though, when the statutes were passed, 
 the common law governing the rights 
 of married women obtained in the state. 
 Conveyances by conservators are con- 
 veyances made by the law for the bene- 
 fit of tlie lunatic, and are analogous to 
 conveyances by guardians and adminis- 
 trators, and are in no sense to be re- 
 garded as conveyances by the lunatic. 
 Wlicre the court had jurisdiction to 
 decree such a sale, a proj^er petition 
 was filed, and all the parties in interest 
 were before the court, whether the 
 court judged correctly in regard to the 
 property in question being the kind or 
 class of property of which a sale should 
 b(! decreed, or in regard to the neces- 
 sity of a sale, cannot be inquired into 
 h\ a collateral proceeding. Cxardner v. 
 Maroney, 95 111. 552, 
 
 That the court will issue a commis- 
 sion on a jiriiiK? facie case, see Tomlin- 
 son c.r jKirti', 1 Ves. & Beav. 57. 
 
 Tlie procedure must be conducted 
 under the same sanction as other judi-
 
 COMMISSIONS OF LUNACY. 
 
 [§ 103. 
 
 Schneider was a lunatic, etc. The inquisition finding Ability to 
 the respondent a lunatic was confirmed bj the court, bi 
 
 111 a 11 age 
 jusiuess 
 
 cial investigations. Lincoln ex parte, 
 1 Brewst. 392 ; Pettit ex parte, 2 Paige, 
 174 ; Russell ex parte, 1 Barb. Ch. 38. 
 The commissioners may comjiel tlie 
 production of the lunatic before tliem 
 for their inspection and that of the 
 jury, if deemed desirable, and this, in 
 all cases wherever possible, should be 
 done. 2 Barb. Ch. Pr. 233; Russell 
 ex parte, 1 Barb. Ch. 38. Should any 
 custodian of the lunatic or other person 
 interjjose to prevent this inspection, he 
 may be punished for contempt. This 
 was done in Lord Wenman's case, 
 where Lady Wennian, who was an 
 Irish peeress, and had cliarge of her 
 husband, was committed for contempt 
 for not producing him when required 
 (1 P. Wms. 701). If the persons hav- 
 ing charge of the lunatic carry him out 
 of the state, the commission may still 
 be executed in his absence. See Ordro- 
 naux, ux supra. 
 
 It is the duty of the sheriff alone to 
 select and to summon the jurors, and it 
 is both impro2)er and irregular for the 
 commissioners to dictate what persons 
 are to be summoned. Wager ex parte, 
 () Paige, 11. 
 
 " In conducting the trial it is usual 
 for the person first named upon the 
 commission to act as president ; to ad- 
 minister the oath to the jury ; to read 
 and explain the commission to them ; 
 to swear and examine tlie witnesses, 
 who must testify both as to the lunacy 
 of the party, his next of kin, and the 
 value of his real and personal property. 
 And some one of the commissioners 
 sliould also charge and instruct the 
 jury as to the matters to be found by 
 them in their V(!rdict. 2 Barb. Cli. Pr. 
 233." Ordronaux, ut supra. 
 
 Ill Arnliout in rr-, 1 Paige, 497, 
 Cliancellor Walworth, in directing the 
 
 manner in which the jury should be 
 charged, says, " but without argument 
 of counsel on either side." On this Prof. 
 Ordronaux makes the following just 
 criticism. " Now, since it was always 
 a settled rule of practice in our court 
 of chancery, that any party against 
 whom a commission of lunacy was 
 awarded could be represented by coun- 
 sel (1 Moulton's Ch. Pr. 110), we know 
 of no principle of law which would 
 authorize the commissioners to refuse 
 permission to such counsel to address 
 the jury. For it might become a very 
 essential part of his duty to enlighten 
 the jury ujxm tlie value or significance 
 of the evidence introduced, and we do 
 not well see how, without great injus- 
 tice to the parties interested, any coun- 
 sel could legally be restricted to the ex- 
 amination of witnesses alone. Such a 
 restriction lias certainly never existed 
 in England, and the question, there- 
 fore, has never called for spi'cial adju- 
 dication. Nor if raised before any of 
 our courts do we believe it would re- 
 ceive any countenance." 
 
 In Arnliout in re, 1 Paige, 497, 
 Chancellor Walworth laid down the 
 following additional rules, viz. : The 
 jury are to be instructed that, if twelve 
 or more of them find that the party is 
 not incomjietent, tluy are to deliver 
 their verdict accordingly, or if the 
 same number decide against his com- 
 petency, that tliey then lind and deter- 
 mine the other facts directed to be 
 inquired of, and that if twelve of them 
 cannot agree either way, they rejxjrt 
 the facts to the commissioners in order 
 that their return be made accordingly. 
 And in relation to every legal qucistion 
 arising in the excHuition of the commis- 
 sion, a majority of the commissioners 
 must decide. Ordronaux, xil supra 
 
 99
 
 § 104.] MENTAL UNSOUNDNESS IN ITS LEGAL KELATIONS. 
 
 the test of The respondent traversed the finding. On the trial 
 tency." the court of common pleas charged (iyiter alia)^ "Until 
 
 the mind is entirely blotted out, persons must be left to the 
 management of their own affairs. As long as there is a spark of 
 intelligence left, the law does not permit their liberty to manage 
 themselves or property to be taken from them." A writ of error 
 was taken out, which assigned for error the portion of the charge 
 just quoted. In the supreme court, the opinion was delivered by 
 C. J. Thompson, who said : " The truth and practical test under 
 this proceeding is this — Utter and unmitigated madness, or abso- 
 lute and hopeless idiocy, resulting from cerebral injury or disease, 
 or want of intellect from nativity, are by no means the only tests. 
 The protection of property is one, if not the main object of the 
 statute ; it is practical, that the test of liability to a commission, 
 should depend greatly on that unsoundness of mind which discloses 
 incompetency to its management, and the care and protection of it 
 in a rational manner; and this is the rule in England." He then 
 cited English authority to sustain him, and said : " The learned 
 judge fell into an error, by following the lead of Beaumont's case, 
 1 Wharton, 52, which seems mainly to have rested on Barnsley's 
 case, 3 Atk. 1G8, which we have seen Lord Eldon refused to follow 
 in Ridgway v. Darwin."^ 
 
 § l(l4. A petition for a commission de lunatico {nquirendo y^as 
 Butnipre pi'sscntcd by the son of Sarah Collins, in 18G7, to the 
 old asTc chancellor of New Jersey, ai)plyinir for a commission to 
 
 does not . J ' M J o 
 
 ineapaci- take charge of his mother's person and estate. She 
 was in the hundredth year of her age, her hearing was 
 somewhat impaired, and her sight very much so. The weight of 
 the medical testimony, however, was in favor of her soundness 
 of mind. The court held that there was no presumption against 
 her soundness from her extreme age. " She may," says the 
 chancellor, " be so weak and infirm as to be easily influenced, or 
 imposed upon, which would be a reason for setting aside any in- 
 struments or transactions executed under the effect of such influ- 
 ence, but this does not amount to unsoundness such as to take from 
 her tlie control of herself and her property." ^ 
 
 ' Corn. r. Schnoider, 59 IViui. St. 2 Collins in re, 18 N. J. Eq. 253. 
 328; H. I*. Watsoifs Interdiction, 31 See ((H/e, § 87. 
 La. Ann. T'w. 
 
 100
 
 COMMISSIONS OF LUNACY. [§ lOo. 
 
 § 104 a. In a case Avhich attracted much popular attention at 
 
 the time,' Chief Baron Pollock declared, that " no person Harmless 
 
 ought to be confined in a lunatic asylum unless dan";erous lunatics 
 ° , . *', . '^ couhned 
 
 to himself and others." This dictum, which startled when 
 
 both the legal and the medical professions at its utterance, pessary, 
 has been combated, and with great ability, by very eminent psycho- 
 logical authority,^ and has not been followed by the current of 
 American judicial opinion. There are necessarily cases when the 
 safety of property and the health of the patient himself, require 
 confinement in an asylum, though there be no danger of violence 
 to himself and others, and it is not likely that the existence of such 
 cases will be again judicially questioned. Whether the confine- 
 ment, in any particular case, was proper or not, will be for the 
 court and jury, if an action of false imprisonment be brought, to 
 determine specially. And the law in such a case undoubtedly is, 
 that confinement is justifiable, if the safety either of the patient or 
 of others requires it, or it is necessary for his restoration to health.^ 
 
 But the general practice is, not to direct, even under a finding 
 of lunacy, the confinement of the lunatic, except such confinement 
 be required by public peace and morals, or by the interest of the 
 patient.* 
 
 § 105. In respect to drunkenjiess, the law is, that, while occa- 
 sional acts of intoxication will not justify a finding of 
 
 ^\^]iit coh— 
 
 " habitual" drunkenness, yet, on the other hand, it is not stitutes 
 necessary for such a finding that the party should be con- ^i^yuk^rd 
 stantly in an intoxicated state. Thus, in Pennsylvania, 
 
 ' Nottridge v. Ripley, befoi-e Chief tive to the case of Nottridge v. Ripley, 
 
 Baron Pollock, sitting at nisi prius, Dundee, 1849. 
 
 June, 1849, reported in full in Journ. " Hinchman r. Richie, Brightly R. 
 
 of Psyc. Med. vol. ii. p. GW. 143. Under the Louisiana code there 
 
 2 See a remonstrance with the lord are three things necessary to justify- 
 chief baron, touching the case of the interdiction of a party as insane : 
 Nottridge ?'. Ripley, by John ConoUy, 1. The absolute incapacity to adniin- 
 M.D., 1849. A letter to the lord ister one's estate; 2. Tlie absolute in- 
 chancellor on the defect of the law capacity to take care of one's person ; 
 regulating the custody of lunatics, by and 3. An actual and unavoidable 
 Charles Curten Cooper, London, 1849. necessity to interdict. Francke r. His 
 Psychological Review, vol. ii. p. 504; Wife, 29 La. Ann. 302. 
 ib. vol. iii. p. 14. A letter to the * Com. v. Kirkljriile, 2 Brewst. 400. 
 Kiglit Hon. Lord Ashley, M. P., rela- See King's Co. Asylum /« re, 7 Abb. N. 
 
 C. (N. Y.) 425. 
 
 101
 
 § 105] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Knox, r. J., in putting the case upon a traverse to the jury, said: 
 " Neither was it necessary to make out the case that a person should 
 be constantly in an intoxicated state ; that a man might be an 
 habitual drunkard, and yet be sober at times for days and weeks 
 togetiier. That the question was, had the traverser a fixed habit 
 of drunkenness ? Was he habituated to intoxication whenever the 
 opportunity offered? The question is one of fact for the jury to 
 find, but the court has no hesitation in saying, that the man who 
 is intoxicated or drunk one-half of his time, should be pronounced 
 an habitual drunkard." And, in the supreme court, Rogers, J., 
 said : " To constitute an habitual drunkard, it is not necessary that 
 a man should be always drunk. It is impossible to lay down any 
 fixed rule as to when a man shall be deemed an habitual drunkard. 
 It must depend upon the decision of the jury under the direction of 
 the court. It may, however, be safely said, that to bring a man 
 within the meaning of the act, it is not necessary that he should 
 always be drunk. Occasional acts of drunkenness, as the jndge 
 says, do not make one an habitual drunkard. Nor is it necessary 
 he should be continually in an intoxicated state. A man may be 
 an habitual drunkard, and yet be sober for days and weeks together. 
 The oidy rule is, has he a fixed iiabit of drunkenness ? Was he 
 habituated to intemperance whenever the opportunity offered ? We 
 ajiree that a man who is intoxicated or drunk one-half his time 
 is an habitual drunkard, and should be |)ronounced such. We also 
 concur with the court, that, if the jury found the traverser to have 
 been at the date of the inquisition an habitual drunkard, it was 
 necessary to decide whether he was capable or incapable of man- 
 aging his estate. His incapacity in that event is a conclusion of 
 law\ It is not necessary to say, it is ?i. pre Hum ptio juris et de Jure; 
 but, at least, it throws the burden of proof of capacity on the tra- 
 versers. Indeed, it may be well doubted, whether his management 
 or mismanagement of his estate is a matter of inquiry. It is very 
 certain, under the act of the loth of June, 1836, proceedings may 
 be instituted against an habitual drunkard who has no estate. But 
 this cannot be if the mismanagement of it be necessary. It is well 
 said, that there must be an evidence of squandering property, to 
 support a proceeding to declare an individual an liabitual drunkard, 
 else the object of the act in many cases would be defeated. For it 
 102
 
 COMMISSIONS OF LUNACY. [§ 106. 
 
 is precautionary in its design, and hence a disposition of mind or 
 body which might lead to the wasting of an estate, is sufficient to 
 justify the enforcement of its provisions.^ It is indeed impossible 
 that a man can be an habitual drunkard without waste or mis- 
 management, as the very act of drunkenness is itself waste. In 
 this case, even if required, the evidence was full and plenary to this 
 point. "^ 
 
 So, also, has it been held in Vermont, that an habitual drunkard 
 " is one who is in the habit of getting drunk, or one who commonly 
 or frequently gets drunk," not that he is constantly or universally 
 drunk. 2 
 
 § lOG. An order was made on 23d November, 1861, in the Eng- 
 lish chancery, for a commission in the case of William ^xtrava 
 Frederick Windham, of Felbrigg Hall, Norfolk. The ^^^I'lce aud 
 
 ... . , ... , . profligacy 
 
 petitioner s case was imbecility and a consequent ina- need uot 
 bility on the part of the respondent to manage his own fn^ompe-^ 
 estate. It appeared that he was sent in his boyhood to ^ency. 
 Eton ; but that while in that school his conduct was so uni(j[ue and 
 extravagant as to lead to the belief that he was at that time 
 deranged. As he became older, these peculiarities became more 
 marked. He was extravagant and absurd in his purchases ; he 
 incurred enormous debts ; he was guilty at public places of gross 
 indecency which the presence of ladies did not restrain ; his asso- 
 ciates were among the uneducated and the profligate ; and three 
 weeks after he came of age he married a woman of disreputable 
 character, knowing that up to the night before the marriage she 
 had cohabited with one of his associates as the latter's mistress. 
 Although his income at this time was not more than jGISSO, he 
 presented her, shortly after his marriage, with jewelry valued be- 
 tween jei2,000 and jC 14,000, and settled on her absolutely <£800 
 
 ' Sill V. McNight, 7 W. & S. 245. It is, therefore, not the province of the 
 
 2 Ludwick r. Com., 18 Penn. St. 173. jury, upon a traverse of the inquisi- 
 
 In McGinnis v. Com., 74 Penn. St. 24.'>, tion, to determine the extent of the 
 
 Agnew, J., said : " It is sufficient to traverser's ability to transact his busi- 
 
 find the person an habitual drunk- ness." 
 
 ard. The legal conse([uences flow from ^ state v. Pratt, 34 Vt. 323. As to 
 
 that fact, and not from any supposed or what constitutes habitual drunkennc^ss 
 
 actual capacity of the habitual drunk- in a criminal sense, see Wh. Cr. L. 8th 
 
 ard to manage his business well. . . ed. § 1447. 
 
 103
 
 § 106.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 per annum. Although, after her marriage, she cohabited, to his 
 knoAvlcdgc, -with another man, he condoned this act, continuing to 
 live Avith her. llis hahits were devoid of cleanliness; and he some- 
 times displayed utter callousness. Unfortunately, when the ques- 
 tion came to be tried, there "was the usual conflict of opinion among 
 the experts. Dr. Forbes Winslow and Dr. Mayo, it it true, whom 
 the court appointed medical examiners, and Dr. Bright, who was 
 associated with them as assessors, united in the emphatic opinion 
 that the respondent was in a state of mental imbecility, and was 
 incapable of managing his own aft'airs. Dr. Southey, who was ap- 
 pointed subsequently by the lord justices as an additional examiner, 
 came to the same result. On the other hand. Dr. Tuke, Dr. 
 Sutherland, Dr. Hood, Dr. Seymour, and Dr. Conolly testified, 
 that, in their opinion, Mr. Windham was sane and of sound business 
 capacity ; and Dr. Tuke, in particular, sustained this position on 
 the ground (1) of Mr. Windham's remarkable powers of observa- 
 tion, and (2) of the skill with which he had conducted his defence. 
 Mr. Warren, master in chancery, charged the jury that " the (pics- 
 tion to be decided was not whether Mr. Windham was absolutely 
 insane, but whether there was such imbecility of mind, not amount- 
 ing to insanity, as to render him liable to be robbed by any one. 
 The broad question was whether he was of sufficiently sound mind 
 to be intrusted with the management of himself and his aflairs. 
 Mere weakness of character, mere liability to impulse, good or bad, 
 mere imprudence, recklessness, and eccentricity did not constitute 
 unsoundness of mind, unless, in looking fairly at the whole of the 
 evidence, there was good reason to refer them to a morbid condition 
 of intellect. They might furnish evidence of unsoundness, but they 
 did not constitute it." The jury, by a majority of 15 to 8, returned 
 as a verdict that " Mr. Windham is of sound mind and capable of 
 taking care of himself and his affairs." " After the verdict was 
 returned," says Dr. Taylor,^ "he was guilty of many extravagant 
 acts, exhausted a splendid fortune and became a bankrupt ; showing 
 that, whatever legal soundness of mind he might possess in the 
 oj)inion of two-thirds of the jury, he practically did not evince that 
 
 ' Taylor's Med. Jar., Penrose's od. Winter, reported in 26 Am. Journal of 
 p. 065. A cas(!, corresponding in many Ins. 47. 
 re.sjiects witli the above, is that of 
 
 104
 
 COMMISSIONS OF LUNACY. [§ 107. 
 
 capacity which they declared him to possess in taking care of him- 
 self or his affairs." But Dr. Taylor, in citing bankruptcy, and 
 even waste, as evidence of want of business capacity, mistakes the 
 purport of laws instituting commissions of lunacy. They are not 
 designed to place men, who are simply extravagant or reckless, in 
 the hands of a committee, for, if so, all business would be at a 
 standstill, and half the estates of the country would in a few years 
 be placed in chancery. The question for such commission simply 
 is. Is the respondent ineajmhle from mental unsoundness of managing 
 his own affairs ? If capable, he must be allowed to contribute his 
 own energies and means to that volume of public wealth whose ebb 
 and flow are essential to the economical activity of the state. He 
 must take his chance, and learn, if he can, from the discipline of 
 life, that wisdom Avhich, perhaps, he may not at first display. 
 " Mere extravagance or follies," as declared by Lord Chelmsford 
 when commenting on this case in the House of Lords, " are not, 
 therefore, sufficient, unless the imbecility amounted to unsoundness 
 of mind."^ 
 
 § 107. If a commission be found to have been irregular in its 
 inception or execution, or if substantial justice has not 
 been done, either the commission may be quashed, or, if in^-smaybe 
 
 it has matured into an inquisition, the inquisition mav f*"*^ '^*'!^'^ '^ 
 
 _i_ ' 1 - irretcular or 
 
 be set aside. Thus inquisitions have been set aside be- inequit- 
 
 ^ T . f. . . . , able. 
 
 cause 01 undue interterence by the commissioners with 
 
 the summoning of the jvn-y ;^ because the sheriff improperly inter- 
 fered with the deliberations of the jviry ;2 because the alleged lunatic 
 had no notice given him of its occurrence ;* because a stranger was 
 appointed committee without the assent of the relatives of the 
 lunatic and without a reference f because the commissioners refused 
 to issue subpoenas in behalf of the alleged lunatic ;^ because upon 
 the personal examination of the lunatic by the court, and of the 
 
 ' And where, by statute, a guardian ^ Wager inrc, G Paige, 11. 
 
 may be apjjointed for a sjaendthrift, to * Arnhout in re, 1 Paige, 497. 
 
 warrant sucli appointm((nt there must * Tracy in ro, 1 Paige, 580. 
 
 be evidence of excessive drinking, 5 Lamoree's case, 11 Abb. 274 ; S. 
 
 gaming, debauchery, and the like. C, 32 Barb. 122, and 19 How. I'r. 375. 
 
 Proof of weak-minded liabits in tlie ^ Ex parte Plank, 3 Am. L. J., N. S. 
 
 management of moin^y is not enougli. 518, 
 Morey's Appeal, 57 N. II. 54. 
 
 105
 
 § 107.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 evidence adduced upon the trial, the court held that the jury erred 
 in finding their verdict; though in such case the introduction of new 
 evidence, where no valid reason can be shown why the same was 
 not produced upon the trial, will not be permitted ex parte to con- 
 tradict the verdict, unless there has been gross error or undue pre- 
 judice exhibited on the part of the jury.^ 
 
 The inquisition, also, is defective, if it does not conform to the 
 statute in its finding ;^ though a mere misnomer of the lunatic in the 
 inquisition and other proceedings will not, of itself, invalidate them. 
 For this may be amended by an order entering such amendment into 
 future documents in which such lunatic's name is mentioned, the only 
 point to be considered being the establishment of his identity.^ 
 
 Where the inquisition and proceedings have been set aside, for 
 any cause, a second commission cannot be issued on the original 
 petition, because the continuance of the reasons upon which the 
 first was based cannot be presumed at law, but must be proved 
 de 'novo.* 
 
 ' Russell in re, 1 Barb. Ch. 38 ; Te- 3 Crawford in re, 1 Myl. & Cr. 240 ; 
 
 bout in re, 9 Abb. 211 ; Ordronaux, ut Ordronaux, iit supra. 
 
 supra, 222-2.00. * Kinchman v. Richie, Bright. 144, 
 
 * Morgan in re, 7 Paige, 236. 182 ; Ordronaux, ut supra. 
 
 lOG
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. 
 
 CHAPTER IV. 
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. 
 
 I. General Role. 
 
 Theory that insanity is a question ex- 
 clusively of fact, § 108. 
 
 Objections to this view, § 109. 
 
 Term "mental disease" includes evei'y 
 phase of passion, § 110. 
 
 And is ambiguous, § 111. 
 
 Definition of insanity must come from 
 court, not experts, § 112. 
 
 Jury not qualified to decide question of 
 law, § 113. 
 
 Question rests with judges, § 115. 
 
 II. Special Exceptions. 
 Enumeration of exceptions, § 116. 
 
 1. Where the defendant is incapable of dis- 
 tinguishing right Jroni wrong in reference 
 to the particular act. 
 
 Idiots and maniacs irresponsible, § 117. 
 
 English relaxation of rule in such case, 
 §118. 
 
 General test is knowledge of right and 
 wrong, § 119. 
 
 Right and wrong test generally satis- 
 factory, § 120. 
 
 But with exceptions, § 121. 
 
 Insanity coexisting with power to dis- 
 tinguisli right from wrong should 
 diminish responsibility, § 122. 
 
 "Moral insanity" no defence, § 123. 
 
 Otherwise with insane delusions, § 124. 
 
 2. When the defendant is acting under an 
 insane delusion as to circumstances xvhich, 
 if true, would relieve the act from respon- 
 sihilitij, or where his reasoning powers 
 are so depraved as to riudce the commis- 
 sion of the particular act the natural 
 consecpience of the delusion . 
 
 In England delusions may be a defence, 
 
 § 125. 
 And so in this country, § 126. 
 
 Delusions must be objective, § 127. 
 
 Illustrated by Levett's case, § 128. 
 
 Delusion to be determined from defend- 
 ant's stand-point, § 129. 
 
 So as to delusion as to danger, § 130. 
 
 So as to delusion as to the party at- 
 tacked, § 131. 
 
 So as to delusion as to supernatural 
 commands, § 132. 
 
 Guilty consciousness may be consistent 
 with irresponsibility. English rule 
 to this elfect, § 133. 
 
 So held in America, § 134. 
 
 Distinction between objective and sub- 
 jective delusions, § 135. 
 
 Where reason can dispel subjective de- 
 lusion, responsibility exists, § 136. 
 
 Subjective delusions must be insane to 
 destroy responsibility, § 137. 
 
 And proved to be so, § 138. 
 
 Where party is otherwise sane respon- 
 sibility remains, § 139. 
 
 Illustrations, § 140. 
 
 Danger of assigning irresponsibility to 
 delusions, § 141. 
 
 Prior insanity a test, § 142. 
 
 So of heredity, § 143. 
 
 Proof that delusion is sane competent, 
 § 144. 
 
 Delusion unconnected with crime no 
 defence, § 145. 
 
 3. Where the defendant, being insane, is 
 forced by a morbid and irresistible im- 
 pulse to do the particular act. 
 
 Irresistible impulse distinct from moral 
 insanity and passion, § 146. 
 
 With the sane, no impulse irresistible, 
 § 147. 
 
 Punisliment necessary to 2)rev(!nt crime, 
 § 148. 
 
 Fear a check on passion, § 149. 
 
 107
 
 § 108.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 " Irrospousil)ility" inipossiblo to dc- 
 
 tonnino, § ITjO. 
 Material theory of volition incorrect, § 
 
 ir)0«. 
 Passion is a mitigating ("lenient, § 151. 
 Authorities for defence of " irresistible 
 
 impulse," § 152. 
 Instances of irresponsibility coexisting 
 
 witli guilty consciousness, § 153. 
 Opinion of Chief Justice Shaw, § 15(j. 
 Of Chief Justice Gibson, § 157. 
 Of Judge Lewis, §158. 
 Insane uncontrollable impulse recog- 
 nized in Illinois and Indiana, § 159. 
 And in Ohio, Minn(;sota, Kentucky, 
 
 and Iowa, § 1(50. 
 Contra in North Carolina and othei' 
 
 states, § IGl. 
 Mania transitoria, not a defence, § 1G2. 
 
 4. ^'Moral Insani/i/'' (i. e., a siipjinsrd 
 insaniti/ of the moral sriisp. rlainud to 
 coi'xiat iril/i nwntitl suniti/) is no dcfcuce. 
 
 " Moral insanity" is no defence, § KiS. 
 
 This affirmed in England, § ltj4. 
 
 In Townh^y's case, § 165. 
 
 In Watson's case, § IGO. 
 
 And in Edmund's case, § 1(37. 
 
 So in United States, § 174. 
 
 Excejition in Kentucky, § 175. 
 
 Analysis of obj(ictions to "moral in- 
 sanity," § 1.^3. 
 
 Doctrine inconsistcsnt Mith safety of 
 community, § 184. 
 
 States must enfon-e exercise of reason, 
 § 185. 
 
 Not to reform guilt is to encourage it, 
 § 186. 
 
 Imprisonment should dcjtend on convic- 
 tion of specific crime, § 187. 
 
 Moral sense to be built uj? by state, § 
 
 188. 
 Efficiency of penal discipline for this 
 
 purjKJse, § 189. 
 
 5. While experts may he called to testify 
 as to states of mind and conditions of 
 health, it is for the courts to declare 
 whether such states and conditions consti- 
 tute irrcspousihility. 
 
 Such the general rule. Exception in 
 N(!W Hampshire, § 190. 
 
 Opinion in the case of State v. Pike, § 
 191. 
 
 Prevalent opinion is that question of 
 irresponsibility is for court, § 193. 
 
 Difficulty in obtaining full expert testi- 
 mony, § 194. 
 
 Such testimony is partial and imper- 
 fect, § 195. 
 
 Extravagance of the theories it brings 
 nut, § 196. 
 
 No tribunal exists to decide conflict of 
 experts, § 197. 
 
 Court mustweigli testimony of experts, 
 § 198. 
 
 And decidf! upon it, § 199. 
 
 Responsibility is a judicial question, 
 § 199 a. 
 
 6. Predisposition to insanity as lojvering 
 the (jrade of guilt. 
 Capacity of party, measure of guilt, § 
 200. 
 
 7. Caji'iclti/ of insane dtfendants to plead. 
 Preliminary inquest on formal jjlea of 
 
 insanity, § 200 a. 
 Insane defendant incompetent to plead, 
 
 § 201. 
 
 I. GENERAL RULE.^ 
 
 § 1U8. Two preliminary questions meet us as we enter on the 
 discussion of criminal responsibility. The first is, whether the 
 
 ■ The, coTisideratiou to be given to of New Hamjtshire, in a charge to the 
 this species of defence was thus justly grand jury: "The public paj^ers, in 
 and humanely stated by Parker, C. J., giving reports of trials, often say, ' the 
 
 108
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 108. 
 
 definition of " insanity" is for the court or for the jury, Theory 
 and was mooted in 1870 and 1871 in two able judgments eauity is a 
 
 defence was, as usual, insanity,' or 
 make use of some other expression, 
 indicating that this species of defence 
 is resorted to, in desperation, for the 
 purpose of aiding in the escape of crimi- 
 nals. Such opinions are propagated, 
 in many instances, by those whose feel- 
 ings are too much enlisted, or whose 
 ignorance respecting the subject is too 
 great, to permit them to form a dispas- 
 sionate and intelligent jiidgment ; and 
 they have a very pernicious tendency, 
 inasmuch as they excite the public 
 mind, and the unfortunate individual 
 who is really entitled to the benefit of 
 such defence is thereby sometimes de- 
 prived of a fair trial. They tend to 
 make the defence of insanity odious, to 
 create an impression against its truth 
 in the outset, and thus to bias the mind 
 of the jury against the prisoner, and 
 to induce them to give little heed to 
 the evidence, in the very cases where 
 the greatest care and attention and 
 impartiality are necessary for the de- 
 velopment of truth and the attainment 
 of justice. 
 
 "We all concur in the doctrine of 
 the law, that, for acts committed dur- 
 ing a period of insanity, and induced 
 by it, the party is not responsible ; that, 
 when the criminal mind is wanting — 
 when, instead of being guided by the 
 reason which God bestowed, the indi- 
 vidual is excited and led on by insane 
 fury and impulse, or by the aberrations 
 of a wandering intellect, or a morbid 
 and diseased imagination, or a false 
 and distorted vision and perception of 
 things — punishment should not follow 
 the act as for an offence committed ; 
 that, when the faculty of distinguish- 
 ing between riglii and wrong is want- 
 ing, the individual ouglit not to lie 
 held as amoral and accountable agent. 
 
 As well, nay, much better, might we, 
 as was formerly done in France, insti- 
 tute prosecutions against the brute 
 creation for offences committed by them, 
 and hang a beast for homicide, than to 
 prosecute and condemn a human being 
 who is deprived of his reason ; for in 
 such case there is no hope or restora- 
 tion to a right mind, and a reinstating 
 of a fellow-citizen, who has been once 
 lost to the community, in the rights 
 and affections of humanity. But if we 
 imbibe the idea that instances of in- 
 sanity are yery rare — that derange- 
 ment exists only when it manifests 
 itself by incoherent language and un- 
 restrained fury — that the defence, 
 when offered, is probably the last re- 
 sort of an untiring advocate, who, con- 
 vinced that no real defence can avail, 
 will not hesitate to palm off a i^retended 
 derangement to procure the escape of 
 his client from merited punishment — 
 if in this way we steel our hearts against 
 all conviction, it is of little avail that 
 we agree to the abstract proposition, 
 that insanity does in fact furnish a 
 sufficient defence against an accusation 
 for crime. 
 
 "There are undoubtedly instances 
 where this defence is attempted from 
 the mere conviction that nothing else 
 will avail — cases where the advocate 
 forgets the high duty to which he is 
 called, and excites a prejudice against 
 the case of others, by attempting to 
 procure the escape of a criminal under 
 this pretence ; but such arc truly rare, 
 and usually unsuccessful." 
 
 "Lawyers and physicians," says 
 Mr. Steplieii, in his treatise on Criminal 
 Law (liondon, 18G3, p. 87), "mean 
 two different tilings by the word ' mad- 
 ness.' A Uiwijcr mcana conduct of a cer- 
 tain character. A physician means a 
 
 109
 
 § 108.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 question of the supreme court of New Hampshire. In the first of 
 of fact'7^ ^ these cases,' the defence was " dipsomania ;" and the 
 court trying the case (Perley, C. J., and Doe, J.) in- 
 structed the jury that, " whether there was such a mental disease 
 as dipsomania, and whether the killing of Brown (the deceased) 
 Avas the product of such disease, were questions of fact for the 
 jury. "2 In a subsequent trial for murder in killing the defendant's 
 wife, where the defence was an insane delusion that the wife had 
 been guilty of adultery, the court (Doe, J.) charged the jury that, 
 if the defendant killed his wife in a manner that would be criminal 
 and unlawful if the defendant were sane, " the verdict should be 
 not guilty by reason of insanity, if the killing was the offspring or 
 ■product of mental disease in the defendant. Neither delusion nor 
 knowledge of right and wrong, nor design or cunning in planning 
 and executing the killing and escaping or avoiding detection, nor 
 ability to recognize acquaintances, or to labor, or transact business, 
 or manage affairs, is as matter of law a test of mental disease ; but 
 all symptoms and all tests of mental disease are purely matters of 
 fact to be determined by the jury. 
 
 " Whether the defendant held a mental disease, and tvhether the 
 ktUing of his wfe wai< the prodaet of such disectse, are cpiestions of 
 fact for the jurg.''^ '•'•hisanitij is mental disease — a disease of the 
 mind. An act piroduced by mental disease is not crime. If the 
 
 certain disease, one of tlie etfects of be proof of insane conduct, no amount 
 
 wliich is to produce such conduct. If of cerebral disorder or liereditary in- 
 
 the pathological cliaractcr of madness sane antecedents has been held, by 
 
 could be accurately ascertained, the intelligent medical experts, to raise 
 
 difference \v(nild be jicrfectly clear, even the presumi^tion of insanity. See 
 
 Suppose, for cxainplc, it were shown articles in Am. Journ. Ins. for 1872, 
 
 to consist in obscure inflammation of p. 70; ihiil., vol. 31,]). 3U; and liy Dr. 
 
 the brain. It would obviously be mon- (»ray, in Trans. Me(i. Soc. N. Y., 1871. 
 
 strous to S(!t aside a ix'rfcctly I'easona- See also article by Dr, Ray in Am. 
 
 blc will, made with every circumstance .Journ. Med. Sciences, N. S. vol. 1)5, p. 
 
 of deliberation and reflection, because, 4(30, and one in 18 Journ. Ment. Sci. 
 
 after the testator's death, it was i^roved, 31 1. And see " The Scientific Value of 
 
 by dissection, tliat, at the time of exe- the Legal Tests of Insanity," by J. R. 
 
 cuting the will, he had obscure; inflani- Reynolds, M.D., Lond. 1872. 
 
 niation of the brain ; yet this would be ' State r. Pike, 49 N. 11. 399. 
 
 demonstrative proof that in tlie medi- 2 y,,^ i\^[^ ,..^j^^ examined at large, 
 
 cal sense of the word he was mad." infra, §§ 190, 191. 
 JUil would it ! Certainly, unless there 
 
 110
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 110. 
 
 defendant had a mental disease which irresistibly impelled him to 
 kill his wife — if the killing was the product of mental disease in him 
 — he is not guilty. If the defendant had an insane impulse to kill 
 his wife, and could have successfully resisted it, he was responsible. 
 Whether every insane impulse is always irresistible, is a question 
 of fact. 
 
 "Whether in this case the defendant had an insane impulse to 
 kill his wife, and whether he could resist it, are questions of fact. 
 Whether an act may be produced by partial insanity when no con- 
 nection can be discovered between the act and the disease, is a ques- 
 tion of fact. The defendant is to be acquitted on the ground of 
 insanity, unless the jury are satisfied beyond a reasonable doubt 
 that the killing was not produced by mental disease." It was held 
 by the supreme court in error that these instructions were correct.^ 
 
 § 109. If the rule be that "mental disease" is exclusively a ques- 
 tion of fact for a jury, and if it be also exclusively a ques- q, • , +• 
 
 tion of fact for the jury to determine whether the act com- t<j this 
 
 ' . . view. 
 
 plained of was the product of mental disease, then any 
 
 further examination of the question as a matter of law is unneces- 
 sary. All that is required is to use the words in question in a chai'ge 
 to the jury, and the matter, so far as concerns the court, is closed. 
 It is now submitted, however, that, able and learned as are the 
 judges who have maintained this view, it cannot be sustained on 
 reasons either psychological or judicial. That it cannot be sustained 
 on authority, these learned judges themselves concede. 
 
 § 110. The proposition before us, then, is, that the entire ques- 
 tion of responsibility is to be left to the jury, with the 
 instruction that if the act was the product of "mental "mental 
 disease" they are to acquit. But what is "mental dis- fnckide's 
 ease?" And here we encounter the first obstacle to this every phase 
 
 ol passion. 
 
 method of solving this vexed and yet most important ques- 
 tion. "Mental disease," in fact, is a term so indeterminate and 
 vague, that to leave the question to the jury with the instructions 
 here criticized, is to leave it to them without any instructions at all. 
 Mental, like physical disease, ranges from slight indisposition or 
 disorder, on the one side, to the comatose state immediately pre- 
 
 ' See Stevens v. State, 31 Ind. 48.''> ; and article in 4 Am. Law Review, 530; 
 Bee injra, § 191, note z. 
 
 Ill
 
 § 110.] MENTAL UNSOUNDNESS IN ITS LEGAL KELATIONS. 
 
 ceding dissolution, on the other. There is no phase of ennui or of 
 misanthropy, no tinge of jealousy or avarice, however faint; no cor- 
 rosion of remorse, however just, that has not received tliis title. 
 States of mind eminently responsihle — those which the most latitu- 
 dinarian ethics would pronounce as peculiarly tiie subjects for the 
 discipline and penalties of the law — have, as was the case with Lady 
 Macbeth, been invested with the title as readily as those where re- 
 sponsibility is confessedly gone.^ Webster, in his Dictionary, tells 
 us that "in a figurative sense we speak of a diseased mind," and 
 he, as well as Worcester and Richardson, defines mental disease as, 
 first, want of ease, and, secondly, a morbid or unhealthy condition, 
 a definition which would include every mental state which makes 
 crime the object of desire. "In the world ye shall have disease;'' 
 so runs Wickliffe's translation of John, xvi. 83 ; and want of rest 
 and dis(puet give still the primary meaning of the word, however 
 much, in our modern complimentary way of toning down by inade- 
 quate epithets subjects distasteful to us, it may have been meta- 
 phorically extended to denote active maladies. Yet, even when 
 thus metaphorically enlarged, the term includes passion in every 
 phase. Thus, in the second epistle of his Essay on Man, Pope 
 says: — 
 
 ^^ Hence different passions more or less inflame, 
 As strong or weak, the organs of tlie frame : 
 And. lience one master-passion in tlie breast, 
 Like Aaron's serjpent, swallows up tlie rest. 
 As man, perhaps, the moment of his breath, 
 Receives the lurking principle of death : 
 The yoiuKj disease, wliich must subdue at length, 
 (Jrows with his growth, and strengtliens with his strength ; 
 So, cast and mingled with his very frame, 
 IVte mind's dis(<ise, its ruling passion came," etc. 
 
 ' It is remarkable how pointedly the rinclc from the memory a rooted sorrow, 
 ](assag(; from whicli the term "mind lidzo out the written troubles of the 
 diseased"' has crept into common use, brain, 
 
 brings out tlie idea of moral responsi- ^"'^ ^^''^'^ '''"'»« ''"'"'^ ohUvions antidote, 
 bility as distinguislied from irresponsi- <^li''i»«t' the stuffed bosom of that per- 
 ilous stuff 
 
 bility ; and liow thoroughly inconsist- 
 ent is tlie state it depicts with irrespon- 
 sible insanity : — 
 Macbeth. 
 
 Canst thou not niinister to a mind dijr;- 
 eased, 
 
 112 
 
 Wliicli weiglis upon the lieart ? 
 Docn'OK. 
 
 Tlicreiiij the jiaticitt mnst, mhiister to 
 himself.
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 111. 
 
 § 111. Now, if we substitute for "mental disease" in the formula 
 given in New Hampshire, any one of the definitions just ^ndis am- 
 noticed, we will at once see how inadequate is this mode ^iguous. 
 of disposing of the question. No one would maintain, for instance, 
 that it would not be in violation of all the fundamental sanctions of 
 criminal jurisprudence to tell the jury that they must acquit the de- 
 fendant if they believe the act was produced by a " mind ill at 
 ease," or by a "morbid or unhealthy condition of the mind," or by 
 the mind's " ruling passion." Yet the term "mental disease" le- 
 gitimately and primarily includes all these states, and may be pro- 
 perly used to describe every evil passion by which crime may be 
 caused. In fact, if criminal desire be, as is argued by eminent 
 physicists, always a mental disease, then the instructions under 
 controversy are equivalent to telling the jury that they must acquit 
 in all cases where the crime was the product of criminal desire. 
 Under such a system, only the innocent could be convicted of crime, 
 for only the innocent could be pronounced free from this psychical 
 peculiarity. 
 
 How ambiguous the term is, appears, in fact, from one of the very 
 rulings to which we here except. It was declared, in the first of 
 the cases commented on,^ that dipsomania was one of the defences 
 of which the jury were to be thus the supreme judges. The argu- 
 ment may be thus technically stated : All forms of mental disease 
 are, both as to their existence and their results, for the determina- 
 tion of the jury ; dipsomania is a form of mental disease ; therefore 
 dipsomania, both as to its existence and results, is for the exclusive 
 determination of the jury. But those who have introduced the term 
 "dipsomania," and who are the sole authorities who recognize it as 
 a distinct disease, declare that it is not a "mental" disease at all; 
 that it is exclusively a moral disease ; and that it may coexist with 
 a mind undiseased and sane. In order, therefore, to sustain the 
 conclusions of the court, we are obliged to make "mental" include 
 "moral," and thus expand the instructions to include moral disease, 
 or morbid condition of morals, as well as morbid condition of mind. 
 The court, therefore, while nominally declining to define insanity, 
 virtually defines it summarily, by making mental disease include 
 moral disorder. 
 
 ' state V. Pike, ut supra. 
 
 VOL. I.— 8 113
 
 § 114.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § 112. But it is ably argued by Judge Doe, in the case just re- 
 ferred to, tliat this is a question to be determined by ex- 
 StnsSt P6''ts Avho alone can define scientifically what insanity is. 
 must come fj^jjig position is hereafter fully discussed, when this par- 
 
 from court, '■ • -• i Xi. • 
 
 not ex- ticular point comes up for special examination.* it is 
 ^'^^^^' sufficient at this point to state (1) that the question in 
 
 criminal issues is not insanity but irresponsibility, which it is emi- 
 nently important should be limited by positive definition by the 
 highest judicial authority the state can constitute ; and (2) that 
 experts do not form such an authority, (a) because their sense, as 
 a body, cannot be obtained by any process known to our courts, (b) 
 because there is no independent court of experts, which on notice 
 to both sides, and after argument, if necessary, can, when the ex- 
 perts called in a particular case conflict, give a judicial opinion 
 upon the issue ; and (c) because, in many cases of criminal defence, 
 only those eccentric and exceptional experts are selected who believe 
 in some wild theory which may help out the defendant's case.^ 
 § IIB. Rejecting, therefore, as impracticable and unphilosophical, 
 
 the suo-'i-estion to devolve on experts the determination of 
 Jurj^not '^'=' ^ 
 
 quaiirted what " mental disease is, and what are its results, we 
 question of fall back upon the question in its original, and what, in- 
 ^^^^' deed, must in this view be its final, state, and ask Avhether 
 
 a jvrf/ is a body fit to lay down settled rules on this momentous 
 subject. And in answering this, we must remember what the issue 
 really is. It is simply " responsible" or " irresponsible," an issue 
 of all others the most vital, both to the party himself, whose civil 
 existence depends on the result, and to the community, which is thus 
 to be advised whether it is to cage him as a dangerous lunatic, or to 
 permit him to receive at once the discipline and the immunities which 
 belong to a free citizen of a free state. Is it fit to intrust this ([ues- 
 tion to the decision of a jury with instructions so vague as those 
 whicli are given above ? Is a jury competent, when the matter is 
 so left to it, to establish definite rules which will place the doctrine 
 of responsibility on grounds which are just and safe ? 
 
 § 114. We submit they are not, for the following reasons : (1) 
 They do not form a continuous body, prepared for their office, as 
 are our courts of justice, by prior study. (2) The reasons of their 
 
 ' Jn/ra, §§ 194-200. 2 See also infra, §§ 194-200. 
 
 114
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 115. 
 
 decisions are not given, so that these decisions can form the basis of 
 future decisions. Each decision stands by itself, not controlled by 
 those which preceded it, and not controlling those which succeed. 
 (3) There is no " supreme" jury, by whom the decisions of " infe- 
 rior" juries can be corrected and symmetrized. Hence, instead of 
 obtaining in this way a definite and consistent b6dy of law, which, 
 whatever may be its merits, will at least be a rule of action, we will 
 have a series of disjointed and conflicting edicts, from which no rule of 
 action can be deduced. Yet, after all, it is system, uniformity, and 
 consistency that penal law, in this respect, eminently needs. We 
 may illustrate this by recurring again to the doctrine of moral in- 
 sanity. If the existence of this disease, as conferring irresponsi- 
 bility, be maintained, then the community will protect itself by put- 
 ting persons " morally insane" under permanent restraint. If the 
 doctrine be denied, then such persons will, like all others, be subject 
 to penal discipline when they do wrong, and, if they persist in doing 
 wrong, then their lives will be spent in prison. What is necessary, 
 therefore, is not so much that this doctrine should be decided in 
 any particular way, but that there should be some decision, and that 
 this decision should be expressly and positively announced and be 
 made a precedent for future cases. But this is what a jury cannot 
 do. In deciding the question whether " moral insanity" is a defence, 
 no jury, if unguided by instructions of the court, will follow the 
 precedents of former cases, or establish a precedent by which future 
 cases can be ruled. The whole law, in this respect, will become a 
 blank ; and the doctrine of responsibility thrown into a chaos in 
 which it will be impossible to determine who is responsible or irre- 
 sponsible, sane or insane. 
 
 § 115. The definition of penal responsibility, therefore, is a high 
 prerogative which judges, educated for the office as they 
 are, and appointed by the state as the guardians at once ^I'^^efm-e 
 of the sovereignty of the law and the liberty of the citi- fcsts with 
 zen, cannot surrender or divide.^ The state has the right 
 to call on them to establish a consistent system which the commu- 
 nity may take for its guidance. Every man may be exposed to 
 danger from others, and therefore every man has a right to know 
 whether he must protect himself beforehand by appealing for a com- 
 
 J R. V. Richards, 1 F. & F. 87 ; see infra, §§ 190-200. 
 
 115
 
 § 116.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 mission of lunacy against his assailant, or must rely for redress on 
 the ordinary common law process of indictment. Every man is liable 
 to be seized at any moment by such commission of lunacy , and we have 
 a right in this view to demand that there should be a definite line 
 of responsible judicial decisions to determine under what circum- 
 stances we are to be deprived of liberty and estate. Even persons 
 charged with crime have a right to be supplied with accurate infor- 
 mation of the law by which their defence can be shaped. And, 
 above all, society at large has a right to expect that the law which 
 regulates the relations of reason to crime^ should be mapped out 
 with precision by learned jurists, dedicated by solemn sanctions to 
 continuous judicial service, whose decisions on trial can be reviewed 
 on appeal, and who, if incapable or corrupt, can be removed. Nor 
 is the task one inconsistent with the judicial office. The determina- 
 tion of such questions no doubt belongs to the highest philosophical 
 jurisprudence, but it is one which even the homeliest practical juris- 
 prudence cannot avoid without serious injury to the state .^ 
 
 II. SPECIAL EXCEPTIONS. 
 
 § 116. There is, however, a second preliminary difficulty that 
 remains to be noticed before proceeding to an examina- 
 tion of ' tion of the great question of criminal responsibility. The 
 cxcei)tioiitf. gj.gj. jj^g j^jg^ i^ggj^ disposed of. The second, which is 
 
 coeval with the existence of this branch of the law, arises from the 
 opposite extreme, namely, from the desire to force into an inflexible 
 and positive judicial code, special opinions delivered by judges when 
 particular facts requiring such opinions were under examination. 
 
 Thus, for instance, when a defendant, in whom there is no pre- 
 tence of mania or homicidal insanity, claims to be exempt from 
 punishment on the ground of incapacity to distinguish right from 
 ■wrong, the court very properly tells the jury that the question for 
 them to determine is, whether or no he labors under such particular 
 incapacity. The error has been to seize such an expression as this 
 as an arbitrary elementary dogma, and to insist on its application 
 to all otlier cases. Or, take the converse, and suppose the defence 
 is merely homicidal insanity. In such a case it would be very 
 proper to tell the jury that, unless they believe the homicidal im- 
 
 1 See in/m, §§ 183-188. 2 See §§ 185-189. 
 
 116
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 116. 
 
 pulse to have been uncontrollable, they must convict. And yet 
 nothing would be more unjust than to make this proposition, true in 
 itself, a general rule to bear on such cases as idiocy. It is pro- 
 posed to avoid this difficulty by treating this question practically, 
 in the only way in which it can arise in courts, and to consider 
 briefly, not what is the general limit of moral responsibility in the 
 abstract, but in what cases such responsibility ceases to exist.^ 
 These will now be discussed. 
 
 • The difficulty in this respect has 
 been increased by the looseness with 
 which legal adjudications are cited by 
 even some of the more eminent text- 
 writers. In fact, while the exigencies 
 of counsel and the duty of judges re- 
 quire a constant recourse to tlie text- 
 books on this particular science, in 
 making up such text-books the autho- 
 rized law reports have not been suffi- 
 ciently relied upon. 
 
 Of the mistakes arising from loose- 
 ness of citation in this respect, we may 
 take as an illustration Wood's case, 
 which is invoked by Dr. Winslow, in 
 his Lectures on Insanity (p. 102), to 
 show that in America "a verdict of 
 lunacy" will be recorded under cir- 
 cumstances which really show nothing 
 more than veliement passion and mor- 
 bid excitement. In that case, which 
 occurred in Philadelphia in 1838, a 
 father shot his daughter in a paroxysm 
 of rage, caused by her improvident 
 marriage. The prosecution was aban- 
 doned by tlie attorney-general, under 
 circumstances which were not at all 
 connected with the defendant's sanity 
 or insanity ; and a verdict of acquittal 
 was rendered, not of lunacy, in the 
 teeth of a charge from the very able and 
 humane judge (Judge King) who tried 
 the case, that the defence of insanity 
 had not been in any degree substan- 
 tiated. The verdict is no authority 
 whatever. It was produced by circum- 
 stances very derogatory to public jus- 
 tice, it was received with unbroken 
 
 disapprobation by the entire commu- 
 nity, and it was in direct opposition to 
 the charge of the court, instead of being 
 responsive to it. Had the official re- 
 port of the case been resorted to, the 
 last fact, at least, would have been 
 discovered. 
 
 Newspaper and other unofficial re- 
 ports, in fact, however interesting, are 
 of no legal authority, and they should 
 be to a peculiar degree received with 
 the qualifications which should be at- 
 tached to cases decided at nisi prius. 
 What a judge tells a jury is meant for 
 a particular issue. If the evidence 
 should show an old grudge, his duty 
 M'ould undoubtedly be to say to the 
 jury that drunkenness must be left 
 entirely out of consideration. If the 
 defendant and the deceased were mere 
 strangers, and the defendant in sudden 
 passion, from what, to a man in his 
 state of mind, would be adequate pro- 
 vocation, killed the deceased, it would 
 be proper to tell the jury that drunken- 
 ness in this case would lovver the of- 
 fence to manslaughter. It is plain, 
 however, that expressions directed to a 
 particular state of facts, cannot pro- 
 perly be severed from the context, and 
 propounded as absolute independent 
 principles applicable to all cases what- 
 ever. It is only by carefully marshal- 
 ling the facts that we learn what the 
 opinion of the judge trying the case 
 really was, and even then, the position 
 of the court, the opportunities it lias 
 possessed for revision and a consulta- 
 
 117
 
 Idiots and 
 maniacs 
 
 § 117.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 1. WJiere the defendant is incapable of distinguishing right from 
 ivrong in reference to the particular act. 
 § 117. Under this head may be enumerated persons afflicted with 
 idiocy or with general mania. It is certain that wherever 
 such incapacity is shown to exist, the court will direct 
 irresponsi- ^^^ acquittal; or if a jury should convict in the teeth of 
 such instructions, the court will set the verdict aside. 
 The authorities to this effect are so numerous, that a general refer- 
 ence to them is all that is here necessary ; it being observed at the 
 same time, that while the earlier cases lean to the position that such 
 depravation of understanding must be general, it is now conceded 
 that it is enough, if it is shown to have existed in reference to the 
 particular act.^ 
 
 The English law in this relation took definite and final shape in 
 the answer of the fifteen judges to the question propounded to them 
 by the house of lords in June, 1843. "The jury," they said, 
 "ought to be told in all cases that every man is presumed to be 
 sane, and to possess a sufficient degree of reason to be responsible 
 for his crimes, until the contrary be proved to their satisfaction ; 
 and that to establish a defence on the ground of insanity, it must be 
 clearly proved that at the time of committing the act, the party ac- 
 cused was laboring under such a defect of reason, from disease of 
 the mind, as not to know the nature and quality of the act he was 
 
 tion of autliorities after argument, and 480 ; 1 Russ. 11 ; 27 IIow. St. Tr. 1316 ; 
 
 the autlienticity and accuracy of tlie Com. v. Rogers, 7 Mete. 500 ; 7 Bost. L. 
 
 report, enter Largely into the question R. 449 ; Com. v. Mosler, 4 Penn. St. 
 
 how far the opinion so expressed is of 2(54 ; Freeman v. People, 4 Denio, 9 ; 
 
 weight. P'or convictions in cases of State r. Spencer, 21 N. J. L. 19(5 ; State 
 
 alleged insanity, see 32 Am. Journ. v. (lardiner, Wright, Oh. 392 ; Com. v. 
 
 Ins. 40rj ; 34 ibid. 3GS; 2G Jourm Ment. Farkin, 3 Penn, L. J. 482; Vance v. 
 
 Sci. 247. Cora. 2 Virg. C. 132 ; McAllister v. State, 
 
 ' See Wh. Cr. L. 8th ed. §§ 34 et scq., 17 Ala. 434 ; U. S. v. Shultz, 6 McLean, 
 
 where the later authorities are given ; 120 ; People v. Sprague, 2 Parker, C. R. 
 
 1 Inst. 247 ; Bac. Abr. Idiot ; Co. Litt. 43 ; State v. Huting, 21 Mo. 464 ; R. v. 
 
 247 (t ; 1 Russ. on Cr. by Greaves, Barton, 3 Cox, C. C. 275 ; R. r. Offord, 5 
 
 13 ; 1 Hawk. cl. s. 3 ; 4 Bla. Com. 24 ; C. & P. 168 ; R. v. Higginson, 1 C. & K. 
 
 Collinson on Lunacy, 573, 673, (») ; R. 129 ; R. v. Stokes, 3 C. & K. 188 ; R. r. 
 
 V. Oxford, 9 C. & P. 525; Burrow's Layton, 4Cox, C.C. 149 ; R. v.Vaughan, 
 
 case, 1 Lewin, 238 ; R. v. Goode, 7 A. 1 Cox, C. C. 80; People v. Coffman, 24 
 
 & E. 536; 67 Hans. Par. Deb. 728; Cal. 230 ; Com. r. Heath, 11 Gray, 303 ; 
 
 Bowler's case, Hadfield's case, ibid. State v. Lawrance, 57 Me. 574. 
 
 118
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 119. 
 
 doing, or if he did know it, that he did not know he was doing 
 
 what was wrong. "^ 
 
 § 118. Severe, however, as the rule is, viewing it as an abstract 
 
 proposition, the English judges have not been unindulgent 
 
 when determining as to the amount of evidence from iaxatk)nof' 
 
 which ignorance as to right and wrong may be inferred, '"i^^ ^^ 
 
 o '3 a J other cases. 
 
 Thus, a married woman having killed her husband imme- 
 diately after an apparent recovery from a disease (the result of 
 childbirth), which caused a great loss of blood, and exhausted the 
 vessels of the brain, and thus weakened its power, and tended to 
 produce insane delusions of the senses, which, while suffering un- 
 der such disease, she complained of, and which, by her own account, 
 had been renewed at the time of the act of homicide (although they 
 were not such as would lead to it): these facts were held by Erie, 
 J., to be evidence from which a jury might properly find that she 
 was not in such a state of mind at the time of the act as to know its 
 nature or be accountable for it,^ 
 
 So, also, where a married woman, fondly attached to her children, 
 and apparently most happy in her family, had poisoned two of them 
 with some evidence of deliberation and design ; but it appeared that 
 there was insanity in her family ; and from her demeanor before 
 and after the act, which, although not wholly irrational, yet was 
 strangely erratic and excited ; and from recent antecedents, and the 
 presence of certain exciting causes of insanity, and her own account 
 of her sensations, the medical men were of opinion that she was la- 
 boring under actual cerebral disease, and that she was in a paroxysm 
 of insanity at the time of the act ; this was left by Wightman, J., 
 to the jury, as evidence on which they might rightly find her not 
 guilty on the ground of insanity.^ 
 
 § 119. Is, however, the " right and wrong" test to be that by 
 
 which all cases of penal insanity are to be tried ? The (:jp„p,.^i 
 
 negative will be presently argued ; and it will be main- test is 
 
 '=' ^ ... . knowledge 
 
 tained that the defence of insanity is also sustained, when of riifiit 
 
 (1) there is an insane delusion from which the crime °' 
 
 emanates, and (2) when, being at the time insane, the defendant 
 
 is forced to the act by an irresistible impulse ; though he in each 
 
 ' SfeR.r. McNagliten, IC.&K. atp. ' Wh. Cr. L. Sth cd. § 35; R. v. 
 134 ; S Scott N. R. 595. Vyse, 3 F. & F. 247. 
 
 « R. V. Law, 2 F. & F. 836. 
 
 119
 
 § 120.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 case knows the act is forljidden bj the laws of the land. But in 
 cases which do not fall within tliose exceptions, the prevalent 
 opinion is that if the defendant knew enough to distinguish right 
 from wrong as to the particular case, the defence of insanity is not 
 made out.* 
 
 § 120. Whatever may bo the theory of responsibility we adopt, 
 „. , . , there is much to commend the " right and wrong" test to 
 
 Right and ^ '^ 
 
 wroTic: test our acceptance. As is shown in another work,^ there 
 
 jjciionilly . . 
 
 RatisCac- are three theories on Avhich punishment is based : 1st, that 
 '^^^'' of retribution ; 2d, that of prevention ; and 3d, that of 
 
 example. Whichever of these views we take, it seems proper to 
 make a consciousness of right and wrong as to a particular act a 
 condition of responsibility for that act. If we take the theory of 
 retribution, we cannot in justice impose punishment where there is 
 no guilt. Punitur quia peccatum est, is the basis of that theory ; 
 there must be sin to sustain punishment, and sin involves sense of 
 wrong. On the retributive theory, therefore, we are justified in 
 holding all persons, conscious of the wrongfulness of a particular 
 act which they commit, responsible for that act. And on the pre- 
 vention and example theories, the argument for punishment of per- 
 sons who, however disturbed may be their minds, are conscious of 
 the difference between right and wrong, as to the particular act, is 
 still stronger. Penal law is a general system, applicable to all 
 subjects of the state imposing it, exacting certain duties, and pro- 
 hibiting that which law-makers consider to be wronor.^ The law 
 cannot, however, forbid, without punishing in case of disobedience; 
 for proliibition without punishment ceases to be prohibition. Now, 
 it is conceded by those having charge of lunatics, that they are the 
 subjects of discipline. In fact, the police system which prevails in 
 all lunatic asylums assumes this, even should we cast aside the 
 abundant general testimony from experts that lunatics are, as a 
 rule, open to the influence of fear of punishment. If so, do they 
 differ, except in degree, from men who are the slaves of passion, or 
 the victims of demoralizing education 'i Mitigation of guilt, indeed, 
 and diminished responsibility, may be claimed for them on account 
 
 ' See cases supra; R. r. Oxford, supra, will be found grouped in Wh. Cr. L. 8th 
 
 §117; An.Reg. 1840, pt. ii.p. 2«2; R. ed. §§ 37 e^sw/. 
 
 r. McNagliten, ibid. 1843, pt. ii. p. 35 ; 2 Wh. Cr. L. 8th ed. §§ 1 et seq. 
 
 supra, § 117; the American authorities * See infra, §§ 183-188. 
 
 120
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 122. 
 
 of their infirmity ; but, as penal law can control their outbursts, the 
 interests of society require that over them penal law should con- 
 tinue to assert its control. 
 
 §1 121. Yet, admitting the force of this, there are preponderating 
 reasons which lead us again (1881) to assert the quali- But with 
 fications we expressed in former editions of this work, exceptions. 
 That the " right and wrong" test does not cover all the cases of 
 legitimate insnne irresponsibility, will now be shown. 
 
 § 122. ]\Iedical and psychological observation, based on an induc- 
 tion which each year makes at once more extended in its 
 materials and more absolute in its results, tells us that J^ft^.^V^o. 
 
 " coexisting 
 
 there are persons unquestionably insane who are capable ^^'^^ power 
 
 -,,.. 1- ir-i !• **^ distin- 
 
 of being instructed in the "law of the land, of knowing guish be- 
 
 what this law is, both in its general character and its and^vrong. 
 results, and of being deterred by proper sanction, from ^Ij^iuish"''^ 
 breaking such law.^ responsi- 
 
 What is to be done Avith such lunatics, on the test which 
 is above given ? Are they to be punished, as if they were sane, 
 if they happen to violate a law of which they are aware ? This un- 
 doubtedly is one of the most profound and delicate questions which 
 penal jurisprudence can approach. The North German Code has 
 endeavored to solve the difficulty by establishing in such cases 
 what is called diminished responsibility, followed, in cases of con- 
 viction, by penalties graduated on a milder scale than those Avhich 
 are visited on the entirely sane. And, assuming, as is really the 
 case, that there are grades of insanity just as there are grades 
 of sanity, and that the two melt together at their juncture almost 
 imperceptibly as do day and night in twilight,^ it is philosophically 
 just, that in the lower grades of sanity, and in the more "rational" 
 and responsible grades of insanity, such a rule should be imposed. 
 If it be not, either society will be exposed to the unnecessary peril 
 of having its order disturbed by the inroads of a class of men who 
 are not insane enough to be constantly confined, but are too insane 
 to be punished, or the great cruelty would be inflicted on this very 
 class, whom a just and humane penal system could restrain, of sliut- 
 
 ' See infra, §§ 378, 389, 410. The « See supra, § 50. 
 recent avitlioritif^s will be found in Wh. 
 Cr. I>. 8th ed. § 40 et scq. 
 
 121
 
 § 124.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 ting them \ip for life in asylums. Our common law reaches some- 
 what the same remedy by declaring, as will hereafter be seen, that 
 there are certain abnormal states of mind, e. g.^ drunkenness, and 
 by the same process of reasoning, exaltation and excitement produced 
 by cerebral disease, which, while they do not destroy responsibility, 
 or justify a jury in rendering a verdict of not guilty as to the fact 
 of guilt, neutralize the presumption of malice and of premeditated 
 intent, and lead, therefore, to a conviction of the offence charged in 
 its minor and less aggravated stages. Particularly is this the case 
 in prosecutions for homicide, where, in cases of mental turmoil, ex- 
 citement, or debility, the specific and deliberate and cool intent to 
 take life, essential, in most American states, to murder in the first 
 degree, is not capable of proof, and in which, therefore, the verdict 
 is properly murder in the second degree, or manslaughter.^ 
 
 § 128. But there are phases of insanity to which even this attri- 
 bute of " diminished" responsibility cannot with any jus- 
 insanity" tice be applied. That the so-called " moral" insanity 
 no de ence. ^^^ ^,^ ^ supposed condition in which the moral system is 
 insane but the mental sane) is not one of these phases, will be here- 
 after abundantly shown. ^ 
 
 § 124. But it is otherwise with insanity accompanied with delu- 
 sions of such a character that the patient believes he is 
 wiur^^"^^ authorized by superior authority to dispense with the law 
 
 insane of the land, and with insanity one of whose elements is 
 
 delui-ions. . ... 
 
 an impulse to commit crime which the reason is unable to 
 
 resist. If there be such phases of insanity as these, it is clear that 
 their subjects are not responsible to the ordinary processes of penal 
 justice. Yet such patients the "right and wrong" test might pro- 
 nounce sane. In such cases, therefore, this test cannot be exclu- 
 sively applied. 
 
 • See infra, §§ IfA, 200. 2 See infra, §§ 1G3, 189, 533, 567. 
 
 122
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 126. 
 
 2. When the defendant is acting under an insane delusion as to 
 circumstances, which, if true, would relieve the act from respon- 
 sihiHty, or where his reasoniyig powers are so depraved as to make 
 the commission of the particidar act the natural consequence of 
 the delusion. 
 
 [For several valuable medico-juridical opinions in cases of alleged 
 delusions, see the third edition of this work, Appendix, §§ 833, 
 834, 837, 843.] 
 
 § 125. The answer of the English judges on this point requires 
 special comment. The question propounded to them in 
 this respect was, " If a person, under an insane delusion (jeiurionT 
 as to existing facts, commits an offence in consequence ™^y ^f ^ 
 thereof, is he thereby excused?" "To which question," 
 they replied, " the answer must of course depend on the nature of 
 the delusion ; but, making the same assumption as we did before, 
 namely, that he labors under such partial delusion only, and is not 
 in other respects insane, we think he must be considered in the same 
 situation as to responsibility, as if the facts with respect to which 
 the delusion exists, were real. For example : if, under the influ- 
 ence of his delusion, he supposes another man to be in the act of 
 attempting to take away his life, and he kills that man, as he sup- 
 poses, in self-defence, he would be exempt from punishment. If 
 his delusion was, that the deceased had inflicted a serious injury to 
 his character and fortune, and he killed him in revenge for such 
 supposed injury, he would be liable to punishment." 
 
 § 12G. So far as the law thus stated goes — and it is stated with 
 extreme caution — it has been always recognized as bind- , , ,^ .„ 
 ing in this country. Even where there is no pretence thi.s coun- 
 of insanity, it has been held in one state, that, if a man, 
 though in no danger of serious bodily harai, through fear, alarm, or 
 cowardice, kill another under the impression that great bodily 
 injury is about to be inflicted on him, it is neither manslaughter 
 nor murder, but self-defence ;^ and though this proposition is too 
 broadly stated, as is remarked by Bronson, J., when commenting 
 on it afterwards in New York, and should be so qualified as to 
 make it necessary that there should be facts and circumstances 
 
 ' Grainger v. State, 5 Yerg. 459. 
 
 123
 
 § 126.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 existing which would lead the jury to believe that the defendant 
 had reasonable (in proportion to his own lights) grounds for his 
 belief, yet with this qualification it is now generally received.^ And, 
 indeed, as shown by Mr. Justice Bronson, in the case just poticed, 
 after the general though tardy acquiescence in Selfridge's case, 
 where the same view was taken as early as 1805, by Chief Justice 
 Parker, of Massachusetts, and after the almost literal incorporation 
 of the leading distinctions of the latter case in the revised statutes 
 of New York, as well as into the judicial system of most of the 
 states, the point must be considered as finally at rest. Perhaps 
 the doctrine, as laid down originally in Selfridge's case, would have 
 met with a much earlier acquiescence had not the supposed political 
 bias of the court in that extraordinary trial, and the remarkable 
 laxity shown in the framing the bill and in the adjustment of bail, 
 led to a deep-seated professional prejudice which struck at even 
 such parts of the charge as were indisputably sound. ^ 
 
 « Shorter i-. People, 2 Comst. 193, 
 202; 4 Barb. 460; People v. McLeod, 
 1 Hill, 377 ; People v. Pine, 2 Barb. 
 566; State v. Scott, 4 Ired. 409; 
 Roberts v. State, 3 Ga. 310 ; Monroe i\ 
 State, 5 Ga. 85 ; Com. v. Rogers, supra. 
 See generally Wh. Cr. L. 8tli ed. §§ 
 38 et seq., for other cases. See also 
 Sloo's case, rep. 15 Am. Journ. Ins. 33 ; 
 McFarland's case, 8 Abb. N. Y. Pr. N. 
 S. 57. 
 
 2 In another work (Wharton's Cr. 
 L. 2(1 ed. 390 ; Sth od. § 38), the pre- 
 sent writer went into a critical exami- 
 nation of Selfridge's case, and advanced 
 the oj)inion that the verdict, as well as 
 the preliminary proceedings, were in- 
 consistent with a just appreciation of 
 human life, and with the dignity of 
 public justice. This view is by no 
 means retracted ; and the gradual de- 
 velopment of the political correspon- 
 dence of those days shows that an ap- 
 proval of Selfridge's course — the shoot- 
 ing down by a man of tliirty of a lad 
 of eighteen, then an undergraduate in 
 
 124 
 
 Harvard College, because the latter 
 thought proper to suppose that the 
 former, whose father he had just posted, 
 might be ready to avenge the insult — 
 was made a party test. Indeed, John 
 Adams (Cunning. Cor. 70) tells us that 
 " the great political parties in the state 
 were arranged under their respective 
 standards on the simple question of the 
 guilt or innocence of an individual 
 under a criminal accusation." But it 
 is due to tlie excellent jurist who pre- 
 sided at the trial to say that, however, 
 in the reception and adjustment of bail 
 — two thousand dollars — he may have 
 been influenced by those political heats 
 to which even the bencli in those times 
 was subject, his charge is a fair state- 
 ment of the English common law, as 
 adapted to our social condition. And, 
 however great may have been the zeal 
 with which the case has been assailed, 
 it is now impossible to refuse to recog- 
 nize it as having been largely and 
 definitely influential in settling this 
 branch of American jurisjirudence.
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 129. 
 
 § 127. Delusions to constitute a defence must be objective as 
 
 distinjj-uished from subjective. They must be delusions T^ i • 
 
 o J ^ Delusions 
 
 of the senses, or such as relate to facts or objects, not must be 
 mere wxong notions or impressions ; and the aberration 
 in such case must be mental, not moral, so as to aifect the intellect 
 of the individual. It is not enough that they show a diseased or a 
 depraved state of mind, or an aberration of the moral feelings, the 
 sense of right and wrong continuing to exist, although it may be in a 
 perverted condition. To enable them to be set up as a defence to an 
 indictment for a crime, they must go to such crime objectively ; i. e., 
 they must involve an honest mistake as to the object at which the 
 crime is directed.^ 
 
 § 128. The distinction before us may be illustrated by Levett's 
 case, which has never been questioned, and which has j^j , 
 
 been sanctioned by the most rigid of the common law ^y Levett's 
 jurists, where it was held a sufficient defence to an in- 
 dictment for murder, that the mortal blow was struck by the de- 
 fendant under the delusion that the deceased was a robber, who had 
 entered the house.^ The delusion was objective, and therefore a 
 defence. Had the delusion been merely subjective — i. e. an un- 
 founded prejudice — it would have been no defence. 
 
 § 129, In none of the cases which have just been noticed, is the 
 actual existence of danger an essential ingredient, and 
 certainly, as the intentions of an assailant are incapable tobedeter- 
 of positive ascertainment, such a danger can never be ^eiVud-'^^™ 
 absolutely shown to exist. It is true, that, when the ant's stand- 
 
 . ..... point. 
 
 point has not been directly before the judicial mind, dicta 
 have been thrown out to tlie effect that the danger must be such as 
 to alarm a reasonable man ; but, whenever the requisite state of 
 facts has been presented, courts have not hesitated to say that the 
 danger must be estimated, not by the jury's standard, but by that 
 of the defendant himself. Thus, an enlightened and learned judge 
 in Pennsylvania, one who would be among the last to Aveaken any 
 of the sanctions of human life, directed the jury that they should 
 take into consideration " the relative characters, as individuals," of 
 
 ' R. V. Burton, 3 F. & F. 772 ; R. v. 2 L,,vett's case, Cro. Car. 438, 1 Hale, 
 Townley, 3 F. & F. 839 ; see also infra, 42, 474, Wharton's Cr. L, 8th. od. § 
 §§ 165, 170. 38. 
 
 125
 
 § 131.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 the deceased and the defendant, and, in determining Avhether the 
 
 danger really was imminent or not, to inquire " whether the deceased 
 
 was bold, strong, and of a violent and vindictive character, and the 
 
 defendant much weaker, and of a timid disposition." And to the 
 
 same effect will be found cases in other American courts elsewhere 
 
 more particularly noticed.^ 
 
 § 130. If, therefore, a delusion that a party is in danger, whether 
 
 , , such delusion be the result of insanity or of physical 
 So as to (le- _ _ •' ^ " 
 
 lueionasto causcs, is a justification of violence adequate to remove 
 " ' the supposed danger — and the answer of the English 
 judges on this point corresponds with our own — it is difficult to 
 avoid the conclusion, that a delusion as to the amount of force neces- 
 sary to obviate the imagined attack should be equally potent. Thus, 
 for instance, it is stated by the English judges, that if the party is 
 under an insane delusion that the deceased is about to take his life, 
 and he kills him to prevent it, he is to be exempt from punishment. 
 The gist of this position consists in the delusion. If, therefore, by 
 an insane delusion, or di'pravation of the reasoning faculty, the de- 
 fendant insanely believes, either that the imagined evil is so intol- 
 erable as to make life-taking necessary or justifiable in order to 
 avert it, or that, wliile the evil is of a lesser grade, life-taking is an 
 appro])riatc and just way of getting rid of it, the same reasoning 
 applies. The principle may logically be stated thus: — 
 
 1. Objective delusion exempts from punishment the perpetrator 
 of an act committed under its influence. 
 
 2. The belief, unfounded in fact, that a party is in immediate 
 danger of life from another, is such a delusion. 
 
 3. Therefore, a party committing homicide under such delusion, 
 is not liable to punishment.^ 
 
 § 131. The minor premise, it will at once be seen, may be va- 
 ried, without weakening the conclusion, by inserting in its place 
 
 ' See Wh. Cr, L. 8lli cd. § 39 ; Wh. for tlic insane, that, in all cases where 
 
 on lloni. § 490. a party is acquitted on ground of insan- 
 
 2 It is important that by "punish- /t//, strict confinement should be di- 
 
 ment," as here used, should be under- reeled, in such a way as will exempt 
 
 stood such punishment as is inflicted the community from any probable re- 
 
 on persons of sound mind. Itisessen- currence of such delirious outrages. 
 
 tial, however, to the policy of the pres- This will hereafter be more fully cou- 
 
 ent more humane mode of treatment sidered : infra, § 775. 
 
 126
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 132. 
 
 any insane delusion, the existence of which would deprive So as to de- 
 
 . mi • 1 -I • lusion as to 
 
 the act of guilty consciousness. That an insane delusion, the party 
 that the party attacked is not a human being, will have being a hu- 
 this effect, even though the party himself knows when ™'^" being, 
 committing the act that he is doing wrong, and is violating the laws 
 of the land, is illustrated by Lord Erskine, in a well-known case: 
 "Let me suppose," he said, '* the character of an insane delusion 
 consisted in the belief that some given person was any brute animal, 
 or an inanimate being (and such cases have existed), and that, upon 
 the trial of such a lunatic for murder, you, being on your oaths, 
 were convinced, upon the uncontradicted evidence of one hundred 
 persons, that he believed the man he had destroyed to have been a 
 potter's vessel ; that it was quite impossible to doubt that fact, al- 
 though to other intents and purposes he Avas sane — ansAvering, rea- 
 soning, acting as men not in any manner tainted with insanity con- 
 verse and reason and conduct themselves. Suppose, further, that 
 he believed the man whom he destroyed, but whom he destroyed as 
 a potter's vessel, to be the property of another, and that he had 
 malice against such supposed person, and that he meant to injure 
 him, knowing the act he was doing to be malicious and injurious ; 
 and that, in short, he had full knowledge of all principles of good 
 and evil ; yet would it be possible to convict such a person of mur- 
 der, if, from the influence of the disease, he was ignorant of the 
 relation in which he stood to the man he had destroyed, and was 
 utterly unconscious that he had struck at the life of a human 
 being ?"i 
 
 § 132. An instance of an hallucination, founded on auricular 
 
 deception, is ";iven in Charles Brockden Brown's novel ^ , , 
 r^ ' t5 So as to de- 
 
 of Wieland, and is based on facts at the time well known iu*ion as to 
 in Philadelphia. A man of excessively morbid tempera- rai com- 
 ment is so wrought up by ventriloquism, as to believe 
 himself under supernatural command to kill his wife. He docs so 
 under the stress of vrhat he conceives to be a pure legal necessity. 
 A similar case may be supposed in a sincere believer in spirit-rap- 
 ping, who is ordered by the medium to commit a violation of the 
 law. In this case the medium is the principal in the first degree, 
 but the actual perpetrator of the act, under the present condition of 
 
 ' Winslow on Plea of Insanity, G. 
 
 127
 
 § 133.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 the law, is entitled to a judicial affirmation of insanity. Similar 
 delusions in cases of sleep-drunkenness have been held to confer 
 irresponsibility. The case is like that of an executioner executing 
 the wrong person through a mistake in the warrant. If there is 
 negligence, the executioner is liable for negligent homicide. If 
 there is no negligence, then it is a case of misadventure, suppos- 
 ing the court issuing the warrant to have had jurisdiction.' An- 
 other line of illustration may be found in those cases in which 
 officers of justice, in endeavoring to quell a riot, kill by mistake an 
 innocent by-stander.^ 
 
 § 133. A man fancies himself to be the Grand Lama, or Alexan- 
 der the Great, and kills another for an invasion of his 
 sciouiiiess sovereignty. He knows he is doing wrong ; perhaps, 
 "on'sisteut ^^^^ ^ senso of guilt, he conceals the body ; he may 
 ^'*^^' have a clear perception of the legal consequences of the 
 
 irresponsi- \ '■ _ ° '■ ^ ^ 
 
 biiitv. act. According to Mr. Wigan, such an association of a 
 
 IT r • 1 o ' 
 
 ruit^ to this consciousness of the objective guilt and consequences of 
 
 ^^^^^- an act, with an insane delusion as to its subjective rela- 
 
 tion, is readily explained on the principle of the duality of the hu- 
 man mind ; but, however this may be, it is a matter in which all 
 observers agree that the lunatic is, in most instances, conscious of 
 the moral relations of his conduct.^ Nor, even under the severe 
 tests of the older English text writers (who have, by their failure 
 to reach this point, demonstrated how dangerous it is, with our im- 
 perfect experience, to attempt to codify or dogmatize the laws in a 
 few absolute propositions), has this truth evaded the practical recog- 
 nition of the courts. Thus, in a case where it was proved that the 
 defcuduut had taken the life of another under the notion that he 
 was set about with a cons|>iracy to subject him to imprisonment and 
 death, Lord Lyndhurst, while (juoting, with apparent entire acqui- 
 escence, Hale's doctrine, as affirmed by Sir James Mansfield in 
 Bellingham's case, felt himself at liberty to tell the jury that they 
 might " ac(iuit the prisoner on the ground of insanity, if he did not 
 
 ' Soc Wli. Cr. L. 8th ed. § 462. sur alienation mentale, 2d cd., Par. 
 
 2 Wh. Cr. L. 81h ed. § 120. 1809, 15fi ; Kiel, Fieberlehre,4 Bd. 396 ; 
 
 ^ Wigan on Insanity, etc., London, (iroos, Die Lehre von der Mania sine 
 
 1844, 65; Winslow, Plea of Inwanity, Dclirio, Heidelberg, 1830 ; De Boi.smont 
 
 16 ; Ray, Med. .lur. of Ins. § 17 ; Sio- on Halluc, Phil. 1853, 506. 
 hold, Gcricht Med. § 219 ; Pinel, Traite 
 128
 
 INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 134. 
 
 know, Avlien he committed the act, what the eflfect of it was with 
 reference to the crime of murder." Now, an acquittal would be 
 easy enough if it be necessary, in order to create responsibility, 
 that the party should know the effect of the act with reference to a 
 question whose meaning, even to the court itself, appears to have 
 been enveloped in so much mist. But there can be no doubt, after 
 careful examination of the whole case, that the point Lord Lynd- 
 hurst decided was, that a man who, under an insane delusion, shoots 
 another, is irresponsible when the act is the product of the delusion. 
 Such, indeed, on general reasoning, must be held to be the law in 
 this country, and such will it be held to be when any particular case 
 arises which requires its application. The fact that against this 
 view militate certain expressions — obiter dicta — in recorded opin- 
 ions, as well as in the answers of the English judges, will not pre- 
 vent its practical recognition, any more than Lord Lyndhurst was 
 prevented, by the first class of authorities, from advising the acquit- 
 tal of Oflford, and afterwards maintaining that the acquittal was con- 
 sistent with the very precedents now cited against it.' 
 
 § 134. In America, the principle is too well settled to admit of 
 dispute. " Monomania," said Chief Justice Shaw, in 1844,^ in 
 
 ' In People v. Coleman, N. Y., De- 
 cember, 1881, Judge Davis cliarged the 
 jury as follows : " In this state the 
 test of responsibility for criminal acts, 
 where insanity is asserted, is the ca- 
 pacity of the accused to distinguish be- 
 tween right and wrong at the time and 
 with respect to the act which is the 
 subject of inquiry." He further said 
 that the question for the jury to deter- 
 mine is "whether at the time of doing 
 the act the prisoner knew what she was 
 doins and that she was doing a wrong ; 
 or, in other words, did slie know that 
 she was shooting at the deceased, and 
 tliat such sliooting was a wrongful act i"' 
 The judge further said : " No imaginary 
 inspiration to do a personal or private 
 wrong, under a delusion, a belief that 
 some great jjublic b<!nefit will flow from 
 it, where the nature of the act done and 
 its probable consequences, and that it 
 is in itsflf wrong, are known to the 
 VOL. I. — 9 
 
 actor, can amount to that insanity 
 which in law disarms the act of crimi- 
 nality. Under such notions of legal 
 insanity life, jjroperty, and rights, both 
 public and private, would be altogether 
 insecure, and every man wlio, by brood- 
 ing over his wrongs, real or imaginary, 
 shall work himself np to an irresistible 
 impulse to avenge himself or his friend 
 or his party, can with impunity become 
 a self-elected judge, jury, and execu- 
 tioner in his own case, for the redress 
 of his own injuries or tlie imaginary 
 wrongs of his tVifiids, his party, or his 
 country. But, hapj)ily, that is not the 
 law, and whenev(;r such ideas of in- 
 sanity are applied to a given case as 
 the law (as too often they have bcien), 
 crime escapes punishment, not through 
 tlie legal insanity of the accused, but 
 tiirough the emotional insanity of 
 ctiurts and juries." 
 
 2 Com. V. Hog(H-s, 7 Mete. 500. 
 
 129
 
 § 136.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 So in Ame- an opinion hereafter to be more fully quoted, " may oper- 
 ate as an excuse for a criminal act," when "the delusion 
 is such that the person under its influence has a real and firm belief 
 of some fact, not true in itself, but which, if it were true, would 
 excuse his act ; as where the belief is that the party killed had an 
 immediate design upon his life, and under that belief the insane 
 man kills in supposed self-defence. A common instance is where 
 he fully believes that the act he is doing is done hy the immediate 
 command of Ood, and he acts iiyider the delusive but sincere belief 
 that tvhat he is doing is by the qommand of a superior power, which 
 supersedes all human laws and the huos of natitre.''^ 
 
 ^ 135. We have already noticed the distinction between objective 
 delusions (^'. t'., visual or other sensual mistakes), and sub- 
 between jective delusions («.('., delusions as to matters of personal 
 
 objective clutv\ As to the first, we have seen that it is a defence if 
 and sub- J / ' 
 
 jective de- a person non-negligently does an act which, if his senses 
 had not been mistaken, would not have been an infraction 
 of the law. With regard to subjective delusions, we must take 
 another test. Such delusions are no defence unless insane. 
 
 § 136. If there be reason enough to dispel the delusion ; if the 
 ,,,, defendant obstinately refuses, under such circumstances. 
 
 Where rea- j ^ ^ ' 
 
 son can to listen to arguments by which the delusion could be 
 
 dispel sub- ,. ,, i .,. , , i • , i i i • 
 
 jective de- dispelled; it, on tlie contrary, he cherishes such delusion, 
 responsibii- ^"*^ makes it the pretext of wrongs to others, then he is 
 ity exists. responsible for such wrongs. Thus, in a case of homi- 
 cide in Delaware, in 1851, the deceased being the defendant's wife, 
 the defence was delusion consisting in a belief that his wife was 
 untrue to him, that his children were begotten by his wife's inter- 
 course with another, and that sundry conjurations were being prac- 
 tised upon him, and the evidence showed that he was a shrewd and 
 wealthy business man, the court charged the jury that if a person, 
 otherAvise rational, commit a homicide, though aftected by delusions 
 on subjects with which tiie act is connected, he is criminally re- 
 sponsible, if he were capable of the perception of consciousness of 
 right and wrong as applied to the act, and had the ability through 
 that consciousness to choose by an effort of the will whether he 
 Avould do the deed.' 
 
 ' States. Windsor, 5 Harr. r)12. The plained of. The verdict of the jury, 
 cliarge in this case cannot be com- however, on the facts hereafter exhi- 
 
 130
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 139. 
 
 § 137. The test, therefore, to which we are led is, was the delusion 
 pleaded as a defence the delusion of an insane person ? gu^jjective 
 
 If not, he has reason enouo;h to dispel or correct it ; and delusions 
 
 ' .... must be 
 
 his refusal to do so does not invest him with irrespon- insane to 
 
 sibility. Thus the Mormon prophets claim, it is said, a IponsMu' 
 
 direct revelation permitting them to practise polygamy, '•'y* 
 
 Would they be permitted to plead their delusion in this respect as a 
 
 bar to an indictment? Certainly not. And the reason is that they 
 
 are shrewd, sane men, and must, therefore, be held responsible for 
 
 their delusions.^ 
 
 On the other hand, cases have not been infrequent in which 
 parents, charged with the homicide of their children, have been 
 permitted to show that they acted under the stress of what they 
 held to be a divine command ; and, when it has been satisfactorily 
 proved that such was their belief, they have been acquitted on the 
 ground of irresponsibility. 
 
 § 138. What is the reason of this difference ? It is simply this: 
 that in the first case there is no proof offered of insanity, And proved 
 and the defendants, in fact, are men whose shrewdness ^'^ ^^ ^°- 
 and business abilities show them to be eminently sane. In the 
 other class of cases, there are no acquittals unless there is evidence 
 of insanity aliimde. A sane man Avho kills his child under the 
 stress of a supposed revelation, is as much responsible to penal 
 justice as is the Mormon who, under a similar plea, commits bigamy. 
 The question in each case is, was the defendant saiie f Had he 
 reason enough to know what the law of the land was, and to know 
 he must not disobey it ? If he had, he must bear the penalty of 
 his disobedience. It is true that such insanity may be presumed 
 to some extent from the nature of the act. Where an affectionate 
 father kills his child, the presumption is strong, and reijuires little 
 additional proof. In other cases, where the act is simply the grat- 
 ification of passion, the presumption amounts to nothing. But in 
 either case, to entitle the delusion to be a defence, insanity must, 
 by some mode of proof, be made out. 
 
 § 139. If, rejecting this view that general sanity is the test, we 
 say that the existence of a delusion by a sane person makes that 
 
 bited, cannot be sustained ; as the de- ' Wh. Cr. L. 8th ed. §§ 84, 850, 1682, 
 
 fendant's mind seems to have been so 1715 ; citing U. S. v. Reynolds, 98 U. 
 
 far shattered as to be witliout the S. 145. 
 power of dispelling the delusions. 
 
 131
 
 § 140.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Where person irresponsible, we expand the definition of irre- 
 
 Sti'ienvtse sponsibility, not only dangerously, but unphilosophically. 
 ^'^"''' IT" IMultitiides of men whom it would be both absurd and 
 
 sponsiliil- 
 
 ity remains, niischievous to treat as irresponsible have apparent de- 
 lusions or "fixed ideas." Several illustrations of this have been 
 already introduced.^ One or two others may now be added. 
 
 § 1-iO. Morel (1869) tells us of a French judge, whose official 
 niustra- character was marked by the most exemplary efficiency, 
 tions. ^yi,o separated from his family, took a room in a hotel, 
 
 in which he permitted no visitors, and, when he w^ent into the 
 street, took great pains, in crossing the lines of the troitoir, lest he 
 should, with such lines, make the form of a cross, which he held to 
 be bad luck. Indeed, we would find abundant illustrations of the 
 proposition before us, even if we should confine ourselves to the 
 history of judges — men Avhose time is spent in weighing evidence 
 and declaring law, and men who apply to others, as they render 
 for themselves, responsibility for all moral acts. Lord Kenyon 
 could never overcome his fear of poverty, and his nervous dread of 
 spending even a farthing except for necessities. Of Lord Stowell, 
 even after he had accumulated an enormous fortune, Sir Henry 
 Holland, who attended him as physician, writes : " Lord Alvanley's 
 description of him as a conceited Muscovy duck had an amusing 
 personal reality about it, felt even by those Avho knew his high 
 merits as a judge and master of international law. His house 
 curiously illustrated the habits of the man, in its utter destitution 
 of all the appliances of luxury and of comfort. The furniture was 
 never either changed or cleaned. Year after year I wrote pre- 
 scriptions there with the same solitary ])en — the single one, I 
 believe, in his possession, and rarely used by himself after his 
 retirement from public business." Of Lord Erskine, Sir Henry 
 Holland tells us that " his mind, too, when 1 knew him, was clouded 
 by little foibles and superstitions. I can recollect a dinner at Sir 
 S. Komilly's, where his agitation was curiously shown in his reluc- 
 tance to sit down as one of thirteen at table, and by the relief he 
 expressed when the fourteenth guest came in."^ Lord Eldon labored 
 under the delusion, that, even after he had really made up his mind, 
 
 ' See supra, §§ 34-52 ; also infra, §§ * See also Lady Clementina Davies's 
 723-743. Recollectious of Society, vol. i. p. 10. 
 
 132
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 141. 
 
 and had so expressed himself lucidly and conclusively, there was 
 still ground for him to doubt ; and this habit was the cause of great 
 delay to suitors, and of great distress to himself. Lord Campbell 
 tells us that Lord Lyndhurst was governed by the delusions of 
 physical., and Lord Brougham by those of intellectual vanity ; and 
 more than once in Lord Brougham's life was " his mind clearly off 
 its balance," and so wild and violent were at one time its perturba- 
 tions, that it was considered necessary to place him in seclusion.^ 
 Among American judges, analogous illustrations may be found. 
 Judge Brackenridge, of Pennsylvania, is reported to have, on a hot 
 day, when holding court at Sunbury, gradually taken off his clothes, 
 till at last he was naked. Judge Baldwin, of the Supreme Court 
 of the United States, was a hypochondriac. A distinguished New 
 England judge, it is said, imagined that a dropsical affection under 
 which he labored was a sort of pregnancy. Yet in none of these 
 cases was insanity ever charged. And the reason is this, that, 
 whatever may have been the delusions or " fixed ideas" of these 
 eminent men, they had reason enough to conquer these delusions 
 whenever this was necessary to avoid public censure. When they 
 felt that they were beyond law, they would indulge their caprices. 
 When they felt the pressure of law, then these delusions would be 
 restrained. Thus Lord Chancellor Clare had, or feigned to have, 
 so uncon({uerable an animosity to Curran, that he could not listen 
 to that illustrious advocate. But when Curran met this by one of 
 the most powerful invectives that the records of forensic eloquence 
 preserve, the " irresistible impulse" was resisted. Lord Clare was 
 not insane. lie was simply a man of strong prejudices as well as 
 of strong reason. When necessary — though only when necessary 
 — reason would prevail. 
 
 § 141. With the sane, therefore, so far from subjective delusion 
 creating irresponsibility, it is irresponsibility that creates D,„,,rer of 
 subjective delusion. Of this we mio;ht find many addi- assij^uing 
 
 •J _ _ ... irrt'sponsi- 
 
 tional illustrations. A monk has an ecstatic vision. He biiity to 
 tells the vision, and, instead of being rebuked, is ad- 
 mired ; and visions speedily till every monastic cell. Or a romantic 
 poet, as was the case with so many in Germany when Napoleon left 
 to German thought no other province than that of imagination, 
 
 » Edinb. Rov., Apr. 18G9. Camp. Brougham, p. 476. 
 
 133
 
 § 142.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 imagines some heroic epoch of the past to which, like a troubadour 
 knight, he consecrates his song. He is admired, and his ecstasies 
 are imitated, until there springs up a Avhole school of Romanticists 
 as wild as Don Quixote. Or, at a period of high religious enthu- 
 siasm, a woman breaks into hysteria. Instead of being put under 
 medical care, she is injudiciously spoken of as exhibiting special 
 religious feeling ; and hysterical symptoms burst out on every side. 
 The fancy of an individual becomes, if unrebuked by public opinion, 
 the epidemic of an epocli. 
 
 § 142. It being then accepted law that a delusion, by a sane 
 ^ person, does not make him irresponsible, let us inquire 
 
 Prior in- ^ ' , . ^ . ^ 
 
 eanity a what, in cascs of delusion, is the test of sanity. And 
 here two distinct psychical conditions are to be scru- 
 tinized. 
 First, when the delusion is, as Dr. Liman describes it, the residuum 
 of a prior insane state. Delirium has passed away, but the old dis- 
 ease still shows itself in the havoc it creates, sometimes in mental 
 debility, sometimes in the derangement of the mechanism of associa- 
 tion and perception, leading to chimeras, to absurd prejudices, if not 
 to hallucinations. Tliis state, however, as Griesinger, a very capable 
 medical psychologist of late date (1871), argues, is not the restora- 
 tion of the c([uilibrium of sanity. The patients are not what they were 
 in a sane state, j?lus some errors or delusions. They are thoroughly 
 changed. There has been such a shock to the structure of the mind 
 that, altliough it is apparently calm, it does not act with uniformity. 
 The defect is internal ; something like that of a clock whose works 
 have been disturbed, and which, after being repaired, may strike a 
 series of hours accurately, and then go wrong. The mere presence 
 of a delusion, it is true, might not by itself prove the imperfectness 
 of the recovery. But it is otherwise when the delusion is harbored, 
 and when the patient has not power to tlirow it oft". Thus it is that 
 in such cases, the fact often is, not that the patient retains but a 
 sinjile insane delusion, but that an unsettled mind has taken the 
 particular channel of this one delusion to pour itself out. A dam 
 across one of our mountain streams is swept away, the stream first 
 running over what is the lowest point in the dam's crest. The diffi- 
 culty is, not the luwuei^s of this point, but the height of the stream, 
 which, if it had not rushed over this point, would soon have rushed 
 131
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 144. 
 
 over another. Kraift-Ebing,^ speaking from an experience of almost 
 unequalled extent, tells us that the idea that a person may be sane 
 generally, but insane as to some particular delusions, is as incon- 
 sistent with practical observations as it is Avith sound psychology. 
 And Dr. Liman (1871) quotes a speaker in the Paris Academy, 
 as saying that a diligent search in all the Paris hospitals would 
 fail to bring to light a single case of " pure monomania" of this 
 class.'' 
 
 § 143. Secondly, hoAvever, there is a class to which Liman calls 
 attention, in whom insanity has not been established, gg ofijg. 
 and yet as to whom, when delusions exist, the existence redity. 
 of such delusions may present a strong presumption of coming 
 disease. This, he tells us, is peculiarly the case with those with 
 hereditary disposition to sanity, with hypochondriacs, with " can- 
 didates" for paralysis. It is found that with such persons " fixed 
 ideas," as they are called, may exist, without developing into in- 
 sanity, during a whole lifetime, because the patient can control 
 them, because he is capable of recognizing them as prejudices, and 
 because they have not become a part of hitnself. He cannot, it 
 is true, dismiss the delusion, but he is conscious of its falsity, and 
 hence, if necessary, can nerve himself against its influence. But, 
 when this power over the delusion passes away ; when the delusion 
 not only cleaves to but controls the mind ; when it is not simply a 
 ray of eccentricity, but a radiating centre itself from which a series 
 of subordinate false lights emanate ; when the delusion, e. g., 
 jealousy or fear, becomes a passion, growing on the mind on which 
 it feeds, cancerously absorbing into itself the mind's true life, and 
 sending forth over the system its own streams of disease ; when 
 there are, in particular, sympathetic physical affections which either 
 induce or respond to the mental disturbance, then we may infer that 
 the patient is mastered by the delusion instead of being its master. 
 In this class of cases the delusion is the commencement, in the 
 former, the sequence, of settled insanity.^ 
 
 § 144. As a natural result of the view above expressed, it is 
 
 ' Vierteljahrschrift f. Gericlit. Med. ' See th<^ subject of delusions dis- 
 
 xiii. 1. cussed :it l.'irge, infra, §§ 723-743. 
 
 2 See fully, i'l/ra, §§ 531-5G7, and 
 supra, § 49. 
 
 135
 
 § 145.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS, 
 
 Proof that allo^vable for the prosecution, ^vhen an insane "delusion" 
 Bane, com- is set up for a defence, to oifer evidence to show that the 
 petent. ^^ delusion" -was sane, in other words, was an opinion which 
 
 ordinary processes of reasoning raight have produced.^ 
 
 § 145. In accordance with the analogies already laid down,^ and 
 ■n^i .ai,.^ in obedience to the general line of American authority, 
 uncounect- -^ye must also hold that a delusion, even by a person whose 
 crime no mind IS SO unsound tliat the delusion becomes involuntary 
 and incorrigible, is no defence to an indictment for a 
 crime not its immediate product.^ Of this Dr. Casper gives us a 
 
 • Com. r. Haskell, 2 Brewst. 491. See 
 this viewed psychologically, infra, §§ 
 393, 723, 743. 
 
 2 Sitpra, §§ 34-60. 
 
 3 1 Wh. Cr. L. 8th ed. § 41 ; State 
 V. Lawrance, 57 Me. 574 ; State v. 
 Huting, 21 Mo. 464 ; Rovard r. State, 
 30 Miss. 600 ; Com. v. Mosler, 4 I'enn. 
 St. 264 ; State r. Gut, 13 Minn. 341. In 
 New York, in Freeman's case. Beards- 
 ley, C. J., said, that " A state of gene- 
 ral insanity, the mental powers heing 
 wholly perverted or obliterated, would 
 necessarily prt^clude a trial ; for a being 
 in that deplorable condition can make 
 no defence whatever. Kot so, how- 
 ever, where tlie disease is ])artial, and 
 confined to one subject, otlu'i' tlian the 
 imputed crime and conteni])lated trial. 
 A person in this condition may be fully 
 competent to undfsrstand his situation 
 in respect to the alleged offence, and 
 to conduct liis defence with discretion 
 and reason. Of this tlu; jury must 
 judge, and they should be instructed, 
 that, if such is fouml to be his condi- 
 tion, it will be their duty to j)ronounce 
 him sane. In tlie case at tlie bar, the 
 court professed to furnish a single cri- 
 terion of sanity, tliat is, a capacity to 
 distinguish between right and wrong. 
 This, as a test of insanity, is by no 
 means invariably correct ; for, while a 
 person has a very just perception of 
 the moral qualities of most actions, he 
 
 136 
 
 may, at the same time, as to some one 
 in particular, be absolutely insane, 
 and consequently as to this be incapable 
 of judging accurately between right 
 and wrong. If the delusion extends 
 to the alleged crime, or the contemplated 
 trial, the party manifestly is not in a 
 fit condition to make his defence, how- 
 ever sound his mind niay be in other 
 respects ; still, the insanity of such a 
 person being only partial, not general, 
 a jury, under a charge like that given 
 by the court below on this case, might 
 find the prisoner sane, for in some 
 respects he would be capable of dis- 
 tinguishing between right and wrong. 
 Had the instruction been, that the pri- 
 soner was to be deemed sane, if he liad 
 a knowledge of right and wrong in 
 respect to the crime with which he stood 
 charged, there would have been but 
 little fear that the jury could be mis- 
 led, for a person who justly appre- 
 hends the nature of a charge made 
 against him, can hardly be supposed 
 to be incapable of defending himself in 
 rt'gard to it in a rational way. At the 
 same time it would be well to impress 
 distinctly on the minds of jurors, that 
 they are to gauge the mental capacity 
 of the prisoner, in order to determine 
 whether he is so far sane as to be com- 
 petent in mind to make his defence, if 
 he has one ; for, unless his faculties 
 are equal to the task, he is not in a fit
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 145. 
 
 striking illustration. A merchant, named Scliraber, was convicted 
 of cheating by false pretences and false information, and was sen- 
 
 condition to be put on his trial. For 
 the purpose of such a question, the 
 law regards a person thus disabled by 
 disease as non compos mentis, and he 
 should be pronounced unhesitatingly 
 insane within the true extent and 
 meaning of this statute. 
 
 "Where insanity is interposed as a 
 defence to an indictment for an alleged 
 crime, the inquiry is always brought 
 down to the single question of a capa- 
 city to distinguish between right and 
 wrong at the time when the act was 
 done. In such case, the jury should 
 be instructed, that ' it must be clearly 
 shown that, at the time of committing 
 the act, the party accused was labor- 
 ing under such a defect of reason, from 
 disease of the mind, as not to know the 
 nature and quality of the act he was 
 doing ; or, if he did know it, that he 
 did not know he was doing what was 
 wrong. The mode of putting the latter 
 l^art of tlie question to the jury, on 
 these occasions, has generally been 
 whether tlie accused, at the time of 
 doing the act, knew the difference be- 
 tween right and wrong ; which mode, 
 though rarely, if ever, leading to any 
 mistake with the jury, is not deemed 
 so accurate, when put generally and 
 in the abstract, as when put with re- 
 ference to the party's knowledge of 
 right and wrong in respect to the very 
 act with which he is charged.' This 
 is the rule laid down by all the Eng- 
 lish judges but one, in the late case 
 of McNaghten, while pending in the 
 house of lords. (10 C. & F. 200.) In 
 the case of Oxford, Lord Denman, C. J., 
 charged the jury in this manner : ' The 
 question is, whether the prisoner was 
 laboring under that species of insanity 
 which satisfies you that he was quite 
 unaware of the nature or character 
 
 and consequences of the act he was 
 committing ; or, in other words, whe- 
 ther he was under the influence of a 
 diseased mind, and was really uncon- 
 scious, at the time he was committing 
 the act, that it was a crime.' The in- 
 sanity must be such as to deprive the 
 party charged with crime, of the use 
 of reason in regard to the the act done. 
 He may be deranged on other subjects, 
 but, if capable of distinguishing be- 
 tween right and wrong in the particular 
 act done by him, he is justly liable to 
 be punished as a criminal. Such is 
 the undoubted rule of the common law 
 on this subject. Partial insanity is 
 not, by that law, necessarily an excuse 
 for crime, and can only be so where it 
 deprives the party of his reason in re- 
 gard to the act charged to be criminal. 
 Nor, in my judgment, was tlie statute 
 on this subject intended to abrogate or 
 qualify the common law rule. The 
 words of the statute are : ' No act done 
 by a person in a state of insanity can 
 be punished as an ofl'ence.' The clause 
 is very comprehensive in its terms, 
 and at first blush might seem to ex- 
 empt from punishment every act done 
 by a person who is insane upon any 
 subject whatever. This would, indeed, 
 be a mighty change in the law, as it 
 would afford absolute impunity to 
 every person in an insane state, al- 
 though his disease might be confined 
 to a single and isolated subject. If 
 this is the meaning of the statute, 
 jurors are no longer to inquire whether 
 the x>arty was insane ' in respect to the 
 very act with which he is charged,' 
 but whether he M'as insane in regard 
 to any act or subject whatever ; and, 
 if they find such to have been his con- 
 dition, render a verdict of not guilty. 
 But this statute is not so understood 
 
 137
 
 § 146.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 tenced to imprisonment for six years. On an application to the 
 court to reconsider the sentence, insanity was set up, and it ap- 
 peared that the prisoner either felt or feigned a belief that he 
 was a legitimate son of the late Duke Ciiarles of Mecklenburg 
 Strelitz ; which certainly, if not a mere fiction, was an insane 
 delusion. Much reason existed to believe that the whole thing was 
 simulated ; but, independently of this, the court was clear that, as 
 the mania, if real, had no connection with his crime, it formed no 
 ground for a revision of the sentence.^ 
 
 3. Whei'e the defendant, being insane, is forced hy a morbid and 
 irresistible impidse to do the particular act. 
 
 [^As to the alleged ^^ monomaniac^ ^ impulses, see infra, §§ 567-679. 
 As to the question of motive, infra, §§ 401-404.] 
 
 § 146. Here, at the outset, we are arrested by a difficulty of 
 Irresistible nomenclature. What is " irresistible impulse" that is 
 dTsUuct ^^*^^'^ declared to be a defence ? And, in order to clear 
 from moral w^q question at the outset from ambiguities, it is proper 
 and pas- to remark — 
 
 (a) " Irresistible impulse" is not " moral insanity," 
 defining " moral insanity" to consist of insanity of tlie moral system, 
 coexisting with mental sanity. "Moral insanity," as thus defined, 
 has no support, as will hereafter be seen,^ either in psychology 
 or law. 
 
 (i) Nor is "irresistible impulse" convertible with passionate 
 propensity, no matter how strong, in persons not insane.' In other 
 words, the " irresistible impulse" of the lunatic, which confers irre- 
 sponsibility, is essentially distinct from the passion, however violent, 
 of the sane, which does 7iot confer irresponsibility. As this dis- 
 
 bymo. I interpret it as I should have since, I am not aware that it has, at 
 
 done if the words had been, 'no act, any time, been held or intimated by 
 
 done by a person in a state of insanity any judicial tribunal, that the sttatute 
 
 in respect to sach act, can be punished liad abrogated, or in any respect modi- 
 
 as an offence.' The act, in uiy judg- fied, this principle of the common law." 
 
 ment, must be an insane act, and not Freeman v. People, 4 Denio, p. 27. 
 
 merely the act of an insane person. ' .Seeajipendix to 3d ed. of this work. 
 
 This was plainly the rule before the § 834. 
 
 statute was passed, and, although that 2 Infra, §§ 163-189, 531-567. 
 
 took place more than sixteen ye'ars * See infra, §§ 403-478. 
 
 138
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 147. 
 
 tinction is of great importance, we will now notice the reason on 
 
 Avhich it rests. 
 
 § 147. (1) Supposing the mind to be sane, and that there is a 
 
 capacity of judging between right and wrong, there is 
 
 psychologically no impulse which the law can treat as sane no 
 
 irresistible. The will is either free, which settles the 1™?'{1!?ki^ 
 
 ' UTesisiiDie. 
 
 question at once ; or it is directed by the strongest motives, 
 as the necessitarian holds. Now, taking the latter hypothesis, the 
 question arises, supposing the will to follow by necessity the 
 strongest motive, whether it is just to punish the wrong-doer for 
 such necessary act. That it is, is affirmed by the leading repre- 
 sentatives of the necessitarian school. " It is said," says Mr. Bain,^ 
 " that it would not be right to punish a man unless he were a free 
 agent ; a truism, if by freedom is meant only the absence of out- 
 ward compulsion ; if in any other sense, a piece of absurdity. If 
 it is expedient to place restrictioyis upon the conduct of sentient 
 beings, and if the threatening of pain operates to arrest such con- 
 duct, the ease for jjunishment is made out. We must justify the 
 institution of law, to begin with, and the tendency of pain to pre- 
 vent the actions tliat bring it on, in the next place. . . . Grant- 
 ing these two postulates, punishability (carrying with it, in a well 
 constituted society, responsibility), is amply vindicated. 
 Withdraw the power of punishing, and there is left no conceivable 
 instrument of moral education. It is true that a good moral disci- 
 pline is not wholly made up of punishment ; the wise and benevolent 
 parent does something, by the methods of allurement and kindness, 
 to form the virtuous dispositions of his child. Still, we may ask, 
 was ever any human being educated to the seyise of right and lorong 
 without the dread of pain accompanying forbidden actions? It 
 may be affirmed with safety, that punishment or retribution, in some 
 form, is one-half of the motive power to virtue in the very best of 
 human beings, while it is more than three-fourtiis in the mass of 
 mankind." Now, erroneous as is Mr. Bain's position that the pri- 
 mary ground of punishment is prevention to be effected by fear,^ 
 there can be no question that on the necessitarian hypothesis his 
 reasoning is sound. 
 
 ' M(!ntal and Moral ycionce, London, ^ See this shown in Wh. Cr. L. 8tli 
 1SG8, p. 404 ed. §§ 1 et seq. 
 
 139
 
 § 149.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § 148. Mr. J. S. Mill, in his examination of Sir W. Hamilton's 
 
 philosophy, supposes the case of a race of men whose 
 
 im'nriieccs- hereditary tendencies to mischief are as great and uncon- 
 
 sary to pre- trollable as those of lions and tigers ; than which no case 
 vent crime. o ^ 
 
 brought up by the advocates of the unpunishability of 
 those subject to irresistible propensities could be more strong. 
 Having supposed such men, he asks whether we would not treat 
 them precisely as we would a wild beast, even though Ave supposed 
 them to act necessarily. The highest theory of fatalism, he infers 
 from this, is not inconsistent with the infliction of penalties on the 
 oifender. The question that arises, then, is, is such punishment 
 just ? Can we justly punish a man for that which he cannot help ? 
 And he argues that we certainly can, if announcing beforehand that 
 such offenders are to be punished, and supporting the announce- 
 ment by inflexible and uniform execution, is the way to keep them 
 from committing the obnoxious act. If the end — the prevention of 
 crime — is justifiable, then the necessary means for the prevention 
 of crime are also justifiable. And despotic as is the assumption 
 that punishment is to be inflicted, not as a matter of justice in 
 obedience to a preannounced law, but as a matter of policy irre- 
 spective of deserts, the conclusion legitimately follows from Mr. 
 Mill's premises. 
 
 § 149. In cases of low mental and moral culture, such as those 
 
 just supposed, the will, when on the brink of some for- 
 check on bidden act, is swayed by two conflicting motives, passion 
 
 and fear. Fear, in such cases, is the only check on pas- 
 sion. If it is removed, passion has no remaining barrier in its way. 
 We may notice this in the case of young children, who are often 
 deterred from wrong acts in proportion as the fear of punishment 
 is impressed on their minds. Nor does this characteristic belong 
 only to children or to persons of low grade of intelligence. It was 
 frecjuently said of Napoleon I., and of General Jackson, that each 
 knew when he could with impunity give way to bursts of apparently 
 irresistible rage; but that each knew when this rage was to be con- 
 trolled. The cases are not infre(iuent in which men, presuming on 
 the cowardice or feebleness of their intended victim, rush into 
 violence which they would readily have restrained had they known 
 that they would have received blow for blow. Wer sich zum Schaf 
 rnarht, is a German proverb, denfriisst der Wolf; or, as we may 
 140
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 150. 
 
 paraphrase it, government, by becoming a sheep, creates the social 
 wolf. The state which declares that no irrepressible passion shall 
 be punished evokes the irrepressible passion it exempts. Fear is a 
 salutary check on passion ; and punishment must be applied by 
 government with such even hand that fear will be real and reason- 
 able. Of course, as Mr. Mill well remarks, this does not apply to 
 cases where the offender has not reason to understand that the 
 guilty act is punished by the state, nor does it apply when he is 
 laboring under an insane delusion which sets up what he holds to 
 be a higher law.^ 
 
 S 150. ('2) There is no means of determining what irresisti- 
 
 • -• • •, •,• ,v, TP 1 bilityim- 
 
 constitutes "• irresistibihty. - it a man has reason possibieto 
 
 enough to deplore a criminal desire, and power enough ® ermine. 
 
 ' "Irresistible impulses" are recog- 
 nized by all philosophers, profane and 
 sacred. Ovid, in a well-known pas- 
 sage, thus speaks : — 
 Sed trahit invitam nova vis, aliudque 
 
 cupido, 
 Mens aliud suadet : video meliora pro- 
 
 boque, 
 Deteriora sequor. 
 
 And so St. Paul : " The good that I 
 would I do not ; but the evil which I 
 would not, that I do. . . 1 see another 
 law in my members, warring against 
 the law of my mind, and bringing me 
 into captivity to the law of sin which 
 is in my members." No doubt the 
 impulse, viewed thus as an insulated 
 force, is irresistible in producing the 
 sin. But, on the other hand, reason, 
 in its right sense, is irresistible in sup- 
 pressing the impulse. Reason may ope- 
 rate either through love or fear ; and 
 hence it is incumbent on all systems 
 of ethics to cherish these motives. No 
 doubt it is a law of our nature that the 
 will follows the strongest motive. But 
 the irresistibility of the inferior motive, 
 when unrestrained, is the crowning 
 reason for promulgating and enforcing 
 superior motives, as modes of restrain- 
 
 Griesinger doubts whether impulses 
 are irresistible even among the insane. 
 " Whether, and to what extent, certain 
 directions of the will and impulses in 
 the insane, particularly such as lead to 
 criminal acts, are irresistible, is a ques- 
 tion which can scarcely ever be an- 
 swered with certainty. Few of the acts 
 of the insane have the character of 
 forced, purely automatic movements ; 
 in mania also, according to the testi- 
 mony of individuals who have recovered, 
 many of the wild desires could often be 
 restrained ; the criminal deeds pf the 
 insane are not generally instinctive. 
 The loss of freewill (or, if we choose, 
 irresponsibility), therefore, seldom de- 
 pends on the fact of inability to have 
 abstained from the act committed, or 
 that the normal conditions of volition 
 have been completely suspended. The 
 causes of this loss of freewill chiefly 
 depend on quite a different cause, they 
 depend on violent excitation of the 
 emotions, or on incoherence, on false 
 reasoning proceeding from dcdirious 
 conceptions, hallucinations, etc., and 
 on the circumstances mentioned in § 
 27." — (jriesiiiger\<s Mental Pathology, 
 Sydenliam Ed. (18G7), § 47. 
 
 2 See infra, § 585. 
 
 141
 
 § 151.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 to take steps to prevent its gratification, the law holds him re- 
 sponsible if he does not take such steps. This is recognized in 
 those familiar cases in which it is held, that, where a man whose 
 passions are aroused kills an assailant, the act is not excusable 
 unless it appears that the accused had no means of retreat. If the 
 "monomaniac" can retreat from his "monomania," it ceases to 
 supply him with a defence. 
 
 § 150 a. (8) On the materialistic hypothesis, from whose advo- 
 cates the theory of the non-responsibility for irresistible 
 tic theory" impulses Springs, all volitions are the result of material 
 of volition influences ; and hence there is no volition that may not 
 
 incorrect. ... 
 
 be viewed as irresistible, and no crime that is not a phy- 
 sical disease. But the answer is, that the same reasoning that ap- 
 plies to prevent punishment for any particular crime would apply to 
 prevent punishment for any crime whatsoever. 
 
 § 151. It should be remembered, however, that while " irresisti- 
 ble impulse," the mind being sane, is no defence to crime. 
 
 Passion is a / ' . . , . . . 
 
 niitii,mting yct violent passion is to be taken into account as a miti- 
 gating element, and that the peculiar temperament of 
 the offender is to be gauged for the purpose of estimating whether 
 the provocation was such as to create hot blood, and whether there 
 was adequate cooling time. A sane person may, from epilepsy, or 
 from prior insanity, or from nervous or physical derangements, or 
 from hereditary taint, be peculiarly susceptible to excitement ; and, 
 as the law treats assaults committed in hot blood as of a lower 
 grade than those committed deliberately, this excitability may pro- 
 perly be considered in determining whether the blood at the time 
 was hot. That, psychologically, this varies with temperament is 
 well known. The ordinary signs of passion (acceleration of arterial 
 pulse, congestive flushings, increased activity of secretions and 
 excretions) are different with different patients. Hence epileptic, 
 nervous, and cerebral diseases, and hereditary tendency, may be 
 put in evidence to lower the grade of the offence, though they do 
 not amount to insanity. In so doing, Ave but follow the authorities 
 which declare that drunkenness, though no defence to crime, may 
 be used to show that an assault was not deliberate.' 
 
 • Supra, § 122; infra, ^ 200; Wh. "monomaniac" impulses, infra, §§ 
 Cr. L. 8th ed. § 47 ; see, as to alleged 567-079. 
 
 142
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 152. 
 
 § 152. It being therefore settled that " irresistible impulse," to 
 
 constitute a defence, must be that of a person otherwise . ^, .,. 
 ' ^ _ Authorities 
 
 insane, we proceed to consider the authorities that estab- for defence 
 lish such impulse, under such conditions, as a defence, tibieim- 
 In doing so, it must be at the outset conceded that, by ^^ *®" 
 the English courts, this defence, as here stated, is rejected. No 
 person, however insane, can, by the law as now (1882) expounded 
 by those courts, be acquitted of a crime, if it appear to the satis- 
 faction of the jury that he knew the nature and quality of the act 
 he was doing, or, if he did not know it, if lie knew that the act was 
 wrong.' But, if, as hereafter will be shown, it is demonstrable 
 that there sometimes is, among insane persons, an " irresistible 
 impulse" to an act coexisting with a knowledge that it Avas wrong, 
 then comes the question Avhether lunatics of this stamp are legally 
 punishable for such acts. That they are not, the tendency of 
 American authority is to maintain. And even in England we find 
 Mr. Stephen, in his work on English Criminal Law^ — a work as 
 remarkable for philosophical symmetry as for legal accuracy — 
 stating (18G3) the questions to be, " in popular language. Was it 
 Jiis act? Could he help it? Did he knotv it ivas tvrongf'' He 
 goes on further to say : " It would be absurd to deny the possi- 
 bility that such (irresistible) impulses may occur, or the fact tiiat 
 they have occurred, and have been acted on. Instances are also 
 given in which the impulse was felt and was resisted. Tlie only 
 question which the existence of such impulses can raise in the 
 administration of criminal justice is, whether the particular impulse 
 in question was irresistible as well as unresisted. If it were irre- 
 
 ' A mere uncontrollable impulse of fit, though there is nothing before or 
 
 the mind, coexisting with the full jsos- after the act to indicate it, and tliough 
 
 session of the reasoning powers, will there is some evidence of design and 
 
 not warrant an acquittal on the ground malice. R. v. Richards, 1 F. & F. 87. 
 
 of insanity ; the question for the jury The circumstance of a person hav- 
 
 being, whether the prisoner, at the ing acted under an irresistible intiu- 
 
 time he committed the act, knew the ence to the commission of lioinicide is 
 
 character and nature of the act, and no defence, if at tiie time he ccmimitted 
 
 that it was a wrongful one. R. v. the act he knew he was doing what 
 
 Barton, 3 Cox, C. C. 275 — Parke. was wrong. R. v. Ilaynes, 1 F. & F. 
 
 Where a person is in a state of mind 666 — Bramwell. See also Edmunds's 
 
 in which she is liable to fits of mad- case, infra, §§ 16")— 167. 
 
 ness, it is for the jury to consider whe- * London, 18(!3, p. !)1. 
 ther tlie act done was during such a 
 
 143
 
 § 153.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 sistible, the person accused is entitled to he acquitted, because the 
 act ivas not voluntary and ivas not properly his act. If the 
 impidse was resistible, the fact that it proceeded from disease is no 
 excuse at all."^ 
 
 § 153. To the illustrations adduced by others of the coexistence 
 Instances ^f a knowledge that an act was wrong with its commis- 
 ofinespon- g^Qjj under circumstances which confer entire irresponsi- 
 
 sibility co- . 
 
 existing biUty, the present writer may be permitted to add one 
 conscious- within the range of his own experience. A man named 
 ^'^^^- John Billraan, who had been sent to the Eastern Peni- 
 
 tentiary of Pennsylvania for horse stealing, murdered his keeper 
 under circumstances of great brutality, and yet with so much inge- 
 nuity as to elude suspicions of his intentions and almost conceal his 
 flight. He hung a noose on the outside of the small window which 
 is placed in the door of the cells to enable persons outside to look 
 in. He then induced the keeper, in order to look at something on 
 the floor directly at the foot of the door, to put his head entirely 
 through. The noose was then drawn, and but for an accident the 
 man would have been suffocated. NotAvithstanding this attempt, 
 the same keeper was inveigled into the cell alone, a few days after- 
 wards, on the pretence of Billman being sick, and was there killed 
 by a blow on the head with a piece of washboard. Billman un- 
 dressed him, changed clothes with him, placed him on the bed in 
 such a position as to induce the general appearance of his being 
 there himself, traversed in his assumed garb the corridor with an 
 unconcerned air, addressed an apparently careless question to the 
 gate-keeper, and sauntered listlessly down the street on which the 
 gate opened. He was, however, soon caught ; but his insanity was 
 so indisputable that the prosecuting authorities, after having insti- 
 tuted a careful and skilful medical examination, became convinced 
 of his irresponsibility, and united upon the trial in asking a verdict 
 of acquittal on the ground of insanity. He Avas then remanded to 
 confinement, under the Pennsylvania practice ; and some time after- 
 wards, when in a communicative mood, disclosed the fact of his 
 having several years back murdered his father under circumstances 
 
 ■ See McFarland's case, 8 Abb. N. Committee the same view is taken. 
 Y. Pr. N. S. 57. In Sir J. Stephen's Wh. Cr. L. 8th ed. § 45. 
 testimony before the English Homicide 
 
 144
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 156. 
 
 which he detailed with great minuteness and zest. Inquiries were 
 instituted, and it was found that he had told the truth. The father 
 had been found strangled in his bed ; the son had been arrested 
 for the crime ; but so artfully had he contrived the homicide that 
 he was acquitted through an alibi, got up by means of a rapid ride 
 at midnight and a feigned sleep in a chamber into which he had 
 clambered by a Avindow. Here, then, was not only a sense of 
 guilt, but a keen appreciation of the consequences of exposure, long 
 harbored intention, and intelligent design. 
 
 § 154. A well-known illustration of the same sense of accounta- 
 bility among lunatics, as a class, is to be found in an anecdote 
 related by Dr. Winslow. When Martin set York Minster on fire, 
 a conversation took place among the inmates of a neighboring lunatic 
 asylum, having reference to this general topic. The question was 
 Avhether Martin would be hanged, when, in the course of the con- 
 versation, one madman announced to the others the opinion, in which 
 they all acquiesced, that Martin would not be hanged, because he 
 was " one of themselves." It certainly will not be maintained that 
 a consciousness of the legal relations of crime, such as this remark 
 exhibited, confers responsibility where it does not otherwise exist. 
 
 § 155. With these may be cited a leading case before Jud^-e 
 Story, in which that eminent jurist directed the acquittal of a youno- 
 woman, who during puerperal insanity drowned her child, thouo-h 
 there was no proof that she was not entirely conscious of the nature 
 of the act.^ 
 
 In the same class fall those cases in which a parent, insane with 
 melancholy, kills his children, either in execution of some supposed 
 divine command, or to save them from supposed future misery, 
 knowing at the same time the illegality of the act.^ 
 
 § 150. The first case in which this question was gravely con- 
 sidered is that of Commonwealtli v. Rogers, before the 
 
 . ^ Opinion of 
 
 supreme court of Massachusetts, in the spring of 1844.3 Chief Jus- 
 Chief Justice Shaw — whose conservative tendencies on 
 the great sanctions of human life cannot be suspected — found him- 
 self, in preparing his ciiarge, embarrassed by the confiict between 
 
 > U. S. V. Hewson, 7 Bost. L. R. 361. » 7 Mote. 500. 
 « Supra, §§ 132, 137; infra, §§ 529, 
 582, 636, 837, 839. 
 
 VOL. I. — 10 145
 
 § 156.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 the dogmas of the older judges and the necessities of the particular 
 case ; and there is an evident struggle on his part to preserve as 
 much as he could of the letter of the former and at the same time 
 to establish a principle by -which the latter could be properly re- 
 spected. He begins — we cite from the authorized report — by lay- 
 ing down two propositions of great breadth. " In order to consti- 
 tute a crime," he says, " a person must have intelligence and 
 capacity enough to have a criminal intent and purpose ; and, if his 
 reason and mental powers are either so deficient that he has no will, 
 no conscience, or controlling mental power, or if, through the over- 
 whelming violence of mental disease, his intellectual power is for 
 the time obliterated, he is not a responsible moral agent, and is not 
 punishable for criminal acts. These extremes," he then proceeds 
 to state, " are easily distinguished, and not to be mistaken. The 
 difficulty lies between these extremes, in the cases of partial insanity, 
 where the mind may be clouded and weakened, but not incapable 
 of remembering, reasoning, and judging ; or so perverted by insane 
 delusion, as to act under false impressions and influences." To 
 such cases — to those where the mind is not " incapable of judging," 
 etc., and to those where it acts " under false impressions and influ- 
 ences" — and to such alone, he applies the " right and wrong" test: 
 reserving it to a very small sphere of action, since the defence of 
 insanity would scarcely be ventured where there was both a capa- 
 city to judge, reason, and remember, and a freedom from false 
 " impressions and influences." Taking up the particular defence 
 of monomania, which was that advanced in the case before him, he 
 proceeds to state the law, with a liberality in entire accordance with 
 the weight of medical authority. " Tliis" (monomania) "may 
 operate as an excuse for a criminal act in one of two modes. 1. 
 Either the delusion is such that the person under its influence has 
 a real and firm belief of some fact, not true in itself, but which, if 
 it were true, would excuse his act : as where the belief is that the 
 party killed had an immediate design upon his life, and under that 
 belief the insane man kills in supposed self-defence. A common 
 instance is where he fully believes that the act he is doing is done 
 by the immediate command of God, and he acts under the delusive 
 but sincere belief that what he is doing is by the command of a 
 superior power which supersedes all human laws and the laws of 
 nature. 2. Or this state of delusion indicates to an experienced 
 146
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 157. 
 
 person that the mind is in a diseased state ; that the known ten- 
 dency of that diseased state of the mind is to break out into sudden 
 paroxysms of violence, venting itself in homicide, or other violent 
 acts toward friend and foe indiscriminately ; so that, although there 
 were no previous indications of violence, yet the subsequent act, 
 connecting itself with the previous symptoms and indications, will 
 enable an experienced person to say, that the outbreak was of such 
 a character that, for the time being, it must have overborne memory 
 and reason ; that the act was the result of the disease and not of a 
 mind capable of choosing ; in short, that it was the result of uncon- 
 trollable impulse, and not of a person acted on by motives, and 
 governed by will." . . . "Are the facts of such a character, 
 taken in connection with the opinion of professional witnesses, as 
 to induce the jury to believe that the accused was laboring for days 
 under monomania, attended with delusion, and did thus indicate 
 such a diseased state of the mind, that the act of killing the warden 
 was to be considered an outbreak or paroxysm of disease, which for 
 the time being overwhelmed and superseded reason and judgment, 
 so that the diseased was not an accountable agent ? If such was 
 the case, the accused is entitled to an acquittal." 
 
 § 157. In the fall of 1846, a similar defence was started before 
 three of the judges of the supreme court of Pennsyl- ^^ p, . ^ 
 vania, then holding an oyer and terminer in Philadelphia. Justice 
 In his charge to the jury, Chief Justice Gibson — a most 
 able judge, thoroughly disciplined in and Avedded to the common law, 
 but at the same time endowed with a remarkable zest for and a 
 mastery over collateral sciences — after, in the first place, vehemently 
 repudiating the doctrine that partial insanity excuses anything but 
 its direct results, and sliding, in reference to such cases, into the 
 " right and wrong" tests, proceeds : " But there is a moral or homi- 
 cidal insanity, consisting of an irresistible inclination to kill or to 
 commit some particular offence.' There may be an unseen ligament 
 pressing on the mind, drawing it to consequences tvhich it sees but 
 cannot avoid, and placing it under a coercion which, while its re- 
 sults are clearly perceived, is incapable of resistance. The doctrine 
 
 • The charge was oral, having been which may account for the want of 
 reported by the present writer, and but literal exactness in this and other ox- 
 hastily revised by the judge himself, pressions. 
 
 147
 
 § 158.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 which acknowledges this mania is dangerous in its rehitions, and 
 can be recognized only in the clearest cases. It ouglit to be shown 
 to have been habitual, or at least to have evinced itself in more 
 than a single instance. It is seldom directed against a particular 
 individual ; but that it may be so, is proved by the case of a young 
 Avoman who was deluded by an irresistible impulse to destroy her 
 child, though aware of the heinous nature of the act. The fre- 
 quency of this constitutional malady is fortunately small, and it is 
 better to confine it within the strictest limits. If juries were to 
 allow it as a general motive, operating in cases of this character, 
 its recognition would destroy social order as well as personal safety. 
 To establish it as a justification in any particular case, it is neces- 
 sary either to show, by clear proofs, its contemporaneous existence 
 evinced by present circumstances, or the existence of an habitual 
 tendency developed in previous cases, becoming in itself a second 
 nature."* 
 
 § 158. In a still earlier case in Pennsylvania, Judge Lewis, 
 
 then presiding in Lycoming county, and afterwards Chief 
 Lewis. ^^ Justice of Pennsylvanvia, thus spoke : " Moral insanity" 
 
 (not, however, the moral insanity of Pinel, but that which 
 consists of "irresistible impulse") "arises from the existence of 
 some of the natural propensities in such violence that it is impossi- 
 ble not to yield to them. It bears a striking resemblance to vice, 
 which is said to consist in an undue excitement of the passions and 
 Avill, and in their irregular or crooked actions leading to crime. 
 It is therefore to be received with the utmost scrutiny. It is not 
 generally admitted in legal tribunals as a species of insanity which 
 relieves from responsibility for crime, and it ought never to be 
 admitted as a defence, until it is sliown that these propensities exist 
 in such violence as to subjugate the intellect, control the will, and 
 render it impossible for the party to do otherwise than yield. 
 Where its existence is fully established, this species of insanity re- 
 lieves from accountability to human laws. But this state of mind 
 is not to be presumed without evidence, nor does it usually occur 
 without some premonitory symptoms indicating its approach."^ 
 
 ' Com. V. Mosler, 4 reiin. St. 204; and able judge; Lewis Cr. Law, 404 ; 
 
 see infra, § 174. by Judge Eduionds (2 Am. Jour, of Ins.) 
 
 * The same view was, some years and Judge Wliiting (Freeman's Trial 
 
 after, repeated by the samcenliglitened — I'amph.). In 1858, in Jolin Freeth's 
 
 148
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 159. 
 
 § 159. In Illinois, in 1863, it was declared by the supreme 
 court that a safe and reasonable test would be, that, whenever 
 
 case, tried before the Philadeliihia oyer 
 and terminer, Judge Ludlow charged 
 the jury partly as follows : — 
 
 "Besides the kinds of insanity to 
 which I have already referred, and 
 which strictly speaking affect the mind 
 only, we have moral or homicidal in- 
 sanity, which seems to be an irresistih/e 
 inclination to kill, or to commit some other 
 particular offence. We are obliged by 
 the force of authority to say to you, that 
 there is such a disease known to the 
 law as homicidal insanity ; what it is, 
 or in what it consists, no lawyer or 
 judge has ever yet been able to explain 
 with precision ; physicians, especially 
 those having charge of the insane, 
 gradually, it would seem, come to the 
 conclusion, that all wicked men are 
 mad, and many of the judges have so 
 far fallen into the same error as to ren- 
 der it possible for any man to escape 
 the penalty which the law affixes to 
 crime. 
 
 " We do not intend to be understood 
 as expressing the opinion that in some 
 instances human beings are not afflicted 
 with a homicidal mania, but we do in- 
 tend to say that a defence consisting 
 exclusively of this species of insanity 
 has frequently been made the means 
 by which a notorious offender has 
 escaped punishment. What, then, is 
 that form of disease, denominated liomi- 
 cidul mania, whicli will excuse one for 
 having committed a murder ? 
 
 " Chief Justice Gibson calls it, ' that 
 unseen ligament pressing on the mind, 
 and drawing it to consequences whicli 
 it sees but cannot avoid, and placing it 
 under a coercion which, while its results 
 are clearly perceived, is incapable of 
 resistance' — 'an irresistible inclination 
 to kill.' 
 
 " If by moral insanity it is to be un- 
 
 derstood only a disordered or perverted 
 state of the affections or moral powers 
 of the mind, it cannot be too soon dis- 
 carded as affording any shield from 
 punishment for crime ; if it can be 
 truly said that one who indulges in 
 violent emotions, such as remorse, 
 anger, shame, grief, and the like, is 
 afflicted with homicidal insanity, it 
 will be difficult, yes, impossible, to say 
 where sanity ends and insanity begins ; 
 for, by way of illustration, the man 
 who is lashed into fury by a fit of anger 
 is in one sense insane. 
 
 " As a general rule it will be found 
 that instances are rare of cases of homi- 
 cidal insanity occurring wherein the 
 mania is not of a general nature, and 
 results in a desire to kill any and every 
 person who may chance to fall within 
 the range of the maniac's malevolence ; 
 as it is general, so also is it based upon 
 imaginarij and not real wrongs ; if it is 
 directed against a particular person (as 
 is sometimes the case), then also the 
 cause of the act will generally be im- 
 aginary ; when, therefore, the jury find 
 from the evidence that the act has not 
 been the result of an imaginary but 
 real wrong, they will take care to ex- 
 amine with great caution into the cir- 
 cumstances of the case, so that with 
 the real wrong, they may not also dis- 
 cover revenge, anger, and kindred 
 emotions of the mind to be the real 
 motive which has occasioned the homi- 
 cidal act. 
 
 " Orfila has said, 'that the mind is 
 always greatly troubled when it is agi- 
 tated by anger, tornujnted by an un- 
 fortunate; love, bewilder(!d by jealousy, 
 overcome by despair, haunttul by ter- 
 ror, or corrupted by an unconquerable 
 desire for vengeance;. Th(;n, as is com- 
 monly said, a man is no longer master 
 
 14<J
 
 § 159,] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Insane un- it should appear from the evidence that, at the time of 
 We impulse doing the act charged, the prisoner was not of sound mind, 
 
 of himself, his reason is affected, his 
 ideas are in disord(;r, he is like a mad- 
 man. But in all these cases a man does 
 not lose his knowledge of the real 
 relations of things ; he may exaggerate 
 his misfortune, but this misfortune is 
 real, and if it carry him to commit a 
 criminal act, this act is perfectly well- 
 motived.' 
 
 " 'J'he man who has a clear concep- 
 tion of the various rtdations of life, and 
 the real relation of things, is not often 
 afflicted with insanity of any descrip- 
 tion. He may become angry, and in 
 a fit of temper kill liis enemy, or even 
 his friend, but this is not, and I hope 
 never will be, called in courts of justice 
 insanity. Again, one who is really 
 driven on by an uncontrollable iminilse 
 to the commission of a crime, will be 
 able to show its ' contemporaneous 
 existence evinced by present circum- 
 stances, or the existence of an habitual 
 tendency developed in particular cases, 
 and becoming in itself a second nature,' 
 and ought further to show that the 
 mania ' was habitual, or that it had 
 evinced its(;lf in more than one in- 
 stance.' 
 
 "Chief Justice Lewis has said that 
 moral insanity ' bears a striking resem- 
 blance to y/ce,-' and further, ' it ought 
 never to he admitted as a defence until 
 it is shown that these j^ropensities exist 
 in sucli viobince as to subjugate the 
 intellect, control the will, and rend(^r 
 it impossibh^ for the party t(i do (ither- 
 wise than yield.' And again, 'this 
 state of mind is not to l>e iiresumed 
 without evidence, nor does it usually 
 occur without some jjremonitory symp- 
 toms indicating its approach.' 
 
 "Gentlemen of the jury, we say to 
 you, as the result of our retlectimis on 
 this branch of the subject, that if the 
 
 150 
 
 prisoner was actuated by an irresistible 
 inclination to kill, and was utterly un- 
 able to control his will, or subjugate 
 his intellect, and was not actviated by 
 anger, jealousy, revenge, and kindred 
 evil passions, he is entitled to an ac- 
 quittal, provided the jury believe that 
 the state of mind now referred to has 
 been proven to have existed, without 
 doubt, and to their satisfaction." — Am. 
 Joiirn. of Insan., vol. xv. p. 303. 
 
 In Huntington's case, the defendant 
 was tried in New York, in 1858, for 
 forgery. Judge Capron said : — 
 
 " Thelaw, as at present administered, 
 regards insanity, whether general or 
 partial, as a derangement of the mind, 
 the intellect, the reasoning and ap- 
 preciating principle, the spring of 
 motives and passions. To constitute a 
 complete defence, insanity, if partial, 
 must be such in degree as wholly to 
 deprive the accused of the guide of 
 reason in regard to the act with which 
 he is cliarged, and of the knowledge 
 that he is doing wrong in committing 
 it. If, though somewhat deranged, lie 
 is yet able to distinguish right froiu 
 wrong in the particular case in whicli 
 crinu^ is imputed to him, and to know 
 that he is doing wrong, the act is crimi- 
 nal in law, and he is liable to punish- 
 ment. But it is insisted fen- the prisoner 
 that insanity, either general or partial, 
 may exist, and tlie subject be totally 
 unable to control his actions, while his 
 intellect, or knowing and reasoning 
 powc-rs, suffer no notable lesion ; it is 
 clanned that persons thus aftlicted may 
 be cajtable of reasoning or supporting 
 an argument on any subject within 
 
 thcur sphere of knowledge 
 
 This affliction has received the name 
 of Moral Insanity, because the natural 
 feelings, affections, inclinations, tern-
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 159. 
 
 but affected with insanity, and such affection was the effi- recognized 
 cient cause of the act, and that he would not have done the and in- 
 act but for that affection, he should be acquitted. But ^^^^' 
 
 per, or moral dispositions only are per- 
 verted, while the mind, the seat of 
 volition and motive, remains unim- 
 paired. I will not positively assert 
 that this theory is not sound ; it may 
 he reconcilahle with moral responsi- 
 bility for human conduct; but I am 
 not reluctant to confess my own mental 
 inability to appreciate the harmony 
 between the two propositions, if it 
 exist." 
 
 Under this charge the prisoner was 
 found guilty, and sentenced to the 
 state prison. 
 
 So in Spear's case (Am. Journ. of 
 Insan., p. 218) Judge Allen told the 
 jury that there must be evidence, in 
 order to acquit, of " a lesion of the in- 
 tellect and reasoning powers, or of 
 some derangement or disease affecting 
 the mind and judgment." 
 
 Daniel E. Sickles was tried in the 
 U. S. Circuit Court for the District of 
 Columbia, in 1859, for the murder of 
 Philip B. Key. The defence was 
 mania, produced by the defendant dis- 
 covering an adulterous connection be- 
 tween his wife and the deceased. The 
 following statement of the legal points 
 adjudicated is taken from El well's 
 Malpractice, p. 391 : — 
 
 "Mr. Brady claimed that the im- 
 mediate circumstances attending the 
 seduction of Mr. Sickles's wife, and 
 the death of Key, were of so atrocious 
 a nature as to overwhelm the mind of 
 Sickles instantaneously, and thus ren- 
 der liirn irresponsible for the crime of 
 murder. He therefore drew up the 
 following propositions, and requested 
 the court to embody them in its charge 
 to the jury : — 
 
 " ' 1. If, from the whole evidence, 
 the jury believe that Mr. Sickles com- 
 
 mitted the act, but at the time of doing 
 so was under the influence of a dis- 
 eased mind, and was really unconscious 
 that he was committing a crime, he is 
 not in law guilty of murder. 
 
 " ' 2. If the jury believe that from 
 any predisposing cause the prisoner's 
 mind was impaired, and at tlie time of 
 killing Mr. Key he became or was men- 
 tally incapable of governing himself 
 in reference to Mr. Key, as the de- 
 baucher of his wife, and at the time of 
 committing said act was, by reason of 
 such cause, unconscious that he was 
 committing a crime as to said Mr. Key, 
 he is not guilty of any offence what- 
 ever. 
 
 " ' 3. It is for the jury to say what 
 was the state of the prisoner's mind as 
 to the capacity to decide upon the 
 criminality of the particular act in 
 question — the homicide — at the mo- 
 ment it occurred, and what was the 
 condition of the parties respectively as 
 to being armed or not at the same mo- 
 ment. These are open questions for 
 the jury, as are any other questions 
 which may arise upon the considera- 
 tion of the evidence, tlie whole of 
 which is to be taken into view by the 
 
 " ' 4. The law does not require that 
 the insanity which absolves from crime 
 should exist for any definite period, 
 but only that it exists at the moment 
 when the act occurred with which the 
 accused stands charged. 
 
 " ' 5. If the jury have any doubt as 
 to the case, either in reference to the 
 lioiuiuide or the qutjstion of sanity, Mr. 
 Sickles should be acquitted.' 
 
 " These propositions were argu(Mi at 
 great length by counsel, especially by 
 Mr. Brady, wlio contended that the 
 
 151
 
 § 159.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 this unsoundness of mind, or affection of insanity, must be of such a 
 degree as to create an uncontrollable impulse to do the act charged 
 
 groat sorrow that had fallen upon Mr. 
 Sickh'S had, in fact, dethroned his in- 
 tellect, and, for the moment, he was 
 not accountahlo for what he did. Craw- 
 ford, J., charged as follows on these 
 propositions : — 
 
 " ' The court is asked to give to the 
 jury certain instructions, whether on 
 the part of the United States or on tlie 
 defence. The first instruction asked 
 for by the United States embodies the 
 law of this case on the particular 
 branch of it to which it relat(!S, and is 
 granted with some explanatory re- 
 marks as to insanity, with a reference 
 to which the prayer closes. A great 
 English judge has said, on the trial of 
 Oxford, who sliot at the Queen of Eng- 
 land, "That if the prisoner was labor- 
 ing imder some controlling disease 
 ■which was, in truth, the acting power 
 within him which he co\;ld not resist, 
 then he will not be responsible." And 
 again: "The question is, whether he 
 was laboring under that species of in- 
 sanity which satisfies you that he was 
 quite unaware of the nature, character, 
 and consequences of the act he was 
 committing, or, in other words, whe- 
 ther he was under the influence of a 
 diseased mind, and was really uncon- 
 scious at the time he was committing 
 the act that that was a crime. A man is 
 not to be excused from responsil)ility 
 if 1h! has capacity and reason sufli(Ment 
 to enable him to distinguish between 
 right and wrong as to the particular 
 act he is doing ; a knowledge and con- 
 sciousness that the act he is doing is 
 wrong and criminal, and will subject 
 him to punishment. In order to be 
 responsible, he must have suflicient 
 power of memory to recollect the rela- 
 tion in which he stands to others, and 
 
 152 
 
 in which others stand to him ; that the 
 act he is doing is contrary to the plain 
 dictates of justice and right, injurious 
 to others, and a violation of the dic- 
 tates of duty. On the contrary, al- 
 though he may be laboring under a 
 partial insanity, if he still understands 
 the nature and character of his act and 
 its consequences, if he has a knowl- 
 edge that it is wrong and criminal, and 
 a mental power sufficient to apply that 
 knowledge to his own case, and to 
 know that if he does the act, he will 
 do wrong and receive punishment, such 
 partial insanity is not sufficient to 
 exempt him from responsibility for 
 criminal acts." Now we come to those 
 asked on the part of the defence, the 
 first of which is in these words : — 
 
 " ' In reply to the ninth instruction, 
 the court responds thus : " It is for the 
 jury to say what was the state of Mr. 
 Sickles's mind as to the capacity to 
 decide upon the criminality of the 
 homicide, receiving the law as given to 
 them in relation to the degree of in- 
 sanity, whether it will or will not ex- 
 cuse, they (tlie jury) finding the fact 
 of the existence or non-existence of 
 such degree of insanity." 
 
 "'Tiie tenth prayer reads thus: 
 "Tln^ law does not require that the 
 insanity which absolves from crime 
 should exist for any definite period, 
 but only that it exist at the moment 
 when the act occurred with which the 
 accused stands charged." Tliat in- 
 struction is granted. The time when 
 the insanity is to operate is the mo- 
 ment when the crime charged upon 
 the party was committed, if committed 
 at all. The eleventh and last instruc- 
 tion asked reads this way : "If the 
 jury have any doul>ts as to the case.
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 159. 
 
 bj overriding the reason and judgment, and obliterating the sense 
 of right and wrong as to the particular act done, and depriving the 
 
 either in reference to the homicide 
 or question of insanity, Mr. Sickles 
 should be acquitted." 
 
 " 'This instruction, as I mentioned 
 in referring to prayer four of the United 
 States, will be answered in conjunction 
 with it. 
 
 "'It does not appear to be ques- 
 tioned that if a doubt is entertained by 
 the jury, the prisoner is to have the 
 benefit of it. As to the sanity or in- 
 sanity of the prisoner at the moment 
 of committing the act charged, it is 
 argued by the United States, that, 
 every man being presumed to be sane, 
 the presumption must be overcome by 
 evidence satisfactory to the jury that 
 he was insane when the deed was done. 
 
 " ' This is not the first time this in- 
 quiry has engaged my attention. The 
 point was made and decided at the 
 June term, 1858, in case of the United 
 States V. Devlins, when the court gave 
 the following opinion, which I read 
 from my notes of the trial: "This 
 prayer is based on the idea that the 
 jury must be satisfied, beyond all rea- 
 sonable doubt, of the insanity of the 
 party for whom the defence is set up ; 
 precisely as the United States are bound 
 to prove the guilt of a defendant to 
 warrant a conviction. I am well aware, 
 and it has appeared on this argument, 
 that it has been held by a court of 
 high rank and reputation that there 
 must be a preponderance of evidence 
 in favor of the defence of insanity to 
 overcome the presumption of law that 
 every killing is a murder ; and that 
 the same court has said that if there is 
 an equilibrium, including, I suppose, 
 the presumption mentioned, of evi- 
 dence, the presumption of the defend- 
 ant's innocence makes the preponder- 
 ance in his favor." 
 
 "'Whether a man is insane or not 
 is a matter of fact ; what degree of in- 
 sanity will relieve him from responsi- 
 bility is a matter of law, the jury 
 finding the fact of the degree too. 
 Under the instruction of the court, 
 murder can be committed only by a 
 sane man. Everybody is presumed to 
 be sane who is charged with a crime, 
 but, when evidence is adduced that a 
 prisoner is insane, and conflicting tes- 
 timony makes a question for the jury, 
 they are to decide it like every other 
 matter of fact, and, if they should say 
 or conclude that there is uncertainty, 
 that they cannot determine whether 
 the defendant was or is not so insane 
 as to protect him, how can they render 
 a verdict that a sane man perpetrated 
 this crime, and that no other can ? 
 
 " ' Nor is this plain view of the ques- 
 tion unsupported by authority. In 
 the case of The Queen v. Ley, in 1840, 
 Lewin's C. C. p. 239, on a preliminary^ 
 trial to ascertain whether a defendant 
 was sufficiently sane to go before a 
 petit jury on an indictment, HuUock, 
 B., said to the jury : '" If there be a 
 doubt as to tlie prisoner's sanity, and 
 the surgeon says it is doubtful, you 
 cannot say he is in a fit state to be put 
 on trial." This opinion was approved 
 in People i\ Freeman, 4 Denio, 9. This 
 is a strong case, for the witness did not 
 say the prisoner was insane, but only 
 that it was doubtful whether it was so 
 or not. The humane, and, I will add, 
 just doctrine, that a reasonable doubt 
 should avail a prisoner, belongs to a 
 defence of insanity, as much, in my 
 oi)inion, as to any other matter of 
 fact.' " See infra, § 174. See Hop- 
 pin's case, rep. 34 Am. Jouru. Ins. 
 4G2. 
 
 153
 
 § 161.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 accused of the power of choosing between them. If it be shown 
 the act was the consequence of an insane delusion and caused by it 
 and by nothing else, justice and humanity alike demand an acquittal. 
 Sound mind is presumed if the accused is neither an idiot, a lunatic, 
 nor " affected with insanity." If he be insane, sound mind is want- 
 ing and the crime is not established, therefore the burden is on the 
 
 • • 1 
 state to establish sanity, and not upon the prisoner to show insanity. 
 
 So, also, Judge Brewster, speaking for the judges of the Phila- 
 delphia common pleas, said, in 1868, " The true test in all these 
 cases lies in the w ord ' power.' Has the defendant in a criminal 
 case the power to distinguish right and wrong, and the power to 
 adhere to the right and avoid the wrong ?"2 
 
 In Indiana a similar view^ was accepted in 1869.' 
 § 160. In Ohio, insane irresistible impulse is regarded as a 
 . , . defence ;* and such is the view in Minnesota,^ and in 
 
 And m ' ... 
 
 Ohio, Min- Kentucky.® In Iowa, in 1868, similar views were ex- 
 KeutiKky, pressed by the supreme court. Chief Justice Dillon de- 
 audlowii. livering the opinion. The capacity to distinguish right 
 and wrong, it was held, is not in all cases a safe test of criminal 
 responsibility. If a person commit a homicide, knowing it to be 
 wrong, but driven to it by an uncontrollable and irresistible im- 
 pulse, arising not from natural passion, but from an insane condi- 
 tion of the mind, he is not criminally responsible.^ To the same 
 effect is a decision of the supreme court of the United States in 
 1872.8 
 
 § 161. In North Carolina, on the other hand, it has been ruled 
 „ , . that no impulse, however irresistible, is a defence, when 
 
 ( ontra in ^ ' ' \ 
 
 North Car- there is a knowledge of the difference, as to the particular 
 
 olina and , • i i o * i i • 
 
 other act, between right and wrong." And there is no question 
 
 states. ^i^^j. ^j^g position that an irresistible impulse can be a 
 
 defence is inconsistent with the rule laid down in the great body of 
 
 ' See Fisher v. People, 23 111. 283 ; S. hi ; and Mary Harris's case, 22 Am. 
 
 Hopps V. People, 31 111. 394. Journ. Ins. 334. 
 
 2 Com. f. Haskell, 2 Brewst. 401. « Life Ins. Co. r. Terry, 15 Wal. 
 
 3 Stevens V. State, 31 Ind. 4"^'). 580 ; see also Blackburn v. State, 23 
 < ]51a(;kburn v. State, 23 Oh. St. 146. Oliio St. 165; Brown r. Com., 78 Penn. 
 
 5 State V. Gat, 13 Minn. 341. St. 122 ; and other cases in Wh. Cr. L. 
 
 6 Smith V. Com., 1 Duv. 224. Sth ed. § 45. 
 
 7 State r. Felter, 25 Iowa, 67 ; see ^ State v. Brandon, 8 Jon«s, 463. 
 also McFarland's case, 8 Abb. Pr. M. See also infra, § 170. 
 
 151
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 162. 
 
 cases which sustain the " right and wrong" test as an exclusive 
 standard.^ 
 
 § 162. Mania transitoria, or Furor transitorius, so far as it 
 may be set up as a legal defence, may be properly 
 noticed in this connection ; its psychological relations transitoria 
 being reserved for subsequent discussion.^ 3Iania tran- °°i^ . 
 sitoria, which is alleged to be a sudden attack of mania, 
 exhibiting itself in a person whose life prior and subsequent to the 
 attack was generally sane, was set up as a defence in the trial. 
 before the supreme court of Massachusetts, in 1868, of Andrews 
 for the murder of Holmes. The psychological points raised at this 
 trial will be subsequently noticed. It is sufficient now to give the 
 legal results introduced by Chief Justice Chapman in his charge to 
 the jury. 
 
 " Insanity is to be distinguished from passion. One may become 
 so far infuriated by passion, excited by words or blows or by a 
 struggle, as to yield himself up blindly to its impulse, and not 
 know what he does. But such passion is not insanity. One who 
 does not control his passions is to blame, but an insane man is not 
 to blame. lie is prostrated by disease of body which has so far 
 affected his mind that he is innocent in being unable to distinguish 
 right from wrong. 
 
 " If the prisoner killed Holmes under the mere influence of evil 
 passions, and without provocation, he is guilty. On the other 
 hand, if there was no evil passion or motive, and he was insane, he 
 is an innocent man, and is entitled to go at large as much as any 
 of us. If he is acquitted on that ground, you must say so in your 
 verdict. I will read to you the statute on that subject. [Reads 
 Gen. Stat., c. 172, sec. 17.] 
 
 " But, as it is not pretended that he is now insane, if you acquit 
 him on the ground of insanity he will be entitled to go at large. 
 You will need to consider with the utmost care the evidence on this 
 subject. And here there are certain presumptions of fact which 
 are founded on experience. 
 
 " If when a man does an act he has always been sane, this tends 
 to prove that he was sane when he did it. On the contrary, if he 
 
 > See Wh. Cr. L. 8tli ed. § 35 et seq.; » See infra, § 710 ; U. S. ;.'. Guitcau, 
 ('. S. V. Guiteau, infra, § G79. infra, § 070. 
 
 155
 
 § 162.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 had been insane a short time before the act, this tends to prove 
 that he was insane when he did it. This presumption is often 
 applied to the making of wills and deeds. It applies with equal 
 force to the taking of another's life. Another similar rule is that, 
 if a man is sane just after having done an act, it tends to prove 
 that he was sane when he did it ; but, if he was insane just after, 
 it tends to prove that he was insane when he did it. You can judge 
 practically how strong these presumptions of evidence are. You 
 are to apply them to the present case. 
 
 " Up to within a few moments of Holmes's death, had the prisoner 
 been insane ? Had he ever been insane ? or had he been insane 
 within a short period ? If he had never been insane, or if he had 
 not been insane for some time previous, that would have a tendency 
 to show that he was not insane when he committed the act. From 
 a few moments after the act has he been insane ? If he has been 
 sane from a few moments after the act, it tends to show that he was 
 sane when he did it. If he has been insane since, it tends to show 
 that he might have been insane Avhen he did it. 
 
 " Tiiere is evidence on this subject as to his appearance some 
 two years ago, when Frank Bobbins, his relative, died ; also as to 
 his appearance at New Market. And some other facts are alluded 
 to by his counsel. You heard them in evidence. I do not propose 
 to recapitulate the evidence on this subject. Both the experts say 
 that these various circumstances furnished no proof of insanity. 
 There is also evidence that the prisoner had frequent headaches ; 
 but it hardly needs an expert to testify as to them. So many of 
 us suflfer intense pain from them during the best years of our lives, 
 that no one will infer insanity from them alone. The jury will 
 judge of the strength of the proof as to the prisoner's sanity when 
 he killed Holmes, arising from the testimony as to his being sane 
 before and afterwards, the proof coming so near to the time of 
 killing. If he was calm as well as rational immediately before and 
 immediately after, it will tend to show how far he was calm and 
 rational then. And in this connection the question, whether the 
 prisoner had any motive to do the act which could possibly influence 
 a sane man, is a (question to be taken into consideration. You will 
 also consider the instrument which he used, and all the circum- 
 stances of the act of killing. The prisoner is himself a witness, 
 and testifies as to his state of mind when he did the act. We learn 
 156
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME, [§ 162. 
 
 from him all the facts we know in regard to his insanity at the time. 
 The description of it comes from him alone. 
 
 " There are two things to be inquired into on this point. In the 
 first place, assuming his statement to be true, does it prove that 
 bodily disease had suddenly attacked him, and that he acted under 
 that influence, or that he acted under the influence of passion, and 
 thus became blind and furious ? If it was the latter it was not 
 insanity, and he must seek for an excuse on other grounds, which I 
 shall speak of hereafter. On this point the opinion of the two 
 experts is given. Dr. Jarvis says the facts indicated a maniacal 
 paroxysm. Again, he says, not regarding the prisoner's statement 
 as true, the facts tend to raise a suspicion of insanity. He says 
 the act of killing, of itself, is no evidence of insanity. Few men 
 would pretend that the mere act of killing another is, of itself, evi- 
 dence of insanity. It would give to crime perfect impunity if the 
 commission of crime were to be regarded as an evidence of insanity. 
 I believe there are some philosophers who pretend to think it is so; 
 but they lay aside common sense, and would deprive the community 
 of all protection against criminals. It is proper also to say, that, 
 if a homicide is committed with circumstances of cruelty and atro- 
 city, that cruelty and atrocity, of itself, docs not tend to prove 
 insanity. The statute treats such circumstances as aggravations of 
 the crime, and not as proof of insanity. If they were of themselves 
 regarded as evidence of insanity, it would furnish an inducement to 
 every murderer to act Avith as much cruelty as possible, in order 
 to furnish proof that he was insane, and excuse himself on that 
 ground. But if the act is done without any assignable motive, you 
 look more readily to insanity as the cause, than if a strong motive 
 were proved. 
 
 " I have spoken of the opinion of Dr. Jarvis that there might 
 have been a sudden attack of insanity that came on without any 
 premonition, led to the murder, and departed as soon as the murder 
 was committed, leaving no trace behind. The opinion of Dr. 
 Choate is the contrary. He regards such a kind of insanity as 
 unheard of and impossible. As insanity arises from bodily disease, 
 he thinks it could not come on so suddenly, rage so violently, and 
 then totally disappear. You are to judge of these opinions. The 
 opinions of experts are mere evidence for the jury to consider in 
 connection with other evidence. The responsibility is, after all, 
 
 157
 
 § 165.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 on you to say whether the prisoner is, or is not, guilty by reason 
 of insanity. I think the opinions of experts are not so highly 
 regarded now as they formerly were, for, while they often afford 
 great aid in determining facts, it often happens that experts can be 
 found to testify to any theory, however absurd. The experts 
 before you are gentlemen of learning, and you must judge between 
 thcra."! 
 
 4. '-'■Moral im^anity^^ (i.e. a svpposed insanity of the moral system 
 claimed to coexist with mental sanity') is no defence. 
 
 [For several important medico-juridical opinions in cases of alleged 
 '■'■moral insanity,''^ see Appendix to third edition of this work, 
 §§ 834, 838, 843, 848.] 
 
 § 163. At the outset it must be remembered that " moral in- 
 
 ,,,, ,. sanity," as above defined, is to be distinguished (1 ) 
 " Moral in- *' ' .... . 
 
 sanity" is from insane irresistible impulse, (2) from transitory 
 
 mania, and (3) from occult insanity, with each of which 
 it is sometimes confounded. 
 
 Hereafter it will be shown^ that moral insanity, viewed in this 
 sense, has, psychologically, no existence. ^ It will also be shown 
 that " motivelessness" is no necessary proof of insanity. At pre- 
 sent it will be shown that moral insanity is not, by our law, a 
 defence to an indictment for crime. 
 
 ^ 104. Moral insanity, viewing the term in the sense 
 
 Thisaffirm- .... . , , ' ^ , . , , 
 
 ed in Eug- which IS given above, lias been, whenever it has been 
 ^^ ' suggested as a defence, repudiated by the English 
 
 courts.^ 
 § 1G5. On the trial of Townley in 18G8 this question was dis- 
 In Town- tinctly presented. The defendant was shown, on the 
 iey"6 case. |;j.jj^i before Baron Martin, to have belonged to a family 
 in which positive insanity existed ; it was proved by medical wit- 
 
 ' See review of this case by Dr. Jar- ' Infrn, §§ 401-404. 
 
 vis, in 26 Am. J. Ins. 359 ; and infra, « R. r. Oxford, 9 C. & P. 525 ; R. r. 
 
 §§ 710-722. For an interesting case Goode, 7 A. & E. 530; R. v. Barton, 3 
 
 of alleged mania Iransitoria, with the Cox, C. C. 275 ; R. v. Higginson, 1 C. 
 
 opinion of Dr. Casper, see App. to 3d & K. 129 ; R. v. Layton, 4 Cox, C. C. 
 
 ed. of tliis work, § 840. 149 ; and cases hereafter cited. 
 
 » Infra, §§ 531-678. 
 158
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 166. 
 
 nesses that he stated to them that he did not think he had com- 
 mitted any crime, though it must be remembered that this is what 
 was said by Burr after the death of Hamilton, and what would be 
 said by any one acting on the " law of honor," or any other pre- 
 tended higher law ; and it was shown that the reason on which he 
 relied for this notion was, that, the lady whom he killed having 
 been engaged to him, she was his property, and that, for what he 
 called virtual adultery, he Avas, by the law of honor, entitled to 
 punish her by death. It was also testified by Dr. Forbes Winslow, 
 that he found it impossible to impress the defendant with a sense of 
 the seriousness of the issue. But Baron Martin charged the jury, 
 that, in point of law, these facts did not constitute a defence. " If," 
 said he, " his (the defendant's) real motive was, that he conceived 
 himself to have been ill used, and, either from jealousy of the man 
 who was preferred to him, or from, a desire of revenge upon him, 
 committed the act, that would be murder. These Avere the very 
 passions which the law required men to control ; and, if the deed 
 was done under the influence of these passions, there was no doubt 
 that it was murder." The cautiousness with which this is stated 
 cannot escape observation. The judge does not say that the defen- 
 dant was to be convicted though he did the act under an insane 
 delusion that to do so was, by some supposed higher law, right. It 
 is simply declared that to kill under influence of jealousy or revenge 
 is murder. It is proper to add that the defendant was convicted, 
 and sentenced for life to penal servitude ; during which he com- 
 mitted suicide.^ 
 
 § 166. The Rev. J. Selby Watson, a clergyman of over seventy 
 years, was tried in London, in January, 1872, for the in Wat- 
 murder of his wife. It appeared in evidence that for 
 
 sou ti case. 
 
 ' See R. V. Townley, 3 F. & F. 839 ; act, and the circumstances showing 
 
 supra, § 127. Shortly after Townley's sense and deliberation, and a perfect 
 
 case, on a trial for murder, before Erie, understanding of the nature of the act : 
 
 J., the defence relied on evidence show- it was held, that the evidence was not 
 
 ing a great amount of senseless extra- sufficient to support the defence, as it 
 
 vagance and absurd eccentricity of ratlier tended to show wilful excesses 
 
 conduct, coupled with habits of exces- and extreme folly than mental inca- 
 
 sive intemperance, causing fits of de- pacity. R. v. Leigh, 4 F. & F. 915. 
 
 liriura tremens, the prisoner, however. See also R. v. Southey, 4 F. & F. 864; 
 
 not having been laboring under the and also an interesting review in 23 
 
 effects of such a fit at the time of the Am. Journ. of Insanity, 387. 
 
 159
 
 § 167.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 years he had been suifering under her petulance and violence ; and it 
 was made probable that tlie act was done in a condition of frenzied 
 rage. The defence Avas insanity, lashed into fury by provocations 
 which had become unendurable. Mr. Justice Byles, in his charge 
 to the jury, said, according to the report in the Times of January 
 13, 1872, " that the real and only question . . was this, Was the 
 prisoner at the time he committed the act legally responsible for it, 
 and was he a responsible agent ? That depended upon a question 
 on which the counsel also agreed, Did he at the time he com- 
 mitted this act know wliat he wan doing ? If not, of course he was not 
 criminally responsible. Did he also know that what he was doing was 
 wrong?" The learned judge added that he was aware that doubts 
 on the universal applicability of this rule had been expressed by 
 many eminent persons for whose opinion he had the greatest respect. 
 " But if it was to be altered at all, it must be altered by act of par- 
 liament." The defendant was convicted and sentenced to be hung, 
 with a recommendation to mercy ; and the sentence was commuted 
 to imprisonment for life. 
 
 § 167. Christiana Edmunds was tried in January, 1872, at Lon- 
 don, before Baron Martin, for the murder of a little boy, 
 Edmunds's named Barker, on tiie 12th of the preceding June. The 
 ^^^^' uncle of the boy had on that day bought some chocolate 
 
 cream drops from a respectable confectioner named Maynard. Of 
 these the boy ate several, and died a few liours afterwards. At a 
 post mortem^ strychnine enough was found in his stomach to have 
 killed an adult. Shortly afterwards evidence transpired which 
 connected the prisoner with the poisoning. It appeared tiiat be- 
 tween March and June she obtained from a chemist at Brighton, 
 on various pleas, and once on a false name, a considerable quantity 
 of strychnine. Towards the end of May, she sent a boy whom she 
 met in the street to buy some chocolate drops for her at Mr. May- 
 nard's. When he returned with them, she said they were too 
 large, and she sent him back to exchange them for others which 
 were smaller. This was done ; and the case of the prosecution 
 was that, in this way, slie introduced into the shop the poisoned 
 sweets by which young Barker had been killed. It further ap- 
 peared that she had fre([uently sent little boys on a similar errand ; 
 that she had left parcels of sweets in other shops ; and that chil- 
 dren who had eaten out of these parcels had been taken sick with 
 160
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 169. 
 
 symptoms not unlike those produced by strychnine. It was shown, 
 also, by way of motive, that she had become attached to a Dr. 
 Beard ; that she had given Mrs. Beard a chocolate-cream which 
 had caused the latter much sickness ; that, to divert suspicion 
 from herself of intentional poisoning, she had sought to throw the 
 charge on Mr. Maynard; that, to do so, she had, in the way speci- 
 fied, introduced poisoned candy into his store ; and that, to clinch 
 the matter, she gave evidence, on the inquest that followed the 
 death of young Barker, that she had herself bought poisonous 
 candy at Mr. Maynard's shop. She was also shown to have 
 written anonymous letters to the father of Barker urging him to 
 prosecute Mr. Maynard ; and she took an active part in that prose- 
 cution herself. 
 
 § 108. Insanity was the defence, and it was proved that the 
 prisoner's father was, at the age she had reached on the trial, a 
 maniac, and that he died in an asylum ; that her brother was from 
 childhood an epileptic idiot ; that her sister labored under chronic 
 hysteria, and had attempted suicide ; that her mother's father died 
 at 43 in an imbecile state from paral3fsis ; and that she herself, 
 eighteen years before, had suftcrcd from partial paralysis and 
 hysteria. Dr. Wood, physician to St. Luke's Hospital, stated that 
 he visited the prisoner about ten days before the trial, in connec- 
 tion with Dr. Maudsley and others. He Avas struck with her indif- 
 ference to her position ; he thought her quite incapable of estimat- 
 ing it ; and he believed her " incapable of judging between right 
 and wrong in the same sense that other people would." Dr. Rob- 
 ertson testified that he thought "her intellect quite clear and free 
 from any delusion, but that her moral sense was deficient, as in the 
 descendants of insane parents." Dr. Maudsley concurred gene- 
 rally with Dr. Robertson, but he went on to say, in his cross-exam- 
 ination, that " everybody who committed crime exhibited some want 
 of moral feeling." 
 
 § 169. Baron Martin, in his charge,^ said, in respect to insanity, 
 the question "was a difficult one. A poor person, he remarked by 
 the way, was seldom afflicted with insanity, and it was common to 
 raise a defence of that kind when people of means were charged 
 with the commission of crime. He had heard a doctor say that all 
 
 > Soc. roport in the 'Timrs, of January 17, 1S72. 
 VOL. I. — 11 161
 
 § 169.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 mankind were mad more or less, but that had little to do with the 
 case under consideration. The state of mind which excused crime 
 was well fixed in our law. There were many diseases to which the 
 mind was liable as well as the body. There was the idiot, who 
 was born without any mind whatever. Again, there was the man 
 who was raging mad, and, if he had what was called a homicidal 
 tendency, he would have no more criminal responsibility than a 
 tiger. But the most numerous cases of tliat kind were of persons 
 said to be subject to delusions. They were persons who believed 
 in a state of things which did not exist, and acted on that state of 
 things." After giving the answers of the judges in McNaughten's 
 case, he said, " If the jury in this case should think that the 
 prisoner did not know ri(/Jit from wrong at the time she committed 
 the crime ivith which she is charged^ if she did commit it, they 
 must acquit her." The scope of the charge is, that, if the defendant 
 was under a delusion which made the poisoning seem right to her, 
 she was entitled to an acquittal on the ground of insanity. If not, 
 she should be convicted. It is diflficult to see what sound objec- 
 tions can be made to this view of the law. If the fact that a per- 
 son has descended from insane ancestors, or has years back shown 
 symptoms of insanity, is a bar to an indictment for crime, then 
 persons who have been so affected will become a class Avho can 
 murder, or burn, or rob with impunity, and whom society, as it 
 cannot punish, will be obliged to se(|uestrate by a process which 
 will bear far more harshly on them than would the penal amena- 
 bility which would be otherwise imposed. The act for which the 
 prisoner was tried was marked by much premeditation, and was 
 executed with great intelligence ; and there was no proof at the 
 trial either of any insane delusion on her part, or of such a condi- 
 tion of mind and will as deprived her of ability to resist the impulse 
 to the fatal deed. Dr. Robertson came nearest to a positive state- 
 ment ; but he limited himself to saying, that, while the prisoner's 
 intellect was good, lier moral sense was deficient, and that her act 
 was " on the border-land between crime and insanity. Even, there- 
 fore, supposing that the law recognized such a defence as irresistible 
 homicidal impulse, it is difficult to see how this defence could have 
 been sustained on such feeble asseverations as these, in the face of 
 direct proof that the prisoner was fully capable of so moulding her 
 ■" impulse," not only as to make it subservient to a very important 
 162
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 170. 
 
 purpose of her own, but to let it out when it was likely to be unde- 
 tected, and to restrain it when to indulge in it would bring exposure. 
 She was under the dominion, so far as the testimony went, of no 
 such unresti'ainable rage for poisoning as would force her to lay 
 her poison in the public streets, whenever the poison was in her 
 hands, and persons to be poisoned before her face. She poisoned 
 when she could do so with impunity ; she controlled herself when 
 she could not. 
 
 § 170. Such is the case as it appeared on the trial. But, so 
 slight were the opportunities of examination which had been secured 
 by the experts Avho testified for the defence, and so consequently 
 imperfect was their testimony, and so earnest were the appeals 
 made for a reconsideration of the question on the grounds of addi- 
 tional testimony as to insanity having been secured, that Baron 
 Martin united in recommending a reconsideration of the question by 
 the home secretary.^ Additional medical testimony was taken, and 
 
 ' The Lancet took strong grounds 
 against the verdict. It went so far as 
 to make the following extraordinary 
 statement : — 
 
 " If there he one thing certainly 
 proved in mental medicine, it is this, 
 that for any woman belonging to a 
 family which (like that of the Ed- 
 munds's) was a prey to insanity and 
 other nervous diseases, and living an 
 involuntarily single life while strug- 
 gling with hysteria and suppressed 
 sexual feeling, it would be almost im- 
 possible to go on to the critical age of 
 forty-three without actual derangement 
 of mind. That her crime had a motive, 
 and that her conduct was directed with 
 an infernal cunning towards her end, 
 is not in the least inconsistent with the 
 worst forms of madness. We do not 
 hesitate to say that had Christiana Ed- 
 munds been hanged, a judicial murder 
 would liave been committed." 
 
 Dr. Forbes Winslow added his high 
 authority to the opinion of Dr. Robert- 
 son. See also Review of these commu- 
 nications in London Spectator of Feb. 3, 
 1872. 
 
 The following are part of the com- 
 ments of the Saturday Revieir : — 
 
 "It must be admitted that public 
 opinion influences the administration 
 of criminal justice in this country, and 
 public opinion is liable to fluctuations. 
 Some years ago corporeal punishment 
 was in extreme disfavor, whereas now 
 peojjle apparently' like their newspaper 
 to inform them how a garroter looked 
 during his flogging, and it is frequently 
 suggested that other offences besides 
 robbery with violence might be usefully 
 visited with the lash. Garroting in- 
 deed went on until nobody was safe 
 in the streets after dark, and it was 
 felt that the civilization and humanity 
 of the age must submit to the unpleas- 
 ant necessity of reviving a punishment 
 which had been regarded as only suit- 
 able to a period of ignorance and bar- 
 barism. . . Supi)ose tliat Town ley 
 had been acquitted on the ground of 
 insanity, and that, as is only too pro- 
 bable, that form of insanity had be- 
 come common, tliere would soon have 
 been a general concurrence of opinion 
 that hanging was tlii^only effectual cure 
 
 163
 
 § 170.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 it was understood that Sir W. Gull, and Dr. Orange, superintendent 
 at Broadmoor, both high authorities in psychological medicine, 
 
 for it. . . Mr. Baron Martin, in that 
 case, told the jury that, if Townh'y 
 knew that tlie act which lie connnittcd 
 was contrary to the law of (Jod and 
 punishable by the law of the land, he 
 was guilty of murder. This, indeed, is 
 all that an English judge can say of 
 such a case, and perhaps it is all that 
 he ought to say. The doctrine of viti- 
 ated moral sen^e excusing crime cannot 
 be admitted without (endangering the 
 foundations of morality and criminal 
 justice. Take, for example, the char- 
 acter which would have been described 
 in the words of a well-known play of 
 the last century, as that of ' bold in- 
 triguer and a gay companion.' The 
 heroes of many comedies of that time 
 were men of vitiated moral sense, but 
 it would never have occurred to any 
 psychologist to suggest that seduction 
 or adultery was pardonable because it 
 was committed without compunction. 
 Anotlier medical witness, Dr. William 
 Wood, ' was very much struck with 
 prisoner's absolute indill'erence to lu^r 
 position, and he failed altogether to 
 impress her with its seriousness.' 
 These, again, are almost the exact 
 words which were used by Dr. Forbes 
 Winslow in Townley's case. This wit- 
 ness discussed with the prisonei- the; 
 subject of what was said to have i)assed 
 between hf^r and Dr. ]5eard. He asked 
 wiiether she thought it wrong for a per- 
 son to destroy the life of another pi^rson 
 because she believed that tliti husband 
 of that person wished to get rid of her. 
 'After some hesitation slu; said she 
 thouglit it would be wrong, but she did 
 not say it in such a manner as to lead 
 bini to believe she really thought so.' 
 The witness here admits, while at- 
 tempting to qualify the admission, that 
 the prisoner had that capacity of dis- 
 
 164 
 
 tinguishing right from wrong which the 
 law holds to be sufficient to render her 
 responsible for her actions. It seems 
 to follow tliat until the law is changed 
 there is nothing more to be said about 
 the case. Dr. Maudsley gave evidence 
 to the same effect. ' He found an ex- 
 treme deficiency of moral feeling as to 
 the crime with which the prisoner was 
 charged, and she did not appear thor- 
 oughly to realize her position.' Such 
 evidence ought to be disregarded in 
 this as it has been in many other 
 cases, but it hai)pens that the medical 
 witnesses are supported by the fact 
 that near relations of the prisoner have 
 been committed to lunatic asylums on 
 the usual certificates, and have re- 
 mained in them until death. Mr. Baron 
 Martin, commenting ujjon similar evi- 
 dence which was given in Townley's 
 case, said the object of that evidence 
 was to show that it was possible, and 
 not unlikely, that the Inu'editary taint 
 might exist in the prisoner. 'All the 
 evidence, however, failed to show the 
 existence of any delusion in the pri- 
 soner's mind which could explain his 
 act.' These words fit accurately to 
 the present case, but it must be ac- 
 knowledged that the evidence of in- 
 sanity in the prisonca-'s family went 
 much beyond that which was given in 
 Townley's case. It is of course jjossi- 
 ble tliat the doctors may be right al- 
 thougli they give wrong reasons for 
 their conclusions. We may observe 
 that Dr. Maudsley has given the same 
 reason for the same conclusion in the 
 case of Watson, where we cannot help 
 saying that Ixith reason and conclusion 
 aj)pear to us pre])osterous. It has of 
 course been remarked that, if the pris- 
 oner Edmunds had committed suicide, 
 and the evidence of insanity existing
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 172. 
 
 united, after a careful examination, in the opinion that the defendant 
 was insane. Her sentence was consequently commuted to imprison- 
 ment at Broadmoor as a criminal lunatic. 
 
 § 171. In reviewing this case, we are first compelled to notice 
 the very scanty preparation which had been made to enable the 
 medical experts at the trial to speak intelligently on the issue. 
 The defence, indeed, was singularly defective in the scope of the 
 testimony it adduced. Dr. Beard, the defendant's family physician, 
 for whom it was afterwards suggested by Dr. Winslow that the 
 prisoner had an " insane passion," was not called ; though no one 
 was so competent as he to speak as to the state of her mind. But, 
 waiving this, the experts who were examined had had no personal 
 acquaintance with her, and formed their opinion on a brief prison 
 interview. How little comparative weight opinions given on such 
 slight examinations are entitled to, will he hereafter seen.^ The 
 medical gentlemen referred to were not to blame. They were 
 asked by the prisoner's friends to attend her at the periods in ques- 
 tion, and they did so. The difficulty arose from the practice of 
 making such examination, not judicial, as in Germany, under a 
 commission from the government, but partisan, conducted by the 
 defence, according to its capacity or policy. A poor defendant, 
 under this system, has no chance. A ricli defendant can indeed, 
 at such periods as he may desire, obtain the attendance of distin- 
 guished experts, but their testimony is necessarily imperfect and 
 ex parte. 
 
 § 172. Then, again, the peculiar mode by which convictions are 
 in England reviewed tends, in proceedings such as the present, still 
 further to unsettle the public mind, and to increase the uncertainty 
 
 in the family had been given at an in- In commenting on these cases, a 
 
 quest, the jury would have arrived writer in the Times said: "Oxford's 
 
 without hesitation at a verdict which confinement as a lunatic had no effect 
 
 would have been generally approved, whatever in preventing persons of 
 
 It is, however, unnecessary to add tliat weak or perverse minds from firing or 
 
 in all such cases we ought not to be attemj^ting to fire at her majesty; but 
 
 unduly influenced in our estimate of the moment flogging was assigned as 
 
 facts by the indisposition which we the penalty for the offence, tlie weak 
 
 feel to give apparent sanction to a and the perverse restraine^d themselves 
 
 theory of irresjionsibility for crime at once, and tlie offence was never 
 
 which we regard as mistaken and per- heard of again." 
 
 nicious." ' See infra, §§ 328-345. 
 
 1G5
 
 § 174.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 of the law. That the home secretary shouhl have issued a requisi- 
 tion to Dr. Orange and Sir W. Gull, to semi-judicially examine the 
 question of Christiana Edmunds's sanity, was eminently proper. 
 But the examination should have been conducted in open court, or, 
 at least, as is the practice in (rermany, the return of those eminent 
 physicians should have been under oath, and should, reasons and 
 conclusions, have been published. As it is, we have, on the one 
 side, a published trial, leading to the conclusion of her sanity, on 
 which conclusion she was found guilty by the jury and sentenced 
 by the court, and, on the other hand, a secret subsequent investiga- 
 tion, showing her insanity, leading to the virtual setting aside of 
 verdict and sentence. We have no right to assume otherwise than 
 that each decision, on its own particular evidence, was right. But, 
 to understand the decision of the home secretary, the testimony on 
 which it was based should be supplied. 
 
 § 173. But, thirdly, it must be recollected, that, whatever may 
 be thought of the rightfulness of the verdict on the merits, there 
 Avas at no time any question as to the propriety of the rulings of 
 the court. These rulings were the subject of careful consultation 
 among the several judges. It was stated by Baron Martin, that 
 the rulings expressed their deliberate view, and that it was not likely 
 to be changed except by act of parliament. The challenge thus 
 thrown out has not been accepted. In the house of lords, which, as 
 the supreme api»ellate court of the empire, is peculiarly charged 
 with cognizance of siich issues, the only expression on the subject 
 has been one of assent. We may therefore hold it to be established 
 in England, that the doctrine of •' moral insanity," so far as it 
 involves the idea of irresponsibility based exclusively on moral as 
 distinguished from mental derangement, is rejected by the courts. 
 
 § 17-1. In the United States, there is almost equal judicial unani- 
 , . , mity in refusin<2: recognition to this theory, and in declar- 
 
 So in tlie _ '^ r> o . . 
 
 United ing that no amount of derangement of morals is a defence 
 
 unless accompanied with mental insanity. To this effect 
 
 are decisions in Massachusetts,^ in Maine, ^ in Connecticut,^ in New 
 
 1 Com. V. Rogers, 7 Mete. 500 ; Com. 2 state r. Lcawrance, 57 Me. 574. 
 
 V. Heath, 11 aray, 303; .see U. S. ?'. ^ st^te v. Richards, 3D Conn. 5i)l ; 
 
 Holmes, 1 ClilYord, IDS; U. S. v. but see Anderson v. State, 43 Conn. 
 
 Schultz, 6 McLean, 120. 514. 
 
 16G
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 175. 
 
 York,^ in New Jersey ,2 in Delaware,^ in Virginia,^ in North Caro- 
 lina,* in Georgia,^ in Ohio/ in California,^ and in other jurisdic- 
 tions where the question has been mooted.^ In Pennsylvania, it 
 is true, there is an apparent departure from this current of authority 
 by the acceptance, in a case already cited,'" of " moral insanity" as 
 a doctrine that could be under certain circumstances sanctioned by 
 the counts. But a scrutiny of this case will show, that Chief Justice 
 Lewis, in the case referred to, means by " moral insanity," not the 
 mania sine delii'io of Pinel, or, as here defined, moral without 
 mental lunacy, but insanity in its general sense, manifesting itself 
 in irresistible impulse. His views, therefore, are in accordance 
 with those here expressed. 
 
 § 17o. The nearest advance to the recognition of moral insanity 
 was made in 1864, by the court of appeals of Kentucky." -^^^ ^^ 
 This result was in part due to a reaction from the ex- in Ken- 
 
 , . , , . , , . tucky. 
 
 treme to which the courts and executive had, in one or 
 two noted prior cases, gone in rejecting the defence of insanity 
 almost in toto ; but, be this as it may, we find Robertson, J., who, 
 when at the bar, had taken bold ground, in one of the cases last 
 referred to, in maintenance of moral insanity, now maintaining the 
 same position on the bench. "Moral insanity," he tells us, " is 
 now as well understood by medico-jurists, and almost as well estab- 
 lished by judicial recognition, as the intellectual form.'^ Mentally, 
 
 ' Freeman v. People, 4 Denio, 9 ; Ohio St. 54), " that there is no au- 
 
 supra, § 145. Shorter r. People, 2 thority for holding that mere moral 
 
 Comst. 193 ; JIcFarland's case, 8 Abb. insanity, as it is sometimes called, ex- 
 
 Pr. N. S. 57 ; Flanagan v. People, 52 onerates from responsibility." S. P. 
 
 N. Y. 4(37. Judge Cox's charge in U. S. v. Ouiteau, 
 
 2 State V. Spencer, 21 N. J. L. 196. infra, § 679. 
 
 ^ State V. Windsor, 5 Harr. 512. "> See supra, § 158. 
 
 * Vance v. Com., 2 Va. Cases, 132. •' Smith v. Com., 1 Duv. 224. 
 
 * State V, Brandon, 8 .Tones, L. 463. '^ Jq this assertion, Dr. Chipley, 
 s Choice V. State, 31 Ga. 424. medical superintendent of the Eastern 
 ' State V. Gardiner, Wright, 0. 392 ; Kentucky Lunatic Asylum, makes, in 
 
 see U. S. V. Schultz, 6 McLean, 120 ; the Anicriran Journal of Insanlti/ for 
 
 Farrer i\ State, 2 Ohio St. 54. July, 1866, the following just reply : — 
 
 8 People V. Coffman, 24 Cal. 230; " It has seennid tome that it is not 
 People V. McDonell, 47 Cal. 134. an unusual thing for those who enter- 
 
 9 The courts, in varied terms, unite tain the opinions expressed by the 
 substantially in declaring, as the pro- court, to claim a greater weight of 
 position is stated by a very able jurist, authority in their favor than is war- 
 Judge Thurman (Farrer v. State, 2 ranted by the facts. Judge R. says : 
 
 167
 
 § 175.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 man is a dualism consisting of an intellectual and a moral nature. 
 . No enlightened jurist now doubts the existence of such a 
 
 'Moral insanity is now as well under- 
 stood by medico-jurists, and almost as 
 well established by judicial recogni- 
 tion, as the intellectual form.' 
 
 " It is to be feared that this assertion 
 has been derived, not from an exami- 
 nation of the decisions of the courts, 
 but from the declarations of active i)ar- 
 tisans whose wishes are father to the 
 thought. 
 
 " So far as I have been able to ascer- 
 tain, tli(^ doctrine of moral insanity 
 has not been recognized in the courts 
 of England, whence we have drawn our 
 principles of law ; nor in the courts of 
 this country, except in a few isolated 
 instances. Certainly its recognition 
 has not been generally acce(ied to in 
 the higher courts of either country. 
 Nor is there any greater accord among 
 those medical men whose positit)ns 
 have made them most conversant with 
 all forms of mental maladies. 
 
 " The doctrine is not recognized, for 
 any medico-legal purposes, by a major- 
 ity of th(? members of this association, 
 to whom is confined the care of almost 
 all the insane in our counti-y. 
 
 "While, therefore, it remains un- 
 recognized in the courts of England, 
 and has been admitted by only vei'y 
 few judicial authorities in our own 
 land ; and while it is repudiated, as a 
 false doctrine, fraught with great evil 
 to society, by a majority of the practi- 
 cal psychologists, known to us to lie 
 gentleuK'u of fidelity, integrity, and 
 expin-ience, are wi^ not warranted in 
 entering a (•laira to the weight of au- 
 thority in the negative ? Certainly 
 there is something more than a ' dis- 
 sentient voice occasionally heard from 
 the bench, the bar, the medical pro- 
 fession at large, and from those who 
 
 168 
 
 claim some special knowledge of insan- 
 ity and the insane.' 
 
 "That the doctrine is advocated by 
 many honest, capable, and faithful ob- 
 servers, no one can gainsay. It is im- 
 possible to avoid this division of senti- 
 ment on any scientific or professional 
 question not absolutely demonstrative 
 in its character, and it is the division 
 of sentiment among gentlemen who are 
 ardently seeking truth, and the im- 
 portance of the subject, which bring it 
 so frequently to the surface for renewed 
 examination. There is here no partisan 
 spirit, but a sincere desire to harmonize 
 on a truthful and solid basis. 
 
 " I do not propose to discuss the ab- 
 stract question of the possibility of a 
 perversion of what are called the moral 
 powers, or, as Professor Upliam terms 
 tlunn, the sensibilities. 
 
 " Tliis may occur from ill-directed 
 education, from habit, evil associations, 
 and the absence of that salutary con- 
 trol that should be exercised over per- 
 sons in early life, which make men 
 desperately wicked. But the practical 
 question for us is this : Shall such per- 
 versions free one from legal penalties 
 wliile the intellectual powers are un- 
 impaired ? In the school of morals and 
 the forum of conscience, I will readily 
 admit that all crimes are species of 
 insanity, but I am not prepared to 
 admit the plea of insanity as an excuse 
 for violations of law, unless it can be 
 shown that there is a congenital or 
 accidental defect of those powers with 
 which tli(! Creator has endowed man 
 foi- the i)urpose of enabling him to dis- 
 criminate between right and wrong 
 and to choose the one and avoid the 
 otli(;r. 
 
 " In this discussion it is important
 
 INSANITY AF A DEFENCE TO CHARGE OF CRIME. [§ 175. 
 
 type of moral, contradistinguished from intellectual insanity as 
 homicidal mania, or morbid and uncontrollable appetite for man- 
 
 also to understand what is meant by 
 moral insanity. If we accept the defi- 
 nition of some of its advocates, as that 
 of the learned Dr. Copland, the contro- 
 versy is at an end, and the adjective 
 ' moral' may be very properly dropped 
 from medico-legal science. He defines 
 it to be ' a perversion of tlie inclina- 
 tion, temper, etc., the intellectual fac- 
 ulties being more or less weakened or 
 impaired.' This yields all for which 
 the opponents of the doctrine contend. 
 They make no claim to any special 
 amount of intellectual impairment, but 
 simply insist that some degree of men- 
 tal unsoundness is required to free one 
 from accountability for liis acts. But 
 the term is not generally applied, sim- 
 ply because the mental aberration is 
 manifested chiefly in the state of the 
 feelings, affections, temper, habits, and 
 conduct of the individual ; but, in the 
 language of Dr. Prichard, who is said 
 by Dr. Bucknill to have been ' the 
 able and learned inventor of moral 
 insanity,' it denotes 'a disorder which 
 aflfects only the feelings and affections, 
 or what are termed the moral powers 
 of the mind, in contradistinction to the 
 powers of the understanding or intel- 
 lect.' It is in this sense that I propose 
 to consider the doctrine. 
 
 "Whenever, therefore, it can be 
 shovvn that any one or more of the in- 
 tellectual faculties become unsound 
 from disease, the case is at once re- 
 moved from the category of moral in- 
 sanity. It will be important lo bear 
 this in mind, especially, in any con- 
 sideration that may be given to tlie 
 cases that have been so repeatcnlly 
 alleged as instances of pure moral in- 
 sanity — cases which have been cited 
 and reproduced so frequently that tliey 
 have become sufficiently worn to ex- 
 
 pose the fallacy of the very doctrine 
 they are intended to support. 
 
 " In order to determine the limits of 
 man's responsibility, it is important to 
 ascertain tlie foundation of his ac- 
 countability. Why is he held respon- 
 sible for his acts ? 
 
 "On this topic, I do not intend to 
 enter upon any metaphysical disquisi- 
 tion. Metaphysicians are not agreed 
 among themselves, in the views they 
 entertain. They are all prone to ana- 
 lyze the mind into great departments, 
 assigning to eacli certain functions or 
 powers. Professor Upham says : ' The 
 human mind exists in the three great 
 departments of the intellect or under- 
 standing, the sensibilities, and the 
 will,' and he declares ' the office of the 
 will is mandatory and executive.' 
 
 "Others, with more reason I think, 
 consider the will as a mere resulting 
 power — the mere jiower of obeying the 
 dictates of tlie understanding. 
 
 " Fur all our purposes, the mind is 
 in entity with multiple powers of mani- 
 festation. 
 
 "We admit that, in a certain sense, 
 the propensities and sentiments are 
 integral jjortions of our mental consti- 
 tution, and that they are liable to 
 irregular and deranged action ; but it 
 does not follow that one may become 
 irresponsible for his acts while intellect 
 remains sound. 
 
 "Man is not made accountable be- 
 cause he is endowed with propensities 
 and instincts ; these he has in common 
 with the beasts that perish, and for 
 whom no criminal laws are enacted. 
 
 "Man's propensities and passions, 
 and their liability to irregular and de- 
 ranged action, make penal statutes 
 nec(!ssary to the protection of society ; 
 but lie is held accountable only because 
 
 1G9
 
 § 176.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 killing ; and py7'07nania, or the like passion for house-burning ; 
 kleptomania, or an irresistible inclination to kill." . . . But, 
 if his insanity extend no further than a morbid perversion and pre- 
 ternatural power of insane passion, or emotion, he not only "knows 
 right from wrong," but knows, also, that the act he is impelled to 
 do is forbidden by both moral and human law. 
 
 § 17C). We have to regret, in the opinion just quoted, an am- 
 biguity in the use of terms which makes it doubtful whether the 
 " moral insanity" of which the writer speaks, is simply the " irre- 
 sistible impulse" of a person mentally insane, or is that supposed 
 state of moral unsoundness coexisting witli mental soundness which 
 the technical term conveys. If the former was intended, the deci- 
 sion goes no further than those sustained in previous sections, which 
 declare that an irresistible impulse, in an insane person, coercing 
 crime, is a defence to an indictment for such crime. If, however. 
 Judge Robertson meant more than this — if his purpose was to say 
 that there could be moral insanity coexisting with mental sanity — 
 then we must remember that lie states this as a supposed rendition 
 of medical science, and that his opinion is simply a statement of 
 fact as to which it will be seen he is mistaken. So far from moral 
 
 lie is also endowed with intellectual and to choose the one and avoid the 
 
 faculties and a free rational will or otlier ; or, in the language of Judge R., 
 
 power capable of regulating and con- he is accountable because he has ' the 
 
 trolling the sensibilities. ligl't of reason to guide liimi in tlie 
 
 "If one is born with all the enio- pathway of duty, and a/Vee and /-h/Zo/h// 
 
 tional endowments of our nature, Ijut /*/v'.s«//»f/ ;r/// to enable him to keep that 
 
 destitute of understanding, his irre- way in defiance of all passion and 
 
 sponsibility is iinquestional)le. The temptation.' 
 
 same is true when the faculties of the " If, then, accountability is a struc- 
 
 understanding are perverted, impaired, ture erected solely on the intellectual 
 
 or destroyed by disease. power, must it not remain unsliaken 
 
 "In every aspect in which man's so long as its foundation is sound and 
 
 accountability is viewed, we arrive at UHl>roken ? Is it not illogical to set 
 
 the same point, that its sole basis is out with the fundamental proposition, 
 
 the existence and soundness of the that man is made responsible for his 
 
 intellectual powers — those wonderful acts only liecause he is gifted with an 
 
 endowments which so eminently dis- understanding, and then arrive at the 
 
 tinguish man from other animals, conclusion that he may become irre- 
 
 which enable him to discriminate be- sponsible without the impairnnuit or 
 
 tween good and evil, right and wrong, disease of any one of its powers ?" 
 
 170^
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 178. 
 
 insanity in this sense being accepted, it is repudiated by the just 
 weight of modern psychological opinion.^ 
 
 § 177. In 18G9, the same judge, in an insurance case, where 
 the question was whether an insane suicide avoided the policy, took 
 occasion further to enforce these views : " According to matured 
 philosophy, and the corroborating authority of elementary writers 
 such as Prichard and Esquirol and Ray and Taylor, and of many 
 modern adjudications, both British and American, there may be 
 moral as well as intellectual insanity, and essentially distinguished 
 from it. When, as often happens from congenital malorganization 
 or supervenient disturbance of the normal condition of a ' sound 
 mind in a sound body,' the senses present false imae/es which are 
 accredited necessarihf hy the deluded victim as intuitive certainties, 
 no reasoning or proof can rectify the illusion of a mind in such ab- 
 normal condition, and, conse([uently, as no punitory sanction can 
 prevent the effect of such insane delusion, there is no legal respon- 
 sibility. But, while the senses are apparently sound and true, the 
 affections may be perverted or the moral sentiments unhinged in 
 such a degree as to subjugate the will to some morbid appetite or 
 ungovernable passion, and thus precipitate against the will insane but 
 conscious wrong. This is contra-distinctively called moral insanity. 
 Such are the forms o^ monomania entitled Meptomania, pi/romania, 
 nympliomania, homicidal mania, etc, now well defined and recog- 
 nized as irresponsible insanity. Whether and how far these two 
 distinctive forms of insanity run into and sympathize with each 
 other is unknown. But generally the one is apparently untinged 
 by the other, and in moral dethronement by insane passion there 
 may be no delusion, but the will is overwhelmed by delirious pas- 
 sion, which it can neither stifle nor successfully resist." It was 
 held, therefore, that self-destruction under moral insanity was such 
 death as made the insurers liable, though the policy contained the 
 usual clause of avoidance in case of suicide." 
 
 § 178. But the authority of this opinion is more tlian neutralized 
 by the fact that it was delivered in a divided court, assented to by 
 two judges, and, in respect to the (juestion of moral insanity, dis- 
 sented from by Chief Justice Williams and Judge Harding. " In 
 
 > See infra, §§ 531-678. 2 Ins. Co. v. Graves, 6 Bush, 268 ; 1 
 
 Big. Ins. Cas. 736. 
 
 171
 
 § 183.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 all the vague, uncertain, intangible, and undefined theories of the 
 most impracticable metaphysician in psychology or moral insanity," 
 said Williams, C. J., "no court of last resort, in England or 
 America, so far as has been brought to our knowledge, ever before 
 announced such startling, irresponsible, and dangerous proposition 
 of law, as that laid down in the inferior court. For, if this be law, 
 then no longer is there any responsibility for homicide, unless it be 
 perpetrated in calm, cool, considerate condition of mind. What is 
 this proposition when compressed into a single sentence ? That, if 
 his ' intellect was unimpaired, and he knew it was forbidden both 
 by moral and human laws,' yet, if at ' the instant of the act his 
 will was subordinated by any uncontrollable passion or emotion 
 causing him to do the act, it was moral insanity, and they ought to 
 find for the plaintiff.' Concede that it was through either passion 
 or mortification or fear of disgrace because of this rumor, and 
 instead of killing himself he had killed his brother, or some one 
 else whom he suspected of being connected with the rumor, should 
 this transaction of mortification or fear of disgrace have exempted 
 him from criminal responsibility ? If so, then indeed the more 
 violent the passion and desperate the deed the more secure from 
 punishment will be the perpetrator of homicide or other crimes. 
 The doctrine of moral insanity, ever dangerous as it is to 
 the security of the citizen's life, and pregnant as it is with evils to 
 society, has but little or no application to this case. Too uncertain 
 and intangible for the practical consideration of juries, and unsafe 
 in the hands of even the most learned and astute jurist, it should 
 never be resorted to for exemption from responsibility save on the 
 most irrefragable evidence, developing unquestionable testimony of 
 that morbid or diseased condition of the aftections or passions so as 
 to control and overpower or subordinate the will before the act com- 
 plained of; for, if the act is to be evidence of moral insanity for the 
 suicide, so it will be for the homicide, the parricide, and the seducer 
 and the ravisher." 
 
 [§§ 179-182 are omitted in this edition as superseded by other 
 material.] 
 
 § 183. Irresponsibility from a supposed moral derangement, un- 
 Anaivsis of accompanied with mental insanity, is a defence on which, 
 objections ^^ ^\^q j,jg]^ ^f repetition, it is important to dwell with 
 
 to " moral _ - _ ' * _ 
 
 insauiiy." somc minutcncss. It is to be met with in three ways: 
 172
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 184. 
 
 first, psychologically, by showing, as will hereafter be done,^ that 
 by sound psychological analysis such a position is untenable ; 
 secondly, practically, by proving that a careful induction gives us 
 no basis of fact on which such a theory can be supported ;^ and, 
 thirdly, judicially,^ by showing that the position is repudiated by 
 the courts, and that, on the principles of philosophic jurispru- 
 dence, it cannot safely be maintained. 
 
 § 184. On the last point, as above stated, a few observations 
 may noAv be made. 
 
 First, as to the consistency of this doctrine with the inconsis- 
 safety of the community, which is one of the prime ob- '^^V^^*^ 
 jects of all penal law. commu- 
 
 In the mediaeval jurisprudence, the clergy were ex- 
 empted from the operation of the secular law. Great evils resulted 
 from this ; the authority of the civil arm was weakened, and the 
 clergy themselves were demoralized. But for this position, mon- 
 strous as it was, there was some faint excuse at the time it was 
 introduced. The clergy, it was said, were good men, and they 
 were subject to ecclesiastical discipline Avhich was prompt, exhaus- 
 tive, and severe. But the proposition now is to exempt from the 
 operation of penal law a class of men whose plea for this distinction 
 is that they are eminently had^ and that there is no other discipline 
 to which they can be subjected. If they are mentally insane — if 
 they are destitute of reason — then there is good ground for penal 
 irresponsibility. But if they are not mentally insane — if they are 
 possessed of reason — if their only plea is their excessive badness — 
 then this badness will be intensified, and rendered all the more 
 turbulent and desperate by the very intellectual sanity which it is 
 conceded that the actors possess, and which will readily instruct 
 them that they are privileged by the state to plunge irresponsibly into 
 any excesses they may desire. If they were destitute of reason, 
 their irresponsibility would be a less grievance. They would be 
 like the savage to whom powder is given, but who does not know 
 how to contrive means for using it to destroy others. But, being 
 possessed of reason, they are able to use their irresponsibility as an 
 immunity for every crime. And what is to be done with tiiem ? 
 
 ' Infra, §§ .'J3.3-.'J39. ' See supra, § 163, for a particular 
 
 * Infra, §§ 552-572. enunicration of the adjudicated cases. 
 
 173
 
 § 185.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Confinement in a lunatic asylum, is the answer. But such confine- 
 ment is difficult, (1) from the skill with which reason can create 
 counter-proof, and can, when there is an object for it, suppress or 
 conceal passion, and (2) from the enormous expense and trouble 
 which would attend the incarceration of so large a number of 
 patients as is here supposed. But can such persons be justly, on 
 this hypothesis, incarcerated ? How does incarceration differ from 
 imprisonment ? And what is imprisonment but punishment? And 
 what would such punishment be but a penal discipline imposed com- 
 pulsorily by the law ? The difference between such penal discipline, 
 and that wliich the law now applies on conviction of a crime, is 
 simply, that in the first case the offender is tried for being generally 
 bad ; in the second, he is tried for a specific bad act. But he can- 
 not be tried for being generally bad, unless he is responsible. We 
 are therefore reduced to the dilemma either of allowing such per- 
 sons to roam at large, or of confining them, which assumes their 
 responsibility. 
 
 § 185. Again, it is the duty of the state to require, on the part 
 
 of all persons endowed with reason, the exercise, under 
 enforce ex- penal discipline, of such reason, in all matters which con- 
 reason"^ cern the safety and health of the body politic. The 
 
 state, in this respect, is a delicate machine, over whose 
 mechanism every rational man has more or less control. It may 
 seem hard, to adopt the analogy of a railroad, to make it an indicta- 
 ble off'ence for a brakeman simply to fall asleep at liis post, or for 
 the acting superintendent of a great corporation not to construct a 
 time-table sufficiently lucid and accurate to prevent possible colli- 
 sions. It may seem a hard thing to shoot an admiral of acknowl- 
 edged bravery for indecision in action, or to cashier and imprison 
 an engineer for a slight miscalculation as to the thickness of an 
 iron plate. Yet we all feel the necessity of such hardness for the 
 purpose of educating men at large in the exercise of all their facul- 
 ties when in discharge of public trusts. It is such discipline alone 
 that makes railway travel practicable, and that prevents a nation's 
 life from being carelessly sacrificed in war. Reason, in such cases, 
 is called forth, nerved, and pointed, by the penalty the law imposes 
 on its action. One of the chief functions of law is to educate by 
 penalty. Law cannot, except in certain very rare cases, command 
 a thing to be done. It can only punish when the thing is not done, 
 174
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 186. 
 
 or when a positive wrong is committed. Nor can it thus punish by 
 precept, or by mere expression of disapprobation. It must punish, 
 if it do so at all, by penal discipline ; and this discipline, to have a 
 moral effect, must be executed as announced. In other words, 
 supremacy of reason over passion, on the part of all persons possess- 
 ing such reason, is essential to the safety of the state ; and the 
 state is bound to educate its subjects to the exercise of their reason 
 to this extent. It needs careful engineers, careful sailors, careful 
 superintendents, and careful workmen ; and, to create this careful- 
 ness, it must impose penalties on carelessness. A fortiori, there- 
 fore, if it needs, among those concerned with its machinery, the 
 capacity to control passion by reason, must it impose penalties on 
 the yielding of reason to passion. This subordination among its 
 subjects, it is one of the highest offices of the state to create ; but 
 its only direct process for this purpose is by penal discipline. This 
 may, in some cases, work hardly, as it may do in the cases of rail- 
 way carelessness we have just noticed. But, in the one case as 
 in the other, it is the idea of respoitsibiliti/ that must be implanted 
 in each breast ; and this can only be done by exacting responsibility 
 among persons possessed with reason, as a general and absolute 
 rule. 
 
 § 186. Then, as to the effect of these views on the individual 
 himself. If scrutinized carefully, the doctrine of the Nottore- 
 indissolubility of the connection between reason and i^Vocfi"' 
 responsibility can give no ground of personal complaint, t'ourage it. 
 Even among " moral lunatics" there is no one of whom we can say 
 that, in the earlier stages of his life, he might not have been taught 
 self-control. It would be a most cruel thing for a parent to say to 
 a young child, " you are so bad that I will not try to reform you." 
 And it would be an equally cruel and destructive thing to say, 
 " for the wrong you do I will not correct you."^ This would be 
 the sure course to bring up an irreclaimable class of bad men. 
 But, while it is one of the chief peculiarities of Christianity to 
 teach that no sinners are irreclaimable, so it is one of the most 
 merciful offices of government to say to all men that they can be 
 reclaimed. To rational beings who are supposed to have suboi'di- 
 natcd their reason to their passions, we can imagine no more humane 
 
 ' See supra, H 115-118 ; hifru, H 403, 539. 
 
 176
 
 § 188.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 counsel to be spoken than this : " There is no such thing as irre- 
 sponsibility among those possessed of reason ; you will certainly 
 be punished if you break the law." The doctrine, on the other 
 hand, that irreclaimable guilt is irresponsible, is the sure way to 
 make irreclaimable guilt. 
 
 § 187. And again, even assuming their responsibility, which on 
 Imprison- ^^^is hypothesis cannot be assumed, to imprison " moral 
 "'^"^;, lunatics" on the charge of being " bad," instead of mak- 
 
 ghould ° . . 
 
 depend on ing imprisonment dependent on conviction for a specific 
 of specific crime, would be subversive of one of the primary features 
 crime. ^^ Anglo-American jurisprudence. As an illustration of 
 
 this Ave may mention the means proposed by Dr. Thomson, surgeon 
 to the General Prison for Scotland, whose argument in favor of 
 distinctive moral insanity is elsewhere noticed. Feeling the em- 
 barrassment of holding that a class of " moral lunatics," such as he 
 describes, should be emancipated from criminal discipline in its 
 ordinary sense, he seeks to relieve himself by a proposal not unlike 
 that adopted in Turkey -syhen it is thought desirable to crush out a 
 rival family. " Moral insanity," he holds, is transmitted by sexual 
 propagation ; and hence " moral lunatics," or the incurably wicked, 
 arc to be kept from having children. But how ? By the Turkish 
 method ? For this more summary and inexpensive process, Dr. 
 Thompson is not quite prepared. Another remedy, however, is 
 preferable, imprisonment during puberty. " Why," he asks, 
 " should they go to prison for short periods only, to be sent out 
 again in i-enovated health, to propagate a race so low in physical 
 organization V He afterwards proposes, for such cases, imprison- 
 ment for life. The latter, no doubt, is the only safe alternative, if 
 we accept the doctrine of moral insanity. Tlie dilemma, therefore, 
 may be thus stated : if we accept the doctrine of moral insanity, 
 we must imprison the " moral lunatics" for life, on charge of being 
 generally bad ; if we reject this doctrine, we submit such persons 
 to ordinary penal discipline. But the first alternative is both cruel 
 and incompatible with Anglo-American jurisprudence. We must 
 therefore take the second. 
 
 § 188. Nor, finally, can it be said that there are some men, who, 
 while possessed of reason, arc incapable of moral sense, 
 
 Moral sense ^ ' ^ 
 
 to be built and who are consequently to be withdrawn from the 
 ordinary operations of penal discipline. We have al- 
 17G
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 189. 
 
 ready noticed the cruelty of this position to the persons thus de- 
 scribed, and the repugnance of the mode of imprisonment it pro- 
 poses to the principles of Anglo-American Jurisprudence. It is 
 enough now to say that, where the state does not find amoral sense, 
 it is its duty to create t)ne. That there is, among rational beings, 
 a moral sense always coexisting with reason, it is not necessary 
 here to maintain ; and it may be enough, for this purpose, to refer 
 to the impressive exposition of this view published by a great Eng- 
 lish thinker lately (1872) deceased.^ But, if we assume that there 
 is no such moral sense, then comes in the position just noticed, that 
 the moral sense which the state does not find it must build vp.^ 
 
 § 189. Even, therefore, should we assume that there are cases 
 in which there is no moral sense or conscience, and in r-^ • 
 
 ' iLrncicncy 
 
 which the individual so constituted is left to the control "*' p^''^^ 
 
 P , ■ . . . ^ p ,, discipline 
 
 01 his appetites and passions alone, it does not follow fortius 
 
 that punishment is not to be imposed. No more strenu- P^'^^*"^- 
 ous advocates of punishment are to be found than among the phi- 
 losophers who deny the existence of conscience. To except, they 
 argue, those whose moral sense is perverted or extinct, is to except 
 the very class for whose benefit, as well as for the safety of the 
 community, the law is required.^ But we must go beyond this and 
 hold that wherever there is reason there is responsibility, and 
 wherever there is responsibility there the wrong-doer is to be pun- 
 ished as a matter of justice in proportion to his Avrong.^ 
 
 ' "The Conscience;" Lectures on is not in all respects normal in its 
 
 Casuistry, delivered in the University action, and yet he is responsible for 
 
 of Cambridge, hy F. D. Maurice. 2d his acts. Many of the insane are 
 
 Edition, 1872. clearly irresponsible, and their punish- 
 
 2 See also infra, § 486. ment is demanded only by the imj^era- 
 
 ' See also supra, § 115 ; and infra, § tive necessity which exists of securing 
 
 403. the safety of society by preventing 
 
 * Wh. Cr. L. 8th ed. § I et seq. their committing criminal acts. This 
 
 In the International Review for Octo- should be done in that way which ex- 
 
 ber, 1881, is a valuable article by Dr. perience shows is most (•onducivc to the 
 
 Hammond on the " Punishability of the accomplishment of the end in view. 
 
 Insane," from which the following is even if it involves the taking of tlie 
 
 extracted : — life of the lunatic. But there are 
 
 "An individual may be medically others, people with morbid impulses — 
 
 insane, and yet not a lunatic in a legal with delusions as to their mission as 
 
 sense. His brain is diseased, either reformers, messengers of God, etc. ; 
 
 temporarily or permanently ; his mind with intense egotism and desire for 
 
 VOL. I.— 12 177
 
 § 191.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 5. While experts may he called to testify as to states of mind and 
 conditions of health, it is for the courts to declare whether such 
 states and conditions constitute irresponsibility . 
 
 § 100. Such, as the preceding pages have indicated, has been 
 Such the tl^6 general practice both in England and the United 
 States. In 1870, however, in the supreme court of New 
 Hampshire, a case^ was decided by which this position 
 was in some measure assailed. The defendant, Pike, 
 Avas tried before Perley, C. J., and Doe, J., for murder 
 in perpetrating robbery. One of the defences appears to have 
 been " dipsomania," and on the trial the court instructed the jury 
 that " whether there is such a mental disease as dipsomania, and 
 whether defendant had that disease, and whether the killing of 
 Brown was the product of such disease, were questions of fact for 
 the jury." 
 
 § 191. In the supreme court, this was aflRrmed, Smith, J., say- 
 ing : " This Avas correct. If there are any diseases Avhose ex- 
 
 geueral 
 rule. Ex- 
 cejjtiou iu 
 New 
 Hamp- 
 shire. 
 
 notoriety, manifestly abnormal in char- 
 acter ; with tendencies toward the 
 performance of eccentric and unusual 
 acts ; with a total disregard for the 
 restraints upon individual indulgence 
 which a decent sense of the o}iinions 
 of mankind requires ; of excessively- 
 developed passions, which Irad them 
 to the commission of various bestial 
 crimes — but who nevertheless show 
 little or no want of intellectual power 
 (indeed this is often above the aver- 
 age), who transact their every-day 
 routine work with regularity and pre- 
 cision, and who reason logically and 
 clearly ou the subject of their particu- 
 lar point of aberration, Siicli people 
 are medically insane ; their mental 
 processes are radically different from 
 those of mankind in general ; there is 
 some defect, inherent or acquircHl, in 
 the organization of their nervous sys- 
 tems ; and the medical expert who 
 goes into court and testifies to the fact 
 of their insanity is entirely justified, 
 
 178 
 
 by the accumulated experience of those 
 most competent to know, in so doing. 
 They are insane from a medical stand- 
 point, but they know right from wrong ; 
 they know higal acts from illegal ones ; 
 they are a])le at some time at least to 
 control their propensities, and their 
 delusions may be entirely without 
 reference to the alleged criminal act 
 they may have committed. While a 
 kiiowledfje of rir/kt and wrong can never 
 he properlij regarded as a test of insunity, 
 it is a lest of responsibility ; and by Icnowl- 
 rd</e of ri'jlit and wrong is not meant the 
 nwnd kiiov'h'dge that a particular act icould 
 he intrinsiridhj right or vrong — in other 
 vords, a sin — but that it would he contrari/ 
 to lair. In reality, however, the indi- 
 vidual may not even have this knowl- 
 edge ; but he must liave, in order to 
 make hini responsible, tlie mental 
 capacity to have it." See also 15 Am. 
 L. Rev. 717. 
 
 ' State V. Pike, 49 N. II. 390.
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 191. 
 
 istence is so much a matter of history and general Opinion in 
 
 , . . this case, 
 
 knowledge that the court may properly assume it in State z;. 
 
 charging a jury, dipsomania certainly does not fall within ^ ^' 
 that class. The court do not profess to have the qualifications of 
 medical experts. Whether there is such a disease as dipsomania 
 is a question of science and fact, not of law." 
 
 In an opinion, delivered in the same case, and supporting the 
 same view. Doe, J., -went still further: "Whether the old or the 
 new medical theories are correct," he says in the course of his 
 argument, " is a question of fact for the jury ; it is not the business 
 of the court to know whether any of them are correct." " It is 
 often difficult to ascertain whether an individual had a mental dis- 
 ease, and wJtetJier an act was a pj^oduct of that disease; but these 
 difficulties arise from the nature of the facts to be investigated, and 
 not from the case ; they are practical difficulties to be solved by 
 the jury, and not legal difficulties for the court." " To say that 
 the expert testifies to the tests of mental disease as a fact, and the 
 judge declares the test of criminal responsibility as a rule of law, 
 is only to state the dilemma in another form. For, if the alleged 
 act of a defendant was the act of his mental disease, it was not in 
 law his act, and he is no more responsible for it than he would be 
 if it had been the act of his involuntary intoxication, or of another 
 person using the defendant's hand against his utmost resistance ; if 
 the defendant's knowledge is the test of responsibility in one of 
 these cases, it is the test in all of them. If he does know the act 
 to be wrong, he is equally irresponsible whether his will is over- 
 come, and his hand used, by the irresistible power of his own mental 
 disease, or by the irresistible power of another person. When 
 disease is the propelling, uncontrollable power, the man is as inno- 
 cent as the weapon — the mental and moral elements are as guiltless 
 as the material. If his mental, moral, and bodily strength is sub- 
 jugated and pressed to an involuntary service, it is immaterial 
 whether it is done by his disease, or by another man, or a brute, 
 or any physical force of art or nature set in operation without any 
 fault on his part. If a man knowing the difference between right 
 and wrong, but deprived, by either of those agencies, of the power 
 to choose between them, is punished, he is punished for his inability 
 to make the choice — he is punished for incapacity ; and that is the 
 very thing for which the law says he shall not be punished. lie 
 
 179
 
 § 193.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 might as well be punished for an incapacity to distinguish right 
 from wrong, as for an incapacity to resist a mental disease which 
 forces upon him its choice of the wrong. Whether it is a possible 
 condition in nature for a man knowing the wrongfulness of an act 
 to be rendered by mental disease incapable of choosing not to do it 
 and of not doing it, and whether a defendant in a particular instance 
 has been thus incapacitated, are obviously questions of fact. But, 
 whether they are questions of fact or of law, when an expert testi- 
 fies that there may be such a condition, and that, upon personal 
 examination, he thinks the defendant is, or was, in such a condi- 
 tion — that his disease has overcome, or suspended, or temporarily 
 or permanently obliterated, his capacity of choosing between a 
 known right and a known wrong — and the judge says that knowl- 
 edge is the test of capacity, the judge flatly contradicts the expert. 
 Either the expert testifies to law, or the judge testifies to fact. 
 From this dilemma, the authorities aftbrd no escape. 
 
 " The whole difficulty is, that courts have undertaken to declare 
 that to be law which is a matter of fact. The principles of the law 
 were maintained at the trial of the present case, when, experts 
 having testified as usual that neither knowledge nor delusion is the 
 test, the court instructed the jury that all tests of mental disease 
 are purely matters of fact, and that, if the homicide was the oft- 
 spring or product of mental disease in the defendant, he was not 
 guilty by reason of insanity." 
 
 § 192. Is, then, responsibility a question of fact, to be determined 
 by the jury on the testimony of experts? Is the judge, on issues 
 of insanity, to leave the whole question, including that of responsi- 
 bility, to experts to decide, telling the jury that they are to accept 
 the experts' rendering ? Is, in other words, the " test of criminal 
 responsibility" a matter of fact, to be deposed to by experts, and 
 found by the jury on their testimony ? Such are the questions 
 that are involved in the positions just stated, and which are now to 
 be discussed, 
 
 § 193. It is conceded by the learned judge who delivered the 
 opinion which has last been (quoted, and which maintains 
 
 T^rovulf^iit 
 
 opiiiiouis the affirmative of the points just stated, that the views 
 tion oHrre ^® advances are in conflict with the great body of Eng- 
 
 eponsibiiity lish and American decisions on the same topic. This, 
 
 is lor court. . ,. ., . . . ^ 
 
 in fact, will be abundantly verified by an inspection of 
 
 180
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 194. 
 
 the preceding pages, where the course of English and American 
 judicial precedent in this relation is exhibited. It is proposed now 
 to pass the question of authority, therefore, as one that does not 
 admit of dispute, and to adduce some general reasons to show why, 
 so far from accepting the positions which have been so ably main- 
 tained by the New Hampshire judges, we must reaffirm the view 
 already announced — that, while experts may be called to testify as 
 to states of mind and conditions of health, it is for the court to 
 declare Avhether such states and conditions constitute irresponsi- 
 bility. 
 
 § 194. First, let it be remembered that American common law 
 courts have no process for the collection of the opinions ^.^ 
 
 of experts on litigated questions of criminal responsi- in obtain- 
 , .,. A 1 • 1 • ,. ■ ini?full 
 
 bility. A case comes on to be tried m one oi our crim- expert 
 
 inal courts. In the great majority of our jurisdictions •^'^ ^^o^y- 
 there is no law by which a commission can issue to take the deposi- 
 tion of witnesses out of the reach of local process. Even in those 
 jurisdictions where such a law exists, there is no reported case of a 
 witness, residing at a distance, being examined by deposition. 
 Indeed, even where this is technically legal, the step is one which 
 parties would be very unlikely to take. An expert, in order to 
 give an opinion to which the jury will attach weight, must visit the 
 patient personally. Hence it is that practically, in seeking for 
 experts, the parties are limited to those whom they can produce on 
 trial. Of course, when there is wealth, or when the state makes, 
 as it very rarely does, suitable provision, experts may be brought 
 from a distance. But, whether brought from a distance or taken 
 from the immediate neighborhood, they are open to the very serious 
 objection that they are unofficial persons selected by the party call- 
 ing them because their preascertained views will serve that party's 
 necessities.^ For we have in none of our states governmental 
 boards of experts, chosen as independent arbiters, on the same 
 basis as our courts of law. Hence it is that the experts, whose 
 testimony the jury are to take, are simply volunteer theorists. 
 So far as concerns the defendant, they are called by him because, 
 
 ' See infra, § 205. See an article jtartly by the i)artles, in 30 Am. Journ. 
 advocating a commission of exp(!rts to Ins. 312. 
 be appointed partly by the court and 
 
 181
 
 § 195.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 from their opinions already advanced, their views favor his defence 
 It is by the defence, indeed, that testimony of experts, in issues of 
 insanity, is mainly produced. It is natural that it should be so, 
 for not only is the burden of proof on the defence, but the interest 
 the defendant has at stake is so enormous that his whole energies, 
 and his entire estate, as well as the full professional nerve and 
 pride of his counsel, will be exhausted in bringing his case fully 
 before the court. Just so far as the presecution takes an interest 
 in the case — just so far as it believes in the baselessness of the 
 defence — is it liable to be influenced by the same zeal. But there 
 is here a difference between the position of the defence and that of 
 the prosecution. The defence springs its witnesses, if not its par- 
 ticular point of reliance, on the prosecution. The prosecution has 
 generally to reply, as best it can, with any testimony which, at the 
 moment and spot, it can catch u]). 
 
 § 195. But, be this as it may, each party has certain theories to 
 
 be proved, and each party looks around for experts to 
 
 mcnVis^*^^' prove such theories. Now, it so happens, that there is 
 
 partial and scarcely a sinde hypothesis as to responsibility, no 
 
 imperfect. •^, .?,,., , , ^ j> 
 
 matter how wild, which, among the large number ot 
 
 experts who have concerned themselves with this branch of study, 
 has not its advocates. Some particular hypothesis is a convenient 
 one for the emergencies of the case, and consequently the expert 
 who believes it is sought out and summoned. But he and the few, 
 as it may be, who agree with him are summoned alone. The great 
 mass of experts, embracing ninety-nine hundredths of the entire 
 body, are left uncalled. There is undoubtedly one good physical 
 reason for this. No court-room, though as large as the Roman 
 ampliitheatre, could hold all those who on this topic have fair 
 claims to be considered exports. No state treasury would attempt 
 the expense of their maintenance and remuneration during the very 
 protracted investigations that would ensue. No court would have 
 time for such trials ; and, indeed, it would be impossible to tell how 
 long such a suit would continue. No humane government would 
 permit a course which, by thus confining all the experts of the land 
 (even if we stopped here) in one spot, for an indefinite period, 
 would leave their innumerable patients and wards for so long a time 
 without guidance. But, independently of this objection, reason 
 182
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 196. 
 
 enough for a narrow selection is found in the fact that each party 
 
 calls only the experts that will prove his case, and no more.^ 
 
 § 196. Now, how has this practically resulted ? We believe 
 
 that the reports of our criminal trials show that wherever ^xtrava- 
 
 it is necessary to rely on some extravagant and unique gance of 
 
 . , , , „ . the theories 
 
 psychological theory to make out a defence, this theory it brings 
 
 will be sustained by experts. Thus, in a remarkable 
 Kentucky case, hereafter to be more fully noticed,^ it was testified 
 by experts, and apparently without contradiction, that all persons 
 committing suicide are insane, and that consequently (a conclusion 
 in wliich fortunately the court did not coincide), the exception of 
 suicide in life-insurance policies is a nullity. So in the case of 
 Arthur O'Connor, who was tried in London, in April, 1872, for an 
 assault on the queen. Dr. Tuke testified to the prisoner's insanity, 
 because he had no sense of his situation, and because he " aro-ued 
 in a circle," which facts were declared by an opposite medical ex- 
 pert to prove just the contrary, while Dr. Sheppard, Professor of 
 Psychological Medicine in King's College, and head of the Colney 
 Hatch Asylum, announced, in an article in the Lancet, that Dr. 
 Tuke's position was " monstrous." In Andrews' case,^ where the 
 defence was mania transitoria, one physician (a gentleman highly 
 respectable, but standing almost alone on this question) was brought 
 to testify to the psychological soundness of the defence ; while the 
 prosecution limited itself to but one expert in reply, though it could 
 have found a thousand to indorse what that expert said. So in the 
 case now immediately before us, " dipsomania" is spoken of as 
 proved by medical experts ; and it is said to be the law that if these 
 experts declare that there is such a disease as " dipsomania," and 
 that "dipsomania" confers irresponsibility, then the defendant is 
 irresponsible.^ But what experts ? "Who are to declare this ? 
 
 ■ See infra, §§ 275, 293. See also knowing lie would not go far enough, 
 
 articles in 35 Am. Journ. Ins., pp. 1, Scientific evidence, he says, is always 
 
 375. A curious proof of this will be hampered when given by way of ques- 
 
 found in an article hy Dr. Yellowlees tion and answer. 
 
 on Barr's trial, 22 Journ. Ment. Sci., '^ Ins. Co. r. (iraves, 6 Bush, 2G8 ; 
 
 p. 235. He tells us that, testifying as injhi, § 236. 
 
 an expert, neither side asked his opin- '^ Supra, § 1G2. 
 
 ion as to the prisoner's power of self- * The unsoundness of the hypothesis 
 
 control — whether it was overcome by of "dipsomania" Arill be hereafter 
 
 the delusion — one side fearing that he shown, infra, § G39. 
 would "0 too far and the other side 
 
 183
 
 ^ 197.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Those selected by the defendant out of the small knot of psycholo- 
 gical ])hysicians who hold to this theory ? And is the court to be 
 bound by the views of those experts, supposing the prosecution 
 declines to reply, or replies imperfectly? Is the judge to shut his 
 eye to the fact, that by almost all modern psychologists — by all 
 the governmental forensico-legal experts of Germany, by whom 
 such great breadth and ability of diagnosis are exhibited, and by 
 whom such unparalleled patience and compass of induction are 
 exercised — by at least the great majority of English and American 
 alienists — the theory of distinct moral monomania, the mind remain- 
 ing sane, is not only repudiated but denounced ? But how is this 
 fact to be shown ? The prosecution has not means or time, even if 
 it has tlie desire, to bring these eminent men to the witness-stand. 
 There is no process, in other words, by which the true sense of ex- 
 perts, taking them as a body, can be obtained. The test, therefore, 
 is one which, from the inadequacy of our judicial machinery, we 
 cannot apply. ^ 
 
 § 197. But, again, even supposing experts of conflicting views 
 
 could be fairly and freely summoned, so as to give the 
 
 exists to d'e- jiiry the full testimony of science on the questions in 
 
 cideconthet litiiiration, there is no court of experts who can harmonize 
 oi experts. o ' i 
 
 antagonistic views, and give to the jury in a concrete 
 shape a positive and final judgment. In legal practice, from the 
 fact that in each state there is a final court of appeal, tliis difiiculty 
 is obviated. We all know wliat the law is ; or, if we do not, we 
 have the means, in each litigated case, of ascertaining such law. 
 And in this certainty, at least as much as in the wisdom of the 
 
 ' See in/rci, § 205. A correction of report thereon to the court," which 
 
 this has been, it is true, attenijited in may tlicn act on the case, and in its 
 
 New York ; by tlie Revised Statutes discretion remand the party to the 
 
 (Part 1. ch. XX. § 20), the court of lunatic asylum. The governor is given 
 
 oyer and terminer, where " any person the same power in capital cases ; and, 
 
 in confinement under indictment for by § 2(j, the county judge may investi- 
 
 the crimes of arson, murder, or altempt at gate the cases of persons confined un- 
 
 murder, or hiijlnvay robberi/, shall appear der other than civil process, who ap- 
 
 to be insane," is given power summa- pear to be insane, and shall "call two 
 
 rily to inquire into the question, and, respectabl(» pliysicians and other cred- 
 
 for this })nrpose, to "appoint a com- iblo witnesses," and if micessary im- 
 
 missiou to examiiK! such person and panel a jury. , 
 
 im|uire into the facts of his case and 
 
 184
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 198. 
 
 opinions promulgated, lies our safety. Take, for instance, to repeat 
 a prior illustration, the question of moral insanity. If moral in- 
 sanity be established by tlie courts, then the legislature can take 
 measures to have all persons " morally insane" placed in insane 
 asylums, so that no injury to the community can ensue from their 
 running at large. Or, if the courts hold that " moral insanity" is 
 not a defence, then persons of this class will be held responsible 
 penally for their misdoings, or placed under bonds to keep the 
 peace. But if the rule is to be laid down by experts called freshly 
 in each particular case, with no court of appeal, it will be impos- 
 sible to have any settled law. The experts selected in one case 
 will prove entirely a diiferent law from the experts selected in 
 another case. For instance, in those cases in which the state takes 
 the prosecution in its own hands, and calls, as is the practice in 
 some jurisdictions, leading specialists in this department as wit- 
 nesses, the prevalent testimony will be that there is no such thing 
 as either monomania or " moral insanity" as a distinct insane affec- 
 tion. On the other hand, in a case in which the defendant's mental 
 sanity is indisputable, and his life may depend on his proving that 
 " moral insanity" is a good defence, experts who hold to " moral 
 insanity" are called to prove that it exists; and " moral insanity" is 
 so far established. From neither of these decisions is there any 
 appeal. Tliere is no mode of harmonizing them. Nor is it possible 
 to tell what the future may bring forth, except that each party will 
 call such experts as are most favorable to his views. Now, to 
 speak of the opinions of such exceptional experts as the opinions of 
 experts in general, and declare it to constitute the rule of insanity, 
 is about as reasonable as it would be to speak of the arguments of 
 counsel employed to argue on a series of isolated cases, as consti- 
 tuting the law of the land. The fact is there is no settled and final 
 opinion of experts, to supply the test which is here invoked, be- 
 cause there is no final court by whom conflicts among experts can 
 be reconciled, and a settled law pronounced. 
 
 § 108. But, after all, we must next observe that the proposed 
 submission of tlie test to experts for decision is an illusion, 
 for the court Avill have to explain what it is that the ex- J^,i^]^ tesU- 
 perts say. No court can abdicate its functions of weigh- ['.'""^"'rt 
 ing testimony and of declaring what testimony means. 
 It is, indeed, a fundamental maxim of the law that witnesses are 
 
 185
 
 § 199.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 not to be counted, but Aveighed. Let us take, as illustrating this 
 necessity, the celebrated Windham case, elsewhere more fully 
 noticed.^ A petition of lunacy was taken out against Mr. Wind- 
 ham, his nearest relatives being the petitioners. His course was 
 shown to have been since his boyhood — at the time of the inquisi- 
 tion he was not much older than twenty-one — one of reckless and 
 imbecile profligacy ; and some of the most eminent experts, called 
 for the petitioners, declared that he was wanting in capacity to 
 manage his own aifairs. But the testimony thus produced Avas 
 overborne, as to numbers, by a mass of other experts, who, on 
 examination far more superficial, and on tests far less thorough, 
 pronounced for the respondent's competency.'^ Of course in such 
 cases there was but one course open to the master in lunacy by 
 whom the inquisition was held. His duty was to say where the 
 weight of the testimony was, and by what tests it was to be proved. 
 So it must always be in cases of conflict of evidence. Yet to 
 declare, supposing the testimony of experts to be " law," where 
 the weight of this testimony lies, is really to declare what the law 
 itself is.^ 
 
 § 199. Nor can harmony be by any other course adjusted between 
 And decide ^ivil and criminal law. In many classes of probate cases 
 upon It. ^.jjg question of a testator's sanity is taken from tlie jury 
 and determined exclusively by the court. In all civil issues this is 
 forced by demurrers either to the pleading or to the evidence. 
 Even on jury trials, the legal relations of the testimony of experts 
 can be removed by bills of exceptions, or by appeal, to the superior 
 court. To declare that in criminal cases such questions are solely 
 for the jury, guided by experts, would be to introduce not merely 
 clashing of courts, but failure of justice. A man would be sane by 
 one class of proceedings, and be insane by another. After being 
 declared responsible by an in(piisition of lunacy, he might be de- 
 
 ' See supra, § 106. Jones, Butler, Harbeson, and Berkey 
 
 2 Similar cases have occurred in the on the one side, and Doctors Morton, 
 
 United States. See Winter's case, re- Groves, Seltzer, and Childs on the 
 
 ported 27 Am. Journ. Ins. 47, and other, present a diversity of profes- 
 
 Com. r. Haskell, 2 Brewst. -iiJl, in sional opinions. This is not unusual." 
 
 which Judge Brewster said: "If wo ^ See more fully, as to weight to be 
 
 look at the medical testimony, we find attacheil to testimony of experts, infra, 
 
 an even balance of numbers. Doctors § 2'J3. 
 
 186
 
 INSANITY AS A DEFENCE TO CHARGE OF CRIME. [§ 199 a. 
 
 clared irresponsible by a jury on an indictment for crime ; and thus 
 would he be too irresponsible to be punished as a criminal, and yet 
 not irresponsible enough to be placed in an insane asylum. Or, 
 under the direction of experts of opposite views, a man who, in a 
 civil court, would be held insane, might be convicted by a jury as 
 sane, without any right, on the hypothesis here combated, of appeal- 
 ing to the court for redress. 
 
 § 199 a. But, finally, we must fall back on the position already 
 fully argued, that the question of irresponsibility is one 
 that cannot, consistently with public justice, be surren- sponsibiiity 
 dered by the courts. Responsibility is a judicial ques- '^i^gtioir'^^ 
 tion. It is one of the highest grade. It touches the most 
 cherished prerogative of citizen and state. It involves in its crimi- 
 nal relations two topics, both of which are in the range of juridical 
 philosophy, and both of which should be decided, in each case that 
 arises, by officers of the state, appointed by the state, bound by 
 fixed rules, and advised, before they decide, by counsel who will 
 present both sides of the question at large. One of these topics is 
 the relation of responsibility to reason, and here arises the principle, 
 heretofore discussed on grounds purely juridical,' that wlierever 
 there is reason there is responsibility. The other topic is that of 
 the divisibility of the Ego into distinct factors, one of which can 
 become insane while the other is sane ; and in this is involved the 
 position, hereafter to be vindicated,^ that there is no such thing as 
 moral insanity coexistent with mental sanity. These points are not to 
 be finally adjudicated by experts, who are neither appointed by the 
 state so as to be independent of special influence, nor are selected 
 from their general judicial fitness, nor are bound by precedent, nor 
 are advised, before they come to a decision, by counsel presenting 
 fully both sides. Experts are no doubt to give facts, tliough their 
 explorations of facts should not be made without notice to the oppo- 
 site side. But questions of high philosophical jurisi)rudencc such 
 as these, bearing as they do most closely on the liberty of the citizen 
 and the safety of the state, should be decided by judges, wlio, ap- 
 pointed by the state, independent of the parties, and advised ])y 
 counsel, remember that their decision is to be part of a harmonious 
 and equal system of public law, and that for their rendering of it 
 
 ' Seosu/jrrt, §§ 110, 185-188. ^ i^jra^ §§ 53:3-572. 
 
 187
 
 § 200.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 they are responsible to the state from which their appointment pro- 
 ceeds.^ 
 
 G. Predisposition to insanity as loioering the grade of guilt. 
 
 § 200. It has already been abundantly shown that there are con- 
 ditions of mind in which actual insanity cannot be said 
 party m'ea- to havo sct in, but in which there are insane predisposi- 
 o-uiu" tions tending to either undue mental exaltation, or undue 
 
 mental depression.^ A psychical condition, inherited, it 
 may be, or the result of some physical cause, makes the patient 
 incapable, when excited, of due deliberation, renders it difficult for 
 him to cool, or disturbs his mind when it comes to act on the 
 question of intent. Such a man, for instance, in an excitement 
 which this psychical state makes far more intense and protracted than 
 it would be among persons of ordinary mental health, kills another. 
 Is he to be acquitted ? Certainly not ; for he cannot, on any sound 
 principles psychological or legal be declared insane. Is he to be 
 convicted of murder in the first degree, and hung ? This, were 
 the defendant a person of healthy and normal temperament, would 
 be perhaps the natural sequence of the trial, should it appear that 
 the homicide was deliberately executed. But, suppose the case of 
 a man who, from insane predisposition, instead of cooling down 
 after the first flush of hot blood, falls into a state of morbid excite- 
 ment continuing and perhaps growing for weeks. Is such a man 
 to be judged, as to a homicide committed during such excitement, 
 by the same rules as apply to a person whose passions have had 
 time to subside ? In other words, arc " cooling time," and " intent" 
 and " premeditation," to be gauged by the capacity of the ideal 
 rational man, or that of the person under trial ? That the latter 
 view should be taken — that we should determine these questions 
 according to the capacity of the defendant himself, has been already 
 incidentally argued, and may be confirmed by many analogies of 
 penal jurisprudence. In this way do we judge those conceptions 
 of danger which justify a party in resorting to violent means of 
 self-defence f so do we determine responsibility in cases of sleep- 
 drunkenness and somnambulism ; so do we estimate the conduct of 
 
 ' See, as to expert testimony in in- ^ Supra, § 181. 
 sanitv, Wh. Cr. Ev. § 417. 3 Suimi, §§ 125-145. 
 
 188
 
 INSANITY AS A DEFENCE TO CHARGE OP CRIME. [§ 200 a. 
 
 persons when roused by any great political or religious excitement;* 
 and so we hold in cases of intoxication, when called upon to measure 
 deliberation and intent.^ If, in cases where homicide has been com- 
 mitted during an excitement which the defendant's peculiar psychical 
 state has abnormally protracted and intensified, a verdict of murder 
 in the second degree, or of manslaughter, is given in accordance 
 with these views, a result is reached which is not only in accord 
 with sound principle, but is far more consistent with the public idea 
 of justice than would be a verdict either of not guilty, or of murder 
 in the first degree.^ This, in fact, is, under the North German 
 code, the established law in Germany. That it is recommended by 
 high medical authority, will be hereafter seen, Mr. Stephens 
 lends his valuable authority to the same view.* " Partial insanity" 
 he says, " may be evidence to disprove the presence of. the kind of 
 malice required by the laiv to constitute the particular crime of 
 which the prisoner is accused. A man is tried for Avounding with 
 intent to murder. It is proved that he inflicted the wound under a 
 delusion that he was breaking a jar. The intent to murder is dis- 
 proved, and the prisoner must be acquitted ; but if he would have 
 no right to break the supposed jar, he might be convicted of an 
 unlawful and malicious wounding." 
 
 7. Capacity of insarie defendants to plead. 
 
 § 200 a. By statutes existing in England, and in several of the 
 United States, it is competent for the defendant's counsel p,.e]i,„i,j. 
 to formally plead insanity, as a special preliminary de- ary inquest 
 fence, in which case an inquest is taken to determine the plea oi iu- 
 issue, " sane or insane."* Where a jury is impanelled 
 to try whether a prisoner is insane or not at the time when he is 
 
 ' Wli. Cr. L. 8th ed. § 47. more rigidly, than it now does." — Dr. 
 
 * See infra, §§ 211-214, and see par- Seguin, in North Am. Rec, Jan. 1882, 
 
 ticuhirly Roherts v. People, 19 Mich. p. 21. 
 
 401, infra, § 211. 3 See, in illustration of this, Mc- 
 
 " I helieve that the criminal insane Gregor's case, reported and commented 
 
 should be held just as ri'Sponsilihi to on, 215 Am. ,Iourn. Ins. r)4!). 
 
 human punishment — i. e., preventive ■• Criminal Law of Ihigland. Lon- 
 
 and educating punishment — as sane don, 18(j3, p. t*2. 
 
 criminals. Society must protect itself ^ See R. (,'. (Joode, 7 A. & E. r)3G ; R. 
 
 against crime more intelligently, yet v. Dwerryhouse, 2 ('ox, C. C. 44(). 
 
 189
 
 § 201.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 brought up to plead to an indictment, the counsel for the prosecution 
 is to begin and call his witnesses to prove the sanity of the prisoner.' 
 But, where a jury is impanelled, at the instance of the counsel for 
 a prisoner, to try whether he was insane or not at the time of the 
 commission of the offence, the burden, in English practice, is on the 
 defence.^ 
 
 § 201. Where the defendant from insanity is incapable of plead- 
 ing, the court will disregard his plea of guilty, or any 
 fendant in- confessions of guilt he may offer. And even his pro- 
 to plead"'' testations of " sanity" will be disregarded, if there be 
 adequate proof that he is insane.^ The defence of in- 
 sanity may be taken by his counsel against his will, though he may 
 be personally allowed to call witnesses to disprove it.'* 
 
 The practice in respect to pleading by persons deaf and dumb is 
 discussed fully in another work.^ 
 
 ' R. V. Davies, 6 Cox, C. C. 326 ; 3 C. * Ibid. ; Stcate r. Patten, 10 La. Ann. 
 
 & K. 328. 299. 
 
 2 R. V. Turton, G Cox, C. C. 385. « Wh. Cr. PI. & Pr. § 417. For 
 
 3 R. c. Pearce, 9 C. & P. 667. pleading by lunatics see Wh. Cr. L. 
 
 8th ed. § 57. 
 
 190
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 202. 
 
 CHAPTER V. 
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. 
 
 1. Permanent insaniti/ produced hi/ intoxi- 
 cation affects responsihility in the same 
 way as insanity produced by any other 
 cause. 
 
 Delirium trt^mens an insane condition, 
 § 202. 
 
 When complete extinguishes responsi- 
 bility, § 203. 
 
 Such the law in this country, § 204. 
 
 But delirium must be strictly proved, 
 § 205. 
 
 Delirium distinct from frenzy of drink, 
 § 206. 
 
 2. Temporary insanity, immediately pro- 
 duced by intoxication, does not destroy 
 responsibility, ichere the patient, tchen 
 sane and responsible, made himself vul- 
 untarily intoxicated. 
 
 Mere drunkenness does not avoid re- 
 sponsibility, § 207. 
 
 This view necessary to public safety, 
 § 208. 
 
 Sustained by all authority, § 209. 
 
 Drunkenness admissible to disprove 
 specilic intent, § 210. 
 
 .3. While intoxication per se is no defence 
 to the fact of guilt, yet, when the question 
 of intent or premeditation is concerned, 
 it may be proved for the purpose of de- 
 termining the precise degree. 
 
 Degree may be determined by fact of 
 drunkenness, § 214. 
 
 Same view taken in England as re- 
 gards intent, § 215. 
 
 Unsettled opinion where provocation 
 existed, § 216. 
 
 Drunkenness relevant on issue of ma- 
 lice, § 217. 
 
 1. Permanent insanity produced hy intoxication affects responsi- 
 bility in the same way as insanity produced hy any other cause. 
 
 § 202. If a man who, laboring under delirium tremens, kills 
 another, is made responsible, there is scarcely any 
 species of insanity which, on like principles, would not tremens an 
 be subjected to the severest penalties of criminal law. d,-tu,'if ^""' 
 " It may be the immediate effect," says Dr. Kay,* " of 
 an excess, or series of excesses, in those who are not habitually 
 intemperate, as well as in those who are ; but it most commonly 
 occurs in habitual drinkers, after a few days' total abstinence from 
 spirituous liquors. It is also very liable to occur in this latter class 
 
 ' Med. Jur. 438. 
 
 191
 
 § 202.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 ■when laboring under other diseases, or severe external injuries, 
 that give rise to any degree of constitutional disturbance. The ap- 
 proach of the disease is generally indicated by a slight tremor and 
 faltering of the hands and lower extremities, a treraulousness of the 
 voice, a certain restlessness and sense of anxiety which the patient 
 knows not how to describe or account for, disturbed sleep, and im- 
 paired appetite. These symptoms having continued two or three 
 days, at the end of which time they have obviously increased in 
 severity, the patient ceases to sleep altogether, and soon becomes 
 delirious. At first the delirium is not constant, the mind wander- 
 ing during the night, but, during tlie day, when its attention is 
 fixed, capable of rational discourse. It is not long, however, before 
 it becomes constant, and constitutes the most prominent feature of 
 the disease. Occasionally the delirium occurs at an earlier period 
 of the disease, and may even be the first symptom of any disorder. 
 This state of watchfulness and delirium continues three or four 
 days, when, if the patient recover, it is succeeded by sleep, which 
 at first appears in uneasy and irregular naps, and lastly in long, 
 sound, and refreshing slumbers. When sleep does not supervene 
 about this period, the disease is fatal ; and whether subjected to 
 medical treatment or left to itself, neither its symptoms nor its 
 duration are materially modified. The character of the delirium 
 in this disease is peculiar, bearing a stronger resemblance than any 
 other form of mental derangement to dreaming. It would seem as 
 if the dreams which disturb and harass the mind during the imper- 
 fect sleep that precedes the explosion of the disease continue to 
 occupy it when awake, being then viewed as realities, instead of 
 dreams. The patient imagines himself, for instance, to be in some 
 peculiar situation, or engaged in certain occupations, according to 
 each individuaTs habits and profession ; and his discourse and con- 
 duct are conformed to this delusion, with this striking peculiarity, 
 however, that he is thwarted at every step, and is constantly meet- 
 ing with obstacles that defy his utmost efforts to remove. Almost 
 invariably the patient manifests, more or less, feelings of suspicion 
 or fear, laboring under continual apprehension of being made the 
 victim of sinister designs and practices. He imagines that certain 
 people have conspired to rob or murder him, and insists that he can 
 hear them in an adjoining apartment arranging their plans and 
 preparing to rush into his room ; or that he is in a strange place, 
 192
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIM£. [§ 203. 
 
 where he is forcibly detained, and prevented from going to his own 
 home. One of the most common hallucinations is to be constantly 
 seeing devils, snakes, vermin, and all manner of unclean things 
 around him and about him, and filling every nook and corner of his 
 apartment. The extreme terror which these delusions often inspire 
 produces in the countenance an unutterable expression of anguish, 
 and, in the hope of escaping from his fancied tormentors, the 
 wretched patient endeavors to cut his throat or jump from the 
 window. Under the influence of these terrible apprehensions he 
 sometimes murders his Avife or attendant, whom his disordered 
 imagination identifies with his enemies, though he is generally 
 tractable, and not inclined to be mischievous. After perpetrating 
 an act of this kind, he generally gives some illusive reason for his 
 conduct, rejoices in his success, and expresses his regret at not 
 having done it before."* 
 
 § 208. As far as concerns temporary incapacity, therefore, 
 delirium tremens acts in the same way as any other 
 delirium^ and, when complete, destroys responsibility. piete"ex*tin- 
 
 The only question, therefore, is whetlier there is any- guishes re- 
 , ^ ... spousibility 
 
 thing in the source from which it is derived which re- 
 quires that it should be exempted from the general rule by which 
 delirium forms a good defence to an indictment for a criminal 
 offence. In the dicta of one or two of the older law writers, this 
 exception is sought to be sustained on the ground that a drunkard, 
 in every stage, is a voluntary demon, and that he can no more use 
 his consequent mania as a defence than can the man who kills 
 another by a sword allege that it was the sword, and not himself, 
 that was the guilty agent. But to this the answer is threefold : 
 (1) that delirium tremens is not tlie intended result of drink in 
 the same way that drunkenness is; (2) that there is no possibility 
 that delirium tremens can be voluntarily generated in order to 
 afford a cloak for a particular crime ; Q\) that, so far as original 
 cause is concerned, it is not jjcculiar in being the offspring of indis- 
 cretion or guilt, for such is tlie case with almost every other species 
 of insanity. Tiiese points scarcely need to be expanded. The fact 
 is, delirium tremens runs the same course with most of the other 
 
 ' See an inttiresting case of Oinomamia in 8 Amor. Joiirn. of Iiisan. 3 ; and 
 Bee infra, " Dipsomania," § G39. 
 
 VOL. I.— 13 193
 
 § 205.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 classes of insanity known in the criminal courts. It is the result, 
 like most other manias, of prior vicious indulgence ; but it differs 
 from intoxication in being shunned rather than courted by the 
 patient, and in being incapable of voluntary assumption for the pur- 
 pose of covering guilt. 
 
 § 204. Reason, therefore, undoubtedly teaches us that a person 
 s h th ^^^^^ ^^ incapacitated from moral and intellectual agency, 
 law in this by rcasou of delirium tremens^ is irresponsible ; and 
 
 COUUtry. \ • ^ ^ 1 • 1 1 • ^ • i mi 
 
 such is the law, as decided in repeated instances.^ Thus, 
 in the leading American case. Story, J., declared criminal responsi- 
 bility not to attach where the delirium is the " remote consequence" 
 of voluntary intoxication, " superinduced by the antecedent ex- 
 haustion of the party, arising from gross and habitual drunkenness. 
 However criminal," he proceeded to say, " in a moral point of 
 view, such an indulgence is, and however justly a party may be 
 responsible, for his acts arising from it, to Almighty God, human 
 tribunals are generally restricted from punishing them, since they 
 are not the acts of a reasonable being. Had the crime been com- 
 mitted when Drew (the defendant) was in a fit of intoxication, he 
 would have been liable to be convicted of murder. As he was not 
 then intoxicated, but merely insane from an abstinence from liquor, 
 he cannot be pronounced guilty of the offence. The law looks to 
 the immediate, and not to the remote cause ; to the actual state of 
 the party, and not to the causes which remotely produced it. Many 
 species of insanity arise, remotely, from what, in a moral view, is 
 a criminal neglect or fault of the party : as from religious melan- 
 choly, undue exposure, extravagant pride, ambition, etc. Yet such 
 insanity has always been deemed a sufficient excuse for any crime 
 done under its influence." 
 
 § 205. In a still earlier case of at least equal authority, the court 
 
 told the jury that if they " siiould be satisfied by the evi- 
 riuin must clencc that the prisoner, at the time of committing the act 
 
 be strictly charged in the indictment, was in such a state of mental 
 proved. _ '~ ..... 
 
 insanity, not produced by the immediate effects of intoxi- 
 
 » R. r. Thomas, 7 C. &P. 817; R. u. Com. v. Green, 1 Ashm. 289; and 
 
 Meakin, 7 C. & P. 297 ; Rennic's case, other cases cited in Wli. Cr. L. 8th ed. 
 
 1 Lew. C. C. 7G ; U. S. v. Drew, 5 § 48 ; 1 Hale, 32 ; 1 Russ. on Cr, 7 ; 4 
 
 Mason, 28 ; U. S. v. Forbes, Crabbe, Black. Com. 26. 
 558; U. S. V. McGlue, 1 Curt. C. C. 1 ; 
 
 194
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 205. 
 
 eating drinks, as not to have been conscious of the moral turpitude 
 of the act, thej should find him not guilty."^ And expressly to 
 this very point is a more recent case, where a federal judge of high 
 authority told the jury that, if the defendant was " so far insane as 
 not to know the nature of the act, nor whether it was wrong or not, 
 he is not punishable, although such delirium tremens is produced 
 by the voluntary use of intoxicating liquors."^ 
 
 ' U. S. V. Clarke, 2 Cranch, C. C. R. 
 158 ; S. P. State v. Hundley, 40 Mo. 
 414. 
 
 2 U. S. V. McGlue, 1 Curtis, C. C. R. 
 1. This case Vfv. give in full : — 
 
 The prisoner, who was second officer 
 on board the barque Lewis, was in- 
 dicted for the murder of the first oflicer 
 of that vessel while on board. The 
 defence was insanity. The other facts 
 appear in the charge of the court. 
 
 Curtis, J. The prisoner is indicted 
 for the murder of Charles A. Johnson. 
 It is incumbent on the government to 
 prove the truth of every fact in the in- 
 dictment necessary in point of law to 
 constitute the oflence. These facts are 
 in part controverted, and in part, as I 
 understand the course of the trial, not 
 controverted ; and it will be useful to 
 separate the one from the other. That 
 there was an unlawful killing of Mr. 
 Johnson ; that the mortal wound was 
 inflicted by the prisoner at the bar ; that 
 this wound was given and the death 
 took i)lace on board the barque Lewis ; 
 that Johnson was the first, and the 
 prisoner the second officer of that ves- 
 sel at tlie time of the occurrence ; that 
 the vessel at that time was either on tlie 
 high seas, as is charged in one count, 
 or upon waters within the dominion of 
 tlie Sultan of Muscat, as is charged 
 in another count; and that tlie jiris- 
 oner was first brought into this district 
 after the commission of the alleged of- 
 fence — (h) not appear to be denied ; and 
 the evidence is certainly suflicient to 
 warrant vou in finding all these facts. 
 
 It is not upon a denial of either of these 
 facts that the defence is rested, but 
 upon the allegation by the defendant, 
 that at the time the act was done he 
 was so far insane as to be criminally 
 irresponsible for his act. And this 
 brings you to consider the remaining 
 allegation in tlie indictment wliicli in- 
 volves this defence. It is essential to 
 the crime of murder that the killing 
 should be from what the law denomi 
 nates malice aforethouglit, and the 
 government must prove this allegation. 
 Now, if you believe the evidence, 
 there can be no question, that the kill- 
 ing was malicious, provided the pris- 
 oner was at the time in such a condi- 
 tion as to be ca2:)able, in law, of malice. 
 If he was then so insane that the law 
 holds him irresponsible, it deems him 
 incapable of entertaining legal malice ; 
 and one main inquiry in this case is, 
 whether the i)risoner, when he struck 
 the blow, was so far insane as to be 
 held by the law irresponsible lor inten- 
 tionally killing Mr. Johnson. 
 
 Some observations have been made 
 by the counsel of each side resjjecting 
 the charactter of this defence. On the 
 one side it is urged that the defence of 
 insanity has become of alarming fre- 
 quency, and that there is rcjason to 
 believe that it is resorted to by great 
 ci'iminals to shield tliem fi'om tin; just 
 conse(|aences of tlu^ir crimes ; tliat 
 there exist in the community certain 
 theories concerning v, li.it is called 
 moral insanity, broug. t forward on 
 trials of this kind, tending t'),-ulivert 
 
 195
 
 § 205.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 When delirium tremens is set up as a defence, the prisoner must 
 show that he was under a delirium at the time the act was perpe- 
 
 the criminal Law, and render crimes 
 likely not to be punished. On the 
 other hand, the inhumanity and injus- 
 tice of holding him guilty of murder 
 who was not at the time of the act a 
 reasonable being, have been brought 
 before you in the most striking forms. 
 
 These observations of the counsel on 
 both sides are worthy of your atten- 
 tion, and their effect should be to cause 
 you to follow steadily, carefully, and 
 exactly, the rules of law upon this 
 subject. The general question, whe- 
 ther the prisoner's state of mind when 
 he struck the blow was such as to ex- 
 empt him from legal responsibility, is 
 a question of fact for your decision. 
 But there are certain rules of law 
 which yon are bound to apply, and 
 the court, upon its responsibility, is to 
 lay down ; and these rules, when ap- 
 plied, will conduct you to the only 
 safe decision. 
 
 You will observe, then, that this de- 
 fence of insanity is to be tested and 
 governed by principles of law, and not 
 by any loose general notions whicli 
 may be afloat in the community, or 
 even the speculations of men of science ; 
 and I now proceed to state to you such 
 of theui as are applicable to tliis 
 case. 
 
 The first is, tliat the defendant must 
 be presumed to be sane till his insanity 
 is proved. Men, in general, are sufli- 
 ciently sane to be responsible for their 
 acts. To be irresponsible because of 
 insanity is an exception to that general 
 rule. And, before any man can claim 
 the benefit of such an exception, he 
 must prove that he is within it. 
 
 You will, therefore, take it to be tlie 
 law, that the prisoner is not to be ac- 
 quitted upon the ground of insanity, 
 
 196 
 
 unless upon the whole evidence you 
 are satisfied that he was insane when 
 he struck the blow. 
 
 The next inquiry .is, What is meant 
 by insanity ? What is it which exempts 
 from punishinent, because its existence 
 is inconsistent with a criminal intent ? 
 Clearly, it is not every kind and de- 
 gree of insanity which is sufficient. 
 There are, undoubtedly, persons of 
 great general ability, filling important 
 stations in life, who, upon some one 
 subject, are insane. And there are 
 others whose minds are such that the 
 conclusions of tlieir reasons and the 
 results of their judgments are very far 
 from right. And others whose pas- 
 sions are so strong, or whose con- 
 science, reason, and judgment are so 
 weak, so perverted, tliat tiiey may, in 
 some sense, be denominated insane. 
 But it is not the business of the law to 
 inquire into these peculiarities, but 
 solely wliether the person accused was 
 capable of having, and did have, a 
 criminal intent. If he had, it pun- 
 ishes liiui ; if not, it holds him dispuu- 
 ishalile. And it sup^jlies a test, by 
 which the jury is to ascertain whether 
 the accused be so far insane as to be 
 irresponsible. 'I'liat test is the cajjacity 
 to distinguish between riglit and wrong 
 as to the particular act with wliicli he 
 is cliarged. If lie understands the 
 nature of tlie act, if lie knows tliat it is 
 criminal, and that if he does it he 
 deserves punishment, then he is not 
 so far insane as to be exempt from re- 
 sijonsibility. But, if he is under such 
 delusion as not to understand the 
 naturi! of the act, and lias not reason 
 and judgnieiit to know that he is de- 
 serving of punishment, then he is not 
 responsible. This is the test which
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CR[ME. [§ 205. 
 
 trated, there being no presumption of its existence from the ante- 
 cedent fits from which he has recovered.^ 
 
 the law prescribes, and which you are 
 to apply in the present case. 
 
 It is asserted by the prisoner that 
 when he struck the blow he was suffer- 
 ing under a disease known as (kliriu/n 
 tremens. He has introduced evidence 
 tending to prove his intemperate drink- 
 ing of ardent spirits during several 
 days before the time in question, and 
 also certain effects of this intemperance. 
 Physicians of great eminence, and par- 
 ticularly experienced in the observation 
 of this disease, have been examined on 
 both sides. They were not allowed 
 to give their opinions upon the case ; 
 because the case, in point of fact, on 
 which any one might give his opinion, 
 might not be the case which you, upon 
 the evidence, would find ; and there 
 would be no certain means of knowing 
 wliether it was so or not. It is not the 
 province of an expert to draw infer- 
 ences of fact from evidence, but simply 
 to declare his opinion upon a known 
 or hypotlietical state of facts ; and 
 therefore the counsel on each side liave 
 put to the physicians such states of 
 facts as they deem warranted by the 
 evidence, and have taken their opin- 
 ions thereon. If you consider that any 
 of these states of fact put to the phy- 
 sicians are proved, then the opinions 
 thereon are admissible evidence, other- 
 wise they are not applicable to this 
 case. And here I may remark, that 
 although in general witnesses are held 
 to state only facts, and are not allowed 
 to give their opinions in a court of law, 
 yet this rule does not exclude the 
 opinions of those whose professions, 
 and studies or occupations, hav(^ ren- 
 dered them peculiarly skilful concern- 
 
 ing particular questions. We take the 
 opinion of physicians in this case for 
 the same reason that we resort to them 
 in our own cases out of court, because 
 they are believed to be better able to 
 form a correct opinion upon a subject 
 within the scope of their studies than 
 men in general. But these opinions, 
 though proper for your consideration, 
 are, nevertheless, not binding on yon 
 against your own judgment, but should 
 be weighed, and, especially where they 
 differ, compared by you, and such effect 
 allowed to them as you think right. 
 Besides these opinions, the physicians 
 have also described to you the symp- 
 toms of the disease delirium tremens. 
 They all agree that it is a disease of a 
 very strongly marked character, and 
 as little liable to be mistaken as any 
 known in medicine. Dr. Bell says the 
 symptoms are — 
 
 "1. Delirium, taking the form of 
 apprehensiveness on the part of the 
 patient. He is fearful of something ; 
 imagines demons and snakes around 
 him. In attempting to escape, he will 
 attack others as well as injure himself. 
 But he is more apprehensive of receiv- 
 ing injury than desirous of inflicting 
 it, excej)t to escape. He is generally 
 timid and irresolute, and easily pacified 
 and controlled. 
 
 "2. Sleeplessness. I believe r/e/iVjMm 
 tremens cannot exist without this. 
 
 " 3. Tremulousness, especially of the 
 hands, but showing itself in the; limbs 
 and the tongue. 
 
 "4. After a time sleep occurs, and 
 reason thus returns ; usually the sleep 
 comes on in not less tlian three days, 
 dating from the last sleep. At first it 
 
 ' State V. Sewell, 3 .Jones L. (N. C.) 250. As to general presum[)tiou aris- 
 ing from prior insanity, see § 24(j. 
 
 197
 
 § 206.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 § 206. To an indictment in Delaware, for larceny, the defence 
 was that the prisoner was so drunk as to render him irresponsi- 
 
 is broken ; then this is followed by a 
 profound sleep, lasting six or eight 
 hours, from which the patient awakes 
 sane." 
 
 Dr. Steadnian, after describing' its 
 symptoms substantially as Dr. Bell 
 did, says its access may be very sud- 
 den, and he has often known it first to 
 manifest itself by the patients attack- 
 ing those about them, regarding them 
 as enemies ; that a case may terminate 
 in two days, and rarely lasts more 
 than four days. 
 
 Regarding these accornts of the 
 symptoms of this disease, you will in- 
 quire whether the evidence proves that 
 they existed in this case ; and whether 
 the previous habits and the intemj)er- 
 ate use of ardent spirits, from wliich 
 this disease springs, are shown ; and 
 whether the recovery of the prisoner 
 corresponded with the course and ter- 
 mination of the disease of deliriiun tre- 
 mens as described by the physicians. 
 
 It is not denied, on the part of the 
 government, that the prisoner had 
 drank intemperately of ardent spirits 
 during some days before the occurrence. 
 But it is insisted that he had continued 
 to drink down to a short time liefore 
 the homicide ; and that wlani he struck 
 the blow it was in a fit of druiiktni 
 madness. And this renders it neces- 
 sary to instruct you concerning the law 
 upon the state of facts whicli the pros- 
 ecutor asserts existed. 
 
 Although delirium tremens is the result 
 of intemperance, and therefore in some 
 sense is voluntarily brought on, yet it 
 is distinguishable, and by the law is 
 distinguished, from that madness which 
 sometimes accompanies drunkenness. 
 
 If a person suffering under delirium 
 tremens is so far insane as to render him 
 
 198 
 
 irresponsible, the law does not punish 
 him for any crime he may commit. 
 
 But, if a person commits a crime 
 while intoxicated, under the immediate 
 influence of liquor, the law does punish 
 him, however mad he may have been. 
 It is no excuse, but rather an aggra- 
 vation of his offence, that he first de- 
 prived himself of reason before he did 
 the act. There would be no security 
 for life or property if men could com- 
 mit crimes witli impunity, provided 
 they would first make themselves 
 drunk enough to cease to be reasonable 
 beings. And, therefore, it is a very 
 important inquiry in this case whether 
 this homicide was committed while the 
 prisoner was suffering under that 
 marked disease of delirium tremens, or 
 in a fit of drunken madness. If the 
 prisoner while sane made himself in- 
 toxicated, and while intoxicated com- 
 mitted a murder by reason of insanity 
 which was one of the consequences of 
 that intoxication, then he is responsi- 
 ble in point of law, and must be pun- 
 ished. This is as clearly the law of 
 the land as the other rule, which ex- 
 empts from punishment acts done 
 under delirium tremens. It may some- 
 times be difficult to determine under 
 which rule the accused comes. But it 
 is tlie duty of the jury to ascertain 
 from the evidence on which side this 
 case falls, and to decide accordingly. 
 
 It may be material for you to know 
 on which party is the burden of proof 
 in this part of the case. It is incum- 
 bent on the prisoner to satisfy you that 
 he was insane when he struck the 
 blow, for the law presumes every man 
 to be sane till the contrary is proved. 
 But, if the contrary has been proved, 
 the law does not presume that the in-
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 206. 
 
 ble. Judge Wotten charged the jury that drunken- Delirium 
 ness was no excuse or palliation for a crime, but drunken- fro^"fj.enzv 
 ness long continued produces the disease of mania-cL- °*' <i"nk. 
 potu, which deprives the party of reason, and incapacitates him 
 from distinguishing between right and wrong. In this stage it 
 becomes a kind of insanity. The jury would have to distinguish 
 between the mere frenzy of drunkenness, and the fixed insanity 
 produced by continued dissipation. If the prisoner was in the 
 
 sanity of the prisoner arose from any 
 particular cause ; and it is incumbent 
 on the party which asserts that it did 
 arise from a particular cause, and that 
 the prisoner is guilty by law because 
 it arose from that cause, to make out 
 this necessary element in the charge to 
 the same extent as every other element 
 in it. For the charge then assumes this 
 form — that the prisoner committed a 
 murder, for which, though insane, he 
 is responsible, because his insanity was 
 produced by and accompanied a state 
 of intoxication. The government must 
 satisfy you of these facts, which are 
 necessary to the guilt of the prisoner 
 in point of law. If you are convinced 
 that the prisoner was insane to such 
 an extent as to render him irresponsi- 
 ble, you will acquit him, unless you 
 are also convinced that his insanity 
 was produced by intoxication, and ac- 
 companied that state ; in which case 
 you will find him guilty. 
 
 The prisoner was acquitted. 
 
 A note in the American Journal of In- 
 sanitfi for July, 1856, says : — 
 
 "This distinction, between delirium 
 tremens and temporary madness induced 
 by intoxication, is laid down in The 
 United States v. Drew, 5 Mason, 28; 
 and (in England) in William Rennie's 
 case, 1 Lewin, C. C. 70. In the latter 
 case, Holroyd, J., said : ' Drunkenness 
 is not insanity, nor does it answer to 
 what is termed an unsound mind, un- 
 
 less the deranrjement which it causes becomes 
 fixed and continued by the drunkenness 
 being habitual, ayid therebij rendering the 
 party incapable of distinguishing between 
 right and wrong.'' That mere drunken- 
 ness is no excuse for crime is very 
 clearly settled by many decisions both 
 in this country and in England. Corn- 
 well V. The State, Mart. & Y. 147, 149 ; 
 Bennet v. The State, ib. 133 ; The State 
 V. Turner, 1 Wright's Ohio, 20; The 
 State V. Thompson, ib. 617 ; Schaller 
 V. The State, 14 Missouri, 502; The 
 State V. John, 8 Ired. 330 ; Pirtle v. 
 The State, 9 Humph. 663 ; Kelley v. 
 The State, 3 Smedes & M. 518; The 
 United States i'. Clarke, 2 Cranch, C. 
 C. R. 158. But, though drunkenness 
 is not of itself a complete defence to 
 crime, as insanity is, yet it may be ad- 
 missible to the jury as evidence of the 
 intent, in certain cases, with which the 
 act was done. Thus, in Pigman v. 
 The State, 14 Ohio, 555, it was held, 
 on an indictment for passing counter- 
 feit money knowing it to be counterfeit, 
 that the drunkenness of the prisoner 
 at the time of passing was proper for 
 the consideration of the jury in de- 
 termining whetlier he kncio the bill to 
 be counterfeit. See, also. The State v. 
 McCants, 1 Spears, 384 ; Pennsylvania 
 V. M'Fall, Addison, 255 ; Swan v. Tlie 
 State, 4 Humph. 136 ; Pirtle v. The 
 State, 9 ib. 663 ; Ilaile i: The State, 11 
 ib. 154." 
 
 199
 
 § 207.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 latter condition he could not be held responsible, otherwise he 
 ought to be convicted.^ 
 
 2. Insanity immediately produced hy intoxication does 7iot destroy 
 responsibility where the patient, when sane and responsible, made 
 himself voluntarily intoxicated. 
 
 § 207. Drunkenness, so long as it does not prostrate the facul- 
 ties, cannot be distinguished from any other kind of pas- 
 Mere . ' ° . -^ ' 
 drunken- sion. If the man who is maddened bj an unprovoked 
 
 not^void attack upon his person, his reputation, or his honor, be 
 respousi- nevertheless criminally responsible — if hot blood form no 
 defence to the fact of guilt — it would be a most extraor- 
 dinary anomaly if drunkenness voluntarily assumed should have that 
 eifect, independently of all extraneous provocation wliatever. If, as 
 is pretended — or else there is no ground for the exception — drunken- 
 ness so incapacitates the reason as to make it at least partially 
 incapable of distinguishing between right and wrong, or else so 
 inflames the passions as to make restraint insupportable, then comes 
 in the familiar principle that the man who voluntarily assumes an 
 attitude or does an act which is likely to produce death in others, 
 is responsible for the consequences, even though he had at the time 
 no specific intentions to take the life of any one. Thus, if a man 
 breaking an unruly horse wilfully ride him among a crowd of per- 
 sons, the probable danger being great and apparent, or if a work- 
 man out of sport or mischief slide a plank from the top of a roof 
 into a crowded street, or if a manufacturer deliberately and know- 
 ingly leave in the cellar of an uninhabited house a keg of powder, 
 and death ensue, it is murder at common law.^ And so it must 
 also be held that the steamboat captain wlio deliberately dashes iiis 
 boat into a crowd of smaller craft, so that life is taken, is in like 
 manner responsible. There can be no question as to this. The 
 man who voluntarily arms himself with weapons of destruction, and 
 then throws them hap-hazard among the innocent or unoifending, 
 without even the excuse of specific malice or provocation, is at least 
 as dangerous as the assassin who picks out his victim in advance. 
 Against the last there may be some checks ; against the first, none. 
 
 • State V. McGonigal, 5 Ilarr. 510. 2 See Wh. Cr. L. 8th ed. §§ 343 et 
 
 seq. 
 
 200
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 209. 
 
 Caution may ward off the one. or innocence escape it; but to the 
 other the most innocent and kindliest would be as likely to fall 
 victims as the most malevolent. 
 
 § 208. The safety of the community, in fact, requires that this 
 rule should be observed. Every murderer would drink 
 to shelter his intended guilt. There never could be a necesVa^iy 
 
 conviction for homicide if drunkenness avoid responsi- to public 
 
 . safety, 
 
 bility.' As it is, some of the most premeditated homi- 
 cides are committed under the stimulus of liquor. The guilty pur- 
 pose is at first sedately conceived, but there are few men whose 
 temperaments are so firmly knit as to enable them to enter a scene 
 of blood without first fortifying themselves for the task to be per- 
 formed. The head dreads the heart's cowardice, and seeks to insure 
 against it by drink. And, if the assassin does not take liquor to 
 strengthen his nerves, he wull take it to avoid conviction. There 
 would be no species of deliberate homicide, under such a dispensa- 
 tion, that would not avoid punishment. It would be the undelibe- 
 rate only that would be made responsible. 
 
 § 209. The tenor of authority to this effect is clear. Even the 
 German text writers, some of whom attenuate to so thin „ . • , 
 
 ' Sustained 
 
 a texture the doctrine of moral responsibilitv, do not ijy all 
 
 11 11 1 p *^ -1- Ti authority. 
 
 undertake to treat drunkenness as a defence, feir E. 
 Coke does not go beyond the tenor of Roman as Avell as of English 
 writers when he says, "As for a drunkard who is volmitarius 
 dcemon, he hath, as has been said, no privilege thereby, but, what 
 hurt or ill soever he doth, his drunkenness doth aggravate it. 
 Omne crimen ehrietas et incendit et detegit^^ And, although 
 drunkenness cannot now be said to aggravate a crime in a judicial 
 sense, yet it is well settled that it forms no defence to the fact of 
 guilt. Thus Judge Story, in a case already cited, after noticing 
 that insanity, as a general rule, produces irresponsibility, went on 
 to say : "An exception is, when the crime is committed by a party 
 while in a fit of intoxication, the law allowing not a man to avail 
 himself of the excuse of his own gross vice and misconduct, to 
 shelter himself from the legal conse(|uences of such crime." Lord 
 Hale says: " Tiie third sort of madness is that which is dementia 
 ajfectata, namely drunkenness. This vice doth dej)rivc a man of 
 
 See supra, § 92. 2 Co. Litt. 247, a. 
 
 201
 
 § 210.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 his reason, and puts many men into a perfect or temporary frenzy ; 
 but by the laws of England, such a person shall have no privileges 
 by his voluntarily contracted madness, but shall have the same 
 judgment as if he were in his right senses."^ And so Parke, B., a 
 very authoritative English crown judge, said to a jury in 1837 : 
 " I must also tell you that, if a man makes himself voluntarily 
 drunk, it is no excuse for any crime he may commit whilst he is so ; 
 he takes the consequences of his own voluntary act, or most crimes 
 would go unpunished."^ And Alderson, B., said in 1836 : " If a 
 man chooses to get drunk, it is his own voluntary act; it is very 
 different from madness which is not caused by any act of the person. 
 That voluntary species of madness which it is in a party's power 
 to abstain from, he must answer for."^ In harmony with this is 
 the whole current of English authority.* 
 
 § 210. The law in this country is that voluntary drunkenness, 
 _ , not amounting to permanent insanity, is no defence to 
 
 Drunken- . . 
 
 ncps adniis- the factum of guilt ; the only point about which there 
 prove spe- has been any doubt being the extent to which evidence 
 cihc intent. ^^ drunkenness is receivable to determine the exactness 
 of the intent or the extent of deliberation. And on this point the 
 prevalent opinion is that evidence of drunkenness at the time of 
 the offence is admissible to disprove specific intent or deliberation.' 
 
 • 1 Hale, 7; 4 Black. Com. 2G ; a full statement and classification of all 
 Wharton's C. L. {in loco) ; 1 Gabbett, tlie American cases. 
 
 C. L. 9. 5 Ij^ Rogers's case, wliicli came up in 
 
 2 R. V. Thomas, 7 C. & P. 817. 1858, before the New York court of 
 
 3 R. V. Meakin, 7 C. & P. 297. appeals, the law was thus stated by 
 
 * Burrow's case, 1 Lewin C. C. 75 ; Denio, J. : " Where a principle of law 
 Rennie's case, 1 Lewin C. C. 7(5 ; 1 is found to be well established by a 
 Russel on Cr. 8; Wh. Cr. L. 8th ed. seriesof authentic precedents, and espe- 
 § 50. In a very recent English case it cially where, as in this case, there is 
 was held that thongh drunkenness is no conflict of authority, it is unneces- 
 uo excuse, delirium caused by drink- sary for the judges to vindicate its 
 ing and differing from drunkenness, if wisdom or policy. It will, moreover, 
 it produces such a degree of madness, occur to every mind that the principle 
 even for a time, as to render a person mentioned is absolutely essential to 
 incapable of distinguishing right from the protection of life and property. In 
 wrong, relieves him from criminal re- the forum of conscience there is no 
 sponsibility. R. r. Davis, 14 Cox C. C. doubt considerable difference between 
 563. See a note to this case as reported murder deliberately planned and exe- 
 iu 28 Moak's English Reports, 657, for cuted by a person of unclouded intel- 
 
 202
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 211. 
 
 § 211. A humane qualification of the ohl law was in 1870 recog- 
 nized by the supreme court of Michigan, in an opinion of much 
 
 lect, and the reckless taking of life by 
 one infuriated by intoxication : but 
 human laws are based upon considera- 
 tions of policy, and look rather to the 
 maintenance of personal security and 
 social order, than to accurate discrimi- 
 nation as to the moral qualities of in- 
 dividual conduct. But there is in 
 truth im injustice in holding a person 
 responsible for his acts committed in a 
 state of voluntary intoxication. It is 
 a duty which every one owes to his 
 fellow-men, to say nothing of more 
 solemn obligations, to preserve, so far 
 as it is in his power, the inestimable 
 gift of reason. If it be perverted or 
 destroyed by fixed disease, though 
 brought on by bis own vices, the law 
 holds him not accountable. But, if by 
 a voluntary act he temporarily casts off 
 the restraints of reason and conscience, 
 no wrong is done him if he is consid- 
 ered answerable for any injury which 
 in that state he may do to others, or to 
 society. 
 
 "Before proceeding to examine the 
 judge's charge, it is necessary to state 
 one other principle connected with the 
 subject of intoxication. I am of opin- 
 ion that, in cases of homicide, the fact 
 that the accused was under the influ- 
 ence of intoxication may be given in 
 evidence in his behalf. The effect 
 which the evidence ought to have upon 
 the verdict will depend upon the other 
 circumstances of the case. Thus, in 
 Rex r. Carroll, which was a case of 
 murder by stabbing, there was not, as 
 the court considered, any provocation 
 on the part of the deceased, and it was 
 held that the circumstance that the 
 prisoner was intoxicated was not at all 
 material to be considered. Rex r. 
 M(;akin was an indictment for stab- 
 bing with a fork with intent to murder ; 
 
 and it was shown that the prisoner 
 was the worse for liquor. Alderson, 
 Baron, instructed the jury that, with 
 regard to the intention, drunkenness 
 might be adverted to according to the 
 nature of the instrument used. 'If,' 
 he said, ' he uses a stick, you could 
 not infer a malicious intent so strongly 
 against him if drunk, if he made an 
 intemperate use of it, as you would if 
 he had used a different kind of a wea- 
 pon ; but, where a dangerous instru- 
 ment is used, which, if used, must 
 produce a grievous bodily harm, drunk- 
 enness can have no effect upon the 
 consideration of the malicious intent 
 of the party.' In Rex v. Thomas, for 
 malicious stabbing, the person stabbed 
 had struck the prisoner twice with his 
 fist, when the latter, being drunk, 
 stabbed him, and the jury were charged 
 that drunkenness might be taken into 
 consideration where what the law 
 deems sufficient provocation has been 
 given, because the question in such 
 cases is, whetlier the fatal act is to be 
 attributed to the passion of anger ex- 
 cited by the previous jjrovocation ; and 
 that passion, it was said, is more easily 
 excitable in a person when in a state 
 of intoxication than when he is sober ; 
 so, it was added, where the question is, 
 whether words have been uttered with 
 a deliljerate purpose, or are merely 
 low and idle expressions, the drunken- 
 ness of the person uttering them is 
 proper to be considered. But, if there 
 is really a previous det(!rmination to 
 r(^sent a slight affront in a barbarous 
 manner, the state of drunkennciss in 
 which the prisont^r was ought not to 
 bo regarded, for it would furnisli no 
 excuse. 
 
 " It most generally happens, in homi- 
 cides committed by drunken mou, that 
 
 203
 
 § 211.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 force. If a person (so it has been there held) is subject to a heredi- 
 tary or other type of insanity liable to be excited by slight amounts 
 
 the condition of the prisoner would 
 explain or give character to some of his 
 language, or some part of his conduct, 
 and, therefore, I am of opinion that it 
 would never be correct to exclude the 
 proof altogether. That it would some- 
 times be right to advise the jury that 
 it ought to have no influence upon the 
 case, is, I think, clear from the fore- 
 going authorities. In a case of length- 
 ened premeditation, of lying in wait, 
 or where the death was by poisoning, 
 or in the case of wanton killing without 
 any provocation, such an instruction 
 would plainly be proper. 
 
 "Assuming the foregoing positions 
 to be established, I proceed to examine 
 the exception to the charge of the 
 judge. It is difficult to know precisely 
 what was meant by the request to 
 charge ; but 1 think its sense may be 
 expressed thus : that drunkenness 
 might exist to such a degree, that nei- 
 ther an intention to commit murder, 
 nor a motive for such an act, could be 
 imputed to the prisoner. It was there- 
 fore asked that it should be left to the 
 jury to determine whether such a de- 
 gree of intoxication had been shown ; 
 and that they should be instructed 
 that if it had, the prisoner should be 
 found guilty of manslaughter only. 
 We must lay out of view as inapplica- 
 ble, the case of a person who had be- 
 come insensible from intoxication, and 
 who was performing an act unaccom- 
 panied by volition. There was nothing 
 in the evidence to show that the pri- 
 soner's conduct was not entirely under 
 the control of his will, or which would 
 render it possible for the jury to find 
 that he did not intend to stab the de- 
 ceased with his knife. The mind and 
 will were no doubt more or less per- 
 verted by intoxication, but there was 
 
 204 
 
 no evidence tending to show that they 
 were annihilated or suspended. As- 
 suming, therefore, that the request did 
 not refer to such a hypothesis, the only 
 other possible meaning is that it sup- 
 poses the jury legally might find that 
 the j)risoner was so much intoxicated 
 that he could not be guilty of murder 
 for the want of the requisite intention 
 and luotive, and the request was that 
 they might be so instructed. This 
 would be precisely the same thing as 
 advising them that they might acquit of 
 murder on account of the prisoner's 
 intoxication, if they thought it suffi- 
 cient in degree. It has been shown that 
 this would be opposed to a well-estab- 
 lished principle of law. The judge 
 was not at liberty so to charge, and 
 the exception to his refusal cannot be 
 sustained. What he did charge on the 
 subject of intoxication was more favor- 
 al)le to the prisoner than hf had a 
 right to claim. It implies that if he 
 was so far intoxicated as to be deprived 
 of his reasoning faculties, it was an 
 excuse for the crime of murder, or, as 
 perhaps it was intended to state, that 
 he could not be guilty of murder. The 
 rule which I have endeavored to ex- 
 ])lain assumes that one may be con- 
 victed of murder, or of other crime, 
 though his mind be reduced by drunk- 
 enness to a condition which would 
 have call(*d for an acquittal if the ob- 
 liquity of mind had arisen from any 
 other cause. The judge ought to have 
 charged, that, if a man makes himself 
 voluntarily drunk, that is no excuse 
 for any crime he may commit while he 
 is so, and that he must take the con- 
 sequenc(! of his own voluntary act. 
 (Rex V. Thomas, supra.) The charge, 
 therefore, gave the prisoner the chance 
 of an acquittal to which he was not
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 212. 
 
 of alcoholic drinks — if, in consequence of indulging in such drinks, 
 his mental faculties become excited to diseased action to such extent 
 that he loses self-control, if he was ignorant of this eifect when so in- 
 dulging — then he will be regarded as rather insane than intoxicated, 
 and subject to the immunities of insanity.^ This is undoubtedly in 
 accordance with those analogies which gauge insane delusions by 
 the intellectual abilities of patient and not of critic, and which de- 
 clare that we are to measure a man's fears and passions by his 
 character and temperament, and not by our own.^ Dr. Krafft- 
 Ebing, in an essay published in 1871, has vindicated this position 
 psychologically with great power as well as delicacy of discrimina- 
 tion, lie establishes by copious proof the fact that there are some 
 temperaments which slight quantities of spirituous liquor make in- 
 sane, and he argues that such persons, if drinking ignorantly, or 
 entrapped into drink, should be covered, p7-o tanto, with the immu- 
 nities of insanity. 
 
 But, to constitute such mitigation of guilt, drunkenness must be 
 involuntary in the sense above stated. A contrary doctrine was 
 indeed intimated by Judge Robertson, of Kentucky, in an eccentric 
 opinion already adverted to ;^ but to view voluntary and inten- 
 tional drunkenness as an excuse is without authority either legal 
 or psychological.'* 
 
 § 212. The connection between drunkenness and insanity is thus 
 stated by Griesinger : "• That intoxication, when carried to a cer- 
 tain degree, as a dreamy condition with numerous hallucinations 
 and illusions, really resembles insanity, is easily understood. Some- 
 times we see individuals who, after partaking of a relatively small 
 quantity of spirits, and without being in a state of deep intoxica- 
 tion, but retaining fully their consciousness, present a great ten- 
 entitled ; but this was not an error 463. When drunkenness is voluntary, 
 of which he could take advantage." this position is without warrant. For 
 People r. Rogers, 18 N. Y. 9. See also review see 23 Am. Journ. of Insan. 1. 
 Frierj v. People, 54 Barb. 319 ; 2 ' Roberts v. People, 19 Mich. 401. 
 Keyes, 424. 2 See §§ 34-60, 200. See essay by 
 
 In Smith v. Com., 1 Duvall, 224, Dr. George Cook, 18 Am. Journ. of Ins. 
 Judge Robertson startled the comniu- 321. See also 19 ibid. 448. 
 nity, by stating that drunkenness may ^ Smith ;;. (,"om., 1 Duv. 224. 
 be an excuse for crime as a " transient * See an able review in 23 Am. Journ. 
 insanity." This, however, is repu- of Ins. 1 ; and S(!e supra, § 200. 
 diated in Shannalian v. Com., 8 Bush, 
 
 205
 
 § 213.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 dency to commit very extravagant, noisy, and foolish acts ; a cir- 
 cumstance which may be truly considered as a symptom of predis- 
 position to mental disease. 
 
 "• Moreover, there occur in drunkards sudden convulsive states 
 which resemble epileptic attacks, and which are sometimes followed 
 by a condition of forgetfulness and tranquil delirium, at other times 
 by outbreaks of furious delirium, which has been termed the con- 
 vulsive form of intoxication. 
 
 " The habitual drunkard, in whom the habit is already far ad- 
 vanced, presents also, even when he is not in a state of intoxication, 
 many signs which indicate the existence of an advancing chronic 
 disease of the brain, and which make him closely resemble the 
 mentally diseased. Indeed this condition may gradually pass into 
 insanity, and particularly into dementia ; and there are constantly 
 found in the brains of habitual drunkards, as in many of the insane, 
 the results of passive congestion — chronic opacities and thickenings 
 of the cerebral membranes. The appetite acquired by habit is so 
 powerful in the drunkard, the ideas which might oppose it are so 
 weak, and the will has become so paralyzed, that he, even though 
 he is aware that he renders himself despised and contemptible, 
 undermines his constitution, disturbs his domestic happiness, ruins 
 his business, and every day postpones the good resolution which he 
 perhaps has made. 
 
 " The craving, the dizziness, the dulness of the senses, the mus- 
 cular feebleness, the stomach complaints from which he suffers, are, 
 each time he partakes, alleviated for the moment, and it may, per- 
 haps, be partly owing to the fact that these disorders require each 
 day to be remedied that drunkenness is often so inveterate." 
 
 § 213. " Of all the various forms of chronic insanity, drunken- 
 ness especially appears to possess much in common with general 
 paralysis. Besides, incompletely developed forms, which in a 
 medico-legal point of view are often very difficult to judge of, are 
 very common. 
 
 '' These slight chronic mental anomalies observed in the drunkard 
 are manifested by very apparent mental dulness, loss of the sense 
 of duty, and in general of all the higher sentiments : conscience 
 and the sense of truth are blunted, the intellect is generally en- 
 feebled, especially the memory, frequently slight or well-marked 
 hallucinations also exist. Numerous other anomalies of the nervous 
 20t3
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 214. 
 
 system also present themselves ; tremors of the hands and of the 
 tongue, deadening of the sense of sight and of touch, debility of 
 the genital organs ; the patient has formications and cramps in his 
 limbs, giddiness, sometimes epileptic attacks of greater or less 
 severity ; sooner or later marasmus and dropsy may set in, with 
 the usual local affections (gastric disease, emphysema, cirrhosis of 
 the liver, Bright's disease, etc.). The children of drunkards very 
 frequently die early from convulsions ; many of them are idiots, 
 imbeciles, or microcephalic ; or in later life they present the same 
 disposition to drunkenness, insanity, and crime. "^ 
 
 8. While intoxication 23er se is no defence to the fact of guilt, yet, 
 when the question of inteyit or j^remeditation is concer7ied,it mat/ 
 be proved for the purpose of dtttr/niuing tlie precise degree. 
 
 § 214. This position should be veiy jealously guarded, since, 
 
 as has already been remarked, there are few cases of 
 
 premeditated violent homicide, in which the defendant be deter- 
 
 does not previously nerve himself for the encounter by ™ct of ^^ 
 
 liquor, and there would in future be none at all, if -the d'"uuken- 
 
 ... . . uess. 
 
 fact of being in liquor at the time is enough to disprove 
 
 the existence of premeditation. The true view, therefore, would 
 seem to be, not that the fact of liquor having been taken is of any 
 value at all on the question of intent or premeditation, but that 
 when there is no evidence of premeditation aliunde, and where the 
 defendant is proved at the time of the occurrence to be in a state of 
 mental confusion of which drink was the cause, the fact of such 
 mental confusion may be received to show either that there was no 
 specific intent to take life, or that there was no positive premedita- 
 tion.^ In the cases arising out of the statutes resolving murder 
 into two degrees, in which the distinguishing test is a specific 
 intent to take life, this position receives several pregnant illustra- 
 tions. Thus, in the Philadelphia riot cases of 1844, where it was 
 shown that bodies of men were inflamed by sectarian and local pre- 
 judices, and blinded by a wild apprehension of danger to such an 
 extent as to make them incapable of discrimination, or of precise or 
 specific purpose, it was held that they could not be considered as 
 
 ' Griesinger's Mental Patli., Syden. * See cases detailed in WL. Cr. L. 
 
 ed. (18G7) § 100. 8th ed. § 51. 
 
 207
 
 § 214 ] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 guilty of that species of " Avilfiil and deliberate" murder which 
 constitutes murder in the first degree.' Precisely analogous to 
 this is the case of the drunkard, who in a fight slays an antagonist 
 without any sober reflection. In his intoxication he is incapable 
 of such mental action as the term " premeditate" describes. His 
 mental condition may be such as to deprive him of the capacity to 
 form a " specific intent" either to take life, or to do anything else. 
 And yet at the same time, at common law, the offence would, 
 strictly speaking, fall under the head of murder, for it would pos- 
 sess the incident of malice, and would be without due provocation. 
 Under such circumstances the offence properly is to be ranked as 
 murder in the second degree, and so has it repeatedly been decided 
 bv the courts.^ 
 
 ' Wharton on Homicide, 371, 2. 
 
 « Wli. Cr. L. Stli cd. §§ 52, oSl et 
 sef/., and cases there; citcnl. Com. v. 
 Jones, 1 Leigh, 612 ; Eoswell v. Com., 
 20 Gratt. 860 ; Com. v. Hart, 2 Brewst. 
 ,')4(j ; Com. r. Haggcrty, Lewis, Cr. L. 
 402; Pirth; v. State, 9 Humph. GG3 ; 
 Swan V. State, 4 Humph. 131 ; Penna. v. 
 M'Fall, Add. 2r)7 ; I'eople ;;. Hammell, 
 2 Parker, C. C. (N. V.) 223 ; Peoi)le v. 
 Robinson, ihid. 235. In a case in Ten- 
 nessee, the court thus speak : " Upon 
 the trial, there was evidence; that tin; 
 prisoner was intoxicated at the time 
 he connnitt(;(l the homicich;. Ujxtn tlie 
 subject of tlie defendant's intoxication 
 lie told the jury that 'voluntary in- 
 toxication is no excuse for tlie commis- 
 sion of ci-jiue ; on tlu; contrary it is 
 considered by our law as rather an ag- 
 gravation ; yet, if the d<;fendant was so 
 deeply intoxicated by spirituous li(|U()rs 
 at the time of the killing as to be in- 
 capable of forming in his mind a design 
 deliberately and prcnneditately to do 
 the act, the killing under sucli a state 
 of intoxication would only be murder 
 in the second degr(!e.' It is insisted 
 that his honor did not state; the prin- 
 ciple upon this subject, as it has been 
 ruled by this court. In the case of 
 
 208 
 
 Swan i\ The State, Judge Reese, who 
 delivered the oi)inion of the court, 
 says: 'But, although drunkenness in 
 point of law constitutes no excuse or 
 justification for crime, still, when the 
 nature and essence of a crime are made 
 to depend by law upon the peculiar 
 state and condition of the criminal's 
 mind at the time, and with reference 
 to the act done, drunkenness, as a mat- 
 ter of fact, atfecting such state and 
 condition of the mind, is a proper sub- 
 ject for consideration and inquiry by 
 the jury. The question in such case 
 is, what is the mental status ? Is it 
 one of self-possession, favorable to a 
 fixed purpose, by deliberation and pre- 
 meditation ; or did the act spring from 
 existing passion, excited by inadequate 
 provocation, acting, it may be, on a 
 peculiar tempernnu;nt, or upon one 
 already excited by ardent spirits ? In 
 such a case it matters not that the 
 l)rovocation was inadequate, or the 
 spirits voluntarily drank ; the question 
 is, did the act proceed from sudden 
 passion, or from deliberation or pre- 
 meditation ? What was the mental 
 status at the time of the act, and with 
 reference to the act ? To regard the 
 fact of intoxication as meriting con-
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 215. 
 
 § 215. The same general view is taken as to the question of 
 intent in other cases. Thus it is now the settled rule in England 
 
 sideration in such a case, it is not to 
 hold that drunkenness will excuse 
 crime, but to inquire whether the very 
 crime which the law defines and pun- 
 ishes has been in point of fact com- 
 mitted. In these remarks the court 
 intend to be understood as dis.tinctly 
 indicating, that a degree of drunken- 
 ness by which the party was greatly 
 excited, and which produced a state of 
 mind unfavorable to deliberation and 
 premeditation, although not so exces- 
 sive as to render the party absolutely 
 incapable of forming a deliberate pur- 
 pose, might be taken into considera- 
 tion by a jury, in determining whether 
 the killing was done with premedita- 
 tion and deliberation.' The whole sub- 
 ject was ably reviewed by Judge Tur- 
 ley, in the case of Pirtle v. The State. 
 In delivering the opinion of the court 
 in that case, the judge says, at page 
 671 : ' It will frequently happen neces- 
 sarily, when the killing is of such a 
 character as the common law desig- 
 nates as murder, and it has not been 
 perpetrated by means of poison, or by 
 lying in wait, that it will be a vexed 
 question, whether the killing has been 
 the result of sudden passion produced 
 by a cause inadequate to mitigate it to 
 manslaughter, but still sufficient to 
 mitigate it to murder in the second de- 
 gree, if it be really the true cause of 
 the excitement, or whether it has been 
 the result of premeditation and deli- 
 beration ; and in all such cases, what- 
 ever view is able to cast light upon the 
 mental status of the offenders is legiti- 
 mate proof; and among others, the fact 
 that he was at the time drunk ; not that 
 this will excuse and mitigate the of- 
 fence, if it were done wilfully, deliber- 
 ately, maliciously, and premcditately 
 (which it might well be, though the 
 VOL. I. — 14 
 
 perpetrator was drunk at the time) ; 
 but to show that the killing did not 
 spring from a premeditated purpose, 
 but sudden jjassion, excited by inade- 
 quate provocation, such as might rea- 
 sonably be expected to arouse sudden 
 passion and heat, to the point of taking 
 life, without premeditation and deli- 
 beration.' Here the court explicitly 
 lays down the rule to be, that in all 
 cases where the question is between 
 murder in the first and murder in the 
 second degree, the fact of drunkenness 
 may be proved, to shed light upon the 
 mental status of the offender, and there- 
 by to enable the jury to determine 
 whether the killing sprung from pre- 
 meditated purjjose, or from passion ex- 
 cited by inadequate provocation. And 
 the degree of dninkenness which may 
 then shed light upon the mental state 
 of the offender, is not alone that exces- 
 sive state of intoxication, which de- 
 prives a party of the capacity to frame 
 in his mind a design deliberately and 
 premcditately to do an act ; for the 
 court says that, in the state of drunk- 
 enness referred to, a party well may be 
 guilty of killing wilfully, deliberately, 
 maliciously, and premcditately ; and, 
 if he so kill, he is guilty as though he 
 were sober. The principle laid down 
 by the court is, that, when the question 
 is, can drunkenness be taken into con- 
 sideration in determining whether the 
 party be guilty of murder in the s(!Cond 
 degree, the answer nuist be, that it 
 cannot ; but, when the question is, 
 what was the actual mental state of 
 the perpetrator, at the time the act 
 was done, was it one of didiberation 
 and i)orpetration, tlum it is compcstent 
 to show any degree of intoxication that 
 may exist, in order that the jury may 
 judge, in view of such intoxication, 
 
 209
 
 § 215.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 that, thourrh drunkenness is no excuse for crime, it may be 
 taken into account by the jury when considering the 
 motive or intent of a person acting under its influence.^ 
 So, also, in an Ohio case, it was very properly held that, 
 when the charge was knowingly passing counterfeit money with 
 intent to cheat, the drunkenness of the defendant at the time of the 
 
 Same view 
 taken in 
 England as 
 refjards 
 intent. 
 
 in connection with all the other facta 
 ami circumstances, whether the act 
 was premeditately and deliberately- 
 done. The law often implies malice 
 from tlie manner in which the killing 
 was done, or the weapon with which 
 the blow was stricken. In such case 
 it is murder, though the perpetrator 
 were drunk. And no degree of drunk- 
 enness will excuse in such case, unless 
 by means of drunkenness an habitual 
 or fixed madness be caused. The law 
 in such cases does not seek to asci'rtain 
 the actual state of the perpetrator's 
 mind, for, the fact from which it is 
 implied having been i>roved, the law 
 presumes its existence, and ])roof in 
 opposition to this presumption is irre- 
 levant and inuilmissiblc. Hence a 
 party cannot sliovv Ik; was so drunk as 
 not to be capable of t-ntcrtaining a 
 malicious feeling. The conclusion of 
 law is against him. But, when the 
 question is, whether a party is guilty 
 of murder in the first degrei;, it be- 
 comes indisp(>nsable tliat tli<- jury 
 should form an opinion as to the ac- 
 tual state of miutl with whicli i)jis act 
 was done. All murder in tli<- liist de- 
 gree (except that conunittt'd by jioison, 
 and by lying in wait) must be jx-i-- 
 petrated wilfully, deliberately, mali- 
 ciously, and jiremeditately. The jury 
 must ascertain, as a matter of fact, 
 that the accused was in this state of 
 mind when the act was done. >'ow, 
 according to the cases of Swan '•. Tiie 
 State, and Pirtle v. The; sjtatc, any fact 
 that will shed light upon this subject 
 may be look(>d to by them, and may 
 
 210 
 
 constitute legitimate proof for their 
 consideration. And among other facts, 
 any state of drunkenness being proved, 
 it is a legitimate subject of inquiry, as 
 to what influence such intoxication 
 might have had upon the mind of the 
 offender, in the perj)etration of the 
 deed. We know that an intoxicated 
 man will often, upon a slight provoca- 
 tion, have his passions excited and 
 rashly perpetrate a criminal act. Now, 
 it is unijhilosophical for us to assume 
 that such a man would, in the given 
 case, be chargeable with the same de- 
 gree of premeditation and deliberation 
 that we would ascribe to a sober man, 
 perpetrating the same act upon a like 
 provocation. It is in this view of the 
 question, that this court held, in 
 Swan's case and in Pirtle's case, that 
 tlie drunkenness of a party might be 
 looked to by the jury, with the other 
 facts in the case, to enal)le them to de- 
 cide whether the killing was done de- 
 liberately and premeditately. But his 
 honor, the circuit judge, told the jury, 
 that drunkenness was an aggravation 
 of the olience, unless the defendant 
 was so deeply intoxicated as to be in- 
 capable of forming in his mind a design 
 delil)erately and premeditately to do 
 the act. In this charge there is error, 
 for which the judgment must be re- 
 versed. Reverse the judgment, and 
 remand the cause for another trial." 
 llaile r. State, 11 Humph. 154. 
 
 ' R. /•. (lamlen, 1 F. & F. 90; R. r. 
 Monkhouse, 4 Cox C. 0. 55; R. c 
 Stopford, 11 Cox C. C. (J43.
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 216. 
 
 offence was a fit subject for the consideration of the jury, there being 
 no ground to suppose that the defendant knew the money to be coun- 
 terfeit before he was drunk. ^ And when in England the defendant 
 Avas indicted for an attempt to commit suicide by drowning, and it 
 was alleged that she was at the time unconscious of the nature of 
 her act from drunkenness, Jervis, C. J., said to the jury: " If the 
 prisoner was so drunk as not to know what she Avas about, how can 
 you find that she intended to destroy herself?"^ 
 
 § 216. Beyond this the advance has been fluctuating. The 
 furthest step taken was in an English case, decided in tt , .., 
 1819,' where Holroyd, J. , is reported by Sir W. Russell, opinion 
 
 11 1 • • • ,1 1 -111 where pro- 
 
 who adopts his opinion as text law, to have said that the vocation 
 fact of drunkenness might be taken into consideration to ^^^^ ^ ' 
 determine the question whether an act was premeditated or done 
 only with sudden heat and impulse. This would make drunkenness 
 an item in every question of provocation or hot blood, and would 
 of course open the way to the same difficulties as to general policy, 
 which we have already pointed out in another connection. In 
 1835, however, this case was expressly repudiated by Parks, J., 
 who said, in referring to Holroyd, J.'s, language, as just given, 
 "Highly as I respect that late excellent judge, I differ from him, 
 and my brother Littledale agrees with me. He once acted upon 
 that case, but afterwards retracted his opinion. There is no doubt 
 that that case is not law. I think there would be no safety in 
 human life if it were to be considered as law."* But the very next 
 year, Alderson, B., in a case of stabbing, retraced at least a part 
 of the retreat which had been thus so emphatically sounded. " It 
 is my duty to tell you," he said, " that the prisoner being intoxi- 
 cated does not alter the nature of the offence. If a man chooses to 
 get drunk, it is his own voluntary act; it is very different 'from a 
 madness which is not caused by any act of the person. That 
 voluntary species of madness which it is in a party's power to 
 abstain from, he must answer for. Iloivever, with regard to the 
 intention,, drunkeiiiiess nuii/ perhapH he adverted to aecordiiig to the 
 
 ' Pigman r. State, 14 Ohio, 555 ; ^ jj. ^.^ Moore, reporteil Law Rep. 
 affirmed, but limited, in Nicliols r. (N. S.) 581, 3 C. k K. 319. 
 State, 8 Ohio St. 435. See also U. S. v. ^ R. v. Grindley, 1 Russ. on Cr. 9th 
 Roudeubush, 1 Bald. 514. ed. 12, note 2. 
 
 « R. V. Carrol, 7 C. & P. 145. 
 
 211
 
 § 217.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 nature of the instrument used. Jf a man uses a stick, you would 
 not infer a malicious intent so stroiigly against him, if drunk, 
 when he made an intemperate iise of it, as you would if he had 
 used a diferent kind of weapon; hut, tvhere a dangerous i^istru- 
 ment is used, which, if used, must produce grievous bodily harm, 
 drunkenness can have no effect on the consideration of the mali- 
 cious intent of the party:'^ Perhaps this is doing no more than 
 reiterating the principle we iiave already announced, that, when 
 there is evidence of sober premeditation, intermediate drunkenness 
 cannot be received to aflect the (piestion of intent ; but that, when 
 there is no such evidence, it can. And it would not be right to 
 strain further than this the following charge, in 1837, by Parke, B. 
 (to be distinguished from Park, J., whose opinion, two years before, 
 has been just noticed) : " I must tell you that, if a man makes 
 himself voluntarily drunk, that is no excuse for any crime he may 
 commit while he is so ; he must take the consequence of his own 
 voluntarv act ; or most crimes would otherwise be unpunished. 
 But drunkenness may be taken into consideration in cases where 
 what the law deems sufficient provocation has been given : because 
 the question is, in such cases, whether the fatal act is to be attri- 
 buted to the passion of anger, excited by the previous provocation, 
 and that passion is more easily excitable in a person when in a state 
 of intoxication, than when he is sober. So, where the question is 
 whether words have been uttered with a deliberate purpose, or are 
 merely low and idle expressions, the drunkenness of the person 
 uttering them is proper to be considered. But, if there is really a 
 previous determination to resent a slight affront in a barbarous 
 manner, the state of drunkenness in which the prisoner was ought 
 not to be regarded, for it would furnish no excuse. You will 
 decide whether the subsequent act does not furnish the best means 
 of judging what the nature of the previous expression really was."'^ 
 § 217. The American cases present the same general result, 
 depending in principle, if not in terms, on the position that, 
 Drunken- ■^^'''Oi'c, in prosecutions for violence, the encounter was 
 ucss rcie- suddcn, and the defendant, prior to such encounter, had 
 
 vaiit on / ' . ' 
 
 ibsue of no malice or old grudge, intoxication at the time of the 
 encounter can be taken into consideration, to ascertain 
 
 ' R. V. Meakin, 7 C k P. 207. « R. v. Thomas, 7 C. & P. <S17. 
 
 212
 
 INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 217. 
 
 whether the defendant, when under a legal provocation, acted from 
 malice or from sudden passion,^ and whether the act done was speci- 
 fically intended. But if malice or specific intent to do the criminal 
 act is proved aliunde, then intoxication at the time does not lower 
 the grade of offence.^ The same distinction is applicable, muto^u- 
 mutandis, to prosecutions for other offences. 
 
 [§§ 218-228 are omitted in this edition for the purpose of con- 
 densation.] 
 
 ' See Schaller v. State, 14 Mo. 502. 2 See cases in Wh. Cr. L. 8th ed. 
 
 § 54 et seq. 
 
 213
 
 § 230.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 CHAPTER VI. 
 
 INSANITY AS RELATED TO LIFE INSURANCE. 
 
 Question one of construction of policy, 
 
 § 229. 
 In England, " by his own hand or act" 
 
 covers all intentional suicide, § 230. 
 This view repudiated by supreme court 
 
 of U.S., § 231. 
 Test in New York, § 232. 
 Rule in Massachusetts and Maine, § 
 
 233. 
 Rule in other states, § 234. 
 Distinctive ruling in Kentucky, § 235. 
 
 Rule in England as to phrase "die by 
 suicide," § 236. 
 
 Rulings in this country, § 237. 
 
 " In the known violation of the law of 
 any state" does not extend to in- 
 sanity, § 238. 
 
 "Sane or insane" is a good condition, 
 § 239. 
 
 Right and wrong test not applicable, 
 § 240. 
 
 Suicide not conclusive evidence of in- 
 sanity, § 241. 
 
 § 229. The clauses in the insurance policies which provide that 
 
 the policies shall be void if the insured party kills him- 
 
 oue^of"cou- self, are usually worded in one of two ways. Either the 
 
 structiou phrase " shall die by his own hand or act" is used, or 
 of policy. 1 . 
 
 the shorter phrase, "■ shall die by suicide."^ We shall 
 now consider the constructions which have been put upon these 
 phrases by the various courts to whose judgment they have been 
 submitted. 
 
 5v 230. The first of these phrases was considered by the English 
 court of common pleas in 1842.- In 1838, the insured, 
 being, it was claimed at the time, of unsound mind, cast 
 himself from Vauxhall Ijridge into the Thames, and 
 was drowned. In an action on the policy, the jury 
 found that the insured " voluntarily threw himself into 
 the river, knowing at the time that he should thereby destroy his 
 life, and intending thereby to do so, but that at the time of com- 
 
 In Enirhuid 
 "by liis 
 own liiiiul 
 or act" 
 covers all 
 intentional 
 suicide. 
 
 ' For other forms see Bliss on Life R. 418; 5 M. 
 Ins. 2d ed. § 228. Ins. 1!. 280. 
 
 2 Borradaile r- Hunter, 5 Scott, N. 
 
 214 
 
 & G. 639 ; 2 Big. Life
 
 INSANITY AS RELATED TO LIFE INSURANCE. [§ 231. 
 
 raitting the act he was not capable of judging between right and 
 wrong." It was held by Maule, Erskine, and Coltman, JJ., that 
 on this verdict judgment should be entered for the defendant. Two 
 of the judges laid much stress on the fact that the words " die by 
 his own hands," and not " suicide," were used in the exception. 
 " When I find," says Erskine, J., " the terms ' shall commit suicide,' 
 that have been popularly understood and judicially considered as 
 importing an act of criminal self-destruction, exchanged for words 
 not hitherto so construed, it may, I think, be fairly inferred that 
 the terms adopted were intended to embrace all cases of intentional 
 self-destruction, unless it can be collected from the immediate con- 
 text that the parties used them in a more limited sense." 
 
 § 231. But the supreme court of the United States has not 
 assented to this construction. In a case brought before „^. . 
 
 " This view 
 
 it in 1872,^ the case of Borradaile v. Hunter was re- repudiated 
 ,., I-,,' 11 ir^i T by supreme 
 
 lied on as authoritative, and the words oi the policy court of 
 
 having been "die by his own hand," the fact that the ' ' 
 deceased took poison was argued to be conclusive in favor of the 
 insurance company. But Mr. Justice Hunt, in delivering the 
 opinion of the court (Strong, J., d is 8e7itte7ite^, said: '-We hold 
 the rule on the question before us to be this : If the assured, being in 
 the possession of his ordinary reasoning faculties, from anger, pride, 
 jealousy, or a desire to escape from the ills of life, intentionally 
 takes his own life, there can be no recovery. If the death is 
 caused by the voluntary act of the assured, he knowing and intend- 
 ing that his death shall be the result of his act, but when his rea- 
 soning powers are so far impaired that he is not able to understand 
 the moral character, the general nature, consequences, and effect of 
 the act he is about to commit, or when he is impelled thereto by an 
 insane impulse which he has not the power to resist, such death is 
 not within the contemplation of the parties to the contract, and the 
 insurer is liable." " Xor," said he, " do we see any ditterence, 
 for this purpose, in the meaning of the expressions commit suicide, 
 take his own life, or, die by his own hand." This opinion was 
 approved in the case of Insurance Co. v. Rodel;^ and it was held in 
 the latter case that evidence tending to show that the insured was 
 
 « Life Ins. Co. r. Terry, 15 WalL 580. « 95 U. S. 232. 
 
 215
 
 § 233.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 insane at the time of committin<f the act which caused his death 
 should not be taken from the jury, as it is for them to pass upon its 
 weight. 
 
 § 232. The court of errors of New York, in 1853, affirming a 
 Test in decision of the supreme court/ on a policy whose excep- 
 
 New York, ^jo,^ ^yas in the words "by his own hands," rejected, by 
 a vote of five to three, the construction of the English courts, and 
 held that " dying by his own hands" meant felonious and criminal 
 suicide, and that where the self-killing was insane the policy was 
 not avoided. This is substantially followed by the subsequent cases 
 in that state, but the " right and wrong" test was distinctly repu- 
 diated in the next case that arose f it being also maintained that 
 the former case of Breasted v. The Farmer's L. k T. Co. was distin- 
 guishable from the case of Life Ins. Co. v. Terry, as in the latter 
 case the (juestion of the capacity of the deceased to appreciate the 
 moral character of the act was not involved ; and that Breasted's 
 case was furthermore distinguishable from Borradaile v. Hunter, as 
 in that case the judge assumed that the act was voluntary, which 
 fact was not proved in Breasted's case. The conclusion was that to 
 take a case out of the proviso, on the ground of insanity, the assured 
 must have been so mentally disordered as not to understand that the 
 act he committed Avould cause his death, or he must have committed 
 it under the influence of some insane impulse which he could not 
 resist ; it Avould not be sufficient that his mind was so impaired that 
 he was not conscious of the moral obli([uity of his act. The later 
 cases follow this conclusion. ^ 
 
 § 233. In Massachusetts, in 18G2, it was ruled that where the 
 
 policy was conditioned to be void in case the assured 
 Kule in t i i i • i ^ • ■ ■, ^ ^ i,^ i 
 
 Mas.<aciiu- diou ov lus own hand, it was avoided by seli-destruction 
 
 Maine."^^ knowingly caused in a fit of insanity.^ Similar facts 
 
 appeared in a later case,^ in which the doctrine that inten- 
 
 ' Breasted v. The Loan Co., 8 N. Y. evidence of insanity and to decide 
 
 209. wliether it is sufficient to go to the 
 
 2 Van Zandt r. Ins. Co., .'J.") N. Y. jury and warrant a verdict. Fowler r. 
 169 ; 4 Big. Life Ins. Rep. 313. Ins. Co., 4 Lans. 202. 
 
 3 McClure v. Ins. Co. .5.5 N. Y. (551 ; * Dean c. Ins. Co., 4 Allen, 96. 
 Weed V. Ins. Co., 70 N. Y. 561 ; New- s Cooper r. Ins. Co., 102 Mass. 227 
 ton V. Ins. Co., 76 N. Y. 426. It is for (1869) ; 3 Big. Life Ins. Rep. 656. 
 
 the judge, consequently, to weigh the 
 
 216
 
 INSANITY AS RELATED TO LIFE INSURANCE. [§ 234:. 
 
 tional self-killing, though the party was at the time insane, avoided 
 
 a policy, was reaffirmed ; Chapman, C. J., saying that in this case 
 
 " there was no offer to prove the madness of delirium, or that the 
 
 act of self-destruction was not the result of the will and intention of 
 
 the party," etc. The proviso in that policy used the words "die 
 
 hy suicide," and the court held that there was no difterence between 
 
 the various forms in this respect, the object of all being to guard 
 
 against intentional suicide. The supreme court of Maine, also, 
 
 appears to approve of the doctrine that suicide will avoid a policy 
 
 unless it is unintentional or caused by delirium. For, in the only 
 
 case in which the subject has been treated by that court,^ though 
 
 it was held that the plaintiif in an action on a policy of insurance 
 
 could recover by showing that the party insured committed suicide 
 
 unintentionally in a fit of insanity, care was taken to say that 
 
 there was no intention of departing in this respect from the position 
 
 taken by the supreme court of Massachusetts. 
 
 § 234. A chai'ge which almost repeated the words of the New 
 
 York court in Van Zandt's case has been approved by ^^-^^ . 
 
 the supreme court of Minnesota;- and in like manner oti>er 
 
 states. 
 the court of appeals in Maryland^ affirmed a charge which 
 
 gave to the insured only the benefit of the proviso recognized by 
 the New York and Massachusetts cases ; and it seems to be gene- 
 rally thought that the great weight of authority in this country 
 sustains the ruling of these cases, that there can only be a recovery 
 if the deceased killed himself in a fit of insanity which over- 
 powered his reason, consciousness, and will. But the opinion of 
 the supreme court of the United States in Life Ins. Co. v. Terry, 
 which was said by the New York court of appeals to be obiter on 
 the question whether a consciousness that the act was wrong took the 
 insured out of the exception,^ has been approved, and on that vei-y 
 point, by a later decision of the supreme court, as was before 
 noticed.'^ And it has been expressly followed in Pennsylvania,® 
 
 ' Eastabrook r. Ins. Co., 54 Me. 224. see Gay v. Ins. Co., !) Blatch. 142 
 
 2 Schefl'er v. Ins. Co., 25 Minn. 534. Nimick v. Ins. Co., 3 Brevvst. 502 ; Co- 
 
 ' Ins. Co. V. Peters, 42 Md. 414. version i\ Ins. Co., 4 Big. L. Ins. Rep. 
 
 * Van Zandt's case, ubi supra. Itii) ; i"<)lIo\ving Life Ins. Co. c. T(!rry, is 
 
 * Supra, § 231. For circuit court Moort! v. Ins. Co., 3 Ins. L. J. 444. 
 cases deprived of their authority by ^ ins. Co. v. Groom, 8G Penn. St. 92. 
 the decision in Lif Ins. Co. v. Terry, In this case, it is true, the policy was 
 
 217
 
 § 235.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Georgia,^ and Louisiana,^ which makes a conflict of authority not 
 to be overlooked. It is to bo noticed that some cases rest on the 
 ground that insanity is a disease, and that as policies of life insur- 
 ance are especially designed to protect and provide against dis- 
 ease, such policies cover the case of suicide by insanity .^ And in 
 one case an examination of the authorities was declined as unprofit- 
 able, and the decision was made solely upon the ground of disease.^ 
 § 235. In 1869, the words, " if he shall die by his own hands 
 
 this policv shall be void," came up for construction be- 
 Distinctive .,*' c t , ^ • i •. 
 
 ruling in forc the supreme court ot Kentucky, in a case where it 
 
 Kentucky. ^^.^^^ avcrred " that the fatal shot was the involuntary off- 
 spring of a momentary paroxysm of moral insanity which subjected 
 his will and impelled the homicide beyond the power of self-control 
 or successful resistance." The court was equally divided on the 
 question whether this state of facts avoided the policy, though the 
 judges seem to have concurred in the opinion that there would be 
 no avoidance where the suicide was in " the madness of delirium." 
 The case, however, is chiefly remarkable for the bold statement of 
 
 wnrdcd "shall (li<! \>y suic.ido," but 
 in America the; diUcreut phrases art; 
 regarded as synonymous. Infra, § 237. 
 At the argument Sharswood, C. J., 
 asked the counsel if this were not so ; 
 but the point was not noticed in the 
 Opinion, and the opinion followed a 
 case in which tlie phrase used was, 
 "die by his own iiands." In the cas(! 
 ot Ins. Co. r. Lsett, 74 I'.'nn. St. 17(i, 
 the court helow charged : "If tlie as- 
 sured was not conscious of the act In* 
 was committing, hut acted untler an 
 insane im])ulse or delusion sufficient 
 to impair his understanding or will, or 
 if his reason was so far overthrown 
 by his mental condition that he was 
 incapabh' of exercJs'uKj Ida jndipncnt in 
 regard to the, consequences, the defendants 
 are liable ;" and, furthermore, nega- 
 tived one of the defendants' points, to 
 the elfect that there could be no r(!- 
 covery if at the time of his deatli the 
 assured was conscious thatdeath would 
 follow. This charge was affirmed. 
 
 218 
 
 These cases practically overrule Hart- 
 man V. Ins. Co., 21 Penn. St. 466, 
 where Black, C. J., said that standing 
 alone the words "die by his own 
 hands," mean any sort of suicide. 
 
 ' Life Association v. Waller, 57 Gra. 
 533 ; Merritt i\ Ins. Co., 55 Ga. 103. 
 
 2 Phillips V. Ins. Co., 26 La. Ann. 
 404. 
 
 3 Breasted r. Tlie Loan Co., 8 N. Y. 
 291) ; Ins. Co. v. Groom, 86 Penn. St. 
 92; Phadenhauer v. Ins. Co., 7 Keisk. 
 (Tenn.) 567. 
 
 < Ins. Co. V. Moore, 34 Mich. 41. 
 " Death l)y his own hands in the case 
 of one non coinjtos is as much the result 
 of disease as death by fever or con- 
 sumption," were the words of the 
 court; "the very object of life insur- 
 anci- is t() provide for death by disease 
 or in the ordinary course of nature." 
 And it was held that the policy could 
 only be avoided when the person was 
 felo de se, and there was criminality in 
 tlie act.
 
 INSANITY AS RELATED TO LIFE INSURANCE. [§ 236. 
 
 opinion bj Robertson, J., concurred in by Peters, J., that " there 
 may be moral as Avell as intellectual insanity, and essentially con- 
 tradistinguished from it."^ But this view was emphatically repu- 
 diated by Williams, C. J., with whom concurred Hardin, J., form- 
 ing, therefore, two out of the four judges by whom the case was 
 heard. "The doctrine of moral insanity," said Williams, C. J., 
 " ever dangerous as it is to the security of the citizen's life, and 
 pregnant as it is with evils to society, has but little or no applica- 
 tion to this case. Too uncertain and intangible for the practical 
 consideration of juries, and unsafe in the hands of even the most 
 learned and astute jurist, it should never be resorted to for exemp- 
 tion from responsibility save on the most irrefragable evidence, 
 developing unquestionable testimony of that morbid or diseased 
 condition of the affections or passions so as to conti'ol and over- 
 power or subordinate the will before the act complained of; for if 
 the act is to be evidence of moral insanity for the suicide, so it will 
 be for the homicide, the parricide, the seducer and the ravisher." 
 And, in respect to the position of the court below, that, if " at the 
 instant of the commission of the act his (the deceased's) ivill Avas 
 subordinated by any uncontrollable passion or emotion causing him 
 to do the act, it was an act of moral insanity, and they ought, if 
 they so believe, to find for the plaintiff," he declared that, " in all 
 the vague, uncertain, intangible, and indefined theories of the most 
 impracticable metaphysicians on psychology and moral insanity, no 
 court of last resort in England and America, so far as has been 
 brought to our knowledge, ever before announced such a startling, 
 irresponsible, and dangerous proposition of law." 
 
 § 236. In 1846, the question as to the construction of the phrase 
 " die by suicide," came before the English exchequer ^ , . 
 
 •^ ' _ ° '^ Rule in 
 
 chamber^ on the following facts: Louis Schwabe, in 1836, Eni^iand as 
 insured his life for ^£999 with the defendants, the excep- ''die by* 
 tion in this case being that " every policy effected by a s^'^^'^^- 
 person on his own life shall be void, if sucJi person shall commit 
 suicide, or die by duelling, or the hands of justice." Schwabe 
 died in 1845, and, on a suit on the policy, it was shown that he 
 voluntarily poisoned himself with sulphuric acid, under circum- 
 
 ' S(M3 for a fuller abstract of this N. S. Cli. r)3 ; Stormont v. Assurance 
 
 opinidii, supra, § 178. Co., 1 V. & F. 22; Dufaur v. Ins. Co., 
 
 « Clift >\ Schwal)e, 3 Man. & Gr. 437 ; 2r> Beav, 599. 
 see White v. Assurance Co., 38 L. J. 
 
 219
 
 § 237.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 stances tending to show that he was of unsound mind. On the 
 trial, Creswell, J., charged the jury, " that, in order to find the 
 said issue for the defendants, it was necessary that the jury should 
 be satisfied that Schwabe died by his own voluntary act, being then 
 able to distinguish between right and wrong, and to appreciate the 
 nature and quality of the act that he was doing, so as to be a 
 responsible moral agent ; that the burden of proof as to his dying 
 by his own voluntary act was on the defendants, but, that being 
 established, the jury must assume that he was of sane mind, and a 
 responsible moral agent, unless the contrary should appear in evi- 
 dence." It was held, on a bill of exception, by Rolfe, Patteson, 
 Alderson, and Parke, JJ. (Wightman, J., and Pollock, C. B., dis- 
 senting), that this direction was erroneous, and that the law, as 
 stated by Rolfe, B., was, " that every act of self-destruction is, in 
 common language, suicide, provided it be the intentional act of a 
 party knowing the probable consequence of what he is about." 
 ^ 2ol . Tliere have been, in comparison, but few cases before the 
 
 „ ,. . American courts in which the policies were worded 
 Rulmirs in ^ '■ 
 
 thiscoun- "shall die by suicide," and it has been held, and by 
 cases sustaining each of the opposing doctrines, that 
 there is no difference in meaning between the two phrases ;^ that is 
 to say that whatever construction is to be put upon the proviso in 
 relation to the question of insane suicide, the contract between the 
 insurer and insured is the same, no matter which phrase is used. 
 In Massachusetts, as we have already seen, where a policy used 
 the phrase " die by suicide," it was held that mere insanity does 
 not take a case out of the exceptions.^ So it was held in a case in 
 Tennessee^ (1872), in which the right and wrong test was distinctly 
 adopted, and Terry v. Ins. Co.,^ as it was decided in the circuit 
 court, was followed, the words of the policy being " die by suicide." 
 In a recent (1875) case in Vermont,* the words were the same, 
 and the lower court charged the jury that it was not enough that 
 the insured was unable to distinguish right from wrong, but his 
 mind must have been so unsound that it could be seen that the un- 
 soundness killed him ; that, if his mind was overthrown by an insane 
 
 ' Lifo Ins. Co. ?•. Terry, uhi supra; ' Phadenliauer v. Ins. Co., 7 Heisk. 
 
 Estabrook v. Ins. Co., 54 Me. 224. 5(!7. 
 
 2 Cooper V. Ins. Co., 102 Mass. 277, * 1 Dill. C. C. 403. 
 supra, § 233. 5 Hathaway v. Ins. Co., 48 Vt. 335. 
 
 220
 
 INSANITY AS RELATED TO LIFE INSURANCE. [§ 239. 
 
 idea that he must take his own life, and the idea controlled himself 
 and his reasoning faculties to that extent that he could not resist it, 
 so that, although his own mind contrived the means by which his 
 life was taken, and his physical strength carried them out and took 
 it, in reality this insane idea or impulse, and not his mind or his 
 will, took his life, the insurers were liable. This charge the 
 supreme court declared was quite as favorable to the insurance com- 
 pany as the law allowed, and that a degree of insanity short of 
 delirium or frenzy would excuse the act of suicide. It was further 
 ruled that it does not follow that because an insane man knows that 
 if he blows his brains out it will kill him, and that he does the act for 
 that purpose, therefore the act was that of a sane mind, voluntarily 
 and deliberately done.^ In a Pennsylvania case already cited, in 
 which the words were " shall die by suicide," the court followed 
 Life Ins. Co. v. Terry, saying, however, nothing as to the difference 
 in phraseology between the policy in that case and the policy be- 
 fore it.2 
 
 § 238. It has been held, in Xew York, that, in the absence of 
 an}^ stipulation, a policy taken out for the benefit of a uj^^jjg 
 third party will not be avoided bv the subsequent suicide known vio- 
 
 „ , . " -r 1 " • lation of 
 
 of the insured.^ In a later case it was argued that the the law of 
 act would be covered by the proviso against the death aois^u'ot^ 
 of the insured, "in the known violation of the law of ^'^t,endto 
 
 ' insanity. 
 
 any state," but this was disallowed.^ 
 
 § 239. Of late the insurance companies have endeavored to guard 
 themselves against insane suicide by extending the proviso to read 
 
 ' But it is probable that the jury ^ pitch v. Ins. Co., .50 N. Y. 557. 
 found that the deceased had committed * Patrick v. Ins. Co., 4 Hun, 263. 
 suicide under the influence of an insane See May on Insurance, 2d ed. § 324. 
 impulse which he could not resist, as There are two strong dicta in Pennsyl- 
 the verdict was against the insurance vania to the effect that even in tlie 
 company, which would bring the case absence of any stipulation, a suicide 
 within the proviso as specified in Van by the insured would be a fraud upon 
 Zandt's case and in Dean's case. If this the company, and hence would avoid 
 be so, as the charge to the jury more the policy. Black, C. J., in llartman 
 nearly approached the rule in those v. Ins. Co., 21 Penn. St. 4G(j, who corn- 
 cases than the rule in Terry's case, the prehended in this tlie case of an insane 
 remarks of the supreme court quoted suicide; and Trmikey, .J., in Bank of 
 above must be taken to be obiter. Oil City v. Ins. Co., Leg. Gaz, 348 ; 
 
 2 Ins. Co. V. Groom, 86 Penn. St. 92, 5 Big. Life Ins. Rep. 478. 
 supra, § 234. 
 
 221
 
 § 240.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 "Siuicor "if the insured shall die by suicide, sane or insane," 
 a good con- ctc. That the companies have a right to do so is in- 
 dition. dubitable, and it has been held that the only construc- 
 
 tion to be given to these words is the one that they bear on their 
 face, namely, that the company in case of suicide is to be exempt 
 from all liability.^ But they are not meant to cover the case of 
 unintentional self-destruction. ^ 
 
 § 240. It is not necessary for the defendant to show that there 
 was a capacity on the part of the deceased to distinguish 
 right from wrong. This is aside from the issue. That 
 issue is, did the assured intend, freely and intelligently, 
 to destroy himself? What his views of right and wrong 
 were on the subject is immaterial. Suicide may have appeared to 
 him under the circumstances even a meritorious act ; but this would 
 not take the case out of the exception. If he intended to do the act 
 freely — i. e., without constraint of an irresistible force, mechanical 
 or moral ; and if he intended to do it intelligently — i. e., if his 
 mind, when acting on the particular to])ic, was unswayed by insane 
 delusion, then the exception covers the case, and the policy is 
 avoided. And this brings the law on this point in harmony with 
 
 Riirlit and 
 wronif test 
 not ai)pli- 
 cable. 
 
 • Bigolow V. Ins. Co., 93 U. S. 284; 
 Chapman !•. Ins. Co., 6 J?iss. 238 ; 
 Mallory v. Ins. Co., 54 N. Y. 051 ; 
 De Gogorza v. Ins. Co., tJ5 N. Y. 232; 
 Pierce v. Ins. Co., 34 Wis. 3St) ; Ad- 
 kins V. Ins. Co., 7(t 111. 27. 
 
 2 Pierce v. Ins. Co., 34 Wis. 389. 
 Thus, death by an overdose of medi- 
 cine, self-administered, does not avoid 
 sucli a policy; I'enfold v. Ins. Co. (N. 
 Y. Court of Appeals, 1881), 11 Law 
 Kep. 849 ; Lawrence i\ Ins. Co., 5 
 BraiL (111.) 280; nnless there was 
 culpable negligence; Ins. Co. r. Law- 
 rence, 8 Brad. 488. 
 
 In a letter from Horace Walpolo to 
 Bentley, dated .Jan. 9, 1755, we liave 
 the following : — 
 
 "On the occasion of Mountford's 
 story I heard another more extraordi- 
 nary. If a man insures his life, this 
 killing himself vacates the bargain. 
 
 222 
 
 This (as in England almost everything 
 beg(!ts a contradiction) has produced 
 an office for insuring in spite of self- 
 murder, but not beyond three hundred 
 pounds. A man went and insured his 
 life, securing this privilege of free- 
 dying Englishmen. He carried the 
 insurers to dine at a tavei'n, where 
 they met several other persons. After 
 dinner he said to the life-and-dcath 
 brokers, 'Gentlemen, it is fit you 
 should be acquainted with the com- 
 pany ; th(;se lionest men are trades- 
 men to whom I was in debt, without 
 any means of j^aying but by your assist- 
 ance ; and here I am your humble 
 servant.' He pulled out a pistol and 
 shot himself. Did you ever hear such 
 a mixture of honesty and knavery?" 
 Similar agreements have been held 
 void as against public policy. Moore 
 V. WV.lsey, 4 E. & B. 243.
 
 INSANITY AS RELATED TO LIFE INSURANCE. [§ 241. 
 
 the general doctrine of insane delusions already declared.' If the 
 deceased did not know Avhat he was doing when he killed himself, 
 he can be no more said to " have laid violent hands on himself," or 
 " to have committed suicide," than he could be if his hand had 
 been seized by superior force and thus made to discharge at his 
 breast a fatal shot. No man can be charged with an act done by 
 him in blind terror, or in unconsciousness, or under a strain of 
 mental or moral compulsion which deprives him of his reason.- And 
 if he be thus impelled to the act, the act is not chargeable as his. 
 ^ 241. The patholo":ical character of suicide is here- „ . ., 
 
 ' ... . Suicide not 
 
 after distinctively discussed.^ It is enough now to say conclusive 
 that suicide is not conclusive evidence of insanity in re- insanity, 
 spect to a will executed even immediately previous. 
 
 ' Stipra, §§ 125-145. 
 
 2 See supra, § 108 et seq. 
 
 3 Infra, §§ 523, 636. See an in- 
 teresting paper by Dr. Ordronaux, in 
 20 Am. Journ. of Ins. 369 ; an arti- 
 cle by Royal Whitman, in American 
 .lourn. of Med. Sci. clxiv. p. 472 ; and 
 articles in 34 Am. Journ. Ins. 425 ; 35 
 ibid. 37 ; and a letter to the editor of 
 the Journ. Ment. Sci., vol. 23, p. 107. 
 
 * Chambers i-. Queen's Proctor, 2 
 Curt. 415 ; Burrows i\ Burrows, 1 
 Hagg. 109 ; Wolff i: Ins. Co., 7 Rep. 
 357 ; Brooks v. Barrett, 7 Pick. 94 ; 
 Coflfey V. Ins. Co., 44 How. 481 ; Weed 
 €. Ins. Co., 70 N. Y. 561 : Duffield v. 
 Robeson, 2 Harr. 375 ; Ins. Co. v. 
 Peters, 42 Md. 414 : McElwee r. Fer- 
 guson, 43 Md. 479 ; Merritt r. Ins. Co., 
 55 Ga. 103 ; Pliadeiihauer v. Ins. Co., 
 7 Heisk. (Tenn.) 567 ; Com. v. Thorn- 
 ley, 47 111. 192 ; Hathaway v. Ins. Co., 
 48 Vt. 335. See May on Ins. 2d ed. 
 § 325. 
 
 As illustrating this we have (1872) 
 the following : — 
 
 " At an early period of his life, Lord 
 Bathurst inquired of an old Bishoj) of 
 Ely what was his S(!cret for insuring 
 longevity. ' Your question is too gene- 
 ral, my lord,' replied the xjrelate, ' but 
 if you will ask me any particular ques- 
 
 tion, I will give you a specific answer.' 
 ' Then, as to eating, my lord ?' said 
 Lord B. ' Why, my lord, I eat what I 
 like, and as much as I like.' 'Next, 
 as to drinking?' ' Why, with regard 
 to drinking, my lord, I observe pre- 
 cisely the same rule ; I drink what I 
 like and as much as I like.' ' Excel- 
 lent rules !' replied Lord B., ' which I 
 am determined punctually to follow.' 
 Lord B. did follow these rules to hilar- 
 ity, but rarely to intemperance. He 
 lived to the advanced age of ninety- 
 one. Another rule which his lordship 
 invariably pursued contributed, doubt- 
 less, much more to the prolongation of 
 his life than the Epicurean code of the 
 Bishop of Ely. This was bodily exer- 
 cise in riding and walking, with which 
 he sufl'ered neither pleasure nor busi- 
 ness to interfere, and which he habit- 
 ually practised till within a short time 
 of his death. For this [iractii-e, after 
 liis retirement from jjublii; life, lie had 
 great facilities in tin; extensive and 
 various walks on his ample domain at 
 Cireiici'ster. In tin; autumn of the 
 yi'ar 1775, a slight disease o(^curr(;d in 
 one of liis knees, for which he was oc- 
 casionally visited by Sir ("a^sar Haw- 
 kins. The malady, though somewhat 
 aggravated by a fall on a ])olislu'd 
 
 2'2'i
 
 § 241.] MENTAL UNSOUNDNESS IN ITS LEGAL KELATIONS. 
 
 floor in his own house, was apparently 
 of no further consequence than as it 
 interfered with his accustomed rides 
 and walks in his park. On Thursday, 
 September 9, 1775, Mr. Parry and his 
 eldest son, afterwards Dr. Caleb Hillier 
 Parry, dined with him. He ate and 
 drank in his accustomed way, was all 
 urbanity and mirth, quoted with flu- 
 ency and exactness many appropriate 
 lines from the Latin and Englisli poets, 
 and relat(Hl many anecdotes of the wits 
 who were the contemporaries of his 
 earlier years. Among the rest he told 
 the following story of Pope, who, in 
 the former part of his life, had been 
 desperately in love with Lady Mary 
 Wortley Montague, though there now 
 existed between these persons the most 
 rancorous hatred, covered with the 
 flimsy veil of polite civility. 
 
 " ' Lady Mary went one day to Lord 
 Burlington's, in Piccadilly, and in- 
 (juired if his lordship was at home. 
 The servant replied that he was not, 
 but that Mr. Pope was above in one of 
 the drawing-rooms. "Oh," said Lady 
 Mary, " I should wish to see him ; show 
 me the room." The servant accord- 
 ingly showed her np stairs, opened the 
 drawing-nidiu door, and, having an- 
 nounced ii(M- name, retired. After a 
 short time, however, hearing the draw- 
 ing-room bell ring, he reascended the 
 stairs and met J^ady Mary, who had 
 just hth the aj)artment. "You told 
 me," said she, "that Mr. Pope was in 
 the drawing-room; I saw nothing there 
 but a great baboon asleep in an arm- 
 chair." 
 
 "'This story was told liy the ser- 
 vant to Lord Burlington, and, in the 
 usual course of such reports, was wliis- 
 pered by some good-natured friend to 
 Mr. Poi)e himself. The indignant poet 
 shortly afterwards called in his car- 
 riage upon Lady Mary, whom he en- 
 treated to accompany him, in order, as 
 
 224 
 
 he said, to show her the excellent 
 etfect produced by the substitution of 
 rails for the dead brick wall which had 
 intercepted, from the road, the view of 
 Kensington Gardens. She accepted the 
 invitation, and, notwithstanding the 
 great imperfection of her sight, which 
 she was extremely averse to acknowl- 
 edge, but which prevented her dis- 
 tinguishing objects at the distance of 
 twenty feet, most politely acquiesced in 
 all the extravagant praises which, dur- 
 ing an entire hour, Mr. Pope lavished 
 on the beautiful scenery which every- 
 where struck the view through the 
 pretended iron rails. The exhibition 
 being ended, Mr. Pope took the earliest 
 opportunity of communicating to all 
 his friends the success with which he 
 had thus retorted on Lady Mary her 
 illiberal satire on his personal defects.' 
 
 " Whexi the comjjany rose. Lord 
 Batliurst walked with little ai>parent 
 difficulty into an adjoining room. 
 
 "This meal was the last that Lord 
 Bathurst ever ate. Unable on account 
 of his knee to take his accustomed 
 exercise in the open air, and tired of 
 an existence which was to be jjrotracted 
 on such terms, he determined, like 
 Atticus, to cease to live. Inflexible to 
 his purpose, from this moment he re- 
 fused all sustenance, and thus, gradu- 
 ally sinking, exj^ired on the Thursday 
 following (Sept. l(i), at the precise in- 
 terval of one week from that day on 
 which the narrator had witnessed his 
 almost unrivalled blaze of literary and 
 social talents. This fact respecting 
 Liird Bathuist was more than once re- 
 lated ])y Mr. Parry, and was many 
 years afterwards confirmed to his son 
 by the succeeding earl, who accom- 
 panied the latter round the park in 
 order to exhibit those spots which had 
 been so often the scenes of his boyish 
 felicity." — From A Mtmoir of the Rev. 
 Joshua Parry, Nonconformist Minister of
 
 INSANITY AS KELATED TO LIFE INSURANCE. 
 
 [§ 241. 
 
 Cirencester , with some ori(jinal Essays and 
 Correspondence, bi/ the lute Charles Henry 
 Parry, F. R. S,, edited by Sir John E, 
 Eardley Wilmot, Bart., Recorder of War- 
 wick. London : Hamilton, Adams ^- Co. 
 1872. 
 
 In Wolff V. Ins. Co. (U. S. Cir. Ct. 
 E. D. Mich. 1879), ut supra, Brown, J., 
 said: "It is insisted, however, that 
 the insane acts relied upon were sim- 
 ply eccentricities of demeanor, or at 
 most temporary hallucinations, which 
 lasted but a few minutes at a time, 
 and ceased entirely some months be- 
 fore his death, leaving him perfectly 
 sane and able to take care of his busi- 
 ness. It is quite true there is no pre- 
 
 sumption of the continuance of insanity 
 temporary in its character ; but I ap- 
 prehend that in most if not all the 
 cases that sujjport that doctrine the 
 delusions were connected with some 
 bodily disease, such as fever, pleurisy, 
 or delirium tremens, and necessarily 
 ceased with returning health, or that 
 they occurred so long previous to the 
 commission of the act in question there 
 could be no possible relation between 
 them of cause and effect. Peo])le v. 
 Francis, 38 Cal. 183 ; Staples v. Wel- 
 lington, 58 Me. 459, 460 ; Hall v. Unger, 
 2 Abb. U. S. 514; Ins. Co. v. Peters, 
 42 Md. 414 ; Carpenter v. Carpenter, 8 
 Bush, 283 ; 2 Greenl. Ev. 689." 
 
 VOL. I. — 15 
 
 225
 
 § 242.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 CHAPTER VII. 
 
 INSANE PERSONS AS WITNESSES. 
 
 Test is ability to uuderstand oatli, 
 §242. 
 
 Habeas corpus may bring iu insaue wit- 
 ness, § 243. 
 
 Corroboration by sane witnesses im- 
 portant, § 244. 
 
 Credibility a question for the jury; 
 and so as to witnesses under influ- 
 ence of narcotics, etc., § 245. 
 
 Testis § 242. A person called as a witness is not rendered 
 
 underst^uid incompetent by insanity to be sworn, if he understands 
 auoath. what is the nature of an oath.^ 
 
 • R. V. Hill, 2 Don. C. C. 254; T. & 
 M. 582; Fennell v. Tait, 1 C. M. & R. 
 584 ; 5 Tyr. 218 ; Spittle v. Walton, 
 L. R. 11 Eq. 420 ; Boughton d. Knight, 
 L. R. 3 P. & D. 72 ; Holcomb v. Hol- 
 comb, 28 Conn. 177 ; Ins. Co. v. Hunt, 
 14 Hun, 169 ; Hand v. Burrows, 23 
 Hun, 330 ; People v. N. Y. Hospital, 3 
 Abb. N. C. 229, n. ; Com. v. Reynolds, 
 cited 10 Alien, C4 ; Kendall v. May, 10 
 Allen, 59 ; Coleman v. Commonwealth, 
 25 Graft. 8(35 ; Campbell v. State, 23 
 Ala. 44. See Wh. Crim. Ev. § 370; 
 see also Livingston v. Kiersted, 10 
 Johns. 362. 
 
 In R. i: Hill, iit siijnri, the defendant 
 (Browne's Med. Jur. of Insan., Lond. 
 1871) was an attendant in charge of a 
 ward in a lunatic asylum. He was in- 
 dicted for the manslaughter of Moses 
 James Barnes, one of the patients under 
 his care. The prisoner was tried before 
 Coleridge, J., assisted by Cresswell, J., 
 at the central criminal court. He was 
 convicted, but a question was reserved 
 for the opinion of the court as to the 
 
 226 
 
 propriety of having admitted a witness 
 of the name of Richard Donelly, who 
 was a patient in Mr. Armstrong's 
 lunatic asylum, at Caniberwell, on the 
 part of the prosecution. When Donelly 
 was called, he was examined by the 
 prisoner's counsel before he was sworn. 
 In the course of the preliminaiy ex- 
 amination he said he was fully aware 
 that he had a spirit, and twenty thou- 
 sand of them ; they were not all his ; 
 they spoke to him constantly. He 
 fully understood the nature of an oath, 
 and declared his belief in religion, and 
 that he was a Roman Catliolic. A 
 medical witness believed him to be 
 capable of giving an account of any 
 transaction that happened before his 
 eyes. He was then sworn, and gave a 
 perfectly connected and rational ac- 
 count of the transaction which he re- 
 l^orted himself to have witnessed. He 
 was not certain as to the day of the 
 week on which the circumstances he 
 spoke of took place, and on cross- 
 examination said: "These creatures
 
 INSANE PERSONS AS WITNESSES. 
 
 [§ 244. 
 
 § 243. A Jiaheas corpus ad festijicandum may be issued n^abeas cor- 
 to bring into court a witness irom an insane asylum.^ bi-in,^ 
 
 § 244. "It is well," remarks Mr. Browne, in the work ^^^t^'^^^- 
 
 insist upon it it was Tuesday night, 
 and I think it was Monday." Where- 
 upon he was asked, "Is what you 
 have told us what the spirits told you, 
 or what you recollect without the 
 spirits?" And he said, "No, the 
 spirits assist me in speaking of the 
 date. I thought it was Monday, and 
 they told me it was Christmas-eve — 
 Tuesday; but I was an eye-witness, 
 an ocular witness, to the fall to the 
 ground." The question for the court 
 of criminal appeal was — Richard Don- 
 elly's competeuey as a witness. The 
 accused having been convicted, the 
 case was argued before Lord Campbell, 
 C. J., Coleridge and Talfourd, JJ., and 
 Alderson and Piatt, BB. The convic- 
 tion was upheld. Lord Campbell, in 
 delivering his judgment, said: "The 
 question is important, and has not yet 
 been solemnly decided after argument ; 
 but I have no doubt that the rule was 
 properly laid down by Parke, B., in 
 the case which was tried before him, 
 and that it is for the judge to say 
 whether the insane person has the 
 sense of religion in his mind, and 
 whether he understands the nature 
 and sanction of an oath, and then the 
 jury are to decide on the credibility 
 and weight of his evidence. . . . 
 A man may, in one sense, be 7ion 
 compos, and yet be aware of the nature 
 and sanction of an oath. In the par- 
 ticular case before the court, I tliink 
 the judge was right in admitting the 
 witness ; I should certainly have done 
 so myself. ... It has been argued 
 that any particular delusion, commonly 
 
 called monomania, makes a man inad- 
 missible. This would be extremely 
 inconvenient in many cases in the 
 proof either of guilt or innocence ; it 
 might also cause serious difficulties in 
 the management of lunatic asylums. 
 I am, therefore of opinion, that the 
 judge must in all cases determine the 
 competency, and the jury the credi- 
 bility. Before he is sworn, the insane 
 person may be cross-examined, and 
 witnesses called to prove circumstances 
 which might show him to be inadmis- 
 sible ; but in the absence of such proof 
 he is prima facie admissible, and the 
 jury must attach what weight they 
 thinkfittohis testimony." These views 
 have been adopted in several recent 
 cases, though in many states parties 
 who are of unsound mind at the time 
 of examination are forbidden by statute 
 to testify. See Wh. Crim. Ev. § 371 ; 
 Waring v. Waring, 6 Moore's P. C. C. 
 p. 349 ; Holcomb v. Holcomb, 28 Conn. 
 177 ; Coleman v. Com., 25 Gratt. 8G5 ; 
 Sarbach v. Jones, 20 Kan. 497 ; Hand 
 V. Burrows, 23 Hun, 330; Ins. Co. v. 
 Hunt, 14 Hun, 169 ; and see a note by 
 Dr. Ordrouaux to People i'. N. Y. Hos- 
 pital, 3 Abb, N. C. 229. In this con- 
 nection, adds Mr. Browne (Med. Jur. of 
 Ins. ut supra), the following cases may l)e 
 consulted : R. v. Eriswell, 3 T. R. 707 ; 
 Currie v. Child, 3 Campb. 283. See also 
 Chapman v. Greaves, 2 Campb. 333, n. ; 
 Adams V. Kerr, 1 Bos. & P. 3(J0 ; Cun- 
 cliflfe V. Sefton, 2 East, 183 ; and Ber- 
 nett V. Taylor, 9 Ves. Jr. 381 ; R. v. 
 Morley, (juoted in R. r. Hill. 
 
 The Journal of Mental Scienc(f for 
 
 I Spittle V. Walton, L. R. 11 Eq. 420 ; 40 L. J. Chanc. 368. 
 V. Tait, ut supra. 
 
 227 
 
 See Fonnell
 
 § 245.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Corrobora- already cited, " in all cases in which the evidence of per- 
 saue wit- sons of unsound raind is had recourse to, to endeavor to 
 porrut'"' corroborate the testimony in some particulars, at least, 
 by means of the depositions of sane witnesses. The im- 
 portance of this rule will be made manifest by the statement of the 
 evidence of James Sumner, an inmate in the Birmingham Borough 
 Lunatic Asylum, by means of which William Braley, a warden in 
 said asylum, was a few weeks ago proved, to the satisfaction of the 
 stipendiary, to have caused the death of a man named John Hinton. 
 The prisoner Braley was committed for trial at the next assizes."^ 
 § 245. In another work it is shown that deficiency in perceptive 
 powers in a witness, if total, excludes;^ that a witness 
 may be examined as to his capacity ;^ that credibility 
 depends not only on veracity, but on competency to 
 observe ;* that incapacity to relate may affect compe- 
 tency ;^ that intoxicated witnesses may be excluded f 
 and that credibility is generally for the jury.^ The 
 same remarks apply to witnesses testifying to facts which trans- 
 pired while they were under the influence of chloroform or ether. 
 In cases of rape, to be hereafter reported under that particular head, 
 
 Credibility 
 for jury; 
 and so as 
 to wit- 
 nesses un- 
 der iullu- 
 cnee of nar- 
 cotics, etc. 
 
 January, 1870, mentions an interesting 
 case of the admission of the testimony 
 of an insane witness. A confined 
 lunatic was beaten by liis keeper, and 
 the results were pleuritis and deatli. 
 Tlie only witness was a fellow-lunatic. 
 Tile latter, who had been for two 
 months convalescent, had suffered from 
 melancholy with hallucination of the 
 senses. His testimony was exact, and 
 betrayed no traces of insanity. Though 
 the issue rested on his credibility, the 
 defendant was convicted. 
 
 A I'emarkable prosecution was insti- 
 tuted in Maryland, in ISlJG, against 
 the officers of the Mount Hope Institu- 
 tion for the Insane, in that state, the 
 prosecutors being lunatic patients. 
 The complaint turned out to be un- 
 founded, and the defendants wei'e ac- 
 quitted, but there was no question as 
 to the adinissibiliti/ of the prosecutors as 
 
 228 
 
 witnesses, incredible as some of their 
 statements were afterwards regarded. 
 See report in 23 Am. Journ. of Insan. 
 311. 
 
 ' The prisoner Braley, Mr. Browne 
 states, has, since the above was writ- 
 ten, been tried and acquitted. The 
 jury seemed to place no reliance upon 
 the evidence of Sumner, although he 
 was evidently quite sane at the time 
 it was given. Sumner admitted that, 
 previous to his asylum experience, he 
 had known something of prisons, which 
 may to some extent account for the 
 verdict. 
 
 2 Wh. on Ev. § 401. 
 
 3 lb. § 403. 
 < lb. § 404. 
 
 5 lb. § 405. 
 
 6 lb. § 418. 
 
 7 lb. § 417.
 
 INSANE PERSONS AS WITNESSES. [§ 245. 
 
 testimony of this kind has been received as sufficient to sustain con- 
 victions ; and, unless such testimony is held admissible (its credi- 
 bility being for the jury), there Avould be no redress for injuries 
 inflicted on persons under the influence of anaesthetics. At the 
 same time it is proper to call attention to the following points stated 
 in an interesting essay, touching the value of testimony of this 
 class, communicated in 1860 to the Ohio Medical Society by Dr. T. 
 L. Wright, of Bellefontaine, and printed among the transactions of 
 that society: — 
 
 " 1st. That will is always active when there is mental conscious- 
 ness. 
 
 " 2d. That will cannot be directly impressed by another will, 
 but that the judgment may be misled, and the will, though free, 
 may act upon false conceptions in a manner difierent from what it 
 would do if the mind and senses were perfectly active. 
 
 " 3d. There may be venereal connection with a female while she 
 is conscious and unwilling ; but there may be no venereal connec- 
 tion with a female, while she may honestly believe she has been 
 under the delusion of organic sensibilities, occasioned by the pecu- 
 liar action of chloroform upon her nervous system. 
 
 *' 4th. It is impossible for a woman very often to decide whether 
 actual connection has been had or not. 
 
 "5th. The evidence of a person, respecting transactions that 
 occur to the mind while partly conscious, is always liable to the 
 most monstrous fallacies, and it should not be received as sufficient 
 proof of any fact. 
 
 " Gth. Evidence of females, respecting rape upon themselves 
 while unconscious from chloroform, is particularly liable to suspi- 
 cion. 
 
 " 7th. Evidence of females respecting rape under such circum- 
 stances should be subjected to all the rules and exceptions of cir- 
 cumstantial evidence, and should be fully corroborated by other 
 circumstances." 
 
 229
 
 § 246.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 CHAPTER VIII. 
 
 EVIDENCE. 
 
 I, Mode of Proof. 
 
 Question belongs to distinctively legal 
 treatises, § 246. 
 
 All persons jiresumed to be sane, § 247. 
 
 Sanity presumed to continue, § 248. 
 
 Chronic insanity presumed to be con- 
 tinuous, § 249. 
 
 In such cases burden is on party set- 
 ting up lucid interval, § 250. 
 
 In criminal cases preponderance of 
 proof required to prove criminal 
 lunacy, § 251. 
 
 Insanity to be inferred from facts, 
 § 252. 
 
 Physical peculiarities and diseases ad- 
 missible, § 253. 
 
 So of hereditary tendency, § 254. 
 
 Inquisition /«•//«« _/«c7'e proof, § 255. 
 
 Hearsay inadmissible, § 256. 
 
 II. Witnesses. 
 
 Non-experts as well as experts may 
 give opinion as to sanity, § 257. 
 
 Not competent as to occult conditions, 
 § 258. 
 
 Non-experts cannot be asked as to a 
 hypothetical case, § 259. 
 
 Subscribing witnesses admissible as to 
 sanity, § 260. 
 
 Non-experts admissible as to drunken- 
 ness, § 2()1. 
 
 Experts admissible as specialists, § 2G2. 
 
 Are entitled to sj)ecial fees, § 263. 
 
 Cannot be examined as to matter of 
 common knowledge, § 264. 
 
 Whether matter belongs to expert is 
 for court, § 265. 
 
 May be examined as to scientific autho- 
 rities, § 266. 
 
 May be examined as to hypothetical 
 case, but not as to disputed facts, 
 §267. 
 
 Difficulty in determining who are ex- 
 perts as to insanity, § 268. 
 
 No sufficient test of capacity, § 269. 
 
 Testimony to be closely scrutinized, 
 §270. 
 
 Difficulty induced by si^eculative ten- 
 dencies of experts, § 271. 
 
 And from the fact that experts are 
 feed by parties, § 272. 
 
 And because there is no expert ap- 
 pellate court, § 273. 
 
 Experts should be assessors, § 274. 
 
 Their testimony should not be specu- 
 lative, § 275. 
 
 Examinations should be thorough, § 
 276. 
 
 In insanity this is peculiarly requisite, 
 §277. 
 
 Prior history of patient should be un- 
 derstood, § 278. 
 
 III. Books. 
 
 Scientific books inadmissible, § 279. 
 
 Question 
 belongs to 
 d ^tinctive- 
 ly lei.^al 
 treatises. 
 
 I. PROOF. 
 
 § 24G. The consideration in detail of the technical 
 rules bearing on the proof of insanity belongs more 
 properly to distinctively legal treatises. It ^Yill be 
 230
 
 EVIDENCE. [§ 250. 
 
 sufficient for the purposes of the present chapter to note the con- 
 clusions which in those works are given. 
 
 § 247. Sanity being the normal condition, the presumption of 
 law is that all persons whose conduct comes up for legal 
 
 T- • 11 1 -^^^ persons 
 
 examination are sane, it is true that there may be presumed 
 something in the act which is to be examined which is so ° ^ ^^"^* 
 preposterous as to make it improbable that it could have sprung 
 from a sane agent. But this is a matter of extrinsic proof, and 
 does not affect the principle that until contesting evidence is re- 
 ceived, all persons are to be held sane.^ 
 
 § 248. In addition to this general presumption of law, bearing on 
 
 all human beings, we have a concrete presumption of fact, „ 
 
 . , 1 . , , S . Sanity pre- 
 
 varymg with each special case, that character continues, sumed to 
 and that a person who was sane yesterday is sane to-day.^ 
 
 § 249. When chronic insanity, also, has svipervened, then it is a 
 presumption of fact that it continues. Undoubtedly this, d^j-ouj^. jq. 
 as has been observed, is in one sense a petitio principii, sanity pre- 
 
 . . f , . sumed to 
 
 it being equivalent to saying that that which is chronic be con- 
 continues. But there is something more than a jjetitio 
 principii in the position that a state which existed yesterday will 
 be presumed to continue to exist to-day. And this is a position 
 that applies to all conditions which have in them the element of 
 permanence.^ 
 
 & 250. If chronic insanity is established, the burden l^i such 
 
 ' ^ ^ "^ . . . cases bur- 
 
 of proving a lucid interval, during which an instrument deu is on 
 
 is alleged to have been executed, is on the party setting ting up 
 up such instrument.^ lervai!"" 
 
 It is otherwise, however, when the prior insanity alleged 
 was spasmodic and parenthetical,^ or consisted of delirium tremois.^ 
 
 > Supra, §§ 61 et seq. Wh. on Ev. §§ R. 163 ; Hix v. Wliittemoro, 4 Mete. 
 
 1226-1252. 545 ; Trish v. Newell, 62 111. 196 ; 1 
 
 2 Wh. on Ev. § 1252. Jarm. Wills, 65. 
 
 3 Wh. on Ev. § 1253. See 24 Alb. L. ^ Supra, § 61. Lewis v. Baird, 3 Mc- 
 J. 304. Lean, 55 ; Menkins v. Lightner, 18 III. 
 
 * See cases cited § 61, and also § 744; 282; Achey v. Stephens, 8 Ind. 411; 
 
 Wh. on Ev. § 1253 ; and see State v. State v. Wellington, 58 Maine, 453 ; 
 
 Spencer, 21 N. J. L., 196 ; R. z;. Stokes, Trish v. Newell, 62 111. 196. 
 
 3 C. & K. 188 ; R. v. Taylor, 4 Cox C. ^ state i-. Sewell, 3 Jones Law (N. C.) 
 
 C. 155 ; Cart Wright v. Cartwright, 1 250. 
 Phill. 90 ; Hoge v. Fisher, 1 P. C. C. 
 
 231
 
 In criminal 
 issues pri'- 
 pouderance 
 of proof re- 
 quired to 
 prove 
 criminal 
 lunacy. 
 
 § 255.] MENTAL UNSOUNDNESS TN ITS LEGAL RELATIONS. 
 
 Whether the good sense of a will made during an alleged lucid 
 interval is admissible to prove the intermission of the insanity, has 
 been questioned.^ But if the will be shown to be the free act of the 
 person making it, its contents must always be received as giving 
 materials from which the party's mental condition can be inferred.'^ 
 § 251. In criminal issues, as is elsewhere shown, there has been 
 much discussion on the question whether insanity, when 
 a defence, must be proved beyond reasonable doubt. 
 The better opinion is, that, to sustain a verdict of criminal 
 lunacy, there should be a preponderance of proof sus- 
 taining the hypothesis of insanity, but that when the 
 defendant's mental condition enters into the question 
 Qe. g. in cases Avhere intention or knowledge has to be shown) then 
 he cannot be convicted of an offence requiring the particular intent 
 or knowledge unless it appears beyond reasonable doubt that he 
 had mental capacity for the purpose.^ But in any view the burden 
 of proof is on the party setting up insanity.'* 
 
 § 252. Insanity is to be inferred from all the facts in the par- 
 T ., ^ ticular case in liticcation. Whatever is logically calcu- 
 
 Insanity to ^ "^ -^ 
 
 be inferred latcd either to establish or to repel the hypothesis of 
 
 from facts. . ..,..,, 
 
 insanity is admissible on such an issue. ^ 
 
 § 253. Ph^^sical peculiarities may be put in evidence 
 when likely to explain the party's mental condition ; 
 and so of diseases likely to have an effect on the mind.^ 
 § 254. Proof of insanity among relations is also ad- 
 missible when the relationship is sufficiently near to lead 
 to the inference of insanity in the blood.' 
 § 255. How far an inquisition of lunacy is admissible to prove 
 
 T . .^. insanity is elsewhere discussed.^ An inquisition of lunacy 
 
 Inquisition . , , . 
 
 I>rima facie may bc jrriina facie evidence when offered to affect the 
 
 credibility of a witness, though even if admissible in such 
 
 a case it is open to rebuttal.^ When offered against parties to the 
 
 Physical 
 peculiari- 
 ties and 
 diseases 
 admissible 
 
 So of he- 
 reditary 
 tendency. 
 
 ' See Jackson r. Van Dusen, 5 Johns. 
 144. 
 
 2 Supra, §§ 61 et scj. Kingsbury v. 
 "Whitaker, 32 La. Ann. 10.95 ; 34 Alb. 
 L. J. 304. 
 
 3 Wli. Cr. L. Sth ed. § 01. 
 
 232 
 
 < lb. § GO. 
 
 5 Wh. on Ev. § 12.54. 
 
 6 Wh. Cr. L. Sth ed. § 64. 
 
 7 Wh. Cr. L. Sth ed. § 65, 
 
 8 Wh. on Ev. §§ 403, 812, 1254. 
 
 9 Wh. on Ev, § 403.
 
 EVIDENCE. 
 
 [§ 257. 
 
 procedure, others than the alleged lunatic, it is conclusive unless 
 fraud be shown. ^ So far as concerns third parties, a finding may 
 be admissible to determine the burden of proof ; so far as concerns 
 the party himself, who, on the hypothesis of his insanity, is incom- 
 petent to bind himself, it may be orAj prima facie proof.^ 
 
 § 256. Hearsay in a neighborhood is in any view in- Hearsay in- 
 admissible, either to prove or disprove sanity .^ 
 
 II. WITNESSES. 
 
 § 257. The admission in evidence of the opinions of friends, of 
 nurses, and of attendants, though not experts in mental Non-ex- 
 disease, may be iustified on several errounds. In the first ^^^}f '^^ 
 
 . "^ , , ° well as ex- 
 
 place, if such evidence is excluded, no other can be found perts may 
 
 that can so satisfactorily take its place. An attendant, fonasto 
 who watches continuously by the bedside of a patient — ^^^^^y- 
 a business friend having constant access to his counting-room — can 
 form, if intelligent and experienced, a far more reliable opinion of 
 the patient's mental state, than could a medical expert, judging 
 merely from occasional visits, visits at which excitement would be 
 natural, if not simulation attempted. If the opinion of the spe- 
 cialist, on comparatively imperfect information, is admissible, we 
 cannot exclude the opinion of the non-specialist. In the second 
 place, opinion is in most cases only facts at short hand, and this is 
 
 ' Wh. on Ev. §§ 811, 1254. incompetency at any time covered by 
 
 * lb. See supra, § 13. the finding, and a party setting np a 
 
 It may be shown tliat the inquisi- contract made by the lunatic or habit- 
 
 tion was ex parte and partial. Banna- ual drunkard during this time must 
 
 tyne v. Bannatyne, 14 Eng Law and show he was sane at its execution, for 
 
 Eq. 581 ; 16 Jur. 864 ; 2 Rob. 475. the presumption in favor of sanity is 
 
 The finding is not binding on third thereby changed. Noel v. Karper, 53 
 
 parties, and operates merely to de- Penn. St. 97. 
 
 stroy the presumption of sanity, and Fits of insanity for twenty years 
 
 to throw the burden of proving it on prior to the execution of certain deeds 
 
 the party alleging it. Snook v. Watts, V ^ ^'"1" found some years afterwards, 
 
 11 Beav. 105; Elliott v.lncQ, 7 De Gr. by a commission, to have been all along 
 
 M. & G. 475. insane, have been ruled in England to 
 
 The effect of such commissions on ^*^ "o answer to a prima facie case, on 
 
 the party himself, so far as involves 'in issue to his sanity at the execution 
 
 his right to contract, has been already of the deeds. Ferguson v. Barrett, 1 
 
 discussed. Where an inquisition finds F. & F. 613. See Jacobs v. Richards, 
 
 that a man is a lunatic or habitual 18 Beav. 300. 
 drunkard, it is prima facie evidence of ' Wh. on Ev. § 1254. 
 
 233
 
 § 257.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 eminently the case with regard to opinions as to sanity. It may 
 be said that the facts on which an opinion as to sanity is based 
 should be given, not the opinion. But when we inquire for these 
 facts, we find that these are also opinions. " My opinion is that 
 the patient was insane." " From what facts do you infer this ?" 
 " He was excited ; he talked incoherently ; his manner w^as wild." 
 Yet each of these specifications is an opinion. If we are to reject 
 opinions, therefore, in such cases, we must reject the only material 
 from which a judgment as to sanity can be drawn. And in the 
 third place, it may be questioned whether the opinion of an intel- 
 ligent and experienced observer as to sanity is not after all pri- 
 mary. If we want to know wdiether a particular event occurred in 
 day or in night, we put the question directly, " was it day ?" We 
 do not ask Avhether there was sunlight on one place or shadows on 
 another, or whether the objects on which the observer's eye was 
 turned were radiant in their specific colors, or were colorless in the 
 darkness of night. And so with insanity. It is a condition which 
 impresses itself as an aggregate on the observer. We cannot take 
 it to pieces. If we do the effect is gone. The grand effect alone 
 is that from which we are to judge. It is true that we must give 
 reasons, if asked, for this effect. But, after all, it is the effect that 
 determines. For these and other reasons it has been held that 
 non-experts, when intelligent and experienced, may be asked as to 
 their opinion of the sanity of a person with whom they have been 
 well acquainted.^ 
 
 J Wheeler i-. Alclerson, 3 Hagg. G02; Castner r. Sliker, 33 N. J. L. 95, 507; 
 
 Wright V. Tatham, 5 CI. cV F. 692; Townsheiid r. Townshend, 7 Gill, 10; 
 
 Harrison 1-. Rowan, 3 Wash. C.C. 580; Weems v. Weems, 19 Md. 334; Wil- 
 
 Ins. Co. V. Rodel, 95 U. S. 232 ; Hardy liams r. Lee, 47 Md. 321 ; CJark v. 
 
 V. Merrill, 56 N. H. 227 ; Cram r. State, 12 Ohio, 483 ; Doe v. Reagan, 5 
 
 Cram, 33 Vt. 15 ; Fairchild r. Bas- Blackf. -217 ; Beaubien v. Cicotte, 12 
 
 comb, 35 Vt. 398 ; Hathaway v. Ins. Mich. 459 ; Butler v. Ins. Co., 45 Iowa, 
 
 Co., 48 Vt. 335; Com. v. Sturtivant, 93; Clary v. Clary, 2 Ired. L. 78; 
 
 117 Mass. 122 ; Grant v. Thompson, 4 Powell e. State, 25 Ala. 21 ; Stuckey 
 
 Conn. 208; Kinne i-. Kinne, 9 Conn. v. Bellah, 41 Ala. 700; Wilkinson r. 
 
 102 ; Real v. People, 42 N. Y. 270 ; Moseley, 30 Ala. 562 ; Baldwin v. State, 
 
 Fagnan i-. Knox, 40 N. Y. Sup. Ct.41; 12 Mo. 223 ; Dove v. State, 3 Heisk. 
 
 Rambler v. Tryon, 7 S. & R. 90; Wil- 348; People v. Sanford, 43 Cal. 29; 
 
 kinson v. Pearson, 23 Penn. St. 177; Pigg v. State, 43 Tex. 108; Garrison v. 
 
 Titlow V. Titlow, .54 Penn. St. 216 ; Blanton, 47 Tex. 299 ; McClackey v. 
 
 234
 
 EVIDENCE. 
 
 [§ 259. 
 
 Such testimony, when given by persons of probity, intelligence, 
 and experience, constantly about the patient, is more likely, in cases 
 of alleged chronic idiocy or delirium, to lead to right conclusions, 
 than is the testimony of experts, employed professionally, and pay- 
 ing only occasional visits.^ 
 
 § 258. But while this is the case with such insanity as may be 
 readily determined by non-experts, and in cases in which 
 opinion is a mere rendering of facts at short-hand, it is tent asTo^" 
 otherwise as to occult conditions of rare occurrence, occult con- 
 
 ' ditions. 
 
 concerning which those versed in the treatment of the 
 insane are best qualified to speak. As to these, inexperienced lay 
 attendants or friends cannot, it is said, give opinions, but are limited 
 to a statement of such facts as are within their range of observa- 
 tion.^ And there is a line of cases ruling that in no case can a non- 
 expert give an opinion detached from the facts on which it rests. ^ 
 
 § 259. An important distinction, however, is to be here noticed. 
 An expert in mental disease may be asked as to a Xoo- 
 hypothetical case. He is supposed to be familiar with cauuo^^be 
 the workings of mental disease ; and the question put to a^^ed as to 
 
 . . . h)-pothet- 
 
 him is virtually this : " Judging from your experience icai case 
 
 State, 5 Tex. App. 320. That some 
 qualification is a prerequisite, see Suth- 
 erland V. Hawkins, 56 Ind. 343. 
 
 " Rutherford v. Morris, 77 111. 397 ; 
 Rankin v. Rankin, 61 Mo. 295. 
 
 2 As limiting non-experts to a bare 
 statement of facts, see State v. Pike, 
 49 N. H. 399 ; Com. v. Wilson, 1 Gray, 
 337 (but see Hardy v. Merrill, 56 N. H. 
 227; Com. I'. Sturtivant, 117 Mass. 122); 
 Dewitt I'. Barley, 5 Seld. 371 ; Clapp 
 V. Fullerton, 34 N. Y. 190; Real v. 
 People, 42 N. Y. 270 ; Sears r. Schafer, 
 1 Barb. 408 ; Higgins v. Carlton, 28 
 Md. 115 ; Runyan v. Price, 15 Ohio St. 
 1 ; Farrell v. Brennan, 32 Mo. 328 ; 
 Gehrke v. State, 13 Tex. 568. From 
 this limitation, however, subscribing 
 witnesses are excepted. Ware v. Ware, 
 8 Greenl. 42 ; Poole v. Richaj-dson, 3 
 Mass. 330 ; Logan v. McGinnis, 12 I'enn. 
 St. 27 ; Titlow v. Titlow, 54 Penu. St. 
 
 216 ; Egbert v. Egbert, 78 Penn. St. 
 326 ; Elder v. Ogletree, 36 Ga. 64. 
 
 3 Poole r. Richardson, 3 Mass. 330 ; 
 Hathoru v. King, 8 Mass. 371 ; Dickin- 
 son V. Barber, 9 Mass. 225 ; Kinue v. 
 Kinne, 9 Conn. 102 ; Vanauken ex 
 parte, 10 N. J. Eq. 186 ; Lowe v. William- 
 son, 2 N. J. Eq. 82 ; Sloan v. Max- 
 well, 3 N. J. Eq. 563 ; Gardiner r. 
 Gardiner, 34 N. Y. 155 ; Sisson v. Con- 
 ger, ] Thomp. & C. 564 ; Clapp v. Ful- 
 lerton, 34 N. Y. 190 ; Howell i: Taylor, 
 18 N. Y. Sup. Ct. 214; Rambler v. 
 Tryon, 7 Serg. & R. 90 ; Bricker r. 
 Lightner, 40 Penn. St. 199 ; Gibson v. 
 Gibson, 9 Yerg. 329 ; Dorsey r. War- 
 field, 7 Md. 65 ; Doe v. Reagan, 5 
 Blackf. 217; Potts v. House, 6 Ga. 
 324; Dicker v. Johnson, 7 Ga. 484; 
 Walker r. Walker, 14 Ga. 242 ; John- 
 son V. State, 17 Ala. 618 ; Farrell r. 
 Brennan, 32 Mo. 328 ; State r. Coleman, 
 27 La. Ann. 691. 
 
 235
 
 § 262.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 in such cases, are symptoms of a particular class the marks of 
 an unsound mind ?" And this is admissible.^ On the other 
 hand, it is inadmissible to ask a non-expert such questions, for 
 the reason that he has no experience in treating such diseases 
 as a class.^ And the prevalent opinion is that even an expert, 
 while he may be asked as to a hypothetical case, cannot be asked 
 his opinion on the facts put in evidence in a particular case, as this 
 would put him in the place of the jury, and commit to him the 
 determining not merely the meaning, but the credibility of the 
 testimony.^ 
 
 „ § 260. Subscribing witnesses to wills may, even on 
 
 ins: witness the strictest rule, be always permitted to answer as to 
 
 admissible ^ • a 
 
 as to sanity the testator s sanity.* 
 
 Non- § 261. It is conceded, even by the courts most 
 
 missibie'as rigorous in limiting such testimony, that any witness, 
 
 todrunken- laypj^^j^ or expert, unskilled or skilled, may testify as 
 
 to the fact of intoxication.^ 
 
 § 262. Experts in mental science, and in the treatment of th3 
 
 1 Dexter v. Hall, 15 Wall. 9 ; U. S. 
 V. McCilue, 1 Curtis, 1 ; Sills r. Brown, 
 9 C. & P. 604 ; Spear v. Richardson, 37 
 N. H. 23 ; Faircliild v. Bascomb, 35 Vt. 
 398 ; Hathaway v. Ins. Co., 48 Vt. 335 ; 
 Com. V. Rogers, 7 Met. 500 ; Com. r. 
 Rich, 14 Gray, 335 ; Hoard v. Peck, 56 
 Barb. 502 ; Harnett v. Garvey, 66 N. Y. 
 641 ; Negro .Jerry r. Townshend, 9 Md. 
 145 ; Choice r. State, 31 Ga. 424 ; Davis 
 V. State, 35 Ind. 496 ; Bishop v. Spin- 
 ing, 38 Ind. 143 ; Wright v. Hardy, 22 
 Wis. 348 ; Wilkinson i: Moseley, 30 
 Ala. 562 ; and cases cited in Wh. on 
 Ev. § 452. 
 
 2 Com. V. Rich, 14 Gray, 335 ; State 
 V. Klinger, 46 Mo. 228 ; Caleb v. State, 
 39 Miss. 722 ; Russell v. State, 53 Miss. 
 368. 
 
 3 R. r. Higginson, 1 C. & K. 129 ; 
 Sills V. Brown, 9 C. & P. 604 ; R. v. 
 Frances, 4 Cox C. C. 57 ; R. v. Rich- 
 ards, 1 F. & F. 87 ; Dexter v. Hall, 15 
 
 236 
 
 Wall. 9 ; Willey v. Portsmouth, 35 N. 
 H. 303; Perkins v. R. R., 44 N. H. 
 223 ; Woodbury v. Obear, 7 Gray, 467 ; 
 Miller v. Smith, 112 Mass. 475 ; Draper 
 r. Saxton, 118 Mass. 431 ; Brill v. 
 Flagler, 23 Wend. 354; People i: 
 McCann, 3 Parker C. R. 272 ; Reynolds 
 r. Robinson, 64 N. Y. 589 ; State v. 
 Powell, 2 Halst. 244 ; Kempsey r. Mc- 
 Ginnis, 21 Mich. 123 ; Bishop r. Spin- 
 ing, 38 Ind. 143 ; Phillips v. Starr, 26 
 Iowa, 349 ; Butler v. Ins. Co., 45 Iowa, 
 93 ; State v. Medlicott, 9 Kans. 257 ; 
 Choice r. State, 31 Ga. 424. But see 
 Getchell v. Hill, 21 Minn. 464. 
 
 * Chase v. Lincoln, 3 Mass. 236 ; 
 Poole V. Richardson, ib. 330; Buok- 
 minster v. Perry, 4 Mass. 593 ; Need- 
 ham r. Ide, 5 Pick. 510 ; Castner r. 
 Sliker, 33 N. J. L. 95, 507. 
 
 5 State P. Pike, 49 N. H. 399 ; Gaha- 
 gau i\ R. R., 1 Allen, 187 ; People v. 
 Eastwood, 14 N. Y. 562.
 
 EVIDENCE. [§ 268. 
 
 insane, as well as in all other sciences and professions, Experts ad- 
 are admissible to testify as specialists in their particular specialists. 
 line.^ 
 
 §263. When required to give time and labor to the Arc enti- 
 
 elucidation of questions on trial, the better opinion is ciai fees. 
 that experts should be entitled to special fees.- 
 
 § 26-1. An expert cannot be examined as to a matter Cannot be 
 
 /. 1 1 T • 1 • 1 • p examined 
 
 01 common knowledge concerning which a juror may torm as to matter 
 
 an independent opinion, nor as to a matter of mere men- ^„o^"g™°J^ 
 
 tal or moral philosophy or of domestic jurisprudence.^ 
 
 ^ 265. Whether a matter belongs distinctively to an Whether 
 
 ' _ ^ ° •' matter be- 
 
 expert is for the determination of the court trying the longs to ex- 
 
 . pert is for 
 
 case. court. 
 
 & 266. An expert may be examined as to scientific Maybe 
 
 . . . . . . examined 
 
 authorities for the purpose either of sustaining or assail- as to scien- 
 
 1 . , . - tific author- 
 ing his conclusions.^ ities. 
 
 5i 267. An expert may be examined as to a hypothet- ^, ^ 
 
 ^ . May be ex- 
 
 ical case f and it has also been held that, when the facts amined as 
 
 are undisputed, he may be asked as to their bearing on theticaf 
 
 sanity. But he cannot, in any case where the meaning uouafT^Q 
 
 and bearing of the facts are disputed, be examined as to disputed 
 
 • • , ,, , ^ facts. 
 
 his opinion as to such tacts.' 
 
 § 268. Here emerges a new difficulty in this vexed issue. 
 
 " Experts" are to have a certain de";ree of credit at- 
 
 ,1 , . • , I r,5» Difficulty 
 
 tached to their testimony, but who are " experts : in deter- 
 
 Forensic-psychological medicine is the specialty ; and an ",\"o "re ex- 
 expert in this specialty must be skilled in three depart- pertsasto 
 ^ i J ^ r insanity. 
 
 ments of science : (1), law, sufficient to determine what 
 
 is the "responsibility" which is to be the object of the contested 
 capacity ; (2) psychology, so as to be able to speak analytically as 
 to the properties of the human mind ; (3) medicine, so far as con- 
 cerns the treatment of the insane, so as to speak inductively on the 
 same subject. If either of these factors is wanting, a witness can- 
 not be technically an expert. But while, on strict principles, these 
 
 > Wh. on Ev. § 434. ^ Il)i«l. § 438. 
 
 i Ibid. § 380. ^ Il'i'l. § 4.'32. 
 
 3 Ibid. § 436. ' Ibid. ; supra, § 2r.O. 
 
 « Ibid. § 437. 
 
 237
 
 § 270.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 tests should be applied, the courts have relaxed first one and then 
 another limitation until the prevalent opinion now is that all per- 
 sons who have made mental disease a practical study, or who have 
 been employed in the professional care of the insane, are to be 
 regarded as experts in insanity. 
 
 § 200. It has been frequently said, as will hereafter be seen, 
 ^ that neither " quacks" nor mere speculative theorists are 
 
 No sufh- ^ ^ 
 
 cicnt test of admissible as experts. But who are " quacks ? Are 
 ^ ^^ ^ ' practitioners of new, and what may at the time be pro- 
 fessionally viewed as heretical, schools, " quacks ?" This would 
 have disqualified both Willis and Esquirol, each of whom was for a 
 time viewed as a quack by the body of conservative practitioners. 
 Is the adherer of a system which, though venerable and supported 
 by high past authority, is now regarded as exploded ? Would a 
 homoeopathic physician be an expert in materia medica? Would 
 one of Bishop Berkeley's disciples be an expert as to the value of 
 tar-water ? Is even a psychological physician of eminence an expert 
 as to matters exclusively speculative or ethical The latter question 
 was properly negatived in 1869, in the court of appeals of Kentucky, 
 by Chief Justice Williams, who said, that "the opinions of experts, 
 not founded on science, but on a mere theory of morals or ethics? 
 whether given by professional or unprofessional men, are wholly 
 inadmissible as evidence. Hence the opinion of even physicians, 
 that no sane man in a Christian country would commit suicide, not 
 being founded on the science or phenomena of the mind, but rather 
 a theory of morals, religion, and future responsibility, is not evi- 
 dence."^ And such is undoubtedly the law. 
 
 § 270. The respect which was once paid to the testimony of ex- 
 perts, and which was recorded in former editions of this 
 to be close- w'ork, has of late years greatly diminished.^ 
 uized^^'' Thus Chief Justice Chapman, of Massachusetts, on the 
 
 trial of Andrews, in 18(38,^ said, " I think the opinions 
 of experts are not so highly regarded now as they formerly were, 
 for, while they afford great aid in determining facts, it often hap- 
 pens that experts can be found to testify to any theory, however 
 
 ' Ins. Co. V. Graves, 6 Busli (Ky.), « See Wh. on Ev. § 722. 
 290. 3 Pamph. R. p. 356. 
 
 238
 
 EVIDENCE. [§ 270. 
 
 absurd." And Judge Davis, of the supreme court of Maine, ^ went 
 so far as to say, " If there is any kind of testimony that is not 
 only of no value, but even worse than that, it is, in my judgment, 
 that of medical experts. They may be able to state the diagnosis 
 of a disease more learnedly ; but upon the question, whether it had, 
 at a given time, reached such a stage that the subject of it was 
 incapable of making a contract, or irresponsible for his acts, the 
 opinion of his neighbors, if men of good common sense, would be 
 worth more than that of all the experts in the country." And 
 Judge Redfield, in commenting on this case, says, that there seems 
 to be " but one opinion as to the fact that this kind of testimony is 
 extremely unsatisfactory. , . . We are more and more con- 
 firmed in an opinion that the difficulty comes largely from the man- 
 ner in which the witnesses are selected. ... If the state, or 
 the courts, do not esteem the matter of sufficient importance to jus- 
 tify the appointment of public officers, . . . it is certain the 
 parties must employ their own agents to do it ; and it is perhaps 
 almost equally certain, that if it be done in this mode it will pro- 
 duce two trained bands of witnesses, in battle array against each 
 other, since neither party is bound to produce, or will be likely to 
 produce, those as their witnesses who will not confirm their views." 
 So also an eminent federal judge. Judge Woodruff, said to a jury 
 in 1871, that, " where the opinion (of experts) is speculative, 
 theoretical, and states only the belief of the witness, while yet some 
 other opinion is consistent witli the facts stated, it is entitled to but 
 little weight in the minds of the jury. Testimony of experts of this 
 latter description, and especially where the speculative and theoret- 
 ical character of the testimony is illustrated by opinions of experts 
 on both sides of the question, is justly the subject of remark, and 
 has been often condemned by judges as of slight value. And like 
 observations apply to a greater or less degree to the opinions of 
 witnesses who are employed for a purpose and paid for their ser- 
 vices ; who are brought to testify as witnesses for their employers. 
 . . . This condemnation is not always applicable ; often it 
 would be unjust. Where an expert of integrity and skill states 
 conclusions which are the necessary or even the usual results of 
 
 ' Noal's case, cited 1 Redfield on Wills, *101, tand see further cases cited Wh. 
 on Ev. 5 454. 
 
 239
 
 § 273.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 the facts upon which his opinion is based, the evidence should not 
 be lijjhtly esteemed or hastily discredited."' 
 
 ^ 271. Or, to put the point in other language : There is no theory 
 Difficult ^^ absurd but that it has found some philosopher by 
 iuduci'd by whom it is maintained. " Nihil tarn absurde dici potest, 
 
 speculative it i m i ;)o tt 
 
 tendencies quod non dicatur ab aliquo philosophorura. ^ Hence 
 o expei b. ^\^QYQ is no theory so absurd that, on a trial, some 
 unique philosopher may not be secured to testify that he believes 
 it. Of this we have had a number of illustrations in the preceding 
 pages.^ Experts have been found to testify that no sane person 
 commits suicide, and that all suicides are insane ; that all men are 
 more or less insane ; that certain propensities or faculties can be- 
 come insane by themselves, and when insane are irresistible ; that 
 very bad people, and especially old convicts, are, as a rule, insane ; 
 and that certain signs, which signs the great body of the profession 
 regarded as indifferent, are sure marks that insanity has set in. 
 There is, in fact, no psychological defence, no matter how whimsical, 
 that has not been based on the speculations of isolated experts, and 
 that has not found some isolated experts to swear to it on trial. 
 
 § 272, Another difficulty is that experts are now employed sys- 
 tematically and specially feed by the parties calling 
 the f;ut them. They are as much counsel in their specialty as 
 pertsTre ^^^ Solicitors and barristers in a case are counsel in mat- 
 feed by ters of law. When thus employed, they lose all judicial 
 authority. It is impossible but that they must take a 
 strong bias fi-om the party calling them ; and even were this not 
 the case, the policy of the law forbids that a person receiving the 
 special fee from a party should have any other authority in a case 
 beyond that to which he is entitled on the principles of sound logic. 
 If there is reason to believe what he says, he should be believed. 
 But he should not be believed because he is an expert.'* 
 
 § 273. That the sober practical thought of the great body of 
 And so be alienists rejects such extravagances cannot be ques- 
 is^urcx-"^'^^ tioned ; but how are the views of this great body to be 
 pert appei- ascertained ? Of course it is easy for a party to summon 
 
 late court. , , . , , i- J 
 
 the single expert who may happen to have propounded 
 
 " Woodruff, J., Gay v. Ins. Co., 9 a See supra, §§ 190-195. On this 
 
 Blatch. 142 ; 2 Big. Ins. Rep. 14. topic see more fully Wh. on Ev. § 454. 
 
 2 Cicero, Do Divinatione, ii. 58. « Wh. ou Ev. §§454, 722. Supra, § 33. 
 
 240
 
 EVIDENCE. [§ 273. 
 
 the bizarre theory which is necessary to sustain such party's case. 
 But how is such expert to be contradicted ? How is it to be shown 
 that the whole sense of his profession is against him, and that he is 
 himself laboring under one of those delusions to which, as has been 
 seen, men of science are as liable as are men of other professions 
 or modes of training ? It is impossible to summon the whole pro- 
 fession to prove this. It is inadmissible for one to testify as to the 
 opinions of others. There is no supreme court among experts by 
 which conflicting views can be reconciled and an authoritative judg- 
 ment pronounced. There is no power by which the testifying 
 expert, who assumes a semi-judicial post, can be made to accept 
 judicial responsibilities ; can be made to hear counsel to instruct 
 him on both sides of each contested point of psychology ; can be 
 made to' feel that he is bound to testify to the views of his whole 
 profession. Hence, when the trial comes on, the expert who is 
 selected because he holds views which the great body of his pro- 
 fession rejects, testifies often alone, or with but slight and inade- 
 quate correction.^ From this have arisen those outrages on public 
 justice which eminent medical authorities have been among the 
 first to deplore. 2 Hence it is that high medical authority has called 
 for the abandonment of the present system of " voluntary" experts, 
 and the establishment of a government board, as is the case in Ger- 
 many.^ Hence, also, after one conspicuous instance of failure of 
 
 ' See supra, §§ 190-195. verfahren," in " Archiv fiir Preussis- 
 
 2 See Lettsomian Lectures on In- dies Strafreclit," Berlin, 1853. See 
 
 sanity, by Forbes Winslow, M.D., also Regnault's elaborate disquisition, 
 
 D.C.L., late President of the Medical " Du degrede competence desMedecins 
 
 Society of London, etc. London : John dans les questions judicaires relatives 
 
 Churchill, New Burlington Street, aux alienations mentales," etc., Paris, 
 
 Medical Testimony and Evidence in 1S2S. 
 
 Cases of Lunacy, being the Croonian ^ Dr. Reese, Professor of Medical 
 
 Lectures delivered before the Royal .Jurisprudence and Toxicology in the 
 
 College of Physicians, in 1853, with an University of Pennsylvania, in an ar- 
 
 essay on the conditions of mental tide in the American Journal of the 
 
 soundness, by Thomas Mayo, M.D., Medical Sciences for April, 1872, ani- 
 
 F.R.S. London: John W. Parker & madverts with great justice "on the 
 
 Son, West Strand, 1854. Mare, Die impropriety of conducting a post-mor- 
 
 Geisteskrankheiten, in Beziehung auf tem examination, when there is a sus- 
 
 die Rechtspflege, i. p. 8. And sec also picion of death by poison, and where 
 
 particularly Mittermaier's very inter- the reputation and even the life of a 
 
 esting essay, " Die Stellung und Wirk- fellow being is involved, without the 
 
 samkeit der Sachverstiindigen in Straf- presence and oversight of the legally 
 
 VOL. I.— 16 241
 
 § 274.] MENTAL UNSOUNDNESS TN ITS LEGAL RELATIONS. 
 
 justice from this cause — that in the case of Mr. Windham, in 186G — 
 the feeling was so strong of the mischief done by crowding cases 
 with incompetent or extravagant experts to the exclusion of the 
 sober and authoritative, that the lord chancellor proposed in the 
 house of lords, though without pressing the proposition to a vote, 
 to exclude such testimony altogether in commissions of lunacy, 
 except so far as it is based on facts within the personal knowledge 
 of the witness. 
 
 § 274. In many parts of Germany the practice obtains of requir- 
 ExK-rts ^"e ^^^ medical faculty of each judicial district to ap- 
 shouki be point a special committee to whom questions of this char- 
 
 aesessors. ^ ^ i nn • • • • ^ ■,■^ 
 
 acter are reierred. Ihis committee is examined directly 
 by the court, and gives testimony somewhat in the same way, and 
 with the same effect, as would a common law court when reporting 
 its judgment in a feigned issue from chancery, or as would assessors 
 
 constituted autliority — the coroner. It 
 must be evident," lie continues, "to 
 every observer, that the whole exami- 
 nation, in the present case (that of 
 Mrs. E. G. Wharton) was in the hands 
 of those who were not entirely devoid 
 of prejudice. The first autopsy is made 
 by Drs. Williams, Miles, and Chew, 
 within twenty hours after death — the 
 strong suspicion of poison influencing 
 the minds of these gentlemen. Two 
 weeks later, the body is exhumed and 
 again examined, exclusively by these 
 same persons. There is no represen- 
 tative or friend of the accused party 
 invited to be present. Surelij, t/iis wat 
 not in accorr/ance with justice or pro- 
 priety. Were it not that the profes- 
 sional and social character of the parties 
 concerned places them above suspicion, 
 there might certainly be very grave 
 reason for taking exception to such ex 
 parte proceedings ; for there might be 
 just cause for doubt in regard to the 
 absolute identity of the material ope- 
 rated upon. But still more glaring 
 was the departure from propriety, 
 when the body was the second time dis- 
 interred, and that, too, during the 
 
 242 
 
 actual progress of the trial. . . 
 Certainly, none of the counsel for the 
 defence was aware of it, until Dr. Wil- 
 liams one morning (during the trial) 
 gave the unexpected detail to the 
 court, and informed them that the new 
 chemist, to whom the analysis of the 
 viscera had been committed, was now 
 ready to give a partial exhibition of 
 his results. 
 
 "Now it seems to vis that this pro- 
 cedure on the part of the State was 
 unfair to the accused, to her counsel, 
 and to the cause of juctice. We deem 
 it contrary to all precedents in criminal 
 jurisprudence, to take such an unfair 
 advantage of the accused. Why icas 
 not her counsel informed of this intention 
 of the prosecution, so that at least one of 
 the experts for the defence ini<jht have been 
 present at the exhumation of the body and 
 the subsequent analysis, and thus give at 
 least the ajqiearance of fairness to the pro- 
 cedure ? We venture to assert, without 
 fear of contradiction, that such an ex 
 parte i)roceediug would never have been 
 permitted in any country in Europe ; 
 and will never again be allowed, it is 
 hoped, in our own country.''
 
 EVIDENCE. [§ 275. 
 
 called upon under the canon law to state, in proceedings under the 
 law, what is the secular law of the land on the pending question. 
 In the United States, as in England, the practice has grown up, as 
 has been seen, of permitting each party to call such experts as he 
 may think most likely to further his views. This practice neces- 
 sarily produces collision of opinion, which greatly embarrasses court 
 and jury, and has, as has been stated, more than any other 
 cause, tended to weaken what should be in such cases the due in- 
 fluence of medical science. Take, as an illustration, the question 
 of the existence of " moral insanity" as a distinct and substantive 
 defence, supposed to exist independently of any lesion of the mind. 
 The existence of such a phase of insanity is affirmed, as is seen, by 
 one school of experts, and is denied by another school. The defen- 
 dant calls, in a case where the defence of moral insanity is set up, 
 experts of the first school. The prosecutor, in reply, calls experts of 
 the second school. The two classes of experts flatly contradict each 
 other as to the very possibility of the existence of such a defence. 
 The judge, under such circumstances, puts the whole testimony 
 aside, as relating to a question as to which medical science has no 
 distinct rendition. The jury either follow the court, or are governed 
 by some side issue. Of course, under our existing system, the con- 
 flict, as such, cannot be avoided. But it would be greatly lessened 
 if the prosecution, when its proceedings are penal and conducted by 
 the state, should, when the plea of insanity is interposed, call emi- 
 nent and experienced psychological physicians, not as representa- 
 tives of particular schools, but as assessors, to state what, in the 
 pending issue, is the general view of medical science as applied to 
 the defendant's case. In those states where the plea of insanity 
 has to be determined as a distinct preliminary issue, this can be 
 readily done at the outset. When, however, the practice is to per- 
 mit the defendant to introduce insanity under the general plea of 
 not guilty, then the prosecution may take this course in rebuttal. 
 And in all cases, experts, by whomsoever called, should recollect 
 that they are required, when asked as to the existence of any par- 
 ticular disease or symptom, to state not simply their own personal 
 view, but the general sense of the profession to which they belong. 
 § 275. It has already been stated that the opinions of experts, 
 on conclusions of law, are inadmissible ; and it has been further no- 
 ticed that experts are not entitled to testify as such to matters not 
 
 243
 
 § 27G.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS. 
 
 Their testi- distinctively Avithin the range of their specialty.^ In this 
 
 ™Kmid not view, high medical authorities concur. Thus, Dr.Liman, 
 
 -be^epecuia- -^^ j^|g edition of Casper (Berlin, 1871), thus speaks: 
 
 " The history of art^ is rich in individual eccentrici- 
 ties ; and the heroes of art exhibit in the chronology of their works 
 transitions in Avhich it is hard to determine the point where the 
 luxurious liberty of genius passed into fantastic eccentricity." He 
 mentions the case of Beethoven, whose later Avorks it puzzles the 
 most enthusiastic disciple to reconcile with sane art ; and the same 
 observation applies to Turner, some of Avhose later paintings may be 
 assigned, according to the stand-point of the critic, either to great 
 gifts demoralized by insane self-will, or to the same great gifts 
 elevated by genius to the last stage of transfiguration. To 
 similar mental tendencies may be traced, according to Dr. Liman, a 
 large part of the speculative aberrations of those who have theor- 
 ized on the operations of the mind. No theorist, for instance, was 
 more pure or honest than Bishop Berkeley, yet Bishop Berkeley 
 declared it to be indisputably proved that all objective life is a 
 dream. So we may rank the hypothesis of one class of psycholo- 
 gical physicians that every body is more or less insane, and that of 
 another, that all insane persons are responsible ; and so, also, the 
 various extravagant theories of monomania to be hereafter noticed. 
 After all, it should never be forgotten that an abstract opinion as 
 to insanity is of little value. Insanity, it is admitted on all sides, 
 is incapable of definition ; and to declare a person insane, therefore, 
 is to attach to him a predicate which cannot be defined. So, also, 
 it must be remembered that there are some admitted cases of in- 
 sanity (c. <j. " partial" insanity, or collateral monomania) which 
 destroy neither testamentary capacity nor criminal responsibility, 
 when the act is not the product of the particular insane delusion. 
 Hence the real issue is, not was the party inmnc^ but what was his 
 condition of mind as to a particular act. 
 
 §. '270. Special and ex parte interviews, it must be remembered, 
 
 are very unsatisfactory and inade(|uate tests. Few per- 
 
 Examina- . , . , , ., . 
 
 ti,,iis sons with capacity enough to commit crime are wanting 
 
 thurou'di! ^'^ capacity to feign insanity for short periods upon due 
 notice given. Hence it is that experimental visits by 
 
 ' Wh. on Ev. §§ 440, 505. 2 Page 394, 
 
 244
 
 EVIDENCE. [§ 278. 
 
 experts to prisoners are so unsatisfactory ; and hence, also, ^ye may 
 understand the slight influence on court and jury exercised in the 
 trials of Watson and Edmunds in January, 1872, by the testimony 
 of eminent medical gentlemen that they had had several inter- 
 views with the prisoners, and that the prisoners did not seem to have 
 been fully conscious of the nature and moral character of their 
 oifence.' It would be strange if intelligent persons, such as these 
 were, advised by able counsel, should have been ignorant, that, if 
 they should establish an unconsciousness on their part as to the 
 moral nature of their offence, they would make out a legal defence ; 
 and it would be still stranger if a man whose life is at stake should 
 not at once seize upon so simple a mode of escape. Prison inter- 
 views, in fact, are peculiarly imperfect tests : first, because there 
 is there little possibility of observing the prisoner in unrestrained 
 intercourse with others ; and, secondly, because the observer can- 
 not, as he could in an asylum or in places where his authority 
 is supreme, exercise any such control over the parties as will 
 enable him to apply adequate tests. Hence it is that an expert 
 should hesitate long before he expresses on oath an opinion based 
 on such interviews.^ 
 
 § 277. Nor is the danger of deception solely on one side. Sane 
 men may skilfully feign lunacy, but sometimes lunatics 
 have been equally skilful in feigning themselves to be this'is pe-^^' 
 
 sane. Cases have not been rare in which lunatics, while ^'uiiariy 
 
 requisite. 
 hugging as they would an idol their insane delusions to 
 
 their secret heart, have baffled the most experienced examiners for 
 hours. The lunatic who, in a well-known case, succeeded, by sane 
 answers, in defying even Erskine's consummate ability, would no 
 doubt, had the humor seized him, been equally successful in pre- 
 venting examining physicians from discovering his true state in a 
 prison interview. 
 
 § 278. But eminently are caution and thorough acquaintance 
 with the patient's antecedents necessary when the ques- p,.;,,,. ],jj.. 
 tion of motive is involved. Motivelessness, as will here- t"iy "f 
 
 patient 
 
 after be seen,^ is often a prime characteristic of an insane siiouid be 
 act ; and psychological physicians have been accustomed, 
 
 ' Soe supra, §§ 117-120. Infra, § 399. 
 
 2 Si;o, as to feigned insanity, infra, 
 §§ 44?,-4G0. 
 
 245 
 
 uiKlerstood
 
 § 279.] MENTAL UNSOUNDNESS IN ITS LEQAL RELATIONS. 
 
 with great propriety, to give the motivelessness of an act as one of 
 the chief reasons for the insanity of an actor. But who, without 
 thorough knowledge of the human heart, and without a specific and 
 accurate acquaintance Avith the patient's character and antecedents, 
 can declare any one of his acts motiveless ? What may be a 
 powerful motive to one person, may be no motive at all to another. 
 Jealousy, for instance, is a motive of tremendous force, yet to detect 
 jealousy on the one side, or to negative it on the other, requires a 
 thorough knowledge of the party's temper and antecedents. The 
 same remark applies to acts done to ward oft" from self the conse- 
 (luences of some secret wrong. In the case of Christiana Edmunds, 
 for instance, in Avhich one of the chief points of the defence was the 
 mofiv('h'ssni'i<s of the act, there was reason to assume that she had 
 indulged in an illicit attachment to her family physician ; that she 
 had been suspected of poisoning his wife with chocolate ; that to 
 divert this suspicion she caused poison to be introduced into the 
 chocolate-drops of a confectioner in the same town, which drops 
 caused the death of a child ; and that she endeavored, by anony- 
 mous letters and other means, to produce the impression that the 
 confectioner in question sold poisoned sweets. Here was a powerful, 
 but at the same time subtle, motive ; a motive the same in character 
 as that which impelled Dr. Webster to throw suspicion by anony- 
 mous letters on innocent parties of agency in Dr. Parkman's death ; 
 but a motive which, in Edmunds's case, was so secret in its origin 
 and so tortuous in its working, and which was so intensified on her 
 part by jealousy and infatuated love, that it required a full knowl- 
 edge of her life and history to lay it bare. No psychological 
 examiner, therefore, can justly pronounce on the motivelessness of 
 an act without such explanation. Yet it is here that is the very 
 gist of the defence. If a homicide is deliberately committed under 
 the influence of jealousy, or revenge, or a desire to screen self, it 
 is in the eye of the law murder. Supposing that there are at the 
 time no insane delusions ; supposing that there is a knowledge that 
 the act is wrong; then neither weakness of mind, nor infatuation of 
 passion, constitutes a defence. 
 
 III. BOOKS. 
 
 Scientific ^ 270. The prevailing opinion is not only that scien- 
 
 booksiuad- •/>" i i ^ • •" n i i • 
 
 mieeibie. tinc books (not consistuig 01 mere' calculations) are not 
 246
 
 EVIDENCE. [§ 279. 
 
 admissible in evidence on litigated issues, but that they cannot be 
 read by counsel to the jury as part of an argument.^ But an expert 
 may be examined as to how far standard works sustain or conflict 
 with his opinion. 
 
 [The hiatus between § 279 and § 30.3 in this edition is intentional, 
 arising from condensation.] 
 
 • Wh. on Ev. § 665. 
 
 247
 
 BOOK II. 
 
 MENTAL UNSOUNDNESS CONSIDERED 
 PSYCHOLOGICALLY. 
 
 CHAPTER I. 
 
 GENERAL THEORIES. 
 
 I. Preliminary Observations. 
 
 The mind now treated as a nnit, § 305. 
 
 Phenomena of mind divided into three 
 classes by Kant and Sir W. Hamil- 
 ton, § 306. 
 
 This classification adopted by Bain, § 
 307. 
 
 These functions not capable of distinct 
 insanities, § 308. 
 
 So held by later psychologists, § 309. 
 
 Classification of experts in Paris, 1S67, 
 § 310. 
 
 Dr. Maudsley, § 311. 
 
 Dr. Hammond, § 312. 
 
 Analysis of Casper and Liman, § 313. 
 
 Of Dr. Ray, § 314. 
 
 Of Flemming, § 315. 
 
 Of Ellinger, § 310. 
 
 Three prominent theories as to cai;se 
 of insanity, § 318. 
 
 11. PsYcuicAL Theory. 
 
 Tlie soul the origin of the disease, § 
 319. 
 
 III. Somatic Theory. 
 
 Disturbance of the soul produced l)y 
 
 bodily abnormities, § 320. 
 No lesion of the brain due to insanity, 
 
 § 321. 
 Insanity does not always produce 
 
 organic cerebral change, § 322. 
 
 No correspondence between exterior of 
 skull and sanity, § 323. 
 
 Coutiict on subject illustrated by apha- 
 sia, § 324. 
 
 This said to be of physical origin, § 
 325. 
 
 Objections to this view, § 326. 
 
 Materialistic hypothesis would avoid 
 personal responsibility, § 327. 
 
 Though it is claimed not to affect 
 future responsibility, § 328. 
 
 IV. Intermediate Theory. 
 1. Its basis. 
 
 Body and soul alike the origin of dis- 
 ease, § 329. 
 
 Psychological theory too great a reac- 
 tion from the somatic, § 330. 
 
 Sound psychologists tend to interme- 
 diate theory, § 331. 
 
 This theory not rejected by standard 
 tlieologians, § 332. 
 
 Tlie incorporeality of the soul not a 
 canon of faith, § 333. 
 
 Mind and matter united in our nature, 
 § 384. 
 
 And react upon each other, § 335. 
 2. lis effect on rcsjxMslbiliti/. 
 
 Intermediate theory relieves doctrine 
 of resi)()iisibility of many difliculties, 
 § 330. 
 
 Question of penal discipline, how deter- 
 mined, § 337. 
 
 249
 
 § 306.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 I. PRELIMINARY OBSERVATIONS/ 
 
 § 305. The difficulties that have attended the classification of 
 
 insanity have proceeded from two causes. The first is, 
 
 '^ow treat ^'^*^ confusion of nomenclature, the same terms being used 
 
 ed as a to describe, according to the stand-point of the observer, 
 
 uiiit. ' o 1 ' 
 
 very distinct phenomena. The second is, the treatment 
 
 of a symptom as if it Avere a distinct, substantive disease ; and the 
 consequent resolution of the mind into a series of distinct, inde- 
 pendent factors, one of which may be assumed to be insane, while 
 the others remain sane. It is the latter tendency, in fact, that has, 
 more than all other causes, tended to lower the authority of psy- 
 chology with the courts. 
 
 But the weight of present psychological opinion is to discard this 
 process of disintegration, and to treat the mind as a unit, which, 
 when diseased, however distinctively the disease may manifest 
 itself, is diseased as a Avhole. This, in fact, is a necessary sequence 
 of the view of the mind as an entirety which modern psychologists 
 of all schools unite in maintaining. Assuming "mind" and "soul" 
 to have in this view the same sense, and to represent the individual 
 ego, we must view the various functions or factors — e. g. memory, 
 perception, moral sense, will — not as so many Jisthict minds, but 
 as parts or manifestations of one mind. 
 
 § 300. Sir William Hamilton^ thus reviews the literature of the 
 Phono- topic as it existed at the time of the preparation of his 
 
 niiiui di- lectures. "The division o^ the phrnomoia of the mind 
 yided mto jj^^o the three srreat classes of the coo;nitive faculties, 
 
 three ° o ^ 
 
 ' In order to avoid redundancy of and Civil Capacity, by Krafft Ebing, 
 citation, the following works may be 1874; LaFolieHereditaire, Dr. Legrand 
 here referred to as bearing on the du SauUe, Paris, 1873 ; Etude Medico- 
 general subject : Responsibility in Legale sur 1' Interdiction des Alieiies, 
 Mental Disease, by Dr. Henry Mauds- etc., Paris, 1880; Sur les Testa- 
 ley, M.D., N. Y. 1874; Insanity in ments Contesf§s pour la Cause de 
 Ancient and Modern Life, Dr. Hack Folic, id. 1879 ; Jurisprudence M6dico- 
 Tuke, London, 1878; Nature, etc., of Legale, id. 1874, all by the same au- 
 Insanity, Dr. Davey, Lond. 1858 ; The tlior ; The Morrisonian Lectures for 
 Factors of the Unsound Mind, William 1873, by Drs. Skae and Coulston, 19 
 A. Guy, M.D., F.R.S., Lond. ; Lectures .Journ. Ment. Sci. 355, 491 ; 20 id. 1, 200. 
 on Mental Disease, W. II. 0. Sankey, Maschka's Gericht. Med. Tiibingen, 
 M.D., Lond. ; Personal Responsibility 1882. 
 
 of the Insane, James F. Duncan, M.D., ^ Lectures on Metaphysics, Gould c& 
 
 Lend., 1877; Criminal Responsibility Lincoln, p. 129. 
 
 250
 
 GENERAL THEORIES. [§ 307. 
 
 the feelings or capacities of pleasure and pain, and the classes by 
 
 , • , • T 1 i. • • Kant and 
 
 exertive or conative powers — i do not propose as origi- sir w. 
 nal. It was first promulgated bj Kant ; and the feli- Hamilton, 
 city of the distribution was so apparent, that it has been long all 
 but universally adopted in Germany by the philosophers of every 
 school ; and, what is curious, the only philosopher of any eminence 
 by whom it has been assailed — indeed, the only philosopher of 
 any reputation by whom it has been, in that country, rejected 
 (Krug) — is not an opponent of Kantian philosophy, but oije of 
 its most zealous champions. To the psychologists of this country 
 it is apparently wholly unknown. They still adhere to the old 
 scholastic division into powers of the understanding and powers 
 of the will ; or, as it is otherwise expressed, into intellectual and 
 active powers." It should be observed, however, that between 
 the old English and Scotch psychologists and Kant, there is no 
 difference, so far as concerns the question before us — the unity 
 and entirety of the mind. They differ in the enumeration of the 
 functions ; they agree as to the unity of the substance. Accord- 
 ing to the older psychologists, the mind acts in two main ways ; 
 according to Kant and Hamilton, in three. But by neither are 
 these functions severable from the mind. If either is diseased, 
 the mind itself is diseased. If the mind is not diseased, its phe- 
 nomena, either jointly or singly, are not diseased.^ 
 
 § 307. Mr. Bain^ adopts substantially the classification of Sir 
 W. Hamilton and Kant. " The only account of mind," 
 he says, "strictly admissible in scientific psychology con- ciassiflca- 
 sists in specifying three properties or functions — feeling, eQ^ijy^BaFn. 
 will or volition, and thought or intellect — through which 
 all our experience, as well objective as subjective, is built up. This 
 positive enumeration is what must stand for a definition."^ . . . 
 '■'■ Thought , intellect^ intelligence, or cognition includes the powers 
 known as perception, memory, conception, abstraction, reason, judg- 
 ment, and imagination. It is analyzed, as will be seen, into three 
 
 • Reid, indeed, makes four apparent wliioli thinks, remembers, reasons, 
 groups, but he is clear in stating that wills." 
 
 these are but the modes of action of the * Mental and Moral Science, London, 
 one mind. " By the mind of a man," 18()8. 
 
 ho says, "we understand that in him ' For this passage in full, see infra, 
 
 § 533. 
 
 251
 
 § 308,] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 functions, called discrimination, or consciousness of difference, simi- 
 larity or consciousness of agreement, and retentiveness or memory. 
 The mind can seldom operate exclusively in any one of these three 
 modes. A feeling is apt to be accompanied more or less by will or 
 thought. When we are pleased, our will is moved for continuance 
 or increase of the pleasure (will) ; we at the same time discrimi- 
 nate and identify the pleasure, and have it impressed on the memory 
 (thought.)" In this view of the interdependence of these functions 
 Sir W- Hamilton emphatically concurs. 
 
 § 308. If, it may in addition be remarked, we can conceive of 
 „ distinct insanities (the mind as such remaining sane) of 
 
 These func- r. , , ■ n ■ 
 
 tions not either of the three mam functions above stated ; so we 
 disthict in- must conceive of distinct insanities of such subordinate 
 sanities. functions (the mind as such still continuing sane) as these 
 functions in chief may comprise. Thus we will hear of insane per- 
 ception, insane memory, insane discrimination, etc., the mind still 
 being supposed to be unimpaired. In fact there would be as many 
 insanities as there are modes of mental thinking, feeling, and 
 willing.^ 
 
 That, however, such derangements are not distinct, independent 
 diseases, is shown by the fact, hereafter abundantly noticed, that 
 they occur sometimes alternately, sometimes successively, when 
 there is true mental disease. The disease may flit, as does neu- 
 ralgia, capriciously from function to function. Or, as is more 
 usually the case, it may begin with a derangement of the per- 
 ceptive powers, producing illusions and hallucinations, and end with 
 a torpid prostration of these powers, producing senile dementia. It 
 may, and frequently does, run through the stages of epilepsy, of 
 illusion, of perverted domestic affections, of mania for killing, steal- 
 ing, or burning, of general frenzy, and at last of exhausted dementia 
 and fatuity. The difficulty that exists has arisen from the occa- 
 sional treatment by experts of these floating symptoms of one 
 disease as if they were independent diseases. There is but one 
 mind to each of us, though this mind has many functions. There 
 can be but one disease to which psychologically the term insanity 
 may be applied, though this disease minifests itself, even in one and 
 the same patient, in various ways.^ 
 
 ' See infra, § 533 e( seq. 2 See fully infra, § 533 et seq, 
 
 252
 
 GENERAL THEORIES. [§ 310. 
 
 § 309. It is scarcely necessary to pause now to show how gene- 
 rally this view has been accepted by recent medical 
 
 " . ^ ^. , •^ 1 So held by 
 
 psychologists.^ What MoreP says, " il n y a pas qu une later psy- 
 folie, mais diverses varidtds de cette affection," is of '^^^"S^^^- 
 primary importance Avhen analysis begins. There is not a series of 
 independent insanities ; there is but one insanity exhibiting itself 
 in various phases. Nor can we refuse to recognize the good sense 
 with which Dr. Neumann^ declares that all classification of insanity 
 has proved to be artificial and, therefore, unsatisfactory ; and that 
 no true progress in this science can be credited, until all classifica- 
 tion is thrown overboard, and there is recognized but one generic 
 type of mental disturbance ; and further, that " true medical diag- 
 nosis does not need these artificial divisions, and for forensic psy- 
 chology they have been pernicious. The tendency of alienists to 
 confuse or confound the judge by technical nomenclature (mono- 
 mania, pyromania, etc.), instead of by psychological analysis eluci- 
 dating the concrete case, springs from a merely artificial systemati- 
 zation, and judicial psycliology will for the first time assume its 
 proper place at the forum when it is emancipated from the fetters 
 of the schools." These views Dr. Liman entirely adopts.^ " Mental 
 health," he tells us, "is the antithesis of mental disease ; and the 
 sole duty imposed upon us is the exposition and development of the 
 concrete individual case as such, which is now so easily lost sight 
 of in the division of mental disease into numberless species and 
 varieties!"^ 
 
 § 310. Eemembering, therefore, that the different forms of in- 
 sanity described by psychologists are but phases of one disease, 
 it may be of value to notice some of the modes in which these 
 forms have been classified." 
 
 One of the most authoritative of these classifications is ciassitifa- 
 that reported by an international congress of psycholo- p^i-ts in 
 gical experts assembled in Paris in 18(37.^ It is as P'i'''«> i^C7. 
 follows : — 
 
 1 See more fully infra, §§ 5G7-r)72. ^ See more fully infra, § 507, and 
 
 2 Traite de la Med. Leg., Paris, 18GG, also supra, §§ 1G3-189, 
 
 § iv. " See, for Dr. Buckiiiel's elassifiea- 
 
 3 Lehrljuch dor Psycliiatrie, Erlan- tioii, 19 Journ. Ment. Sci. 574. 
 
 gen, 1859, pp. 1G7-237. ^ Hammond, Diseases of Nervous 
 
 * Limau's Casper, 1871, p. 550. System, N. Y., 1871, p. 337. 
 
 253
 
 § 311.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 I. Simple insanity, embracing mania, melancliolia, and monomania (thus 
 negativing tlie claims of monomania to be considered a distinct dis- 
 ease), floating insanity, moral insanity (whose independent existence 
 is also thus negatived), and dementia consequent on the above types. 
 II. Epileptic insanity. » 
 
 III. Paralytic insanity, which is treated as a distinct disease. 
 
 IV. Senile dementia. 
 
 V. Organic dementia, which is that supposed to arise from some cerebral lesion. 
 VI. Idiocy. 
 VII. Cretinism. 
 
 This analysis, however it may serve as a convenient enumeration, 
 is destitute of logical value. It applies exclusively neither the 
 test of causation, nor of symptom, nor order of development, but 
 is purely arbitrary, in making, in the first head, symptom the test, 
 and then grouping together symptoms the most incongruous ; rest- 
 ing the second, third, fourth, and fifth heads on superinduced 
 physical causes, and the sixth and seventh on causes which are 
 congenital. 
 
 Dr. Mauds- ^ 3;^-^^ jy^ Maudsley> adopts the following:— 
 
 I. Affective or pathetic insanity. 
 
 1. Maniacal perversion of the effective life. Mania sine delirio. 
 
 2. Melancholic depression without delusion. Simple melancholia. 
 
 3. Moral alienation proper. Ap2>roaching this, but not reaching the 
 
 degree of positive insanity, is the insane temperament. 
 II. Ideational insanity. 
 
 1. General. 
 
 a. Mania. 1 
 
 ; ^T 1 11- ^ acute, 
 6. Melancholia, ■ ' 
 
 ( chronic. 
 
 2. Partial. 
 
 a. Monomania. 
 h. Melancliolia. 
 
 3. Dementia, 
 
 ( primary, 
 ( secondary 
 
 4. General paralysis. 
 
 5. Imbecility. 
 
 As to this analysis, it is to be observed simply, that. If it mak'^s 
 the " effective life," independent of the mind, capable of being 
 diseased when the mind is undiseased, it runs counter both to 
 psychological and to juridical science. If it does not make this 
 assumption, it is, as an analysis, insensible and illogical. 
 
 ' Physiology and Pathology of the Mind, London, 1SG7. 
 
 254
 
 GENERAL THEORIES. [§ 314. 
 
 § 312. Dr. Hammond gives the following, which, as a Dr. Ham- 
 classification of symptoms, is of much value : — mond. 
 
 I. Perceptional insanity, " characterized by the tendency to the formation 
 of erroneous perception either from false imcressions of real objects 
 (illusions) or from no external excitation whatever (hallucinations)." 
 II. Intellectual insanity, " characterized by the existence of delusions." Sub- 
 sequently it is said, as explanatory of this distinction, that "illusions 
 and hallucinations may exist, and the individual be perfectly sensible that 
 they are not realities. In such cases the intellect is not involved. But, if he 
 accepts his false perceptions as facts, his intellect participates, and he has de- 
 lusions. A delusion is, therefore, a false belief. ^^ The objection to this is 
 that the terms illusion and delusion are used convertibly by most psycho- 
 logists ; and that hallucination is not a symptom of insanity imless the 
 unreal image is not merely the creation of a diseased brain, but is 
 believed to be real. 
 
 III. Emotional insanity. 
 
 IV. Volitional insanity. 
 V. Mania. 
 
 VI. General paralysis. 
 VII. Idiocy and dementia. 
 
 § 313. The analysis of Casper and Llman is both phi- Analysis of 
 losophical and simple. It is as follows : — Limau 
 
 lau. 
 
 I. Insanity in its progress, including despondency, melancholy, excitation, 
 mania, as among the various forms in which this progress exhibits 
 itself. 
 II. Insanity in its results, including imbecility, dementia, and fatuity. 
 
 § 314. "The various diseases included in the general terra in- 
 sanitv, or mental deranrreraent," says Dr. Rav, "may ^ 
 
 ^ . ° ' "^ . . . " "^ Of Dr. Ray. 
 
 be conveniently arranged under two divisions, founded 
 on two very difi'erent conditions of the brain ; the first being a want 
 of its ordinary development, and the second, some lesion of its 
 structure subsequent to its development. In the former of these 
 divisions, Ave have idiocy and imbecility, diftering from each other 
 only in degree. The various affections embraced in the latter 
 general division may be arranged under two subdivisions, mania 
 and dementia, distinguished by the contrast they present in the 
 energy and tone of the mental manifestations. Mania is charac- 
 terized by unnatural exaltation or depression of the facxdties, and 
 may be confined to the intellectual or to the effective })owers, or it 
 may involve them both, and these powers may be generally or j)ar- 
 tially deranged. Dementia depends on a more or less complete 
 enfeeblement of the faculties, and may be consecutive to injury of 
 
 255
 
 § 315.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the brain, to mania, or to some other disease ; or it may be con- 
 nected with the decay of old age. These divisions will be more 
 conveniently exhibited in the following tabular view : — 
 
 Defective 
 
 development 
 
 of tlie 
 
 faculties. 
 
 f Idiocy, 
 
 Imbkcility. 
 
 INSANITY. 
 
 Lesion of tlie 
 
 faculties 
 
 subsequent 
 
 to their 
 
 development. 
 
 1. Resulting from congenital defect. 
 
 2. Resulting from an obstacle to the 
 
 development of the faculties, 
 supervening in infancy. 
 
 1. Resulting from congenital defect. 
 
 2. Resulting from an obstacle to the 
 
 development of the faculties, 
 supervening in infancy. 
 
 1. General. 
 
 2. Partial. 
 
 Intellectual, 
 
 Mama. 
 
 Dementia. 
 
 Affective, 
 
 1. General. 
 
 2. Partial. 
 
 1. Consecutive to mania, or injuries 
 
 of the brain. 
 
 2. Senile, peculiar to old age."' 
 
 § 315. 
 
 Of Flem- 
 ming. 
 
 The following classification of Flemming,^ while less 
 simple, is very valuable both for the delicate precision 
 of its analysis, and for the important aid it afibrds to 
 the nomenclature of forensic psychology: — 
 
 I. INFIRMITAS. (Geistesschwiiche). Imbecility, the characteristic being the 
 diminution in psychical power. 
 1st. As to origin. 
 
 (1) Primarid sen comjenltd. (Syn. Idiotismiis.) A defective de- 
 
 velopment perceptible either at birth or infancy. 
 
 (2) E morho, arising from wounds on the head, brain or nervous 
 
 fevers, or epilepsy. 
 
 (3) Senilis, arising from decrease in vitality in the extreme 
 
 stages of old age. 
 2d. As to extent. 
 
 (1) liijirmitas adslrirtn. Limited imbecility, the characteristic 
 being diminution of particular organic powers. 
 
 («) Dtjsmtnia. Weakness of memory, the characteristic 
 being the feebleness of the reproductive power of 
 the i^erceistive faculty, and the sympUmis, an 
 inability to remember things either recent or 
 remote, distinctly or at all. 
 
 ' Ray on Insanity, 71. 
 
 250 
 
 2 Psychiatrisches Journal, Bd. 
 Hft. 1, p. 112.
 
 GENERAL THEORIES. [§ 315. 
 
 (6) Iiifirmitas adstricta surdo-mutorum. Imbecility of the 
 
 deaf and dumb, 
 (c) Iiifirmitas adstricta cacorum. Imbecility of the blind. 
 (2) Infinnitas sparsa. General weakness of mind, the character- 
 istic being the absolute or relative weakness of all the 
 mental and moral functions, and the symptoms, obtuse- 
 ness and feebleness of the perceptive and attentive powers ; 
 feebleness of comprehension, of ratiocination, of imagina- 
 tion, of memory, in a variety of gradations. 
 II. VESANIA (Geistes verwirrung). Mental confusion, the characteristic being 
 a depravity (depravation) of the psychical powers arising from excess or 
 perversion. 
 
 1st. Vesanta dysthymodes, or dysthymia, disorder of temperament, the 
 characteristic being the depravity {depravation) of the psychical 
 powers connected with an overpowering disturbance of the tem- 
 perament. Symptoms : an anomalous condition of the sensi- 
 bility, the mental tone, the inclinations, and the impulses. The 
 consequent deliria are the invariable effect of the dysthymia, 
 and depend upon the prevailing feeling or sentiment. 
 
 (1) Dysthymia transitoria sen siibita. Sudden dysthymia, the 
 
 characteristic being the suddenness and rapidity of its 
 approach. Symptoms : irritability, proneness to agita- 
 tion, irascibility, excessive disgust, fear of death, ex- 
 treme timidity, despair of happiness. It occurs fre- 
 quently in the Stadium prodromorum of cerebral affections 
 and nervous fevers, or of epilepsy and the cognate com- 
 plaints ; and is sometimes, though more rarely, accom- 
 panied by the sudden suicidal impulse. It should be 
 observed that dysthymia remittens sinks in the remission 
 into the mere dysaethesis. 
 
 (2) Dysthymia adstricta, or partial dysthymia, the characteris- 
 
 tic being an anomalous condition of particular states of 
 
 feeling, inclinations, and impulses. 
 
 (o) Atra (the Melancholia Lypemonia of Esquirol), or 
 gloomy Dysthymia, the characteristic being sad- 
 ness, fear, dread, suspicion, malevolence, home- 
 sickness {nostalgia), and the wildness and ferocity 
 of the intoxicated. {Ferocitas et inorositas ebrio- 
 sorum.) 
 (6) Dysthymia Candida, cheerful Dysthymia {Melan- 
 cholia hiluris, Charomanie Chamheyron), the char- 
 acteristics being hilarity, recklessness of manner, 
 raillery, proneness to see all things in the most 
 vivacious light. 
 (c) Dysthymia mutahilis, variable fJysthymia, the char- 
 acteristic being vacillation between the two fore- 
 going forms. 
 
 VOL. I.— 17 257
 
 ^ 315.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 (3) Dysthymia sparsa (apathica), general Dysthymia (^Melan- 
 cholia Attonita). Tlie characteristics being apparent 
 obtiiseness, dnll, heavy reveries and abstractions, 
 prevalence of an indistinct sensation of discomfort, 
 apatliy to all extraneous impressions. 
 2d. Vesania Annoetos, or Anoesia. Disturbance of the understanding. 
 The characteristics being the depravity (depravation) of the 
 psychical powers, with a controlling anomalousness of the intel- 
 lectual faculties. Symptoms, deliria of various kinds, with 
 manifestations of Dysthymia, which, however, are merely sub- 
 ordinate. 
 
 (1) Anoesia Transitoria, or Siihita. Sudden Anoesia. The 
 
 characteristics being unexpected appearance and rapid 
 subsidence. 
 
 («) Anoesia efehre. Febrile delirium. 
 
 (6) Anoesia epotu nimio [ehrietas). Drunkenness. 
 
 (o) Anoesia ex affectu, madness caused by agitation 
 
 of mind. 
 ((/) Arwesia semisomnis. Confusion of mind in sleep. 
 
 Sleep-drunkenness. 
 (e) Anoesia Somnamhula, or Spastica; Somnambulism. 
 
 (2) Anoesia continua, chronic Anoesia. 
 
 (3) Anoesia remittens. Remittent Anoesia. 
 
 (4) Anoesia adstricta, partial Anoesia or Lunacy. The charac- 
 
 teristics being delirium in particular intellectual de- 
 partments. 
 
 («) Anoesia ad sensationes. Hallucinations (deliria of 
 the senses). Var. a fallacia sensuum et halluci- 
 natio ehriosoruvi (derangement of the senses con- 
 sequent on excess of drinking). 
 (/)) Anoesia ad cogitationes, eccentricity, fixed insane 
 ideas. 
 
 (5) Anoesia sparsa. General Anoesia or lunacy, the charac- 
 
 teristics being deliria in every department of the intel- 
 lectual faculties. Var. a Anoesia potatorum (Delirium 
 tremens). 
 3d. Vesania maniaca sue ^lania. The characteristic being a depravity 
 (dei^ravation) of the psychical functions, with a concurrent ano- 
 malousness of the emotional and intellectual faculties. The 
 symptoms are a violent and perverse temper, inclinations and 
 impulses, with violent deliria, which mutually sustain and ag- 
 gravate each other. 
 
 (1) Mania transitoria subita, sudden mania, the characteristic 
 being a siidden breaking out of mania without percep- 
 tible premonitory stages, and witliout previous Dt/s- 
 thjmia or Anoesia; generally a crisis in sleep, or transi- 
 tion to the second class. 
 
 258
 
 GENERAL THEORIES. [§ 316. 
 
 (a) Mania suhita a fehre (Delirium encephaliticmn), 
 sudden delirium, with feverish symptoms of the 
 brain and nerves. 
 
 (b) Mania suhita a potu nimio, arising from and during 
 intoxication. 
 
 (c) Mania suhita ex affectu, mania caused by excessive 
 agitation of the aflfections. 
 
 (c?) Mania suhita e partu, mania connected with par- 
 turition. 
 
 (e) Mania suhito e morho occulta (vulgo), Amentia oc- 
 culta, which also includes the previous species. 
 
 (2) Mania continua, permanent mania. 
 
 (3) Mania remittens, Remittent mania. (Remark — Remittent 
 
 mania in remission turns into Anoesia, in some cases 
 immediately into Dysthymia.) 
 
 (4) Mania adstricta seu instinctiva. Moral Insanity (Mania 
 
 sine delirio of Pinel ; Monomanie instinctive of Marc ; Mania 
 afFectiva ; Folie raisonante) ; the characteristics being 
 insanity, apparently confined to specific morbid im- 
 pulses. This class is almost always connected with 
 the symptoms of Mania transitoria seu suhita. 
 
 (5) Mania sparsa. General mania is the characteristic, being 
 
 a depravity (depravation) of both the moral and intel- 
 lectual i^owers. 
 
 ^ 316. To Ellinorer^ we are indebted for the follow- t.,,. 
 
 ' ° Ellinger. 
 
 ing:— 
 
 I. Diseases of the affections, when the affections, sentiments, and desires are 
 preponderatingly alienated, while the intellectual faculties are affected 
 in an inferior or at least a secondary degree. 
 
 (a) Melancholy, the prevalent type being sadness, depression, 
 
 fear, dread, and despair, 
 (fc) Frenzy, the prevalent type being mirth, mischievousness, 
 
 anger, 
 (c) Volatility (Launenliaftigkeit). Alternation between the 
 two last-mentioned phases. 
 II. Delirium, the sentiments and intellectual faculties being equally affected, 
 and both the subjective and objective relations alike distorted. 
 
 (a) (b) (c) Characterized by melancholy, frenzy, and the alter- 
 nation of the two. 
 III. Diseases of the intellect, where the affections take subordinate i>art and 
 the intellect is mainly disordered. 
 (a) Partial. 
 (h) General, 
 (c) Debility, including idiocy and imbecility. 
 
 ' Ueber die antropologischen Momente der Zurechnungs fiihigkeit. Ludwigs- 
 burg, lS4(i. 
 
 259
 
 § 320.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 317. Without attempting a formal oi* scientific analysis, it is 
 now proposed to consider the several points in which psychology 
 comes in contact with the law of the land. 
 
 § 318. To those who have examined that portion of the preced- 
 Three pro- ^"S P^ges which treats of the legal relations of mental 
 
 mincnt unsoundnoss, it will be obvious that no hypothesis can 
 theories as . .„ 
 
 to cause of be constructed which will meet with exactness every pos- 
 nsamty. ^.^^^ future case. No general definition has, therefore, 
 been attempted, and it is sufficient at present to notice the three 
 prominent hypotheses by which the cause, rather than the nature, 
 of mental unsoundness has been explained. This examination is 
 here made the more thorough, from the fact that it is upon the 
 result of this inquiry that the philosophy of the common law doc- 
 trine of insanity must depend. 
 
 II. PSYCHICAL THEORY. 
 
 § 319. This is based on the assumption that the primitive source 
 of these diseases is in the soul itself, and that the soul 
 the origin is that whicli originally suffers, and imparts, Avhen there 
 of tiie (lis- .g ijjganity, its malady to the body.^ 
 
 ease. 
 
 III. SOMATIC T]IEORY. 
 
 § 320. The somatic theory takes for granted that the soul itself, 
 as such, is incapable of originating a disease, but that 
 ancesof the the occasion of every affection of the mind is to be found 
 duced'by i'^ some abnormity of bodily development, and that aber- 
 normities' J^^^ions of mind are nothing more than disturbances of 
 some functions of the soul produced by bodily abnormi- 
 ties. This theory resolves itself into various subdivisions. One 
 party assumes, that, while every mental disease is to be deduced 
 from bodily causes, it is still to be treated as a self-existent disease ; 
 while others maintain that there can be no such thing as a diseased 
 state of the mind, and that what we usually designate as such is 
 
 ' See an exposition of this in Dr. to President Noah Porter's admirable 
 
 Henry Monro's " Remarks on Insanity, work on the Human Intellect, of recent 
 
 its Nature and Treatment," London, n872) psychological treatises the most 
 
 1850. I also call particular attention judicious as well as the most exact. 
 
 260
 
 GENERAL THEORIES. [§ 320. 
 
 nothing more than a symptom of some bodily disorder,^ The 
 somatic theory, so far as it involves phrenology, is examined with 
 singular accuracy and thoroughness by Sir William Hamilton, in 
 the appendix to the first volume of his Lectures on Metaphysics.^ 
 He first discusses the phrenological doctrine of the cerebellum, and 
 by a series of experiments explodes the phrenological hypothesis. 
 After having weighed, with peculiar care, and under precautions 
 which exclude all the known possibilities of mistake, over one 
 thousand brains of fifty different species of animals, he shows : — 
 
 (1) The cerebella of animals generally are not, during a certain 
 period subsequent to birth, less in proportion to the brain proper 
 than in adults. 
 
 (2) In no species of animal has the female a proportionally 
 smaller cerebellum than the male ; Avhile in most species, " and 
 this according to a certain law, she has a considerably larger." 
 
 (3) So far from being the case as is alleged by phrenologists, 
 that in impuberal animals the cerebellum, in proportion to the brain 
 proper, is greatly less than in adults, the contradictory is shown. 
 
 (4) The phrenological assertion, that " the proportion of the 
 cerebellum to the brain proper in different species is in proportion 
 to the energy of the phrenological function attributed to it," is 
 equally groundless. 
 
 We add one or two distinct points made by this most eminent 
 and most reliable of modern psychologists: "I shall, however, 
 give you the sample of another general fact. The organ of venera- 
 tion rises in the middle on the coronal surface of the head. Women, 
 it is universally admitted, manifest religious feeling more strongly 
 and generally than men, and the phrenologists accordingly assert 
 that the female cranium is higher in proportion in that region than 
 
 ' A very ingenious though unsound Lectures on Metai^hysics, pj). OrjO-GfjS, 
 defence of tlie somatic theory will be where the phrtjnological theory is tlior- 
 found in Mr. M. B. Sampson's "Crimi- oughly demolished. For a copious 
 nal Jurisprudence considered in rela- and elaborate history of materialism, 
 tion to Cerebral Organization," Lon- coupled with some ingenious specula- 
 don, 1843. Hobbes's famous theory tions on its later developments, see 
 drifts in the same direction. The re- (Jcschiclitc des Matcnulnius, uml Kritik 
 suit of this would be to make all re- seiner BedeAitung in der Gegcmoart, von 
 straint an injustice. So far as concerns Friedrich Albert Lange, Iserlohn, 1806. 
 phrenology, the reader is particularly * Gould & Ijincoln, 1859. 
 referred to Sir William Hamilton's 
 
 261
 
 § 320.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the male. This I found to be the very reverse of truth, bj a com- 
 parative average of nearly two hundred skulls of either sex. In 
 man, the female encephalos is considerably smaller than that of the 
 male, and in shape the crania of the sexes are different. By what 
 dimension is the female skull less than the male ? The female skull 
 is longer, it is nearly as broad, but it is much lower than the male. 
 This is only one of several curious sexual differences of the head. 
 
 "I do not know whether it be worth while mentioning, that, 
 by a comparison of all the crania of murderers preserved in the 
 anatomical museum of this university, with nearly two hundred 
 ordinary skulls indifferently taken, I found that these criminals 
 exhibited a development of the phrenological organs of destruc- 
 tiveness and other evil propensities smaller, and a development of 
 the higher moral and intellectual qualities larger, than the average. 
 Nay, more, the same results were obtained when the murderers' 
 skulls were compared, not merely with common average, but with 
 the individual crania of Robert Bruce, George Buchanan, and Dr. 
 David Gregory." 
 
 Then, as to the frontal sinuses : — 
 
 " I omit all notice of many other decisive facts subversive of the 
 hypothesis in question ; but I cannot leave the subject without 
 alluding to one, which disproves at one blow a multitude of 
 organs, affords a significant example of the accuracy of statement, 
 and shows how easily manifestation can, by the phrenologists, be 
 accommodated to any development, real or supposed. I refer to 
 the frontal sinuses. These are cavities between the tables of the 
 frontal bone, in consequence of a divergence from each other. 
 They are found in all puberal crania ; and are of variable and 
 (from without) wholly inappreciable exent and depth. 
 Now the phrenologists have, fortunately or unfortunately, concen- 
 trated the whole of their very smallest organs over the region of 
 the sinus. IIow is it possible, he asks, that eye or finger can detect 
 minute degrees of cerebral development beyond these invisible, 
 unknown cavities, of various extent ? The phrenologists were not 
 aciiuainted with the anatomy of the part. Gall asserted that the 
 sinus was often absent in men ; seldom or never found in women. 
 Spurzheim declares that the frontal sinuses are found only in old 
 persons, or after chronic insanity." 
 262
 
 GENERAL THEORIES. [§ 320. 
 
 In reply to this, Sir W. Hamilton shows, after an inspection of 
 several hundred crania, that no skull is without a sinus. 
 
 Behind the spacious caverns, he then goes on to show, in utter 
 ignorance of the extent, frequency, and even of the existence of 
 this impediment, the phrenologists have placed not one large, but 
 seventeen of their smallest organs. 
 
 By concentrating all their organs of the smallest size within the 
 limits of the sinus, they have, in the first place, put the organs 
 whose, range of development is least behind an obstacle whose range 
 of development is greatest. 
 
 In the second place, they have at once thrown one-half of their 
 whole organology beyond the range of possible discovery and possi- 
 ble proof. 
 
 In the third place, by thus evincing that their observations on 
 that one-half had been only illusive fancies, they have furnished a 
 criterion of the credit that may be accorded to their observations in 
 relation to the other ; they have shown, in this as in other portions 
 of their doctrine, that manifestation and development are quantities, 
 which (be they what they may) can, on their doctrine, always be 
 brought to an equation. 
 
 Fourthly, as if determined to transcend themselves, and find " a 
 lower deep beneath the lowest," they have placed the least of their 
 least organs at the very point where this great obstacle is most 
 potent. The sinus is almost always deepest towards the inner angle 
 of the eyebrows, and it is just there that the minute organs of size, 
 configuration, weight, resistance, etc., are said to be. 
 
 In the fifth place, they have been quite as unfortunate in the 
 location of the other minute organs. These they arrange in a series 
 along the upper edge of the orbit, where, independently of the 
 sinus, the bone varies more in thickness than in any other part of 
 the skull. Here have they packed those organs more closely than 
 peas in a pod, which they scarcely exceed in size. If these pre- 
 tended organs actually and severally protruded from the brain 
 (which they do not), if there were no sinus intervening (as there is), 
 if they were under the thinnest part of the cranium (instead of the 
 thickest), still these petty organs could not reveal themselves by 
 showing any elevation, and especially any sudden elevation of super- 
 incumbent bone. They might possibly indent the inner surface, 
 and cause a slight attenuation of the bone — and this is all they 
 
 263
 
 § 322.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 could do. The glands of Pacchioni, as they are improperly called, 
 which rise on the coronal surface of the encephalos, and are often 
 even larger than the bodies in question, though they attenuate to 
 the thinnest, never elevate in the slightest the external body plate. 
 
 The thoroughness of the material on which Sir W. Hamilton 
 acted is shown by the fact that all the crania in the public anatomi- 
 cal museum at Edinburgh were inspected by him. lie subsequently 
 obtained access to fifty crania, with their supposed developments 
 marked by Spurzheim's own hand, which had passed to the Royal 
 Museum of Natural History at Edinburgh. By a tabular view he 
 shows that a large proportion of the supposed " organs" were 
 covered or crowded by the frontal sinus. 
 
 § 321. According to the late Dr. Bell, of the McLean Asylum, 
 
 Somerville, Massachusetts, autopsies of the insane gener- 
 
 onife brain ^^^J present no material lesion of the brain ; " changes, 
 
 due to m- indeed, there are to be seen, but only those that may 
 
 sanity. ' . . 
 
 have occurred in articulo-mortis ;"^ and it was stated by 
 Dr. Bell, in support of this opinion, that " the late Dr. Waldo J. 
 Burnett, of Boston, one of the most accomplished microscopists in the 
 country, had made examinations of persons who had died in a state 
 of chronic insanity, but had been unable to discover any change of 
 structure whatever, or any sign to indicate that it did not belong to 
 an individual whose mind was unaffected. "^ 
 
 § 322. Bearing on this point are some interesting observations 
 
 of Dr. Storer, in his late work on " The Causation, 
 women Course, and Treatment of Reflex Insanity in Women. "^ 
 
 always''' T^^^i^ very experienced observer, in vindicating the posi- 
 produce ^Jon that " many cases of mental disturbance in women 
 
 organic ^ . . .... 
 
 cerebral are of reflex character, arising from pelvic irritation, and 
 " ' that local treatment would prove of advantage in very 
 many more cases than those for which as yet it had ever been em- 
 ployed," shows that in a great majority of cases insanity is not 
 accompanied with organic cerebral change. That in women insanity 
 is generally peripheral and reflex, dependent upon functional or 
 organic disturbance of the reproductive system, he shows by the 
 admissions of psychologists that there can be cerebral diseases 
 
 ' Am. Journ. of Insan. x. p. 73. ^ Ibid. 
 Cited in Stover, 7(t iuf'ra, p. 47. ^ Boston: Lee & Shepard, 1871. 
 
 264
 
 GENERAL THEORIES. [§ 323. 
 
 without insanity and insanity without cerebral disease ; by the 
 result of autopsies ; by analogies from other sympathetic results ; 
 by cases on record both psychical and obstetrical ; by the analogies 
 of the time of development ; by the effect of treatment ; by the 
 theory of ultimate causation ; by the indications of prevention ; 
 and by the indications of rational treatment. 
 
 § 328. So far as concerns autopsies, it is stated by Dr. Storer 
 that the results show that " insanity may exist without 
 structural changes of the brain, and that structural spondenc'e 
 changes in the brain may exist without insanity." He exterior of 
 cites the late Dr. Bell, of the Somerville Asylum, whose ^'^"^^ '^^^ 
 
 . . ./ ' sanity. 
 
 statement has been just given, that the autopsies of the 
 insane generally present no lesion of the brain ; and that the 
 changes noticeable may be traceable solely to death ; and he 
 quotes Dr. BuckniP as maintaining that " the brains of the insane 
 appear to be certainly not more liable than those of others to 
 various incidental affections. ... It seemed reasonable to 
 expect that by the aid of the microscope one would be able to 
 ascertain whether any exudation or addition to the stroma of the 
 brain, or any change in size, shape, or proportional number of its 
 cells, takes place ; and in the indurated brain of chronic insanity, 
 whether that finely fibrillated exudate, which has been described 
 by some writers, actually exists ; also, whether, in extreme atrophy 
 of the brain, any proportion exists in the diminution or degeneration 
 in the form of the cells or tubes. In none of these points of in- 
 quiry have tve been able to attain the slightest success.^^ After 
 further citations. Dr. Storer proceeds to say that " it is thus seen 
 not merely that there is no direct correspondence between the 
 exterior of the skull and mental integrity, any more than between 
 the exterior of the skull and the shape and consistence of its con- 
 tents." And in cases of insanity among women, it is shown by 
 this eminent practitioner that the causes of such insanity are largely 
 to be found in derangement of the reproductive organs, to be met 
 by specific local treatment. Yet, at the same time, it is stated that 
 the indulgences allowed to the mind when in a healthy state have 
 a large. share in determining the cliaractcr of its passions when 
 
 diseased. 
 
 Pago 430. 
 
 2G5
 
 § 325.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 324. The conflict on this subject may be exhibited by a single 
 illustration.^ Aphasia, or the loss of speech, is a well- 
 subject °° known disease, sometimes caused by defect of memory, 
 illustrated sometimes by apparent incapacity of the motor powers. 
 
 by aphasia. . * i ./ i 
 
 As belonging to the former of these classes may be men- 
 tioned the case of the wife of the Rev. William Jay, hereafter to 
 be noticed f and that of a person reported in 18T1 by Dr. J. G. 
 Glover to the Clinical Society of London. In the latter case, the 
 patient was without any trace of cerebral disease, with no hemi- 
 plegia, " with no difference in the sensation of the two sides, with 
 ability to walk, write, and to protrude the tongue straight ; was 
 yet unable, when shown a familiar object, to recall the proper name 
 for it, but would designate a book before him as ' good,' ' house,' 
 ' butter ;' called a watch ' tempus fugit,' though able to write the 
 word ' watch' correctly." A similar perversion of words pervaded 
 his whole range of vocal expression. Dr. Rush, in his chapter on 
 " Derangement of the Memory," speaks (1) of " oblivion of names 
 and vocables of all kinds ;" (2) of " substitution" of words, as in 
 the case of a gentleman " who, in calling for a knife, asked for a 
 bushel of wheat ;" (3) of " an oblivion of the names of substances in 
 a vernacular language, and a facility of calling them by their proper 
 names in a dead or foreign language," of Avhich, in addition to the 
 cases given by Dr. Rush, may be mentioned that of the servant girl 
 referred to by Sir W. Hamilton, who repeated, when in a fever, a 
 Latin address. she had heard her master recite when sweeping his 
 room ; (4) an " oblivion of all foreign and acquired languages, and 
 a recollection only of vernacular languages ;" (5) " an oblivion of 
 the sinoui of words, but not of the letters which compose them." 
 § 325. Aphasia consists of a confusion of the idea of language 
 
 ^ as such, and is to be distinguished from aphonia, which 
 
 This said to . . . ^ . -^ 
 
 be of phy.«i- is simply loss of voice ; and from paralysis which affects 
 " ■ the tongue or muscles of articulation. The question as 
 to the physical origin of aphasia was first agitated by Gall, who 
 announced that the faculty of language was seated in those portions 
 of the brain which rest on the hinder part of the super-orbital 
 
 ' As to aphasia., see articles in 2 Insanitij?; 23 Jouru. Meut. Sci. 403; 
 Brain, 203, 323; 35 Am. Journ. Ins., 21 id. 406. 
 an article entitled Aphasia or Aphasic * Infra, § 692. 
 
 266
 
 GENERAL THEORIES. [§ 326. 
 
 plate ; and he associated a protrusion of the eyes with this faculty, 
 giving great facility in learning and retaining words. By Bouil- 
 lard, aphasia was declared to be in many cases associated with a 
 diseased or mutilated state of the anterior lobes of the brain ; but 
 Dr. Hammond,^ after a careful survey of the reported cases, says 
 " that there can be no doubt that Bouillard is wrong; in claimina: 
 that injury of the material lobes is necessarily followed by some 
 derangement in the faculty of speech." Dr. Hammond, after 
 reviewing the theories of Dax and Broca, declares,^ (1) " that the 
 organ of language is situated in both hemispheres, and in that part 
 which is nourished by the middle cerebral artery ;" (2) " that while 
 the more frequent occurrence of right hemiplegia, in connection 
 with aphasia, is in great part the result of the anatomical arrange- 
 ment of the arteries which favors embolism on that side, there is 
 strong evidence to show that the left side of the brain is more inti- 
 mately connected Avith the faculty of speech than the right." But 
 even among those advocating a material site for the organ of speech, 
 these conclusions are not accepted as absolute. Thus Schroeder 
 van der Kolk, after a series of experiments, tells us that language 
 unquestionably takes its origin from the " corpora olivaria." 
 
 § 326. On the other hand, we have from a distinguished practical 
 physician an elaborate treatise, published in 1870, to ^, . . 
 
 ^ '' \ ^ Objections 
 
 shoAv that speech has no material centre ; that all at- to tins 
 tempts to give it anything but a psychical origin have 
 failed ; that aphasia may and does exist without either right hemi- 
 plegia, or lesion of the third left anterior convolution, or any of the 
 other symptoms suggested by materialistic psychologists ; and that 
 these lesions may exist without having any eifect on speech.^ 
 
 Another objection to the exclusively materialistic view lies in the 
 impossibility of reconciling the indelibility of the records of memory 
 with the acknowledged fact of the constant efflux and change of the 
 material substance of the human frame. Old persons, as is well 
 known, recall with peculiar vividness the impressions of infancy. 
 Between infancy and old age, however, the matter of the brain, 
 like that of the rest of the body, has not merely grown and 
 
 ' Diseases of the Nervous System, the Localization of Language, by Fred- 
 New York, 1871, p. 183. erick Bateman, M.D,, J'hysiciau to the 
 2 Ibid. p. 202. Norfolk and Norwich Hospital. Lon- 
 ' On Asphasia or Loss of Speecli and don : Churchill, 1870. 
 
 267
 
 § 327.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 increased, but has been subjected to a series of evolutions by which 
 its substance has been constantly changed. If memory is the 
 simple inspection of the inscriptions on a cerebral tablet, then, as 
 the tablet changes, memory must fade. But the fact is that memory 
 is often intensified in proportion to the extent and number of cere- 
 bral changes and evolutions. IMemory must be, therefore, some- 
 thing else than an attribute of matter, and, if so with memory, so, 
 a fortiori, with the other functions of the intellect.^ 
 
 § 327. Dr. Maudsley, the most eminent English representative 
 of this school, admits that the evidence on which the 
 
 Materialis- . ,. . , , . . ^ . 
 
 tic hypo- materialistic hypothesis rests is not suihcient to sustain 
 would it. In his Avork on the Physiology and Pathology of the 
 
 avoid per- Mind,^ he explains this by saying, that, " where the sub- 
 
 sonal re- ' ^ j j r>^ ^ 
 
 sponsibii- tlcty of nature so far exceeds the subtlety of human 
 investigation, to conclude from the non-appearance of 
 change to the non-existence thereof would be just as if the blind 
 man were to maintain that there were no colors, or the deaf man to 
 assert that there was no sound. jNIatter and force are necessary 
 coexistents, and mutually suppose one another in human thought ; 
 and to speak of change in one is of necessity to imply change in the 
 other. . . . And there are numerous facts available to prove 
 that the most serious modifications in the constitution of nerve ele- 
 ment may take place without any knowledge of them otherwise than 
 by the correlative change of energy." But such reasoning as this 
 cannot be accepted in law. A plaintiff" brings an action of eject- 
 ment, and, without producing evidence to support his claim, declares 
 (1) that it is insusceptible of proof, (2) that to dispute it is as just 
 as it would " be for the blind man to maintain that there were no col- 
 ors, or the deaf man to assert that there was no sound." But if the 
 claim is one as to which there is no " knowledge," and to test 
 which the human mind is impotent, then it is one which ought not 
 to be brought. For materialism is the plaintiff in a great suit on 
 which great results, religious and judicial, depend. If it be true, 
 all our ordinary notions of penal responsibility will be upset. Thus 
 Dr. Maudsley adopts at the head of his seventh chapter, which dis- 
 cusses volition, Spinoza's statement that " it is a delusion on the 
 part of mankind to fancy themselves free agents. . . . The 
 
 > See also infra, § 329. « London, 1867, p. 367. 
 
 268
 
 GENERAL THEORIES. [§ 328. 
 
 idea that men are in possession of their liberty arises from the fact 
 that they are ignorant of the cause for their actions." This Dr. 
 Maudsley expands so as to make it appear that all acts are the 
 result of material necessity. The law, on the other hand, holds 
 that all acts, so far as concerns the sane, are free. When Dr. 
 Maudsley assails this settled position, we cannot allow ourselves to 
 be convinced, when we call for proof, by being told that we are like 
 blind and deaf men who undertake to judge of color and sound. 
 
 § 328. Dr. Maudsley, however, is careful to disclaim any neces- 
 sary relation between materialism and the doctrines of 
 
 1 • T to •! •!• ^ 1 Though it 
 
 the iramortahty and luture responsibility or the soul, is claimed 
 "Whosoever," he writes,^ " believes sincerely in the doc- "J^^ mture 
 trine of the resurrection of the body , as taught by the Apos- re^pousi- 
 tle Paul, which all Christians profess to do, must surely 
 have some difficulty in conceiving the immortality of the soul apart 
 from that of the body ; for if the apostle's preaching and the Chris- 
 tian's faith be not in vain, and the body do rise again, then it may 
 be presumed that the soul and it will share a common immortality, 
 as they have shared a common mortality. So far, then, from mate- 
 rialism being the negation of immortality, the greatest of the apostles 
 earnestly preached materialism as essential to the life which is to 
 come. There is little or less justification for saying that material- 
 ism involves of necessity the denial of free will. The facts on 
 which the doctrine of free will are based are the same facts of ob- 
 servation, whether spiritualism or materialism be the accepted faith, 
 and the question of their interpretation is not essentially connected 
 with the one or the other faith ; the spiritualist may consistently 
 deny, and the materialist consistently advocate, free will. In like 
 manner, the belief in the existence of God is nowise inconsistent 
 with the most extreme materialism. . . . The spiritualist may 
 deny God the power to make matter think, but the materialist need 
 not deny the existence of God because he holds that matter may 
 be capable of thought."^ 
 
 • Body and Mind, London, 1870, p. topic, by Mr. I. B. Dalgairns, in the 
 123. Cott'Uiporary Review for December, 
 
 2 See also a curious essay on this 1S70 ; aud sue infra, §§ 332-335. 
 
 269
 
 § 329.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 IV. INTERMEDIATE THEORY. 
 
 1. Its basis. 
 
 § 329. This view attributes to the body and the soul alike origi- 
 native influence, in the growth of mental diseases.^ The theory is 
 
 • See a very capable sketch of these 
 theories in Schiiriuayer, Gerichtliche 
 Medicin, § 521, from which this analysis 
 is taken ; and see also particularly Dr. 
 Rush's examination of the same points 
 in his treatise on the Mind, pp. 12, 13, 
 14, and where that eminent authority 
 (p. 16) localizes madness in the blood- 
 vessels of the brain. 
 
 Feuchtersleben, in his celebrated 
 work (Principles of Medical Psycho- 
 logy, translated by Evans Lloyd, 
 printed by the Sydenham Society, Lon- 
 don, 1847), may be considered as adopt- 
 ing the intermediate theory. Insanity, 
 he tells us, is not either a bodily or a 
 mental disease, being a disturbed recip- 
 rocal relation of mind and body. Dr. 
 Jamieson (Lectures on tlio Med. Jur. 
 of Insanity, by Robert Jamieson, M.D.) 
 takes this same view. 
 
 The religious aspects of the question 
 are well discussed in the London Chris- 
 tian Observer, vol. 20, p. 265, and by 
 the Rev. Dr. Jones, in "Man, Moral 
 and Physical," Phil, 1860. 
 
 Sir Benjamin Brodie, in an autho- 
 ritative essay (Psychological Inqui- 
 ries, etc., London, 1854), gives the 
 following conclusive objections to the 
 phrenological phase of the somatic 
 theory: "Now there are two simple 
 anatomical facts which the founders of 
 this system have overlooked, or with 
 which tliey are probably unacquainted, 
 and which of themselves afford a suffi- 
 cient contradiction of it. 
 
 "1st. They refer the mere animal 
 propensities chiefly to the posterior 
 lobes, and the intellectual faculties to 
 the anterior lobes of the cerebrum. 
 
 270 
 
 But the truth is, that the posterior 
 lobes exist only in the human brain, 
 and in that of some of the tribes of 
 monkeys, and are absolutely wanttng 
 in quadrupeds. Of this there is no 
 more doubt than there is of any other 
 of the best established facts in anatomy ; 
 so that, if phrenology be true, the 
 marked distinction between man on 
 the one hand, and a cat, or a horse, or 
 a sheep on the other, ought to be, that 
 the former has the animal propensities 
 developed to their fullest extent, and 
 that these are deficient in the latter. 
 
 " 2dly. Birds have various proi^en- 
 sities and faculties in common with us, 
 and in the writings of phrenologists 
 many of their illustrations are derived 
 from this class of vertebral animals. 
 But the structure of the bird's brain is 
 essentially different, not only from that 
 of the human brain, but from that of 
 the brain of all mammalia. In order 
 that I may make this plain, you must 
 excuse me if I repeat what I said on 
 the subject formerly. In the mammalia 
 the name of the corpus striatum has been 
 given to each of two organs of a small 
 size compared with that of the entire 
 brain, distinguished by a peculiar dis- 
 position of the gray and the fibrous or 
 medullary substance of which they are 
 composed, and placed under the entire 
 mass of the hemispheres of the cere- 
 brum. In the bird's brain what ap- 
 pears to a superficial observer to cor- 
 respond to these hemispheres is found, 
 on a more minute examination, to be 
 apparently the corpora striata developed 
 to an enormous size ; that Avliich 
 really corresponds to the cerebral liemi-
 
 GENERAL THEORIES. 
 
 [§ 329. 
 
 the one best sustained by modern induction, and is that Body and 
 which is most consistent, as will presently be seen, with the orio^ia 
 the Christian standard. of disease. 
 
 Independently of the pathological difficulties in the way of the 
 somatic theory, psychological research testifies strongly against 
 it.* The mental and moral functions are the immediate products of 
 an independent sphere of organism, and not to be explained by 
 anything lying outside of that sphere. The brain and the nerves 
 have only the physical part of perception and motion, and to some 
 extent the regulation of the functions, to perform ; but the soul 
 cannot but be considered as distinct from this activity of the nerves. 
 The somatic theory, which confounds the two, will never be able 
 to make a satisfactory distinction between palsy and imbecility, 
 between convulsions and ravings, between sensuous hallucinations 
 and insanity .2 This theory, therefore, fails in afibrding support to 
 any practical system of therapeutics. 
 
 spheres being merely a thin layer ex- 
 panded over their upper surface, and 
 presenting no appearance of convolu- 
 tions. It is plain, then, that there can 
 be no phrenological organs in the bird's 
 brain, corresponding to those which 
 are said to exist iu the human brain, 
 or in that of other mammalia. Yet 
 birds are as pugnacious and destruc- 
 tive, as much attached to the localities 
 in which they reside, as any individ- 
 ual among us." 
 
 In his interesting work on Criminal 
 Jurisprudence, Mr. Sampson adopts the 
 views of the author of " Vestiges of the 
 Natural History of Creation," and 
 ascribes every criminal action to some 
 abnormal or morbid condition of the 
 cerebral organization. This funda- 
 mental proposition is, that "every 
 manifestation of the mind depends 
 Ufjon tlie confirmation and health of its 
 material instrument, the brain ; and, 
 as it is not the function of a sound and 
 healtliy brain to give rise to any other 
 than healthy manifestations, so no 
 error of judgment can ever arise but as 
 
 the result of a defective condition of 
 that organ." He proceeds to say : — 
 
 "Mr. Hurlbut, an eminent counsel- 
 lor, and one of the supreme judges in 
 the state of New York, in his ' Essays 
 on Human Rights and Political Gua- 
 rantees,' a work which is well worthy 
 of perusal, promulgates the same doc- 
 trine, which, on the other hand, is very 
 ably controverted by Dr. Hood — ' Sug- 
 gestions for the further provision of 
 Criminal Lunatics, by Charles Hood, 
 M.D. London, 1854. pp. 12(J, 127.' " 
 
 » Supra, §§ 320-327. Siebold, Lehr- 
 buch der Gericht. Med., Berlin, 1847, 
 § 194 ; L. Krahmer, Handbuch der 
 Gericht. Med., Halle, C. A. Schwet- 
 schke, 1851, § 126; Heinroth, Syst. 
 der psychischgericht. Med., Leipsic, 
 1825 ; Kant, Anthropologic, Koiiigsb. 
 1798 ; Metzger's Ger. Med. Abhamll., 
 Konigsb. 1803. 
 
 2 Le(;ons Cliniques sur I'Alienation 
 Mentale, par Falret, lec;on 1, p. 8, 
 Paris, 1854. The most thorough of 
 the German advocates of the somatic 
 theory is Friedreich, particularly iu 
 
 271
 
 § 830.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOQICALLY. 
 
 Psycho- 
 logical 
 theorj' too 
 great a re- 
 action 
 from the 
 somatic. 
 
 § 330. The psychological theory, at its first inception, split upon 
 the opposite rock, in denying tlie influence of the physi- 
 cal processes upon mental diseases in the face of experi- 
 ence. In opposition to the somatists, it was thought 
 necessary to exclude all natural causes from the explana- 
 tion of the origin of mental affections, and to ascribe 
 them to an act of voluntary self-inthralment, which, in all cases, 
 was to be attributed to some prior moral excess or delinquency in- 
 curred with a knowledge of the consequences. But a derangement 
 of mind is not identical with sin. For, though every vice, every 
 sin, is an abnormity of the soul, yet every abnormity of the soul is 
 not sin. A lunatic may be, in a human sense, innocent of posi- 
 tive guilt ; and, on the other hand, the worst of criminals may 
 retain his sanity. It is impossible to adhere to this doctrine in 
 practice, without reducing the entire treatment of the disease to a 
 system of rewards and punishments ; and the vagueness of the idea 
 of freedom and constraint, the impossibility of distinguishing be- 
 tween the moral thraldom of the criminal and that of the sick man, 
 will throw into confusion the entire system of forensic psychology.' 
 It is e([ually wrong to derive all diseases of the mind from the pas- 
 sions, although the latter may be important causes, and, in the more 
 advanced stages, symptoms of insanity.^ At the same time, as will 
 hereafter be more fully shown,^ there is in the mass of cases of 
 insane convicts such an amount of responsibility as to require the 
 infliction of a degree of punishment wliich, though different from 
 that imposed on the sane, will yet be accompanied with a corrective 
 as well as a preventive discipline. 
 
 his " Historiscli-kritisclie Darstellung 
 der Theorien iiber das Wesen iind don 
 Sitz der psychisclien Krankheiten," 
 Leipsic, 1836. 
 
 ■ Etudes Medico-psycliologiques, par 
 M. Renaudin, p. 16G, art. 30, Sur la 
 responsabilite morale, Paris, 1854; Le- 
 (jons Cliniques de M. Falret, p. 11, 
 discours d'ouverture, Paris, 1854; 
 Manuel Complet de Medecine Legale, 
 par J. Briand, sect, troisieme, art. iii. 
 p. 5G0, Paris, 1852. 
 
 * See infra, § 347. Heiiiroth is the 
 leading representative of the psycho- 
 272 
 
 logical theory. See his " Lehrhuch 
 der Seelenkrankheiten," Leipsic, 1818, 
 and his " System der psychischgericht- 
 lichen Medicin," Leipsic, 1825. Dr. 
 Mayo, in his "Medical Testimony on 
 Lunacy," goes some distance in the 
 same direction ; and, as has been seen, 
 very justly argues in favor of a dis- 
 crimination of punishment between the 
 malicious and unconscious insane cri- 
 minal. Mayo, etc., 50, 51. 
 
 3 See, to this effect, Holtzendorflrs 
 Euc. 1870, tit. Wahnsinn.
 
 GENERAL THEORIES. [§ 332. 
 
 § 331. The intermediate theory is that to which the soundest 
 
 psychologists now tend. " In the first place," says Sir 
 
 William Hamilton, '■' there is no good ground to suppose psyciioio- 
 
 that the mind is situated solely in the brain, or exclu- p^*^ t^nd 
 
 sivelv in any one part of the body. On the contrary, mediate 
 , " . . , . . „ "^ -^ ' theory, 
 
 the supposition that it is really present wherever we are 
 
 conscious that it acts — in a word, the Peripatetic aphorism, the 
 soul is all in the whole and all in every part — is more philosophical, 
 and consequently more probable, than any other opinion. It has 
 not been always noticed, even by those who deem themselves the 
 chosen champions of the immortality of the soul, that we materialize 
 mind when we attribute to it the relations of matter. Thus, we 
 cannot attribute a local seat to the soul without clothing it with the 
 properties of extension and place, and those who suppose this seat 
 to be but a point only aggravate the difficulty. Admitting the 
 spirituality of mind, all that we know of the relation of soul and 
 body is that the former is connected with the latter in a way of 
 which we are wholly ignorant ; and that it holds relations, different 
 both in degree and kind, with different parts of the organism. We 
 have no right, however, to say that it is limited to any one part of 
 the organism ; for even if we admit that the nervous system is the 
 one to which it is proximately united, still the nervous system is 
 itself universally ramified throughout the body ; and we have no 
 more right to deny that the mind feels at the finger-points, as con- 
 sciousness assures us, than to assert that it thinks exclusively in 
 the brain. The sum of our knoAvledge of the connection of mind 
 and body is, therefore, this : that the mental modifications are 
 dependent on certain corporal conditions ; but of the nature of these 
 conditions w^e know nothing. For example, we know, by experi- 
 ence, that the mind perceives only through certain organs of sense, 
 and that through these different organs it perceives in a different 
 manner. But whether the senses be instruments, whether thoy be 
 media, or whether they be only partial outlets to the mind incar- 
 cerated in the body, on all tliis we can only theorize and con- 
 jecture."^ 
 
 § 332. The intermediate theory has at least not been rejected 
 by standard Christian theologians. "The resurrection," says 
 
 ' Sir William Hamilton's Lectures on Metaphysics, p. S')!). Hlm; infni, 347. 
 
 VOL. I.— 18 273
 
 § 333.] MENTAL UNSOUNDNESS CONSIDEKED PSYCHOLOGICALLY. 
 
 This theory Bishop Pearson, " is not only in itself possible, so that 
 bysta"iuiiini ^^ ™^^ ^"^ith any reason can absolutely deny it, but it 
 theologians jg ^^^q upon many considerations highly probable, so 
 that all men may very rationally expect it. If we consider the 
 principles of humanity, the parts of which we all consist, we cannot 
 conceive this present life to be proportionable to our composition. 
 The souls of men, as they are immaterial, so they are immortal ; 
 and being once created by the Father of spirits, they receive a 
 subsistence for eternity ; the body is framed by the same God to 
 be a companion for his spirit, and a man born into the world con- 
 sisteth of these two. Now, the life of the most aged person is but 
 short, and many far ignobler creatures have a longer duration. 
 Some of the fowls of the air, several of the fishes of the sea, many 
 of the beasts of the field, divers of the plants of the earth, are of a 
 more durable constitution, and outlive the sons of men. And can 
 we think that such material and mortal, that such inunderstanding 
 souls, should by God and nature be furnished with bodies of so 
 long permansion, and that our spirits should be joined unto flesh 
 so subject to corruption, so suddenly dissolvable, were it not that 
 they lived but once, and so enjoyed that life for a longer season, 
 and then went soul and body to the same destruction, never to be 
 restored to the same subsistence ? But when the soul of man, 
 which is immortal, is forced from its body in a shorter time, nor 
 can by any means continue with it half the years which many other 
 creatures live, it is because this is not the only life belonging to the 
 eons of men, and so the soul may at a shorter warning leave the 
 body which it shall resume again."* 
 
 § 333. To this maybe added the authority of Isaac Taylor, who, 
 in his "Physical Theory of another Life," after point- 
 poreaiity " i^g out how Completely the question whether the human 
 of the soul gQ^i Jg Qy^^y. actually or entirely separated from matter is 
 canon of passcd ovcr by St. Paul as an inquiry altogether irrele- 
 vant to religion, continues : " Let it be then distinctly 
 kept in view that, although the essential independence of mind and 
 matter, or the abstract possibility of the former existing apart from 
 corporeal life, may well be considered as tacitly implied in the 
 
 • Pearson on the Creed, ed. ISfiS, p. 558. See also Dr. Maudsley's remarks, 
 supra, § 328. 
 
 274
 
 GENERAL THEORIES. [§ 336. 
 
 Christian's scheme, yet tliat an actual incorporeal state of the 
 human soul, at any period of its course, is not involved in the prin- 
 ciples of our faith any more than is explicitly asserted," 
 
 & 334. "We are unable," says Pascal, "to conceive Mind and 
 
 , . . , , , ... matter 
 
 what IS mmd ; we are unable to perceive what is matter ; united in 
 still less are we able to conceive how these are united ; ture!^'^ 
 yet this is our proper nature." 
 
 § 335. " Such," says President Edwards, the first metaphy- 
 sician of his country, and perhaps the first of his age, 
 
 And rcuct 
 
 " seems to be our nature, and such the laws of the union upon each 
 of soul and body, that there never is, in any case what- ° ^^' 
 soever, any lively and vigorous exercise of the will or inclination 
 of the soul without some eftect upon the body in some alteration of 
 the motion of its fluids, and especially of the animal spirits. And, 
 on the other hand, from the same laws of the union of the soul and 
 body, the constitution of the body and the motion of its fluids may 
 promote the exercise of the affections, but yet it is not the body, 
 but the mind only that is the proper seat of the aff'ections. The 
 body of man is no more capable of being really the subject of love 
 or hatred, joy or sorrow, fear or hope, than the body of a tree, or 
 than the same body of man is capable of thinking and understand- 
 ing. As it is the soul only that has ideas, so it is the soul only 
 that is pleased or displeased with its ideas. As it is the soul only 
 that thinks, so it is the soul only that loves or hates, rejoices or is 
 grieved at what it thinks of. Nor are these motions of the animal 
 spirits and fluids of the body anything properly belonging to the 
 nature of the aff'ections, though they always accompany them in the 
 present state, but are only effects or concomitants of the affections 
 that are entirely distinct from the affections themselves, and no way 
 essential to them ; so that an unbodied spirit may be as capable of 
 love and hatred, joy or sorrow, hope or fear, or other affections, as 
 one is that is united to a body."^ 
 
 2. Its effect on resjJonsibiUti/. 
 
 § 330. The intermediate theory, as above stated, relieves the 
 doctrine of criminal responsibility of some of its cliief difficulties. 
 If the somatic theory be correct, then a criminal propensity is 
 
 ' Edwards on Religious Allections, p. If). 
 
 275
 
 § 337.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Intcrmc- a physical malformation, for which the defendant is no 
 
 oiy re- morc rcsponsiblc than he is for a malformation of the 
 
 tdiie^of'*^" limbs. A squint in morals, to carry out a metaphor 
 
 responsi- ^f Chief Justice Gibson, would in this view be no more 
 
 Inlity of _ ' 
 
 iiKuiy difii- a fault than a S({uint of the eyes. Such a criminal 
 may be prevented from future misconduct ; but, logically, 
 neither punitive nor reformatory discipline can be applied to him ; 
 the first because it is unjust, the second because it is hopeless.^ 
 Here, indeed, the representatives of the somatic theory practically 
 divide. By some, permanent incarceration — and this solely on 
 preventive grounds — is the only penalty to which criminals can be 
 properly subject. By others, among whom j\Ir. Bain is a modified 
 representative, punishment is vindicated as having a necessary moral 
 eftect in reforming the criminal. ^ 
 
 On the other liand, if the psychological theory be correct, 
 insanity, by becoming an organic intellectual lesion, is as much 
 withdrawn, it may be argued, from the causal power of the will as 
 it is on the somatic basis. It cannot be reached by penal discipline, 
 for by the very hypothesis on which it is framed it rises above the 
 action of the nervous and corporeal system. It cannot be reformed 
 by bodily correction ; and to attempt, therefore, by such correction 
 to reach it would be both unjust and nugatory. 
 
 § 337. The intermediate theory, however, teaches us that insanity 
 
 (with the exception of idiocy and certain hereditary and 
 
 peimi arsd- organic types) is (1) in a large measure the result of 
 
 piine. how ncrvous and physical causes, often voluntarily induced, 
 detenniued - '' . ' *' . 
 
 partly by the negligence and partly by the misconduct 
 
 of the patient himself; and (2) that in such cases, by being made 
 
 the subject of penal discipline, it may often be prevented or 
 
 restrained. The remaining difficulty is to determine what are the 
 
 cases to which such penal discipline is applicable. And here the 
 
 analogies of the English common law give us a safe test. Where 
 
 mani<(rd-j>ofii results from drink, the party becomes irresponsible. 
 
 Where, however, he commits a crime in a voluntary drunken fit, 
 
 this drunkenness avails him nothing, unless to relieve him from the 
 
 implication of premeditated malice or com})lex fraud. Thus, when 
 
 tlie fatal assault is conceived by a party when intoxicated, he is 
 
 > See hfra, § 348. 2 See supra, §§ 14G-1G0. 
 
 " 276
 
 GENERAL THEORIES. [§ 337. 
 
 not presumed to act with premeditation or with that specific intention 
 to take life which is necessary to subject him to capital punishment. 
 So it is in insanity. Mania, when a permanent disorder of the 
 intellect, by incapacitating the party from reasoning on the par- 
 ticular issue, relieves him from criminal responsibility. But a mere 
 " monamania," unaccompanied by intellectual lesion, cannot, for 
 penal purposes, be considered else than voluntary passion. It may 
 be invoked to lower the grade from murder in the first to murder 
 in the second degree, by depriving the intent of that coolness and 
 specialty necessary to make up the former offence,^ but it can never 
 be the basis of an ac<|uittal on the ground of irresponsibility. 
 
 ' See supra, § 200. 
 
 277
 
 MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 CHAPTER TI. 
 
 HOAV :mental unsoundness is to be detected. 
 
 I. By Whom. 
 
 Character of examination slioiild de- 
 pend on character of subject, § 338. 
 
 Legal and medical functionaries should 
 act in common, § 339. 
 
 In this way greater certainty is reached, 
 § 340. 
 
 II. At \yHAT TIME Examinations siiol'ld 
 
 BE MADE. 
 
 Examinations may be made at different 
 times, § 341. 
 
 1. At the commission of the deed, § 
 342. 
 
 2. During the trial, § 343. 
 
 3. After sentence pronounced, § 344 
 
 III. By what Tests. 
 1. Pliyiiiotjnniiuj. 
 General appearance to be noticed, § 345. 
 Also expr(^ssiou of eye and nostrils, § 
 346. 
 ' Color and condition of skin, § 34o«. 
 2. Physical conditions. 
 Somatic conditions often important, § 
 347. 
 
 (f() Injuries to hrain. 
 Insanity not a necessary seqtience of 
 
 disease, § 348. 
 Brain disease may develop rapidly, § 
 
 349. 
 Or slowly, in different cases, § 350. 
 (Jj) Anomalies of sensibility, oj' pulse, of 
 secretion, and of senses. 
 General health to be considered, § 352. 
 Anomalies in other parts of body of 
 great value, § 353. 
 
 278 
 
 Insanity with physical disorganization, 
 
 § 354. 
 Range of sensilDility in the insane, § 
 
 355. 
 Instances of want of sensibility, § 357. 
 Insensibility to cold a frequent symp- 
 tom, § 358. 
 Other jihysical tests, § 358 a. 
 The secretions a test, but the pulse not, 
 
 § 359. 
 Abnormities of the sensorial system 
 
 most interesting, § 360. 
 Change in moral disposition not unu- 
 sual, ^ 361. 
 
 3. Hereditary tendency. 
 («) Psycholoc/ically. 
 Descent of insanity, though not uni- 
 versal, follows ascertainable rules, 
 § 362. 
 Symptoms of hereditary insanity, § 363. 
 Insanity often hereditc^ry, § 364. 
 Renaudin's exposition, § 366. 
 Crime hereditary, § 367. 
 Nervous diseases may transmit mental 
 
 derangement, § 368. 
 Excesses of i)arents often the cause of 
 
 idiocy, § 369. 
 Case of hereditary criminal propensity, 
 
 § 371. 
 But such hereditary propensity without 
 insanity no defence, § 372. 
 ih) Legally. 
 Legally, evidence of hereditary insanity 
 
 admissible, § 373. 
 So in England, § 374. 
 Evidence may be given of insanity of 
 collateral relations, § 375.
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 338. 
 
 It need not be notorious, § 376. 
 Insanity of relatives no defence, per se, 
 § 377. 
 
 4. Conversation and deportment. 
 
 Insanity often difficult to detect from 
 deportment, § 378. 
 
 Often only detected by outside circum- 
 stances, § 379- 
 
 Insanity sometimes only apparent on 
 one topic, § 380. 
 
 Or entirely concealed, § 381. 
 
 Instances of craftiness in lunatics, § 382. 
 
 Cunning may be forerunner of insanity, 
 §384. 
 
 But sooner or later detected, § 385. 
 
 5. ]Vritinf/s. 
 The correspondence of the insane a 
 
 valuable test, § 386. 
 Style and handwriting tests a.s vrell as 
 
 contents, § 3S7. 
 
 6. Prior history. 
 All prior history is admissible evidence, 
 § 388. 
 
 7. JVcrtHre of act. 
 
 (a) Its insensibiliti/. 
 Insanity may often be detected by in- 
 
 sibility of act, § 389. 
 But maniacs are often consistent and 
 
 criminals irrational, § 389 6. 
 
 {b) Its incongruity with antecedents. 
 This often proper to consider, § 390. 
 Knowledge of past history necessary, 
 
 § 391. 
 
 Sanity in one man might be insanity 
 
 in another, § 392. 
 Insane act either isolated or one of a 
 
 sequence, § 393. 
 Isolated and abnormal acts possible, 
 
 § 394. 
 No disease necessarily a cause of moral 
 
 acts, § 395. 
 Insane acts generally done openly and 
 
 avowedly, § 396. 
 Insanity often changes character, § 397. 
 
 (c) Its motivelessness. 
 
 Apparent absence of motive not a proof 
 
 of insanity, § 399. 
 Suggestions for study of motive, § 400. 
 
 1. Motive rarely simple, § 401. 
 
 2. Instinctive passion responsible, § 
 403. 
 
 3. Wickedness not motiveless, § 404. 
 Yet there may be a legally motiveless 
 
 act, § 405. 
 
 (d) Neglect to escape. 
 Pre-arranged subterfuge not always 
 
 proof of sanity, § 406. 
 
 Skill in concealing delusions proves 
 little, § 407. 
 
 Innocence not shown by absence of pre- 
 arranged subterfuge, § 408. 
 
 Attempts at escape after occurrence no 
 proof of sanity, § 409. 
 
 (e) ForgetfuJness as to act. 
 Subsequent forgetfulness as to act 
 
 raises presumption of insanity, § 410. 
 But such a defence open to suspicion, § 
 411. 
 
 I. BY WHOM. 
 
 § 338. The law with regard to the admissibility both of experts 
 and of non-experts, and to the weight to be attached to character 
 their testimony, has been already stated.^ It is well to ^^^|'j^,q™^" 
 keep in mind the sucro-estions of Hoft"bauer in regard to should de- 
 the importance of adaptation, by the expert, of examina- ciiaracter 
 tion to character. The uneducated and the refined, the ^ "ii^J*-^ • 
 bashful, timid, and retiring, and the cunning, insolent, and hardened, 
 
 » Supra, §§ 272-282, 294-300. 
 
 279
 
 § 339.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the eccentric, the victim of fixed ideas, and the lunatic, each requires 
 a different style of treatment. The physician must reach the heart 
 of the ignorant man by reference to objects palpable to the sense, 
 and must address the man of education in the spirit which animates 
 him. lie must approach the bashful, the timid, and the morose 
 ■with cordiality and affability, and exercise practical tact, circum- 
 spection, and adroitness in conversation with the cunning, the har- 
 dened, and the insolent, impressing them with respect for his per- 
 sonal and mental qualifications. On the whole, the tone of the 
 subject must regulate the tone of the examiner. But, where one 
 style of treatment is found of no avail, recourse must be had to 
 the opposite one. Where the patient sits immovable as a statue, 
 without answering any (piestion addressed him, which often occurs 
 in cases of deeply-seated melancholy, further questions should not 
 be asked, but observation alone resorted to.^ 
 
 ^ 339. That a man is of sound mind, will generally be sufficiently 
 
 manifest to a prosecuting officer of discretion ; but whe- 
 
 DH^ilpai" *li6r a man is really or only apparently deranged, is a 
 
 luiK'tion- question which cannot be decided with the certainty 
 
 ancs should i -^ 
 
 act in com- belonging to science except by a physician ; nor is it 
 moil. . . .' 1 •' ^ ^ ^ 
 
 possible, without a knowledge of psychological medicine, 
 
 to pronounce upon the influence exercised by specific forms of 
 
 disease upon given actions. 
 
 The legal relation of courts to experts has been already fully 
 discussed.^ 
 
 It should not be forgotten, however, that it is of much importance 
 in the diagnosis of insanity that the proper legal and medical func- 
 tionaries should act in common. Written explanations are here of 
 much less value than oral intercourse, where a few words will often 
 suffice to remove a difficulty, to correct an error, or to supply an 
 omission. In visiting a deranged culprit for this purpose, the 
 prosecuting officer should invite the physician to accompany him. 
 They then may alternately converse with the accused, whereby 
 both the morbid and criminal peculiarities of the subject will be 
 clearly unfolded to them both. It is well established that a man 
 of unsound mind will act very differently, according as he views 
 
 ' J. H. HofTbaur, Die Psychischen « Supra, §§ 190-11)9. 
 Kranklieiten in l?(>zug auf die Rechts- 
 pflege, Berlin, 31 . 
 
 280
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 342. 
 
 the persons before whom he stands with fear, respect, or confidence. 
 It is sometimes advisable to invite the physician's attendance at an 
 official hearing, where, under the semblance of a mere occasional 
 and unofficial companion, he may make a diagnosis the more 
 accurate because unsuspected. 
 
 § 340. It is not to be denied that a lay observer, or an unassisted 
 judge or jury, may be able to distinguish a case of fully 
 developed and clearly manifested insanity; but, aside greateV^^^' 
 from the necessity of a knowledge of all the particular certainty is 
 
 •' ^ ° '^ I'eached. 
 
 relations existing between a given state of disease and a 
 
 given act, it is important that in all legal investigations the highest 
 
 degree of certainty should be secured. 
 
 The admissibility of non-experts, as a matter of law, is examined 
 under a previous head.' 
 
 ir. AT AVHAT TIME EXAMINATIONS SHOULD BE MADE. 
 
 § 341. There are three different times in which the conduct of 
 the accused may become the subiect of a forensico- -^ 
 
 . . . . Examina- 
 
 psychological investigation: 1, at the commission of the tions may 
 deed ; 2, during the trial ; and, 3, after sentence pro- aifft-reut ' 
 nounced. At each of these periods, the court has a sep- *""'^®- 
 arate point of view from which to regard the state of mind of the 
 defendant, in each the purpose of the inquiry is diflferent, and in 
 each the interrogations to be directed to the physician must be 
 modified accordingly.^ 
 
 § 342. In regard to the first point, the issues to be met by the 
 physician should be, in general, whether a diseased men- ^ \tthe 
 tal state attended the commission of the act, wherein the coiiunissioa 
 
 . ' of the deed. 
 
 disease consisted, and whether the mental and moral 
 functions exercised and implicated in the perpetration were of such 
 a nature that either, a, there was no consciousness of criminality 
 and no freedom of volition, or, b, the possibility of such conscious- 
 ness and spontaneity was excluded, or, e, both the one and the 
 other were incapable of ascertainment and must be left in doubt. 
 The practice which has lately grown up, of interrogating as to a 
 conclusion of law {e. g.. was the defendant capable of distinguisliing 
 
 ' Supra, §§ 272-275. * See Schiinnayer, § SIG, whoso 
 
 views are hero aiiopted. 
 
 2«1
 
 § 344] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 right from wrong, or was he a free agent), instead of as to a state 
 of facts (<'. </., was he laboring under mental disease, and, if so, 
 what), is not only false in theory, but pernicious in result. No 
 expert can be viewed as satisfactorily performing his office in this 
 respect, who neglects to familiarize himself with the patient's prior 
 history.' 
 
 § 343. The second period of time becomes of particular interest 
 
 2. Duiino- i'^ those of our American jurisdictions in which, when 
 the triaL ^ party alleged to be insane is put on his trial, the jury 
 are specially sworn to determine the preliminary issue whether 
 the defendant be insane at the time of trial. If the fact be found 
 in his favor, he is confined under special sanctions. If otherwise, 
 the trial proceeds on the main issue. 
 
 § 344. The third period of time, at which the state of a culprit's 
 
 „ . mind is open to medical investigation, is after the close 
 
 3. After ^ . 
 
 sentence of the trial, and before the execution of the sentence, 
 pionountc ^ ^^^^ ^^ misound mind is incapable of understanding 
 the justice of his sentence, or of recognizing a punishment in the 
 evil intlicted upon him. In many cases also the evil will aggravate 
 his disease. For all these reasons it is necessary to be certain that 
 a convict is so far in the possession of all his facvdties, that the 
 object of the law in subjecting him to punishment will be answered. 
 The interrogations to be submitted to the physician are to be framed 
 upon this simple principle ; and it is self-evident that only such 
 derangements Avill here come in ([uestion as are clearly manifest, 
 and as clearly exclude the possibility of the prisoner's understand- 
 ing the reason of his punishment. 
 
 It would be a proper regulation to cause every convict, before 
 undergoing his punishment, to be examined in body and mind by 
 the physician, for the purpose of ascertaining his capacity for the 
 ordeal. Even where the general fitness of the subject is undoubted, 
 there are frequently personal defects which require attention in the 
 treatment of the prisoner during confinement. In several of the 
 German states this precaution is observed, and where a convict is 
 found to be insane, he must be subjected to the proper treatment. 
 If a cure is effected, the question whether he is now able to sustain 
 the punishment without danger of relapse or other injury, is to be 
 
 « See infra, § 391. 
 
 282
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 346. 
 
 decided by the forensic physician, upon a careful investigation of 
 all the symptoms and attendant circumstances. 
 
 III. BY WHAT TESTS. 
 
 1. Physiognomy.^ 
 
 § 345. The general questions in relation to feigned insanity are 
 noticed under a subsequent head.^ 
 
 " Close attention," says Schiirmaycr,^ " should be first directed 
 to the entire exterior of the subject, his posture, his ^ , 
 
 o ^ i. ' General ap- 
 
 motions, his gestures, his eye, his words, his intonation, pearance to 
 
 . . be noticed, 
 
 and, above all, the farst impression produced upon his 
 
 mind by the appearance of the physician. What most distinctly 
 characterizes a mental disease, and is never misunderstood by a 
 skilful physician, is the physiognomy of such a patient. The eye 
 of a madman is the mirror of his soul. Ho lacks the calm unob- 
 structed gaze peculiar to the sane, untouched by passion or excite- 
 ment." " Look," says Heinroth,^ " upon the cunning leer of a 
 lunatic, the savage glare of a maniac, the lack-lustre eyes of a 
 splenetic, or the meaningless stare of an imbecile ; such things can- 
 not be counterfeited."^ 
 
 The form of tlw skull is often peculiar in every description of 
 mental disease, but is particularly noticeable in the case of cretins 
 and natural fools, 
 
 § 346. The expressions of the eye^ and of the nose'^ have been 
 
 1 See i»fra, § 450. The features of 3 Gericlitliche Medicin, § 529. 
 
 the face, says Falret, change at each * System dergerichtlich psychischen 
 
 instant or constantly preserve the same Medizin, p. 343. See article by Dr. 
 
 expression ; the lips, the cheeks, the Laurent, translated in 20 Am. Journ. 
 
 nostrils, the eyebrows, the eyelids, fre- of Ins. 216. 
 
 quently show convulsive movement ; ^ Drawings, very well executed, are 
 
 it is the same with regard to the mus- to be found in Morrison's Outlines of 
 
 cles of the eye, and under the influ- Mental Diseases, London, 1829, and in 
 
 ence of these convulsions, the look is Esqv;irol, Des Maladies ^leiilaJes. Paris, 
 
 troubled, bewildered, and unsteady. 1838. 
 
 Ler;ons Cliniques sur I'Alienation Men- ^ Jjoebels, Grundriss der Semiologie 
 
 tale, M. Falret, huitieme le(;on, p. 219. des Auges. .Jena, 1817, p. 27. 
 
 Paris, 1854 ; see also Orfila, Med. Leg. ^ lloelling, in Casper's Wocheu- 
 
 i. p. 379. Paris, 1848. schrift, 1834. 
 
 2 Infra, §§ 443-460. 
 
 283
 
 §346 a] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Also ex- very capably exhibited by two eminent physiognomists. 
 eyoTnd*'^ The latter feature has been examined with peculiar 
 nostrils. ability by Iloefliug.* " In the apparently joyous coun- 
 tenance of a laughing madman," he tells us, "the upward trac- 
 tion of the sides of the nose, nevertheless, indicate unmistakably 
 the presence of pain, and this expresses much of the physiognomic 
 peculiarity of such unfortunates.^ In like manner the simple un- 
 meaning smile of imbecility is marked by the form and shape of the 
 nose, -which, with its downward, circular openings, and the tension 
 of the skin on the peak, expresses a torpor, while in the laugh of a 
 sane man the notrils contract, and become elongated, without a de- 
 parture of the septum from its horizontal position." The mouth of 
 the sim})leton twitches with a constant unmeaning smile, accom- 
 panied with a low, inarticulate and thoughtless mumble, and the 
 imbecile is almost always found, sitting or standing, with parted 
 lips.^ " With many," says Schiirmayer, " the mouth is constantly 
 in motion, as if they were talking to themselves. In the paroxysms 
 of mania there is a convulsive distortion or contraction of the mouth, 
 lleceptivity for certain external impressions is generally low, par- 
 ticularly in the case of impressions accompanied with pain,* of cold, 
 heat, and certain medicines." 
 
 § •]4<3 a. "The condition and color of the skin," says Dr. Laurent, 
 " have great value in the eyes of the alienist physician. I 
 
 ' Ibid. yellow tinctured with sallowness, with- 
 
 2 " To represent the prevailing char- ont one s^iot of enlivening carnation; 
 acter and pliysiognomy of a madman, the hair sooty hlack, stifY, and bu.sliy, 
 tlie body should be strong and the or of a pale, siekly yellow, with wiry 
 muscles rigid and distinct, the skin hair." — Andtonvj <>f Expression. Sir 
 bound, the features sharp, the eye Charles Bell, London, 1844. 
 
 sunk ; the color of a dark brownish- 
 
 " His burning eye, whom bloody strokes did stain, 
 Stared full wide and threw forth sparks of fire ; 
 And more for rank despight than for great pain, 
 Shaked his long locks, colored like copj)er wire, 
 And bit his tawny beard to show his raging ire." 
 
 Faery Queen, Book ii., canto 4, v. 1.5. 
 
 3 Danz, AUgemeine Mediziniseho der Allgemeine's Pathologie der psy- 
 Zeichenlehre. lleinroth's edition, chischen Krankheiten. Erlangeu, 
 Leijisic, 1812, p. 3.53. 1839, p. 121. 
 
 * Compare Friedr(>ich, Handbuch 
 
 284
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 346(2. 
 
 think it right expressly to insist on the symptoms fur- Color and 
 nished by this organ, I have noticed some very curious of skin. 
 morbid phenomena. Professor Trousseau has specified in 
 his clinical lectures some very important peculiarities in the functions 
 of the skin manifesting themselves during head affections. After the 
 example of this learned man, I must insist on this point. Color 
 furnishes signs well worthy attention. The skin of the face — and 
 it is of this part alone I speak — may be dry and arid, the seat of 
 herpetic scurvy and scaly eruptions, or may be moist with perspira- 
 tion, or a liquid secretion of a more or less oily nature and of varia- 
 ble odor. Its color is susceptible of numerous general or partial 
 modifications. It may be pale. This pallor has divers shades, from 
 pure white to the slightly yellow tinge (compared to that of straw 
 or wax), or earthy brown, and bronzed. It may be of every shade 
 of red, from rosy to vermilion, violet and purple. But season and 
 exposure to the sun's rays should always be taken into consideration. 
 The skin may have a greater or less tonicity, and the subcutaneous, 
 subcellular tissue be more or less elastic. It also is marked by 
 lines and furrows, which are of importance as indicating the amount 
 of activity of the subjacent muscles. At first, during infancy and 
 adolescence, fcAV in number, their formation becomes fecund in pro- 
 portion as age advances, which must be attributed to the thinning 
 of the face or the loss of the mobile parts by age, sickness, passion, 
 and deep emotion of the soul. I think it unnecessary to describe 
 these furrows, which may assume different forms — horizontal, verti- 
 cal, oblique, sinuous, and more or less close or parallel. 
 
 " The organ of sight offers for consideration its form, movements, 
 and expression. The eyes may be more or less prominent or de- 
 pressed in the orbit ; the aperture between the lids smaller or 
 greater ; the sclerotic, very apparent around the pupil, exhibits a 
 variable blush, yellowish or red tinge ; the dilatation of the vessels 
 very evident. Little livid or black veins may be perceived on it. 
 The conjunctival surface may be dry, humid, or moistened with tears ; 
 the pupils may be deformed by being equally or unequally dilated or 
 contracted. Strabismus may be observed ; a distortion of the eyes 
 by which they look crosswise, either above, below, or to tiie side, 
 twisting even during sleep. In the normal state the ocular globe 
 is susceptible, under the influence of the will, of numberless motions 
 in every sense, and tiiesc motions may have a longer or shorter 
 
 285
 
 § 346 a.'] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 duration ; but in the morbid state, and without their owner's con- 
 trol, a sort of trembling, oscillation, or vacillation of the globe may 
 be manifested, a kind of continual or permanent convulsion, in con- 
 sequence of which, most frequently, little lateral, sometimes, though 
 rarely, up and down, movements are given to the globe of the eye. 
 
 " The expression of the eye calls for special attention. The eyes 
 are sometimes lively and brilliant, sometimes sad and glazed. 
 Often they have a soft, dreaming look, expressive of vacuity, 
 uncertainty, or nonchalant calmness ; at other times they become 
 animated from the slightest cause, have a lightning glance, are 
 haggard, insolent, full of audacity, fixed, and inquisitive. Each of 
 these expressions has a different intensity and duration, and re- 
 sponds to very difterent situations. 
 
 " In accordance with the protrusion or sinking of the globe of 
 the eye, the eyelids take shape — they are swollen or oedematous ; 
 have at times a very pallid color, at others become red or blue ; 
 and exhibit wrinkles of diverse shape and in variable number. 
 They may likewise be agitated by convulsion, or show a very 
 significant immobility. Each lid may differ in the length and 
 abundance of its lashes ; the ciliai-y margin may be the seat of 
 inflammation due to nervous excitation. Occasionally the eyebrows 
 are of fantastic shape. Sometimes little noticeable, sometimes 
 strongly marked, they stand up on the forehead, or fall back on 
 the eyes, curling after the style of moustaches. The shape of the 
 nose has a pathological signification which should not be passed 
 over in silence. Besides the color and swelling or thinness of the 
 flesliy parts of the proboscis, a careful examination should be made 
 of the more or less easy dilatation of the nostrils, their mobilit}^ or 
 fixedness, the tension or tlie retraction of their walls. Dr. Iloetling 
 attaches much more importance to the signs furnished by the nose 
 than to those given by the eye. The muutli presents for examina- 
 tion the state of the li|)S, with their relative situation during repose, 
 their volume, color, dryness, or humidity. The motion of the 
 mouth has a very important signification, and leads to a notable 
 modification of the commissure of the lips. Permanent contractions, 
 alternations of tension or relaxation, partial or general tremor, the 
 diverse forms of spasm, deserve much attention. These manifesta- 
 tions have a very decided meaning. 
 
 " What we have just said relative to the motion of the mouth 
 28()
 
 now MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 348. 
 
 and lips is applicable to all the locomotive system of the face. 
 Tension or relaxation, continual or alternate movements, immo- 
 bility, may appear in various grades in each of the facial muscles. 
 To facial symptomatology must be added also an examination of the 
 parotid and auricular regions. We should carefully note the pallor, 
 redness, and swelling of the cheeks, the color, swelling, mobility, 
 or immobility of the ears, as well as the appearance of sanguineous 
 tumors of the auricle. 
 
 " Dr. Morel attaches much importance to the way in Avhich the 
 ears are fixed, and makes this one of the characteristic signs of his 
 types of degeneracy. 
 
 " It is of some importance to let this physiognomical survey em- 
 brace the carriage of the head, which is often noticed to be variable, 
 according as the individual has a more or less favorable opinion of 
 his personality, and from numerous other causes."^ 
 
 2. Physical conditions. 
 § 347. Somatic conditions, as has been seen,^ though not neces- 
 sary to prove insanity, as insanity may exist when the 
 bodily functions are in undisturbed health, are often conditions 
 important tests of an insane state, and the more so be- 
 cause they cannot be readily feigned. Among these 
 conditions may be again enumerated disturbances of the motor 
 spheres, of the vegetative organs, of sleep, of the pulse, and the 
 peculiar condition of the evacuations, e. (/., increased phosphate in 
 the urine. Sleeplessness is a condition which it is peculiarly diffi- 
 cult to simulate. 
 
 (rt) Injuries to brain. 
 
 § 348. Science, says Dr. Liman,^ whose judicious observations 
 
 have already been frequently cited, teaches that mental j2sa,jity 
 
 disease is not an abstract entity, but is conditioned by notaneces- 
 . . . . sarv se- 
 
 brainular and nervous disease, by which psychical func- quenceof 
 tional disturbances are generated which are subordinated 
 to the laws of the physical disorder. The brain may be idiopathi- 
 cally diseased, or the affection may be sympathetic. Under favoring 
 
 • Am. Jouni. of Ins., October, 1SG3. ^ Liman's Casper, Berlin, 1871, p. 
 
 * Supra, § 329. See an article in 434. 
 18 Journ. Ment. Sci. 390, 
 
 287 
 
 often im- 
 portant.
 
 § 349.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 circumstances, this sympathethic brainular action may be produced 
 by every form of disease (<?. (/., typlius, cholera, exanthematic 
 fever, pneumonia, erysipelas, acute rheumatism, abdominal and 
 genital diseases, heart disease, tubercular affections) as well as by 
 those physiological causes -wliich arc generally specified in the 
 books, viz., puberty, the menses, pregnancy, delivery, lactation, 
 involution, old age, and by psychical causes, such as passion, mental 
 shocks, etc. Experience, however, teaches that nervous diseases, 
 superinduced on a favoring psychopathical disposition, not only are 
 of peculiar moment in inducing mental disorder, but form a basis of 
 experience on which rests the {etiological classification of psychical 
 disease. But it is nevertheless important to recollect that while 
 these physical and nervous disorders serve to explain the nature 
 and strengthen the proof of insantity otherwise substantively proved, 
 they do not as a necessary sefiuence prove insanity, and frequently 
 exist Avithout it. To this it may be added that this doctrine of 
 necessary sequence in such cases is fraught with several deleterious 
 results. First, its acceptance would be cruel to the persons labor- 
 ing witli the physical and nervous complaints in question, for, if not 
 leading to their sequestration from society as persons 7ion compotes 
 mentis, it would deprive them of the power of business self-support. 
 Xo one could enter into contracts with them : no one could take 
 business paper executed by them : no one could treat them as 
 vested even with that testamentary power which, as has already 
 been seen, forms one of the fcAv means of insuring respect retained 
 by the aged and forlorn. And, secondly, such persons would form 
 a dangerous aristocracy, exempt from the operation of penal laws. 
 Insanity being a material and necessary result of disease, if dis- 
 eased, they would not be penally responsible for crime. ^ 
 
 § 340. Brain disease often displays itself in moral and mental 
 
 transitions which are not only conspicuous and startling, 
 
 ease irniy' ^-"^^ comparatively rapid and complete. Sometimes, 
 
 develop however, the causes work more slowly. There is no im- 
 rapiul}'. ' _ •' 
 
 mediate and complete revolution of character ; but there 
 is a gradual proti'usion of some specific peculiarities and depression 
 of others. The first cliange may be likened to a great terrestrial 
 catastrophe, a cataclysm l)y Avhich the whole face of nature is 
 
 ' See siijira, § 336. 
 
 288
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 351. 
 
 changed : the second to the process of transformation produced by 
 the gradual rising of the sea, by which valleys are filled up and 
 mountains depressed. Sometimes the process of transformation, in 
 the second case, is very slow, and yet, nevertheless, is distinctly 
 traceable to physical causes. " The patient," says Krafft-Ebing 
 (1872),' a very high authority in psychological medicine, " becomes 
 (after injuries or shocks to the brain) excitable, violent, brutal, quar- 
 relsome, prone to excesses in baccJio et venere, and approaches to 
 the ideal of a maniacal moral insanity. By many, particularly in 
 those in whom delirium subsequently breaks out, a qualified maniacal 
 exaltation shows itself in the form of unsteadiness, of passion for 
 travel, of inclination to a vagabond life. These are generally the 
 antecedents of mania, which begin the process of psychical anoma- 
 lies ; more rarely, but especially in those cases which terminate in 
 paralysis, the prodromal symptoms consist in brainular exhaustion, 
 and express themselves progressive!}^ in weakness of memory, dul- 
 ness, apathy, decrease of self-determining power." 
 
 § 350. The psychical effects, however, as has been just noticed, 
 may be very slow. Years may elapse from the time '^f ^ , ., 
 the injury before the shock displays its psychical conse- iu different 
 (juences. Griesinger throws out several very interesting 
 hypotheses as to the slow processes by which a little apoplectic cyst, 
 or an ulcer, may work into the soft substances of the brain, until 
 suddenly occurs insanity or death. Yet there is great reason for 
 caution when adducing such prior stages as confirmatory of insan- 
 ity. Often, when insanity is sought to be proved, a scar on the 
 head is put in evidence. Yet the cases are numberless in which, 
 particularly in infancy, injuries to the skull have been sustained, 
 and even severe wounds inflicted, without the mind being subse- 
 quently disabled. 
 
 § 351. "The element of time," says Dr. Laycock (1871), "is 
 a very important point in the diagnosis and prognosis of this class 
 of cases. The progressive degeneration may extend over several 
 years. 
 
 " In July, 1868, 1 saw a captain in the Royal Navy, who, fifteen 
 years before, when a midshipman, fell about eight feet as he was 
 descending Table Mountain, Cape of Good Hope. He received a 
 
 ' Ueber die Gehirn-Ersfliiitterung, etc., Erlaiif^en, 1868. 
 
 VOL. I.— 19 289
 
 § 353.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 scalp wound, which bled freely, and he thonj2;ht he must have been 
 made unconscious. The surgeon of his ship examined, but found 
 no fracture, and dressed the wound, which healed well. I found an 
 extensive scar on the scalp, over the curve of the left parietal re- 
 gion, and the surface slightly depressed. This had led some to 
 propose trephining. Twelve years after the injury he married, and 
 shortly after had habitual headaches, with mental depression, increas- 
 in<^ until he became melancholic. Rest from active duty restored 
 him to comparative health of both body and mind, but his manner 
 continued peculiar. He, however, resumed charge of a ship, and 
 so got involved in harassing and anxious night-duties off the Irish 
 coast, watching the Fenians. This exhausting work induced a 
 series of neuroses of the encephalon, Avhich were progressively in- 
 tensified into structural disease, until (when I saw him) he was 
 Avcak of mind, incapable of movement, passed urine and feces in- 
 voluntarily, and had great difficulty of articulation, as well as an 
 incapacity to express his ideas by appropriate words, although he 
 easily smiled and laughed. Early in November of the following 
 year he had successive fits of convulsions, became unconscious, and 
 so died, sixteen years after the injury to the scalp." 
 
 (6) Anomalies of sensibility, of puhe, of secretions, and of senses. 
 
 § 352. Under the present head, it is proper to notice the im- 
 portance of the attention of the medical examiner being 
 I'eaithtobe tunicd to temperament, disposition, and age ; in the case 
 cousiaered. ^^ females, to the develoi)ment of the functions of men- 
 struation, pregnancy, delivery, suckling ;^ to mental characteristics, 
 poAvers, and habits ; to the condition in life and profession ; to the 
 (juestions of rest and exercise, sleep, and watching ; to excessive 
 evacuations, particularly if connected with sexual gratifications ; to 
 sexual abstinence ; to bodily injuries, besides those of the head, such 
 as diseases of the heart, hemorrhoids, obstructions of the abdomen, 
 and to cutaneous diseases. 
 
 § -(oy. " [Symptoms of bodily disease ascertained by 
 i^/other'*^^ the state of the pulse, the digestion, the secretions, etc., 
 
 parts of the cannot naturally, in any case, be taken as proofs of 
 
 body of , ,. -" . -^ ' f , 
 
 jrreat value mental diseasc ; the diagnosis depends essentially and 
 
 ' On this point Dr. Storer's treatise on "Insanity in Women" will be found 
 of niudi value. 
 
 290
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 354. 
 
 exclusively on the mental symptoms. Nevertheless, those symptoms 
 of diseases in other parts may be of great value. From them we 
 are enabled to answer the question, Is the individual in a state of 
 general ill-health ? If, from these symptoms, this can be said with 
 certainty — if, on the one hand, a striking mental change is observed, 
 or very suspicious behavior, and, on the other, a general morbid 
 state of the organism be present — it becomes highly probable that 
 both series of phenomena are related to each other, that is, that the 
 mental change is itself morbid. As, however, insanity depends 
 essentially on an affection of the brain, there are none of all the 
 psychical symptoms, not in the narrow sense, of greater significance 
 than certain phenomena of disturbed (irritated, depressed, etc.) 
 cerebral function. 
 
 " Therefore anomalies of the central sensorial function, halucin- 
 ations, etc., are of such extraordinary value, and violent headaches, 
 sleeplessness, fainting, aniiesthesia, changes in the pupils, all con- 
 comitant convulsions, and paralyses, are also of such great import- 
 ance, in the diagnosis of insanity. 
 
 " If these symptoms can be traced to an affection of the brain, 
 and if we can, by these, prove that at all events a cerebral affec- 
 tion is present, it is clear that in few cases we can doubt that the 
 suspected psychical symptoms depend also upon the cerebral affec- 
 tion ; at least the opposite can seldom or never be shown. On the 
 other hand, the non-appearance of such further symptoms, and the 
 absence of all physical disorder (of the pulse, digestion, etc.), can 
 never be taken as proof of the absence of a mental disease (that 
 is, a cerebral affection of which the actual symptoms are exclusively 
 psychical); we frequently meet with cases of undoubted mental 
 disease, especially chronic cases, in which the Ijodily functions re- 
 main unimpaired."^ 
 
 § o54. That insanity may be one of the incidents of physical 
 disorganization, is illustrated by a case mentioned by 
 
 1X7 • • 1 • 111 1 111- <> 1 Insanity 
 
 VVigan in his remarkable Avork on the duality of the with piiysi- 
 mind.2 " The gentleman held a situation in which he had IranizaUon 
 many younger persons under him. I purposely leave 
 the designation obscure. He had risen to the head of the oflice by 
 
 ' Griesingor's Mental J'athol., Sydtin. ^ A New View of Insanity, etc., \>y 
 ed. (]8(J7) § 73. A. L. Wigan. London, 1844, p. 81. 
 
 2U1
 
 § 354.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 long and exemplary services. He was a widower, and had a con- 
 siderable family, all of whom, however, died in their youth. lie 
 exercised a parental control over his subordinates, and was ex- 
 tremely respected by every one who knew him. His salary was 
 ample, his excessive benevolence had, however, always kept him 
 poor, but, as his style of living did not imply the expenditure of 
 more than half his income, he had the reputation of wealth. Gradu- 
 ally, towards the age of sixty, this gentleman became garrulous and 
 light in his conversation, and the others in the office suspected him 
 to have been drinking. He had many rebuffs from the persons 
 under his command, but this in no degree changed the indecorous 
 levity of his conversation, which had formerly been remarkably 
 dignified, and as reserved as was compatible with his excessive 
 benevolence of disposition. Months and months passed on, his lan- 
 guage became gradually worse, and at last was of the most depraved 
 obscenity. This shocked and disgusted his juniors, and he was 
 seriously threatened with exposure by them. The propensity was 
 checked for a while, but after repeated offences and repeated for- 
 giveness by the young men, they made a formal complaint to his 
 superiors. The offender was taken to task very seriously, but, as 
 the young men had given rather a lenient representation of his con- 
 duct, he was permitted one more trial, with the assurance that his 
 next offence would be followed by his dismissal. There was soon 
 an opportunity of putting the threat in force, for his conduct and 
 conversation became more and more gross and disgusting. He was 
 dismissed. Having made no provision, he suddenly found himself 
 utterly destitute, but did not make known his position. He packed 
 a biuidle of necessary clothes, put in his pocket whatever money 
 and trinkets he possessed, and wandered about the country without 
 aim or object. Every one lost sight of him for two or three months, 
 when he was found in a remote part of the kingdom UteraUij dead 
 "H a dutujIiiU., where it is supposed he had laid himself down for 
 warmth ; his money was gone, and, from the state of the stomach 
 and intestines, it is probable that he had died of want of food as 
 the immediate cause, but, on examining the interior of the skull, 
 there was fouml extensive softening and disorganization of the left 
 cerebrum, and the other was not free from disease. He could not 
 202
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 356. 
 
 have lived long ; though, under proper care, the disease would not 
 have been immediately fatal. "^ 
 
 § 855. A diminution of sensibility, says M. Falret,^ is not of com- 
 mon occurrence in mental diseases, its exaltation being 
 much more frequent. It is proper, however, to state sensibility 
 that dei-anged persons are generally as sensible of tem- g^^^*^ '"' 
 perature and impressions as persons ordinarily are. 
 Lesions of the sensibility, however, are observable in all kinds of 
 insanity, and especially in those cases in which mystical ideas are 
 predominant, in demonomania and paralytic insanity. General 
 insensibility has been known to take away from some madmen the 
 sense of their own existence. -SI. de Foville cites the example of 
 a man who thought he had died at the battle of Austerlitz, at which 
 he received a severe wound. His insanity consisted in his inability 
 to recognize and feel his own body. When any one inquired after 
 his health, it was customary for him to reply, " You ask me how 
 father Lambert is, but father Lambert is no more ; he was killed 
 by a bullet at Austerlitz. That which you see here is not he, but 
 a machine which they have made to resemble him, and which is 
 very badly made, so try and make another." Never in speaking 
 of himself, did he say " me" (moi), but " that" (cela). This man 
 fell sevei'al times into a complete state of immobility and insensi- 
 bility, w^hich lasted several days. Sinapisms and blisters applied 
 to guard against these accidents never produced the least symptom 
 of pain. He often refused to eat, saying, " 9a n'avait point de 
 ventre." 
 
 Esquirol was unable to discover any sign of pain in passing a pin 
 through the skin of the arm of a demonomaniac, who asserted that 
 he no longer felt anything, and who imagined that his body had 
 been carried away by the devil. 
 
 § 356. " Diminution or complete suppression of the sensibility of 
 the skin to impressions of temperature and of pain is by no means 
 
 ' Generally, of all the causes of men- nlu-ays to he found in these alterations, 
 
 tal ali(;nation, the most frequent, with- — ./. Briand, M('d. Li'ij., p. 544. Paris, 
 
 out doubt, are cerebral affections or 1852. 
 
 some alteration of the encephalic ^ Le^onj? Cliniques do I'Alienation 
 
 organ, and perhaps we should agree Mentale, par M. Falret. Septieme 
 
 with Haslam in saying, that the primi- le(;on, p. 185, Paris, 1854. 
 tive cause of mental derangement is 
 
 293
 
 § 357.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 frequent, still less is it general in insanity. We find, on the con- 
 trary, in some instances an excess of sensibility to pain (Esquirol 
 relates such a case), and it is remarked that in asylums in winter 
 the patients, with very few exceptions, constantly seek the warmth. 
 Nevertheless, cases of transient and persistent cutaneous anaesthesia 
 (as already shown in the foregoing), and of analgesia, are some- 
 times seen, particularly in states of melancholia and dementia, and, 
 confined to more local limits, it is also frequent in hysteria. A 
 careful investigation of the cutaneous sensibility in the various parts 
 of the body should always be made."' 
 
 §357. "Rochoux (sitting of the Acaddmie de M^decine, 22d 
 , December, 1840) communicated a case of accident which 
 
 Instances 01 ^ ' 
 
 want of occurred through want of sensation in the patient. A 
 
 " ' patient in Bicetre, while no one was in the room, laid his 
 
 head on the red-hot iron of the stove, and put his arm into the midst 
 
 of the fire. The strong smell first drew the people near; the 
 
 patient was (juitc unconcerned, and throughout gave no sign of 
 
 pain, though the arm was burned to the bone, 
 
 " In the ' Zeitschrift fiir Psychiatric, '^ there is an example of 
 voluntary self-burning by a melancholic patient. He was quite 
 happy, although legs, thigh, and nates were burned, so that even 
 the bones were charred. 
 
 " A patient in Bedlam, mentioned by Morison, laid the back of 
 his head upon the fire till the quarter part of the cerebral coverings 
 were burned ; he, however, recovered. 
 
 " Mich^a^ cites a number of cases in which melancholies suffered 
 mutilation without pain (analgesia), and it is interesting that this 
 state often exists also in delirium traumaticum (nervosum), so that 
 the patients tear off the bandages, and use most regardlessly the 
 broken limbs (Dupuytren, Klose). 
 
 " Snell,^ in 180 patients, found the skin quite anjiesthetic in 18(?), 
 and in () there was analgesia ; the anaesthesia in states of excitation 
 and depression was present always in cases presenting little hope 
 of recovery. A very remarkable case is communicated by Renau- 
 din,^ of a boy who had hitherto conducted himself perfectly well, 
 
 ' Gricsinger's Mi'iital Patliol., Syden. ■• Zeitsclirift fiir P.sychiatri(>, 10, 
 
 ocl. (1867), § 50. 1853, p. 213. 
 
 2 11, lSr)4, p. 717. s Moreau, Psychologie Morb. p. 312. 
 
 3 Ciaz. Hebdoni. 1856. 
 
 294
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 358 a. 
 
 and all at once exhibited the worst desires and most reprehensible 
 behavior. He was not entirely insane, but the whole cutaneous 
 surface became sensationless. This state was intermittent, and, 
 when it went off, the patient became again quite orderly and obe- 
 dient. Simultaneously with the anaesthesia the worst desires, even 
 desire to murder, returned. In general paralysis, too, there is 
 sometimes present an evident diminution of the cutaneous sensibility. 
 Diminution of the sense of smell may be assumed in those patients 
 who would amuse themselves with their excrements. All these 
 anaesthesia must have a central basis." ^ 
 
 § 358. In regard to anomalies of general sensibility associated 
 with no illusion, there are madmen who appear insensi- 
 ble to the ordinary causes of pain. Esquirol speaks of jty tocoida 
 an idiot girl who was in the habit of scratchinor a lump f'equeut 
 
 ° . . symptom. 
 
 she had upon her cheek, and did not stop until she had 
 perforated it, and, after having performed this perforation, she 
 enlarged the wound by continually pulling at it with her finger. 
 Deranged persons often cut themselves in different parts of the body 
 without appearing to suffer. But the greatest phenomenon of in- 
 sensibility is the indifference with which persons afflicted with in- 
 sanity support cold. They have been known to expose themselves 
 in the open air, to sleep upon the ground, flagstones, and the floor, 
 when the ice and snow caused persons warmly clad to shiver. And 
 imprudences like these appear to have a less dangerous influence 
 upon the insane than upon others. This fact, however, has been 
 much exaggerated, and in many instances the ordinary effects pro- 
 duced by cold are observable in the deranged. These unfortunates 
 are so exposed to freezing, that in many establishments there is an 
 express law to visit, morning and evening, and wrap in flannel the 
 feet of those whose condition causes these dangerous consequences 
 to be dreaded.- Some show themselves equally indifferent to heat. 
 There are those who walk and sleep entirely naked in clear sun- 
 light upon the hottest days, and who can look fixedly for a long 
 time upon the sun without being dazzled by it. 
 
 ' Griosinger, ut supra. Manuel de Med. Li'(j. M. Orfila, tome 
 
 2 "Dans le plus haut degre do la i. p. 377. Dr. Rush makes inscnsibil- 
 
 manie los malades oublient leurs ity to the weather, particularly cold, a 
 
 besoins, et sentent a peine, ou pas du marked test. 
 
 tout, la douleur, le froid et le chaud." 
 
 295
 
 § 359.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ^ ooS a. Hunger and tliirst are usually intense, digestion varies, 
 Other phys- ^vhile the bowels are almost invariably obstructed. The 
 k-ai tests. gj^|jj jg usually dry, rough, and inactive.^ The presence 
 of almost all persons of unsound mind is distinguished by a peculiar 
 specific smell." 
 
 The genital futtc'tions are ordinarily preserved by the insane ; 
 sometimes, indeed, their activity is increased, although the mental 
 disease may not be of erotic origin. Tliis super-e.xcitation of the 
 •'■enital organs, independent of physical or moral erotomania, is 
 particidarly observable in agitated delirium ; whilst in despondent 
 delirium they are inactive, at least if it have not love for a cause or 
 object. The cases are rare, however, where the sexual organs are 
 attacked with insensibility or impotence, except in general paraly- 
 sis. The aptitude of man and woman for the venereal act and for 
 fecundation is not lost : though in insanity as in sound mind, the rapid 
 succession of ideas, the violence or tenacity of pre-occupations for- 
 eign to amorous desires are capable of bringing on an inactivity of 
 the genital functions. 
 
 §359. The piihc ^orms no test.^ M. Jacobi has instituted ex- 
 periments, in a large number of cases of the different 
 
 The secre- fonng of mental unsoundness, indicating at the same time 
 tions a test, _ . 
 
 but not the the relative pulsations of the several arteries, auscul- 
 tating the heart, and counting the number of inspirations 
 and expirations. The attempt to deduce a fixed rule, however, was 
 in vain. " I had the vexation," he tells us, " to see that my 
 researches, so conscientiously made, did not fulfil the end I had 
 proposed ; and I saw that it was impossible to establish the neces- 
 sary connection between the different pathological states of the 
 intellect and feelings, and the observations I had collected on the 
 state of the circulation, the respiration, and the temperature of the 
 skin, in the insane."^ 
 
 ' Hce an article hy Dr. Fevrc, An- Semiologica Somatica, Bonn, 1S28, § 15. 
 
 nales Medico-l'syohologiciuc, 187b*. Burrow's Commentaries, p. 297. An 
 
 2 Compare Hill's Kssay on the Pre- article by Dr. Laehr, Zeitschrift fur 
 
 vention and Cure of Insanity. Lon- Psychol. 34 Band, 3 Heft, 
 
 don, 1814, p. 401. Krhard in Wagner's 3 See article 26 Am. Journ. of Ins. 
 
 "Beitrilgen zur Pliilosophischen An- 324. 
 
 thropologie," vol. i. Vienna, 1794, p. ■» .lacobi, Annales Medico-Psycliolo- 
 
 111. Milling's Mi-iitis Alienationuni gi(iues. 
 
 296
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 360. 
 
 The secretions^ and particularly the perspiration, are imperfectly 
 performed in the majority of insane cases. In these cases there is 
 a dry skin of an unhealthy color, and the exhalation of a disagree- 
 able smell. They do not grow thin, but even become fat, although 
 eating little, because they perspire badly. They urinate a great 
 deal, and the passage of urine is frequent, as is common in all 
 nervous disorders. Constipation is an almost habitual attendant of 
 the disease. 
 
 Without being oppressed, the respirrUion in the insane is some- 
 times unequal, hurried, diminished, interrupted, and sobbing. Their 
 breath is often fetid, and this accidental fetidity, an ordinary symp- 
 tom of all nervous diseases, frequently announces the approach of 
 an attack of melancholy, mania, or hysteria.' 
 
 § 300. The most interesting symptoms are found in the various 
 abnormities of the sensorial system, as manifested in the 
 excitement, depression, or delirium of one or the other ties of the 
 of the senses. An excitement or depression of the sen- gygt^i^'*^ 
 sorial system generally keeps even pace with the mental "^f^?^ inter- 
 malady. Before the mental disease breaks out, and 
 Avhile its advent is indicated by mental and moral excitements, an 
 enhanced excitability in the sensorial system becomes perceptible, 
 which, however, where psychical energies are gradually exhausted 
 by the recurrence and violence of the paroxysms, frequently turns 
 to an opposite condition, so that the failing, obtuseness, or loss of 
 one of the senses attends the subsequent progress of the evil. Ac- 
 cording to Spurzheim,^ the ear is .the sense which, of all others, 
 suffers most among the insane, and there are more deaf than blind 
 among them. The deliria of the senses, which are either illusions 
 or hallucinations, are found in every form of the disease ; they 
 sometimes attack one sense only, sometimes several, and sometimes, 
 though rarely, all the senses at once.^ 
 
 ' Le(;ons Cliiiiqixes de rAlienation 3 For a fall account of the illusions 
 
 Mentale, par M. Falret. Heptieme and hallucinations of the senses we 
 
 Letjon, p. 185. Paris, 1854. would refer the reader to the Lemons 
 
 2 Beobachtungen ueher den Walin- ("Uniques sur I'Alienation M(Mitale de 
 
 sinn. Nach deni Englischen und M. Falret. 8d, 4th, 5th, lOth lessons. 
 
 Franzoesischen bearbeitet von Enil)den, Paris, 1854. Also to tlie Etudes 
 
 p. 81. See Med. Leg., M. Orfila, tome Mt^dico-Psychologiques snr I'Alienation 
 
 i. ]). :558. Paris, 1S41. Med. Leg., Mcnt;ile, i)ar F. E. Renaudin. Chap. 
 
 T.riand, p. 540. Paris, 1852. 8th, p. 388, Paris, 1854. 
 
 297
 
 § 361.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY. 
 
 Esquirol gives it as the result of his experience^ that when the 
 alienation of the mind begins, and sometimes a little earlier, smell 
 and taste have changed, but the deceptions of the ear and the eye 
 generally characterize the fancies of most madmen. The deliria of 
 smell are less frequent than those of the other senses, those of taste 
 are of the most various kind, and those of touch impress the patients 
 with the existence of attributes in bodies other than those which 
 they possess. These deliria frequently give rise to fixed ideas ; 
 particular postures, various attitudes and motions, are observed in 
 almost all madmen. 
 
 § :itJl. A change of moral disposition, as will presently be seen,^ 
 ^, ^^ is one of the first symptoms, other than physical, with 
 of moral which the disease usually makes its appearance. Ex- 
 
 dispositiou ...... . . 
 
 notun- treme irritability, proneness to anger, suspicion, conceal- 
 ment, obstinacy, and perverseness, are common. In re- 
 gard to the affections, various abnormal impulses and inclinations 
 are observed : such as fondness or aversion to particular persons, 
 without any special reason ; disposition to exercise cruelty, murder- 
 ous desires, a wish to commit arson, or to steal. ^ Memory is gene- 
 rally good in reference to things occurring during the disease, or to 
 persons with whom the patient was then connected, but defective or 
 mistaken as to things which occurred previously,* Of the intellec- 
 tual faculties not all are uniformly in an abnormal state ; on the 
 contrary, some functions occasionally improve, thus producing a 
 complex state of madness on the one hand, and of wit, reflection, 
 and shrewdness, on the other. ^ 
 
 ' Compare Hagan Die Sinnetansch- Manual de Mrd. Leg. M. Orfila. Tome 
 
 ungen in Bozuganf Ps3'cliologie Heil- i. p. 382. Paris, 1848. 
 
 kunde, iind Reelitspflege. Leipsic, 1837. * A great many remember things whicli 
 
 2 Infra, §§ 390-398. occur ; and after their recovery tliey 
 
 3 See «/)/■;•«,§§ 391— 398. "A deranged often astonisli by observations which 
 person," says Orlila, "regards with in- tliey had made at a time when they 
 difference the d(>arest objects of his seemed most completely deprived of 
 affections, he thinks no more of them their reason. — Med. Leg. J. Briand, 
 or holds them in such aversion as to p. 540. Paris, 1852. See infra, § 410. 
 repel, injure, and maltreat them. ^ See cases collected by Friedreich, 
 Hatred, jealousy, anger, wickedness, Ilandbuch der alU emeinen Pathologic, 
 fear, terror, a disgust for life, a desire p. 189. See infra, §§ 378-385 ; 406- 
 to destro}^ and kill, replace the most 409. 
 
 equal, calm, and softest nature,'' — 
 
 298
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 363. 
 
 3. Hereditary tendency. 
 
 (a) P sychologically . 
 
 § 362. By Morel, in his Traite des Maladies Mentales, published 
 in Paris in 1866, the line of descent in cases of heredi- -^ , ,, 
 
 ... . Descent ot 
 
 tary insanity {folie hereditaire~) has been traced with insanity, 
 peculiar delicacy and fulness. The stream is shown universal, 
 sometimes to change its channel, sometimes to swell as certahfed*" 
 it descends — viresqiie acquiret eundo. In the parent i"uies. 
 it exhibits itself in the form of extreme nervous sensibility and ex- 
 citability. The child is the victim of hallucinations, if not of mania. 
 In remoter descendants are exhibited imbecility, cretinism, united 
 w^ith physical degeneracy. No doubt cases are found where a law 
 of deterioration such as this is seen progressing with apparent cer- 
 tainty in its downward path. But, like all other cases of assumed 
 psychical law, the theory breaks doAvn when we attempt to establish 
 it as a universal rule. Lord Chatham was at certain periods of his 
 life hypochondriac if not insane ; yet his son William Pitt was re- 
 markable for his intellectual equipoise and exactness. Of the pro- 
 lific family of George III. no one inherited his insanity. Innu- 
 merable cases of nervous excitability and eccentricity present them- 
 selves to us when we take up such works as Walpole's Correspond- 
 ence, or when we look back even at those who were the parents of 
 our own contemporaries ; yet rarely indeed do we find instances of 
 the development of such excitability and eccentricity, from gene- 
 ration to generation, into lunacy and idiocy. Yet, at the same 
 time, of a large proportion of lunatics, as is elsewhere stated, the 
 immediate ancestors were affected w^ith some phase of mental 
 disease.^ 
 
 § 363. Of the hereditary insanity — ■folie heredifaire — which is 
 thus assumed, Morel gives the following symptoms : 
 Early or disproportionate intellectual activity accom- of heredi* 
 panied by deficiency in higher moral power — the early \'^^'y '"^=iQ- 
 development of instinctive impulses — tendencies to cruel- 
 ties — irritability, bizarre whims, fanciful caprices, and business 
 heedlessness, as among the accompaniments of the approach of 
 puberty. So also are to be reckoned, as general symptoms, ex 
 
 ' See Hereditv, from the French of T. Rihot. London, 1875. 
 
 299
 
 § 364.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 travagances of expression ; periods of ennui, in which labor is 
 odious, interchanged with those of intense and feverish activity. 
 It is remarkable, however, that these symptoins are rarely to be 
 observed among the children of the poor. They are rather the 
 incidents of the spoilt children of fortune, the results of want of 
 hard home-discipline. And in order to make them comparatively 
 ungovernable, it is only necessary to withdraw the discipline the 
 state exercises through its penal laws. If we concede that such 
 persons form a hereditary class who are not to be restrained by 
 fear of punishment because to punishment they are not amenable, 
 Ave will do mucli to establish in them, in the shape of uncontrolled 
 passions, the very mental disorder which the speculative theorist 
 declares to be their predestined lot.^ 
 
 § 8(54. At the same time tliere is no question that insanity runs in 
 families. " A considerable portion," to quote from an 
 
 Insanity '■ '^ ^ 
 
 often ■ intelligent note to the pamphlet report of the trial of An- 
 
 liereditary. , • ^r i ,, • ^ o.^o / c ii i i 
 
 drews, in Massachusetts, in Ihbb, "ot those who have 
 suddenly appeared to be insane, were of unsound cerebral con- 
 stitution by inheritance, their parents or ancestors having been 
 insane." Tuke, referring to this class of transient cases, says: 
 "An inquiry into the patient's history will generally detect a change 
 in character; tliis, however, obviously cannot be looked for in cases 
 where mental disorder can be traced back into infancy, or where the 
 intellectual and moral defects are congenital."^ Again he adds : 
 •' In some persons there is rather a congenital proclivity to disease 
 than the actual disease itself, and in these, a circumstance which, 
 in persons without that proclivity, would produce no result, will call 
 into action abnormal, that is to say, truly diseased, mental mani- 
 festations, although they may be only functional and subside when 
 the exciting cause is removed."^ 
 
 Devergie says: " If we examine the ancestral history of the 
 families, on the paternal or the maternal side, of these transitory 
 maniacs, it is not rare that one or even many members of the family 
 have been insane for longer or shorter periods." He quotes the 
 case of one of these patients who had committed homicide in a 
 transitory paroxysm, " in whose family one maternal great-uncle 
 
 ' S.'0.s«/m/, §§ 14G-li;0; 195-i;)9. ^ ]5nckuill and Tuke, Insanity, 
 
 2 Rudaiill and Tuke, Insanity, 20 1. IsU. 
 See an article in 2 Brain, 491. 
 
 300
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 366. 
 
 died insane ; one paternal aunt killed herself, and another relative 
 on the mother's side was known to have been troubled Avith eccen- 
 tricities (hizarres idees) all her life."' 
 
 Castelnau, describing one who, in a momentary paroxysm of 
 mania, had killed another, said, " that her mother suffered from 
 grave disease of the cerebro-spinal system, and had hemiplegia 
 previous to this daughter's birth. Her grandfather was insane, 
 and her brothers Avere strongly impressed with the character of her 
 ancestors."^ Of another he says the grandmother and great-grand- 
 mother were insane, and the father was considered by the neighbors 
 as not sane.^ 
 
 § 365. " In a great majority of cases," says Dr. Wood, "insanity 
 is produced by exciting causes acting upon a predisposition to the 
 disease. Inheritance is the most frequent source of this predispo- 
 sition — perhaps more frequent than all others put together. Even 
 a particular form of insanity is often inherited ; and it has been 
 noticed that the attack is apt to come on at the same period of life 
 in the parent and his offspring. The tendency to suicide not unfre- 
 quently descends from parent to child. It is thought that children 
 born before the occurrence of insanity in the parent are less liable 
 to be affected than those born subsequently."* 
 
 § 366. "Although at the first glance," says Renaudin, " man 
 appears to possess an independent existence, isolated Renaudin's 
 from his birth from those who bes-ot him, althouirh there exposition, 
 is but little apparent relation between his ripe age and first infancy; 
 it is not the less true, that, behind the characters peculiar to his in- 
 dividuality, we can discover certain typical signs, some of which 
 betray his nationality and others relate to his family. These typi- 
 cal signs are to be encountered not only in his physical organization, 
 but are also found in his moral idiosyncrasies, and, if tratlition is of 
 any force as regards manners and customs, inheritance is certainly 
 of great value as relates to the tastes and habits. It is, in fact, 
 manifested in the transmission from generation to generation of the 
 most inveterate maladies, before which art is obliged to confess its 
 
 • Ann. Ilyg. et Leg. Med. xi. 2d scr. 3 ||,i,i. 443. 
 
 312. See Rogers on Hereditary Ner- ■• rraetiee of Medicine, by Prof. (J. 1?. 
 
 vous Diseases, Papers Med. Leg. f50c., Wood, M.D., vol. ii. j). t;72, ]'liiL-i. 
 
 N. Y. 1874. lH4!t. S.-.' rep.ut of Tlnite's Case, IK 
 
 ^ Ann. Ilyg. xiv. 442. Joiirn. Meiit. Sci. A^A). 
 
 301
 
 § 366.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 weakness ; and it is with difficulty prophylactic measures ward off 
 the sad result. In mental alienation, also, experience furnishes us 
 daily proofs of this transmission, of which it is essential to study 
 the mode. • 
 
 " The question whether this transmission is direct, or results 
 from a predisposition whose development is due to the influence of 
 an occasional cause, or, in other words, whether by itself it is an 
 essential condition of causality, is no longer doubtful, and we now 
 possess numerous examples not only of hereditary transmission, but 
 also of an hereditary accumulation of the morbid predispositions. 
 This is particularly the case in families where wedlock is limited to 
 a small circle of fortune and social fitness. The royal families of 
 many countries have not escaped this law. We see generations of 
 insane succeed each other with an unyielding regularity, and there 
 are families which in this relation seem pursued by a desolating 
 fatality. 
 
 "Aside from idiocy and imbecility, which show themselves a 
 short time after birth, the predisposition does not ordinarily show 
 itself until the individual has reached a certain development — that 
 is to say, when all the conditions of causality are reunited. This 
 native predisposition does not suppose that those that preceded 
 were insane ; it depends, above all, upon the conditions in Avhich 
 they are placed and which react upon the phases of their existence. 
 This predisposition is also progressive from one generation to ano- 
 ther ; and it is in this manner that great social commotions and 
 certain epidemics contribute to the production of insanity, in leaving 
 after them deep distress or in producing a disordered exaltation. 
 
 "All causes capable of altering the public health have a marked 
 influence upon the immediate production of insanity or upon the 
 hereditary transmission of its predisposition. The unhealthiness of 
 dwellings and insufficiency or bad quality of food are so many 
 circumstances influencing its production, and to which municipal 
 governments should pay serious attention. It is on account of these 
 and other analogous causes that cretinism and idiocy are endemic 
 in certain localities, and that this influence is exercised not only on 
 natives, but also upon those establishing themselves there. 
 
 " The mode of life of the parents, and the diseases they have 
 had are no less efficacious in producing a predisposition to mental 
 unsoundness. If insanity has existed in those that preceded, the 
 302
 
 nOAV MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ S67. 
 
 chances of a direct transmission are much more probable. This 
 predisposition is sometimes so marked as to be in some measure 
 the only cause. Among the circumstances most likely to produce 
 an hereditary predisposition, we should mention drunken habits in 
 the parents.^ Many indeed, are the cases of idiocy and imbecility 
 which owe their situation to this cause. Many generations thus 
 suffer the punishment inflicted for the faults of one alone. 
 
 " The hereditary predisposition presents numerous varieties in its 
 evolution. Many members of the same family are free from mental 
 unsoundness ; and one only becomes insane. In another the in- 
 heritance shows itself from mother to daughter as a consequence of 
 parturition. This predisposition sometimes consists only in the 
 peculiarity of character, which drags a man towards a precipice 
 which conducts irresistibly to insanity.'"^ 
 
 § 3(37. Dr. Thomson, surgeon to the General Prison of Scotland, 
 as cited by Dr. !Maudsley,^ gives in this connection the cnmc he- 
 result of his extensive experience in a very striking reditary. 
 shape. He declares that crime is in a large degree hereditary in 
 families ;* though this, it ought to be observed, is to be in many 
 cases accounted for by the parents' bad example, and the evil asso- 
 ciations of home. But independently of this, there are certain 
 nervous and physical disorders, traced by this experienced observer, 
 which cannot be so explained. Thus epilepsy, dipsomania, spinal 
 deformities, stammering, imperfect organs of speech, club-feet, cleft 
 palates, harelip, deafness, paralysis, and similar marks of ph3'sical 
 degeneration, are specified as accompanying this hereditary line of 
 abnormal guilt. 
 
 ' See, Alcohol, its Action and Uses, in that year, thei'e were six convicts of 
 
 by Dr. Richardson. Lond., 1875. Asto one family; that at the same time 
 
 failure of English legislation to restrain tliere were four brothers of one family, 
 
 drunkenness, see an article in the and three of another family, imprisoned 
 
 Edinburgh Review (Oct. -Dec. 1&79), as convicts in tliat institution. Lucas, 
 
 p. 134. in L'Her^dite Naturelle, tells us that 
 
 2 Etudes Medico-Psychologiques, par 279 cases of mental disease, accompa- 
 
 L. F. E. Renaudin. Chap. ii. p. 33. nied more or less with moral obliquity, 
 
 Paris, 1854. See "The Jukes," by R. were to be traced to the mother. Sir 
 
 L. Dugdale, 3d ed., N. Y. 1877. Henry Holland, in his medical notes, 
 
 ' Body and Mind, London, 1870, p. informs us that Oxford, who fired at 
 
 ()C>. the queen, his father, and grandfather, 
 
 * It was stated in 1881 tliat in the all believed themselves to be St. Paul. 
 Eastern I'enitentiary in Pliiladclphia, 
 
 303
 
 § 369.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Nervous 
 diseases 
 may traiis- 
 init mental 
 derange- 
 iiieiit. 
 
 § 368. Dr. Maurlsley, to this and similar statements, adds : " I 
 could not, if I would, in tlie present state of knowledge, 
 describe accurately all the characteristics of the insane 
 neurosis, and group according to their affinities the cases 
 testifying to its influence. The chief concern now with 
 its morbid peculiarities is to point out, first, that they 
 mark some inherited fault of brain-organization; and, secondly, that 
 the cause of such fault is not insanity alone in the parent, but may 
 be other nervous disease, such as hysteria, epilepsy, alcoholism, 
 paralysis, and neuralgias of all kinds. Except in the case of suicidal 
 insanity, it is not usual for the parent to transmit to the child the 
 particular form of mental derangement from which he has suffered ; 
 insanity in the parent may be epilepsy in the child, and epilepsy in 
 the parent, insanity in the child ; and in families where a strong 
 tendency to insanity exists, one member may be insane, another 
 epileptic, a third may suffer from severe neuralgia, and a fourth 
 may commit suicide." Nervous disease, declares this eminent 
 physician, is a veritable Proteus, sometimes skipping generations, 
 and sometimes displaying itself in several contemporaneous mem- 
 bers of one family in the most capricious and dissimilar forms.' 
 
 § 3(')0. In regard to idioey, the facts are very strik- 
 jwreiits i»g- " Suffice it to say," we are told by Dr. S. (t. 
 oitcn the Howe, chairman of the Massachusetts State Idiocy Cora- 
 
 cautse oi ' -> 
 
 idioey. mission, in a very luminous report, submitted in 1848, 
 
 ' S(>e also on this point essays liy 
 Dr. Steplien Rogers, in 3 Ilaniniond's 
 Journ. I'sjeh. Mi-d. (J'if) ; Papers Med. 
 Leg. Soc. N. Y. (1874) p. 74; and by 
 Dr. O'Dea, in 4 .lonrn. Psyeh. Med. 28. 
 S(!e, generally, the West Riding Asy- 
 lum Il(!ports. It was stated in a Boston 
 daily paperof April, 1872, thatagentle- 
 man was then sometimes seen in New 
 York, the pupils of whose eyes instead 
 of being round are of the form of a key- 
 hole. He has a sdu with pi'i'ciscly th(> 
 saint! aniinialy. In (■onsi'ciucnt.'f' of tlie 
 apertiire being very large, and without 
 a muscular apparatus for contracting 
 according to the (juantity of light the 
 organ can bear with imj)unity, as in 
 
 304 
 
 ordinary eyes, they are obliged to knit 
 tlieir brows and partially curtain tlieir 
 eyes by closing the lids, otherwise the 
 retina would be overpowered and per- 
 haps jiaralyzed by impinging rays. 
 Albinos transmit the congenital defect 
 of their own optics to their children in 
 tlie proportion of one to about five. 
 Tliat is, in a family of six cliildren one 
 will generally have red pupils. They 
 see ))est in an oliscure light, because 
 the pigment whicli absorbs all the rays 
 not required for distinct vision is want- 
 ing in thern. Rabbits, esj^ecially wliite 
 ones, are albinos, and so are many va- 
 rieties of ])arrots.
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 370. 
 
 " tliat, out of 420 cases of congenital idiocy examined, some infoi-ma- 
 tion was obtained respecting the condition of tlie progenitors of 359. 
 Now, in all these 359 cases, save only four, it was found that one 
 or the other or both of the progenitors of the unfortunate sufferers 
 had, in some way, widely departed from the normal condition of 
 health, and violated the natural laws." 
 
 " We have no doubt," says a late eminent physician, " that 
 various immoral and vicious practices ought to be ascribed to in- 
 sanity. When periodic insanity has shown itself in a large family, 
 it is probable that some members of the family will evince a pro- 
 pensity to thieving or swindling. And, when more children than 
 one of the same parents, bursting through all the restraints imposed 
 by carefully-instilled principles and established habits, engage in 
 swindling transactions, it will often appear, upon inquiry, that in- 
 sanity has generally broken out in that family."^ And the same 
 high authority tells us tliat in families where insanity prevails with 
 the pregenitors, he has known two, three, or four children of the 
 same parents become deranged. One instance in particular he 
 dwells upon, in which, among a family of twenty persons, the 
 children of a brother and of two sisters, ten Avere afflicted with 
 insanity.^ 
 
 § 370. An interesting table, originally published in the London 
 Quarterly Review,^ and indorsed by Dr. Winslow,'* will show the 
 importance of this inquiry.^ 
 
 ' Essays on Partial Derangement in by Francis Galton, F.R.S., etc., 8vo., 
 
 Supposed Connection with Religion. London, 1869." The following obser- 
 
 By the late John Cheyne, M.D. Dub- vations of Mr. Darwin are directly in 
 
 lin, 1843. point:— 
 
 2 As to the marriage of near rela- " When we reflect that certain extra- 
 tives, see The Marriage of Near Kin, ordinary peculiarities have thus ap- 
 A. H. Huth, London, 1875 ; articles in peared in a single individual out of 
 48 Westminster Rev. 299 ; Fortnightly many millions, all exposed in the same 
 Rev., July, 1875. country to the same general conditions 
 
 3 No. 163. of life, and, again, that the same ex- 
 « Lectures, etc., 150. See Rush on traordinary peculiarity has sometimes 
 
 the Mind, 46, where this point is ex- appeared in individuals living under 
 
 amined. widely different conditions of life, we 
 
 5 On the general subject of the he- are driven to conclude that such pecu- 
 
 redity of special moral and intellectual Harities are not directly due to the 
 
 traits, see " Hereditary Genius, an in- action of the surrounding conditions, 
 
 quiry into its laws and conseciucnces, l>ut to unknown laws acting on the 
 
 VOL. I.— 20 305
 
 § 371.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 371. Dr. Steinau, in his Essay on Hereditary Disease, men- 
 tions a very interesting incident bearing on this point.' 
 hemmary " When I was a boy, there lived in my native town an 
 criniiiiiii ^|^j nian, named P , who was such an inveterate 
 
 propensitj'. ' 
 
 thief that he went in the whole place by that name ; 
 people speaking of him used no other appellation but that of The 
 Thief, and everybody then knew Avho was meant. Children and 
 common people were accustomed to call him by that name, even in 
 his presence, as if they knew not his other name ; and he bore it 
 to a certain degree Avith much good-natured forbearance. It was 
 even customary for the tradesmen and dealers, who frequented the 
 annual fair in the }»lace, to enter into formal treaty with him, that 
 is, they gave liim a trifling sum of money, for Avhich he engaged 
 not only not to touch their property himself, but even to guard it 
 against other thieves. A son of this P , named Charles, after- 
 wards lived in I> during my residence there. He was respect- 
 ably married, and carried on a profitable trade Avhich supported 
 him handsomely. Still, he could not help committing many rob- 
 beries quite without necessity, and merely from an irresistible 
 
 organization or constitution of tlio in- 
 dividual ; that their production stands 
 in scarcely closer relation to the condi- 
 tion than does life itself. If tliis lie so, 
 and the occurrence of the same unusual 
 character in the parent and cliild can- 
 not be attributed to hotli having been 
 exposed to tlie same unusual condi- 
 tions, tlien the following problem is 
 wortli consideration, as showing that 
 the result cannot be due, as some 
 authors liav(^ supposed, to mere coinci- 
 dence, but must be consequent on tlie 
 members of the same family inln'riting 
 something in common to their consti- 
 tution. Let it be assumed tliat ill a 
 large population a particular atfection 
 occurs on an average in one out of a 
 million, so that the a jiriori chance 
 that an individual taken at random 
 will \h- so all'ected is only one in a mil- 
 lion. Let tlie population consist of 
 sixty millions, conii>osed, we will as- 
 
 306 
 
 sume, of ten million families, each con- 
 taining six members. On these data, 
 Professor Stokes has calculated for me 
 that the odds will be no less than 
 8,333,000,000 to one that in the ten 
 million families there will not be even 
 a single family in wliich one parent 
 and two children will be affected by 
 the peculiarity in question. But nume- 
 rous cases could be given, in whicli 
 several children have been aflected by 
 the same rare peculiarity with one of 
 their parents ; and in this case, more 
 esp<>cially if the grandchildren be in- 
 cluded in the calculation, the odds 
 against mere coincidence become some- 
 thing prodigious, almost beyond calcu- 
 lation." See also Mr. Gallon's later 
 woik — English Men of Science : Their 
 Nature and Nurture. Lond. 1874. 
 
 ' See Pathological and PliilosoiAical 
 Essay on Hereditary Disease, p. 19, 
 No. 21.
 
 now MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 372. 
 
 inclination. He was several times arrested and punished ; the 
 consequence was that he lost his credit and reputation, by which he 
 was at last actually ruined. He died while still a young man, in 
 
 the house of correction at Sp , where he had been confined for 
 
 his last robbery. A son of this Charles, and grandson of the 
 
 above-mentioned and notorious P , in my native town, lived in 
 
 the house where I resided. In his earliest youth, before he was 
 able to distinguish between good and evil, the disposition to steal- 
 ing, and the ingenuity of an expert thief, began already to develop 
 themselves in him. When about three years old, he stole all kinds 
 of eatables within his reach, although he always had plenty to eat, 
 and only needed to ask for whatever he wanted. He therefore 
 was unable to eat all that he had taken ; nevertheless he took it, 
 and distributed it among his play-fellows. When playing with 
 them, some of their playthings frequently disappeared in a moment, 
 and he contrived to conceal them for days, and often for weeks, 
 with a slyness and sagacity remarkable for his age. When about 
 five years old, he began to steal copper coins ; and at the age of 
 six years he began to know something of the value of money, and 
 he looked out for silver pieces ; and in his eighth year he only 
 contented himself with larger coins, and proved to be, on public 
 promenades, an expert pickpocket. He was early apprenticed to 
 learn a trade, but his master, being continually robbed by him, 
 soon dismissed him. This was the case with several other trades- 
 men, till at last, in his fourteenth year, he was committed to the 
 house of correction." 
 
 § 372. "Nothing," says Mr. Hill, in his work on crime, "has 
 been more clearly proved than that crime is, to a con- 
 
 . , , , ,1- • .... But such 
 
 siderable extent, hereditary — crnne appearnig, in this hereditary 
 respect, greatly to resemble pauperism, Avhich, according without''^ 
 to the evidence of the poor-law commissioners, often ins;i"ity no 
 
 i _ _ \ defence. 
 
 j)roceeds from father to son in a long line of succession."^ 
 He adduces numerous cases in confirmation of the fact. One of 
 the most striking applies to the families of three brothers, contain- 
 ing together fifteen members. Of these, no fewer than fourteen 
 were utterers of base coin, while the fifteenth, who appeared to be 
 
 ' Crime; its Amount, ("anses, and 1 853, p. rjf). See an article in 15 Journ. 
 Remedies. By Frederick Hill, Harris- Ment. Sci. 487. 
 ter-in-law, late Inspector of Pristjns, 
 
 307
 
 § 373.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLT. 
 
 an exception to his kindred, was, at length, detected in setting fire 
 to his own house, which he had insured for four times its value. 
 " Supposing each of those emplo3^ed in uttering base coin to have 
 passed only one piece a day, and to have had a career of five years' 
 duration (which there is reason to believe is about the average), 
 no fewer than twenty thousand offences might have been prevented 
 by removing the three brothers permanently from society before 
 they became fathers of families." The disposition to commit crime 
 is often unquestionably an incurable form of insanity ; hence, we 
 read of persons who are all their lives criminals, and only terminate 
 one period of imprisonment to recommence another. The case of 
 a woman is cited by Mr. Hill, who continued in a career of crime 
 for twenty-five years ; and that also of another woman, fifty years 
 of age, who had already been in prison sixty-seven times. Further- 
 more, he refers to another example, of a woman who had been in 
 the police cells, in Edinburgh, at least one thousand times, chiefly 
 for acts of violence.^ But it should not be forgotten that, unless 
 there be hereditary insanity, mere hereditary tendency to crime is 
 no more a defence to crime than is the doctrine of the hereditability 
 of sin. 
 
 (i) Legally. 
 
 \ 373. In a legal as well as ^psychological view, the relevancy 
 of evidence of hereditary taint has been very ably shown by a late 
 
 ' Ibid. See The Jukes, \>y R. L. of these being specifically diseased) ; 
 Dugdale, N. Y. 1877. This careful and the cost to the state in seventy-five 
 and painstaking research into the his- years inflicted by tliis single family is 
 tory of a celebrated family of crimi- estimated by the author at $1,308,000, 
 nals in New York is deserving of atten- "without reckoning the cash paid for 
 tion. The author considers the re- wliiskey, or taking into account the 
 markable facts that he has developed entailment of pauperism and crime of 
 to prove that crime, intemperance, the survivors in succeeding genera- 
 prostitution, pauperism, illegitimacy, tions, and the incurable diseases, 
 and the like are all h(>reditary. Of the idiocy and insanity, growing out of 
 1200 descendants and collateral rela- this debauchery, and reaching further 
 fives of the live sisters who founded than we can calculate." Of 540 per- 
 the family, 140 were criminals and sons related by blood to the Jukes, 
 ofl'enders (tliis is, says the author, a there were 84 harlots, 60 criminals, 106 
 low and imperfect estimate), 280 vfem bastards, 65 diseased (29 syphilitic), 
 paupers, 60 were habitual thieves, 7 and 95 paupers, 
 murderers, 50 common prostitutes (40 
 
 308
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 373. 
 
 eminent judge, ^jWhose capacity as a mental observer was Leofaiiy, 
 not less than his ability as a judge. On the trial of the hereditary 
 issue, the object of which was to determine the validity admissible 
 of the will of Captain Arrowsmith, the evidence was 
 that the deceased was a retired manner who had attained a com- 
 petence ; the plaintiff was his sister, his heir by descent, as the last 
 of her father's issue ; and the defendant, his housekeeper, was his 
 devisee. The fact in contest was his sanity. There was no evi- 
 dence of fraud or imbecility ; but the plaintiff's witnesses testified 
 as to acts of sudden and unprovoked passion, violence, wildness, 
 extravagance, and eccentricity ; and, in order to corroborate the 
 inference from them, her counsel offered the deposition of Susan 
 Arrowsmith, the widow of one of the testator's brothers, that the 
 testator's father was insane towards the close of his life ; that one 
 of the testator's two uncles, on the father's side, was insane, and 
 the other imbecile ; that his two aunts on the same side, and their 
 children, were insane ; that a son of one of them is in a madhouse ; 
 and that her own husband was mentally disqualified before his 
 death. The admission of the deposition was opposed, on the ground 
 that the legitimate inquiry was into the state of the testator's 
 mind, not that of another ; and that it did not follow, that, because 
 the testator's father and his collateral relations were insane, he must 
 have been so too. The point was elaborately argued on principle 
 and authority, but the chief justice said : " I admit the deposition 
 without hesitation, notwithstanding the dicta of Mr. Shelford^ and 
 Mr. Chitty,^ that it is an established rule of law not to admit proof 
 of insanity in other members of the family in civil or criminal cases. 
 Established ! AYhen, where, and by whom ? Certainly not by the 
 house of lords, in McAdam v. Walker,* the only case cited for it, 
 for the question there was avowedly dodged. That high court would 
 not shock common sense by affirming the order of the Scotch court 
 of session ; nor would it gratuitously reverse it, when the decision 
 could be safely put on another ground. The authority of a judg- 
 ment appealed from, and left in dubio, cannot be very great. Sir 
 Samuel Romilly's argument against the evidence was rested on the 
 fecundity and interminableness of collateral issues ; and Mr. Chitty 
 
 « Gibson, C. J. 3 Med, Jurisp. 355. 
 
 * Treat, on Lunacy, 59. * 1 Dows. Par. Ca. 148. 
 
 309
 
 § 373.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 seems to have had a glimpse of the same idea, when he said the 
 course is to confine the evidence to the mental state of the party. 
 But every new fact, though it open a new field of inquiry, is not 
 collateral. It may bear directly on the fact in contest ; and where 
 it docs so, it is not in the power of the court to shut it out. A col- 
 lateral issue is such as Avould be raised by allowing a party to put 
 a question to a witness, on cross-examination, in regard to a fact 
 palpably unconnected with the cause, in order to afford an oppor- 
 tunity to discredit him by contradicting him ; but does not proof of 
 hereditary madness bear directly on the condition of the mind, which 
 is the subject of investigation ? What if the point had been ruled 
 by the chancellor and law judges in the house of lords ? Profoundly 
 learned in the maxims of law, they were profoundly ignorant of the 
 lights of physiology ; yet, free from the presumptuousness of which 
 ignorance is the foster-father, they refused to rush on the decision 
 of a question to which they felt themselves incompetent. Mr. Chitty 
 fancifully puts the solution of questions of insanity on the doctrine 
 of legal presumptions. 'As the imputation,' he says, ' is contrary 
 to the natural presumption of ade({uatc intellect, the deficit should 
 be established by direct and poi<itive evidence, and not merely by 
 conjectural or probable proof.' If that be law, a question of insanity 
 is the only one in which positive evidence is required, and circum- 
 stantial evidence to corroborate is rejected. Why is evidence of an 
 old grudge admitted against a prisoner as a remote proof of malice, 
 if the remote proof of hereditary insanity may not be given by him 
 to rebut it ; and why should the presumption of sanity be allowed 
 to overbear the presumption of innocence, the strongest of them all? 
 I admit that hereditary insanity will not itself make out a case for 
 or against a member of the family ; but to say that it may not cor- 
 roborate Avhat Mr. Chitty calls direct and positive proof, without 
 defining it, staggers all belief. In a measuring cast it ought to 
 prevail. He says harsh conduct, bursts of passion, or displays of 
 unnatural feeling Avill not, of the in selves, establish insanity. Be it 
 so. But, because the springs of such actions are concealed, are 
 they never to be laid bare, and shown to be seated in the blood ? 
 When it is admitted by Mr. Chitty and Mr. Shelford themselves, 
 that insanity is a descendable (juality, they give up the argument. 
 There can be nothing unreasonable in referring wild, furious, and 
 unnatural actions, not otherwise accounted for, to the aberrations 
 310
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 373. 
 
 of a mind, the reflux of that of a crazy father. Mr. Taylor, a dis- 
 tinguished lecturer on medical jurisprudence in the Guy's Hospital, 
 London, says that ' in making a diagnosis of a case of insanity, the 
 first question put is commonly in reference to the present or past 
 existence of the disorder in other members of the family. There 
 can be no doubt, from the current testimony of many writers on 
 insanity, that a disposition to the disease is frequently transmitted 
 from parent to child through many generations. M. Esquirol has 
 remarked, that this hereditary taint is most common of all cases to 
 Avhich insanity can be referred.'^ M. Esquirol was, in 1838, and 
 perhaps is still, the principal physician to the liospital for the insane 
 at Charenton, in France, and a member of the Royal Academy of 
 Medicine at Paris. His tables of insanity are held in high repute 
 by not only the physicians of France but of Europe. Well might 
 Mr. Taylor say that these things ought to be borne in mind by 
 medical jurists. The knowledge attained by men, of a subject 
 which they have grappled all their lives, ought surely to prevail 
 against knowledge gleaned from the hornbooks of a profession to 
 which the gleaners did not belong. Strange that a source of infer- 
 mation open to every one else should be closed to those who are to 
 pass on the fact. Every man has observed that there are families 
 through which insanity has been handed down for generations ; and 
 why should the probability of hereditary madness be excluded, when 
 probabilities in other cases are weighed, especially when it is known 
 that a proclivity to theft, intemperance, lying, cheating, and almost 
 all other moral vices, are as transmissible as gout, consumption, 
 deafness, blindness, and almost all other constitutional diseases ? 
 It is supposed by the million that insanity is a disease of the mind, 
 not of the body. Ridiculous ! If it were, it could never be cured ; 
 for the mind cannot take physic, or l)e separately treated; yet the 
 statistics of the insane exhibit a great number of cures, and the 
 time is fast coming when insanity will be considered the most 
 manageable disease that flesh is heir to. An objection to an inqui- 
 sition which does not disclose the specific nature of the ancestor's 
 infirmity might stand in a different light; but testimony which brings 
 the fact of madness home to him ought to be received like evidence 
 of family likeness, which, though less reliable, was allowed to be 
 
 ' Taylur on Med. Jurisp. 502. 
 
 311
 
 § 374.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 corro]»orative proof of paternity in the Douglas Peerage case, in 
 1767, and again in the Townsend Peerage case, in 1843. Lord 
 Mansfiehi said, in the former, that he had always considered like- 
 ness as an argument of a child being the son of a parent ; that a 
 man may survey ten thousand people before he sees two faces ex- 
 actly alike, and that in an army of a hundred thousand men, every 
 man may be known from another ; that if there should be a likeness 
 in feature, there may be a difference in the voice, gesture, or other 
 characters : Avhereas family likenesses run generally through all of 
 these ; for that in everything there is a resemblance, as of feature, 
 voice, attitude, and action. Might he not have added the diathesis 
 of the brain ? He doubtless might, if the point had been mooted. 
 In prosecutions for bastardy, the practice in the quarter sessions 
 was, in my day, not exactly to give the child in evidence, but to 
 put it before the jury, sometimes by the prosecutor, and sometimes 
 by the putative father. But ancestral irregularity in the action of 
 the brain is more frequently transmitted than any resemblance in 
 form or feature ; and it is difficult to imagine an objection to evi- 
 dence of it for purposes of corroboration."^ 
 
 § 374. Taylor thus sums up the recent English cases on this 
 So in Eu"-- P'^i^^t : " In the case of Reg. v. Ross Touchet, 1844, 
 land. tried and acquitted on the ground of insanity, for shoot- 
 
 ing a man, Maule, J., held that evidence that the grandfather had 
 been insane may be adduced, after it had been proved by medical 
 testimony that such disease is often hereditary in a family. It was 
 also admitted in Oxford's case, the prisoner having been here tried 
 for shooting at the queen.^ This kind of evidence has, however, 
 been frequently rejected, and it is not admitted in the law of Scot- 
 land.2 There can be no doubt, from the concurrent testimony of 
 all writers on insanity, that a predisposition to the disease is fre- 
 quently transmitted from parent to child through many generations. 
 Tiie malady may not always show itself in such cases, because the 
 offspring may pass through life without being exposed to any excit- 
 ing cause ; but in general it readily supervenes from vei*y slight 
 causes."^ 
 
 ' Smith r. Kramer, 1 Am. Law Reg. ^ Gibson's case, Edinburgh, Dec. 
 3r,3. 1844. 
 
 2 Law Times, Oct. 26, 1844. « Taylor's Med. Jur., p. 555. 
 
 312
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 376. 
 
 Evidence 
 may be 
 given of in- 
 sanity of 
 collateral 
 relation. 
 
 § 375. Evidence of this class is not to be limited to the imme- 
 diate relatives of the patient. Thus in Andrews' case, 
 before the supreme court of Massachusetts, in 1808, 
 the court admitted evidence of the insanity of the colla- 
 teral issue of a common ancestor of the defendant three 
 generations back.^ It is clear that evidence of mental 
 unsoundness on the part of a brother or sister of the person whose 
 competency is in question is admissible.^ 
 
 § 376. It has been ruled, indeed, in North Carolina, that where 
 hereditary insanity is offered as an excuse for crime (the j^ ^^^^ ^^^ 
 case before the court was murder), there must be proof be notorious 
 that the insanity was notorious, and of the same species as that 
 with which other members of the family have been afflicted.^ 
 
 But this decision cannot be sustained. Insanity, it has been well 
 said, is protean. Sometimes it may be so concealed that it may 
 escape the knowledge of all but the closest observers. Often, as 
 has been seen, it changes its form from time to time in the same 
 individual ; and when passing from parent to child it almost always 
 varies its type. 
 
 1 Andrews' trial, pamphlet, p. 135. 
 Wh. Crim. Law, § 65 ; R. v. Tucket, 1 
 Cox C. C. 103 ; R. v. Oxford, 9 C. & P. 
 525 ; Smith v, Kramer, 1 Am. L. Rev. 
 353; Bradley i.-. State, 31 Ind. 492; 
 State V. Felter, 25 Iowa, (37 ; Com. v. 
 Rogers, 7 Met. 500. See also Baxter r. 
 Abbott, 7 Gray, 81, Adhere the insanity 
 of uncles was allowed to be shown, and 
 Com. V. Rogers, 7 Metealf, 500. So in 
 Christiana Edmunds's case, in Loudon, 
 Jan. 1872, the defendant appears to 
 have been permitted to give proof of 
 this kind without limit as to degree of 
 relationship. The law is thus stated 
 by Judge Thomas in Baxter c, Abbott, 
 7 Gray, 81. 
 
 "We think the practice has been to 
 admit evidence of insanity in the 
 family. We think the practice is riglit 
 in principle. It rests upon the ground 
 of the hereditary character of insanity ; 
 that a predisposition to the disease is 
 frequently transmitted from parent to 
 
 child. With such predisposition the 
 malady may not show itself in the 
 child, for the child may not be exposed 
 to any exciting cause. But, with such 
 liereditary taint, insanity supervenes 
 from slight causes — causes apparently 
 wholly inadequate to affect the mind 
 without the predisposition. In making 
 a diagnosis of sucli a case, we suppose 
 that, among the first questions which 
 would be i^ut, would be the question 
 whether the parents of the patient 
 were or had been insane. With tlie 
 fact that father or motlier or either of 
 them liad been insane, that the uisaniti/ 
 had appeared in them at about the same at/e, 
 and in the same form, its existence in the 
 child is more prohahle, and is believed on 
 less perfect evidence.''' S. P. People v. 
 Smith, 31 Cal. 4(J6, 
 
 2 People V. Garbutt, 17 Mich. 9. 
 
 ^ State V. Christmas, G Jones (N. C.) 
 471. 
 
 313
 
 § 378.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 377. But the proof of hereditary insanity can only be admitted 
 
 as cmnulative evidence, and the insanity of ancestors is, 
 
 Jehfuvcsno ^y itself, no defence.^ Evidence that certain causes 
 
 defence, nii"ht induce insanity is not admissible without layinsr 
 
 per se. " •^ . . 
 
 or offering to lay a basis of proof to show that insanity 
 
 actually existed.^ 
 
 4. Conversation and dejyortment. 
 
 § 378. The general questions relating to feigned insanity are 
 
 distinctively hereafter noticed. ^ One or two cases will 
 
 oftTa diffi- be sufficient to show the importance of accurate observa- 
 
 te"cJ ^"^ '^''' <^io" i" tl'is respect. 
 
 " A parish officer, from the neighborhood of Middle- 
 ton, England, took a lunatic to the asylum, pursuant to an order 
 signed by two magistrates. As the man was respectably con- 
 nected, a gig was hired for the purpose, and he was persuaded that 
 it Avas merely an excursion of pleasure on which he was going. In 
 the course of the journey, however, something occurred to arouse 
 the suspicions of the lunatic with respect to his real destination : 
 but he said nothing on the subject, made no resistance, and seemed 
 to enjoy his jaunt. When they arrived at Lancaster, it was too 
 late in the evening to proceed to the asylum, and they took up 
 their quarters for the night at an inn. Very early in the morning 
 the lunatic got up and searched the pockets of the officer, where he 
 found the magistrate's order for his own detention, which, of course, 
 let him completely into the secret. With that cunning which mad- 
 men not unfre(![uently display, he made the best of his way to the 
 asylum, saw one of the keepers, and told him that he had got a sad 
 mad fellow down at Lancaster, whom he should bring up in the 
 course of the day, adding: 'He's a very queer fellow, and he has 
 got very odd ways. For instance, I should not wonder if he was 
 to say I was the madman, and that he was bringing me : but you 
 must take good care of him, and not believe a word that he says.' 
 
 I Snow V. Benton, 28 111. 306. Such 2 Sawyer ?•. State, 35 Iiid. SO; Brad- 
 evidence, it has been held, is not com- ley v. State, 31 Ind. 492. 
 petent until evidence of the defendant's 3 See infra, §§ 443—460; and as to 
 own insanity has been given. Laros change of character and disposition, 
 r. Com., 84 Pa. 2UU. See People v. see infra, § 3i)U. 
 Pine, 2 Barb. 566. 
 
 314
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 378. 
 
 The keeper of course promised compliance, and the lunatic walked 
 back to the inn, where he found the officer still fast asleep. He 
 awoke him, and they sat down to breakfast together. ' You're a 
 lazy fellow to be sleeping all day ; I have had a long walk this 
 morning,' says the lunatic. ' Indeed,' says the officer, ' I should 
 like to have a walk myself after breakfast ; perhaps you will go 
 with me ?' The lunatic assented, and after breakfast they set out, 
 the officer leading the way toward the lunatic asylum, intending to 
 deliver his charge ; but it never occurred to him to examine whether 
 his order was safe. When they got within sight of the asylum the 
 lunatic exclaimed, ' What a fine house that is !' ' Yes,' said the 
 officer, ' I should like to see the inside of it.' ' So should I,' ob- 
 served the lunatic. ' Well, I dare say they will let us through — I 
 will ask,' was the response. They went to the door; the officer 
 rang the bell, and the keeper whom the lunatic had previously seen 
 made his appearance, with two or three assistants. The officer then 
 began to fumble in his pockets for the order, when the lunatic pro- 
 duced it, and gave it to the keeper, saying, ' This is the man Avhom 
 I spoke to you about. You will take care of him ; shave his head, 
 and put a strait waistcoat on him.' The men immediately laid 
 hands on the poor officer, who vociferated loudly that the other 
 was the madman, and he the officer ; but, as this only confirmed the 
 story previously told by the lunatic, it did not at all tend to procure 
 his liberation. He was taken away, and became so indignantly 
 furious that the strait waistcoat was speedily put upon him, and 
 his head was shaved, secundum artem. Meanwhile, the lunatic 
 walked deliberately back to the inn, paid the reckoning, and set 
 out on his journey homeward. The good people in the country 
 were, of course, surprised on seeing the wrong man return; they 
 were afraid that the lunatic, in a fit of frenzy, had murdered the 
 officer, and they asked him with much trepidation what he had 
 done with Mr. Stevenson. ' Done with him ?' said the madman, 
 ' why, I left him at the Lancaster Asylum, as mad as a fury!' 
 Avhich, indeed, was not very far from the truth ; for the Avits of the 
 officer were wellnigh upset by his unexpected detention and sub- 
 sequent treatment. 
 
 " Further in((uiry was forthwith made by his neighbors, and it 
 was ascertained that the man was actually in the asylum. A ma- 
 gistrate's order was produced for his liberation ; and he returned 
 
 315
 
 § 379.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 home with a handkerchief tied round his head in lieu of the cover- 
 ing which nature had bestowed upon it."^ 
 
 § 379. " I was requested," says Dr. Winslow, " to see a gentle- 
 Often only ^^^^ who was said to be suicidally insane. Upon in- 
 detected by (.y^{YY I ascertained from good authority that under the 
 
 outside cir- 1 ^ ' _ o _ *' _ _ 
 
 euinstancos influence of the most distressing hallucinations he had 
 attempted to hang himself. The patient firmly, earnestly, and ap- 
 parently Avith great truthfulness, resolutely and repeatedly denied 
 the fact. He declared it was an invention — a pure creation of the 
 imagination, originating with the family ; that he was happy, sub- 
 ject to no depression, had a strong wish to live, and great fear of 
 death. I examined him, in conjunction with another physician, and 
 neither of us could seize hold of the salient point, or satisfy him- 
 self that the man was actually insane. But, we asked ourselves, 
 what motive could his family have for thus misrepresenting the facts 
 of the case ? We felt quite assured, from the character of the evi- 
 dence presented, that an attempt at suicide had been made ; but 
 the patient, with an ingenuity which would have reflected credit 
 upon a nisi prius lawyer, parried with great skill all the questions, 
 and gave such prompt and happy replies to our anxious interroga- 
 tories, that we were compelled to admit ourselves, for a time, per- 
 fectly defeated. By a course of conversation I drew the gentle- 
 man's thoughts into a different channel ; and, whilst my attention 
 was directed apparently elsewhere, I kept a close watch upon his 
 movements. I perceived, as I imagined, some kind of instrument 
 projecting from his pocket. He perceived that my eyes were 
 directed to this, and he immediately expressed a wish to leave the 
 apartment. I at once said, ' I cannot permit you to do so until I 
 know what you have concealed in your trowsers pocket.' He at 
 once manifested signs of embarrassment and excitement, and, rising 
 rapidly from his seat, endeavored to rush out of the door. He was 
 immediately prevented from doing so, and his pockets emptied, and 
 a razor discovered. In his pocket-book a letter was found, ad- 
 dressed to the coroner, intimating to him that he was pursued by 
 an evil spirit, and this impression had driven him to commit an act 
 of self-destruction. Fortunately for our own reputation and the 
 
 ' Manchester (England) Guardian. 
 
 316 ^ .
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED, [§ 379. 
 
 patient's life, this providential discovery Avas made.^ It may be 
 necessary to see and examine the patient on more than one occasion 
 before the physician is satisfied as to the actual state of his mind. 
 In cases of doubtful character, I would suggest that this course 
 should invariably be adopted, taking the necessary precaution to re- 
 commend close vigilance during the interregnum. I suggest this 
 course, in consequence of my being acquainted with the case of a 
 lady, whose removal from home was for a few days temporarily 
 postponed, in com2)liance Avith the cautious and judicious advice of 
 the medical man, who admitted that he could not detect, according 
 to his apprehension, sufiicient evidence of insanity to justify him in 
 signing the certificate. During the interim she succeeded in de- 
 stroying herself. In a few instances we are justified in partially 
 acting upon the representations of the family and friends of the 
 alleged lunatic. If a delusion be detected, it must be referred to; 
 and, if the patient has committed any overt act of violence, or mani- 
 fested a suicidal disposition, it is our duty to refer to these facts, 
 guarding ourselves by stating that we derive such information 
 from parties immediately around the patient. It is important in 
 all cases to specify the character of the existing delusion. The 
 expression of a belief in the fact of delusive ideas, and of the pres- 
 ence of abstract insanity without a specification of facts, renders a 
 medical certificate invalid. I have often seen certificates worded 
 to this effect: ' I have formed my opinions from the fact of the 
 party being insane' — ' being under delusions' — ^ being excited' — 
 ' being violent.' These generalizations should be carefully avoided ; 
 the more concise the account of the patient's condition, the closer 
 
 ' " It is only in having,"" says Orfila, be necessary to influence their opinion. 
 " an acquaintance with the ■whole life In a report, they should not confine 
 of an individual, in weighing and com- themselves to a simple opinion upon 
 paring every fact, that in some cases, the state of the person who is the sub- 
 we can pronounce with certainty upon ject of it, but, of necessity, should go 
 his actual moral state. It is in inter- into details upon the facts observed, in 
 rogating the past that we acquire a order that the same piece may be sub- 
 knowledge of the present." The same mitted to the examination of new ex- 
 author also states, that, when an jierts. The employment of all the 
 oijinion is asked from pliysicians upon means indicated does not always lead 
 the actual state of an accused person, to a positive result, and sometimes we 
 they ought, in the examination of his are to remain in dould. — Med. L''>j., 
 previous conduct, to understand what Orfila, tome i. p. 4(K), Paris, 1848. 
 act is imputed to him, if that should 
 
 317
 
 § 380.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 will it be in unison with the expressed wish of the comniissioners 
 
 in lunacy. The record of one clear and unmistakable delusion is 
 
 quite sufficient for all legal purposes. But cases do occur where 
 
 no delusion can be detected, and yet confinement may be absolutely 
 
 necessary. Under such circumstances it is the duty of the medical 
 
 man to enter more into detail as to the facts of the case. Perhaps 
 
 I may be excused for suggesting, that, in every instance of this 
 
 kind, the parties should keep copies of their certificates."' 
 
 § 380. A man mentioned by Pinel, who had been for some time 
 
 Insanity confined in the Bicefcre, was, on the visitation of a com- 
 
 sometimes missarv, ordered to be discharged as perfectly sane, after 
 only appa- -^ ' . , . p 
 
 rent on (iiic a lon«- Conversation in which he had conducted himself 
 
 *'^'^" with the greatest propriety. The officer prepared the 
 
 proch verbal for his discharge, and gave it to him to put his name 
 to it, when he subscribed himself Jesus Christ, and then indulged 
 in all the reveries arising from that delusion. Lord Erskine gives 
 a very remarkable history of a man who indicted Dr. Monro for 
 confining him without cause in a madhouse. He underwent the 
 most rigid examination, by the counsel of the defendant, without 
 discovering any appearance of insanity, until a gentleman came into 
 court who desired a (juestion to be put to him respecting a princess 
 with whom he had corresponded in cherry-juice. He immediately 
 talked about the princess in the most insane manner, and the cause 
 was at an end. But, this having taken place in Westminster, he 
 commenced another action in the city of London, and on this occa- 
 sion no effort could induce him to expose his insanity ; so that the 
 cause was dismissed only by bringing against him the evidence 
 taken at Westminster. On another occasion, Lord Erskine ex- 
 amined a gentleman who had indicted his brother for confining him 
 as a maniac, and the examination had gone on for great part of a 
 day without discovering any traces of insanity. Dr. Sims then 
 came into court, and informed the counsel that the gentleman con- 
 sidered himself as the Saviour of the world. A single observation, 
 addressed to him in this character, showed his insanity, and put an 
 \ end to the cause. Many similar cases, says Abercrombie, are on 
 record. Several year ago, a gentleman in Edinburgh, who was 
 brought before a jury to be cognosced, defeated every attempt of 
 
 ' Winslow on Medivo-L<>gal Kv. 153. 
 
 318
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 383. 
 
 the opposite counsel to discover any traces of insanity, until a gen- 
 tleman came into court, who ought to have been present at the 
 beginning of the case, but had been accidentally detained. He im- 
 mediately addressed the patient by asking him what were the latest 
 accounts from the planet Saturn, and speedily elicited ample proof 
 of insanity.' 
 
 § 381. M. Orfila states, that deranged persons who are conscious 
 of their condition, and who yet preserve some control or entirely 
 over themselves, will answer correctly all questions that '^o°'='?aied. 
 are addressed to them, and will not betray their condition if they 
 have an interest in concealing it.^ 
 
 § 382. Mr. David Paul Brown gives us the following illustration 
 of this same craftiness : M., having written a letter from 
 the asylum, made up of patches of Latin, Greek, French, of craiti- 
 and German, and manifesting most clearly a disordered P*^^*'P 
 
 ' o J lunatics. 
 
 mind, upon escaping from his confinement desired counsel 
 to institute an action for false imprisonment, against the managers. 
 "I shall do no such thing," said the lawyer (handing him the 
 letter) ; " look at that, and tell me whether a sane man ever wrote 
 such a letter." Upon which, bursting into a laugh, the madman 
 said, " That indeed does look as if T were insane ; but I wrote it 
 purposely in that way, because I knew if it had been reasonable, 
 and the managers had opened it, as they always do, they never 
 would have allowed it to reach its address."^ 
 
 § 383. Lord Chancellor Loughborough once ordered a man to 
 be brought before him, against whom his heirs wished to take out a 
 commission of lunacy. He examined him and put various questions 
 to him, to which he made the most pertinent answers. " This man 
 mad !" thought he, " verily he is one of the ablest men I ever met 
 with." Toward the end of the examination, however, a little scrap 
 of paper was put into his hands on Avhich was written " Ezckiel." 
 This was enough for such a shrewd and able man as his lordship. 
 He took his cue. " What fine poetry," said the chanceUor, " is in 
 Isaiah !" " Very fine," replied the man, " especially when we 
 read in the original Hebrew." "And how well Jeremiah wrote!" 
 
 ' AlK!rcroinV)i« on tlie Intellectual ^ Med. Leg., M. Oilila, tome i. p. ;59G. 
 Powers, pp. 2^)'A, 254; see also §§ I'aris, 1H4.S. 
 8(J-92. 3 2 Brown's Forum, p. 478. 
 
 319
 
 § 384.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 " Surely," said the man. " What a genius, too, was Ezekiel !" 
 " Do you like him ?" said the man ; " Til tell you a secret, I am 
 Ezekiel !" 
 
 § 384. Cunning may run coincidently -with insanity for a long 
 
 series of years, and may, in a certain stealthy furtive- 
 
 iiiay'bc^i ness, be one of the forerunners of insanity. " This 
 
 forerunner j^j-ji^org yg ^q another phase," says the writer of an intel- 
 
 of insanity. o i ^ J 
 
 ligent survey of the reign of George III., in the London 
 Spertctor of April 27, 1872, " in the character of George III. We 
 have seen that Lord Waldegrave speaks of his want of frankness. 
 It is probable that the brooding tempierame'iit and indirectness of 
 conduct which are among the least pleasirig of George's character- 
 istics were closely con7iected with the mental disease to ivhich he 
 had a constayit tendency. Secretiveness and cunning are usually 
 marked features in an organization so affected^ and the suspicious- 
 ness of others and the strong ayid irratiorial likes and dislikes tvhich 
 are main operating causes in such a nature produce, as a neces- 
 sary res7dt, dissimulation and crafty underhand i^itrigue. When 
 George, then, found that his violent declarations and overbearing 
 wilfulness produced no effect, he restrained his morbid impatience 
 (although his reason on several occasions tottered and even tem- 
 porarily succumbed under the effort), and endeavored to attain his 
 ends by cunning watchfulness of opportunities. He acquiesced out- 
 wardly in the change of advisers and abandonment of cherished 
 policy, and then set to work to undermine the position of the 
 intrusive counsellors, and to thwart, as much as he could venture 
 to do, the development of their plans. He intrigued, in fact, 
 against the ministers he could not meet openly, and waited for the 
 moment when he could safely dismiss them again with ignominy. 
 Hence arose the political phenomenon which went under the name 
 of ' The King's Friends' — a set of men who formed a backstairs 
 anti-cabinet, the object of which was to employ the king's name 
 and the influence of his personal sentiments in organizing an oppo- 
 sition to his ostensible cabinet advisers, both in parliament and in 
 the country at large. It must not be supposed by this that there 
 was any regularly constituted ' cabal,' or any precisely defined 
 plan of operation for its guidance ; but there were nearly always 
 throughout the reign of George III. two or three men — generally 
 not men of high ability, but busy, gossiping intriguers, Avho were 
 320
 
 now MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 384- 
 
 irresponsible, and both unavowed and often disavowed agents in 
 making known what the king's real wishes were. With the assist- 
 ance of such men, and by a careful observation of the variations in 
 the public sentiment, George achieved a success in his plans of 
 personal government which, if we remember the relative position of 
 the crown and parliament at the commencement of his reign, seems 
 at first marvellous. In the course of this protracted struggle, the 
 king had to undergo many mortifications and not a few seemingly 
 fatal checks, but he always bent to the storm in time, and generally 
 knew when and how long to maintain an inflexible position. Nothing 
 but this superior cunning and adroitness could have saved him from 
 a great civil convulsion such as that which destroyed his prede- 
 cessors in this path of royal aggrandizement, Charles I. and James 
 II. George III., however, had concentrativeness of action as well 
 as persistence of purpose, and, however tortuous his paths were at 
 times, the tone and direction of his policy were always consistent, 
 and no one had ever cause to suspect him for a moment of having 
 become a convert to Whig constitutional notions, although he might 
 tolerate for a time Whig ministers, and even (as in the case of his 
 concessions to the revolted American colonies and his ultimate 
 acknowledgment of their independence) adopt Whig measures and 
 Whig policy. This persistent uniformity of sentiment, suspended 
 in action from time to time by the necessities of his position, but 
 always reappearing again to the public eye, produced by degrees a 
 great and lasting effect on the public mind." 
 
 Mr. A. amassed a large fortune in Philadelphia, in a few years, 
 as a carriage builder. He had an extraordinary degree of skill, 
 among other things, in poising and adjusting the springs and 
 weights of a carriage, and in uniting, in remarkable perfection, 
 beauty and lightness with strength. As his business increased, he 
 would be occupied during large portions of the night, as he lay 
 sleepless in his bed, by calculations as to how these adjustments 
 could be best secured. In the spring of 1855, he engaged in real 
 estate speculations, in which he speedily showed that his mind was 
 becoming unbalanced. He negotiated, or pretended to negotiate, 
 for a large and immensely valuable lot of ground, intimating that 
 he expected it to be occupied by Queen Victoria in a visit that she 
 was projecting. Then he turned his attention to live stock, taking 
 measures to purchase a vast number of cows, on the plea, he said, 
 VOL. I.— 21 321
 
 § 384.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 of an expected rise in the price of milk. His family petitioned for 
 a commission of lunacy, which was granted, and the present writer 
 was appointed commissioner. While the case was on hearing, it 
 was agreed on both sides that to give every opportunity for re- 
 covery, as well as to secure greater certainty in the result, Mr. A. 
 should be permitted to travel for a few months, under the charge 
 of two parties in whom he personally had confidence. The experi- 
 ment was made, and two remarkable facts were established. The 
 first was that he was possessed by certain insane delusions, which 
 destroyed his capacity for managing his estate. The second was 
 that he was conscious that he was under watch, and that these 
 delusions, if shown to exist, would lead to the pending trial being 
 decided adversely to his sanity. Nothing could exceed the adroit- 
 ness and tact Avith which, on the one hand, he pursued these delu- 
 sions, and, on the other hand, sought to conceal or mask them 
 from his attendants. It seems that, besides wanting to purchase 
 all the live stock he met, he had a fancy that these creatures were 
 rational. He accordingly addressed notes to " a gray mare," or 
 " a black horse, which I met in such a place," and, in seeking to 
 get these notes to their intended destination, he used the adroitness 
 and finesse of a subtle diplomatist. Then, when the fact was dis- 
 covered, he would laugh it off, with the utmost coolness, as a prac- 
 tical joke attempted by him on his guardians. When the case was 
 brought up for a final hearing, he not merely went successfully 
 through the test of a protracted and thorough examination, but 
 cross-examined the witnesses himself, and made a long, able, and 
 artful speech, in which he endeavored to explain away all the facts 
 that admitted of a doubtful construction. As to those which were 
 unequivocally irrational, he took a ground something like the fol- 
 lowing : "You know, gentlemen of tlie jury, being business men 
 yourselves, how acutely one who has been immersed all his life in 
 a business in which he deliglits, and of which he may be justly 
 proud, must feel when suddenly dragged from that business, forced 
 to compulsory idleness, and dogged by men who he knows are 
 seeking to entrap him into something which will prove him a lunatic. 
 You can easily see how, under such circumstances, a man might 
 resort to imaginary business, such as the world resorts to in its 
 fashionable sports and games, to fill the void of real. You can 
 understand, also, how he might attempt practical jokes to see how 
 322
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 385. 
 
 far the gullibility of his keepers may go, and, since they wish to 
 stare, lay traps to give them something to stare at." 
 
 Notwithstanding this defence, which for coolness, coherence, and 
 appropriateness the sanest advocate could with difficulty have ex- 
 celled, Mr. A. was found by the jury to be a lunatic, and was re- 
 manded by the court to the Pennsylvania Hospital for the Insane. 
 There his insanity became unrestrained and unmistakable ; and a 
 few weeks after, during the momentary absence of an attendant, 
 he killed himself by cutting his throat.^ 
 
 § 385. Yet, notwithstanding this capacity for occasional conceal- 
 ment, the abnormal condition of lunatics will, if they are „ , 
 
 ' ' *' But sooner 
 
 sufficiently watched, sooner or later break out.^ " To or later 
 
 dctGctcd 
 the manifestation," says Griesinger, " of such (abnormal) 
 
 desires, to the free disclosure of tendencies which are generally 
 concealed, to certain morbid impulses, may be referred much of the 
 peculiarity which distinguishes the conduct of the insane. Each 
 has its analogy in healthy life, partly in those peculiar habits and 
 caprices which are occasionally observed as curious appendages to 
 great and energetic intellects (which form the materials of many 
 anecdotes relating to learned men), partly in the directions of the 
 will and modes of action of the passions and emotions. These in 
 detail afford materials for numerous comparisons, and we find in 
 the poets who dwell much on the emotional states numerous analo- 
 gies by way of example. 
 
 " Thus, when the melancholic has the impulse to leave his home, 
 and roam in the open air, because it appears too confined for him, 
 and because he expects alleviation from his state of internal pain 
 by outward disquiet and change, so the same appears in cases of 
 real mental pain, where the sufferer spends his life in the open air, 
 or even in distant lands, in the world, in order to recover internal 
 calm by outward disquiet and restlessness. Eichendorff has well 
 expressed this disposition in one of his well-known songs. "^ 
 
 The presumptions belonging to change of character and disposi- 
 tion are subsequently discussed.^ 
 
 ' See infra, §§ 457, 458. 3 Griesinger's Mental Patliol., Sydeii. 
 
 « See infra, § 459. x ed. (1867), § 47. 
 
 « Infra, § 390. 
 
 323
 
 § 387.] MExNTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 5. Writings. 
 § 386. The method of testing conversation and conduct when a 
 
 question of insanity arises is discussed at large under 
 Corrospon- ^ *' , ° , 
 
 dcncc'ofthe other heads. It is proper here to notice of what peculiar 
 
 insane a , , , ,• p xi i • 
 
 valuable valuc Writings^ emanating irom the supposed insane per- 
 ^'^^^' son, are as a criterion. 
 
 " Delusions are sometimes cunningly concealed for a length of 
 time," says Dr. Winslow, " and, notwithstanding we are certain 
 that they exist, no amount of ingenuity will induce the patient to 
 disclose them, particularly if made aware of the object of our visit. 
 I had been recently to see a lady whose insanity was manifested in 
 a remarkable degree in her ev^ery action ; but, after paying her 
 several visits, I found it impossible to induce her to exhibit any one 
 delusive impression or insane idea ; but no sooner had I left the 
 room than her conversation and conduct became outrageously insane. 
 Many insane persons are able to talk with apparent rationality, but 
 cannot write without exhibiting their insanity. I have examined 
 recently one very remarkable case of this kind, in a clever, well- 
 read, and intellectual woman, whom I had occasion to visit. I 
 never could detect the slightest aberration of mind in her conversa- 
 tion, and yet almost invariably, upon my leaving, she placed in my 
 hands a letter (which had been written previous to my calling) full 
 of the most absurd extravagances and fancies ; accusing strangers, 
 myself, and members of her family of being engaged in deeply con- 
 cocted conspiracy against her property and life. Several of these 
 peculiar and interesting cases are recorded, and the medical man 
 has been advised, with a view of obtaining an insight into the true 
 condition of the mind, to open a correspondence with the supposed 
 lunatic, upon the principle that few persons positively insane can, 
 for any length of time, write without exhibiting their delusions, 
 whatever amount of self-control they are able to exercise over their 
 thoughts and morbid ideas during protracted conversation."^ 
 
 S 387. The value of letters or other writinss, as tests 
 
 style and n • • , , , ,,■,-?■,■ 
 
 handwrit- 01 insanity, has been shown by abundant illustrations 
 w{^ii ascou- ^J Marc^, in a monograph on this particular topic.^ To 
 tents. these might be added a series of cases, English and 
 
 ' Winslow on Med. Leg. Ev. 108. au point de vue de la semilogie et de 
 
 * De la valeur des ecrits des aliends la Med. legale, 1864. 
 
 324
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 388. 
 
 American, in which the insanity of testators and of obligors has been 
 in a large degree determined bj the characters of written docu- 
 ments emanating from them. Nor is such evidence without its 
 worth in criminal prosecutions, especially where the question is 
 whether insanity is genuine or simulated. It is not merely the 
 contetits of writings that contribute to the decision of the question. 
 The style and handwriting often supply important tests. " What ex- 
 perienced forensic physician," asks Liman,' " is not familiar with the 
 Avritings of certain classes of lunatics, namely, the so-called queru- 
 lants, writings teeming with flourishes — words and sentences itali- 
 cized singly, doubly, or trebly — with parentheses, interlineations, 
 notes of quotation — writings often very voluminous, swollen Avith 
 citations of alleged laws ?' ' In other cases of lunacy are noticed 
 peculiar modes of construction, words and expressions both original 
 and incomprehensible, such as are familiar to ever}- psychological 
 physician. The first stages of paralysis are characterized by flighti- 
 ness of writing, omission of words and sentences, blots, etc. But 
 here, again, cautions are to be interposed. There have been some 
 literary men of eminence who have been unable to copy a page 
 exactly, and others who constantly leave out words and misspell. 
 Proof-readers, in fact, could supply on this topic an interesting 
 chapter to the curiosities of literature, showing what eccentricities 
 of style and penmanship mark even some of the soberest thinkers. 
 On the other hand, lunatics have been known sometimes to write a 
 sequence of letters in which no mark of eccentricity appears. But 
 this can only be for a time. Familiar letters, written at periods 
 when the patient conceives himself unwatched, will in the long run 
 necessarily give marks by which the experienced observer will de- 
 tect insanity where it exists. 
 
 6. Prior history. 
 
 § 388. This topic has already been referred to incidentally, and 
 will be again noticed in another relation.^ It is enough 
 
 IP n • • L • I -'^l' prior 
 
 now to say that alter some fluctuations, it is now the history is 
 settled rule, that all events in the patient's prior history, evijen1!c!^ 
 and all traits in his character, past or present, tending 
 to show an insane taint in his constitution, are admissible in evi- 
 
 ■ Liman's Casper, 1871. * See infra, § 301. 
 
 325
 
 § 389 «.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 dence. His own declarations may be adduced for this purpose in 
 his own defence, tliough when such declarations are recent, and are 
 open to the suspicion of being manufactured for the purpose, they 
 are to be severely scrutinized.' *" '""" "^' 
 
 7. Nature of the act. 
 
 (a) Its insensibility. 
 
 § 389. "In foro medico," as is well remarked by Schtirmayer,^ 
 
 J .J " a derangement of the mental faculties is generally to 
 
 may often ^c presumed where the consciousness, imagination, and 
 
 be detected * . • i i i • i 
 
 by insensi- sensual apperception or impulse, when subjected to com- 
 
 1 1 y o dc ^^^ ^^^^ usual provocations, internal or external, respond 
 in a manner dift'erent from what they would in a normal state. But 
 ■whether a certain action, undergoing a criminal investigation, was 
 the effect of a diseased mental activity of the subject, and com- 
 mitted when he was not master of himself, is a question to be an- 
 swered primarily from the indicia presented by the action itself, 
 and then from the results of an examination of the accused, in 
 reference to his physical, moral, and mental condition before, at, 
 and after the deed in question. Illustrations of acts whose insen- 
 sihiUty can be received to show the irresponsibility or incompe- 
 tency of the actor, may be found in the old law cases of a legacy 
 to the King of Siam, and of an executory devise to all the chil- 
 dren in a particular parish who should, in a specific year, be born 
 with moles on their faces. The presumption of irresponsibility 
 ■would, of course, attach with great force, under similar circumstances, 
 to criminal acts equally insensible, as in the case of the idiot who 
 ■was found putting an infant brother into the pot to boil for dinner." 
 § 389«. Liman, in his (1871) edition of Casper,^ gives the case 
 of a peasant woman, who for years had been suffering from mental 
 disorders, and who had determined to kill her three children with 
 her husband's razor. For this purpose she took the razor a week 
 before the time she had selected, and hid it. But the razor was 
 the only one her husband possessed ; and that he would call for it 
 the next morning after its abstraction was what his wife, if sane, 
 
 ' See Baxter r. Abbott, 7 Gray, 80 ; 2 § 522. See infra, § 396. 
 Andrews' trial (Sup. Ct. Mass. 18(j8), 3 Berlin, 1871, p. 427. 
 Paniph. Rep. 124. 
 
 326
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 390. 
 
 could have expected. This actually took place. It turned out she 
 had hid the razor in an old press, that was always open, and which 
 for years had had no key. The husband naturally found the razor, 
 and placed it on the shelf where it generally lay, and from which 
 the unhappy woman took it the moment before the assault. 
 
 § 3896. But two cautions are to be observed in regard to the 
 weight of this kind of testimony. Maniacs (a.s distin- 
 guished from imbeciles) trequently construct, in further- acs are 
 ance of their insane schemes, plans of consistent inge- sistent*and 
 nuity. As an illustration of this may be mentioned the criminals 
 
 •^ '' irrational. 
 
 case of Billman, an undoubted maniac, who contrived a 
 noose, on the inside of the usual aperture at the top of the door of 
 his cell through which the attendants were in the habit of looking 
 or handing in food ; very ingeniously succeeded in inducing an at- 
 tendant to put his head through, and then caught him in the noose; 
 and then, finding this device unsuccessful, subsequently enticed the 
 same attendant, on plea of sickness, into the cell, killed him, and 
 then changed clothes with him ; and after this so skilfully adopted 
 the manner proper for the purpose, that he walked away unsus- 
 pected, and was not arrested until he was out in the street. And 
 cases are numberless in which persons laboring under insane delu- 
 sions have executed plans based on these illusions with the most 
 consummate adroitness and persistency. 
 
 So the converse holds good, that sane persons, when working out 
 even the coolest plans of mischief, almost invariably drop a stitch 
 or expose a blot, by which discovery is afterwards caused.' Boyn- 
 ton, for instance, in a case hereafter mentioned, prepared his plans 
 of assassination with singular caution, but wadded his gun with a 
 piece of paper, whose fragments were discovered at the place of the 
 murder, and which led to his identification. If this is the case with 
 deliberate crimes, eminently is it so with crimes committed in pas- 
 sion. Such crimes are often as insensible in their mode of execu- 
 tion as any that the most raving maniac could perpetrate. 
 
 (6) Its incongruity/ with antecedents. 
 
 § 390. When a man of uniformly mild character boldly and 
 openly commits a deed of blood ; when a woman of previous purity 
 
 • See fully, infra, § 782. 
 
 327
 
 § 392.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 This often gives waj to lasciviousness ; when a long course of irre- 
 beTousid- pi'oachable honesty and exactness is suddenly broken in 
 ^^^^' hy profligacy ; or domestic peace, by unprovoked ebul- 
 
 litions of violence, or by expressions of distrust to those formerly 
 most loved or most trusted,' it Is proper to consider how far un- 
 soundness of mind may not be considered as the cause. 
 
 § 391. It has already been mentioned^ that the examiner, in 
 order to give a conscientious and correct report, must 
 j,"p^sUiE- acquaint himself with the plaintiff's history, so far as 
 tory ueces- ^.j^jg jg practicable. In Prussia this is required by statute ;^ 
 and, however much a witness, in stating the sources of 
 information, may be restricted by the Anglo- American rules of 
 evidence, his testimony, by the same rules, will be shorn of much 
 of its force if it does not rest on an adequate foundation of fact. 
 Relations, friends, servants, above all, family medical advisers, may 
 well be expected to render much information, upon which a forensic 
 physician, charged with the solemn duty of giving an opinion as to 
 sanity, may base just conclusions. But at the same time much 
 caution is necessary in securing such renditions. The family of a 
 patient may have very strong reasons for either believing or dis- 
 believing his sanity. And in particular is the evidence of mere 
 occasional visitors to be jealously scrutinized. To hundreds of such 
 the patient may have appeared sane ; and yet the negative testimony 
 derived from such is more than counterbalanced by proof of some 
 positive insane act committed by the party in the privacy of his 
 family, or in secret, when he believed himself to be unsuspected by 
 human eye. Public or pre-notified examinations are entitled to 
 little comparative weight. They always throw the patient on his 
 guard. They produce in him at the best a non-natural psycholo- 
 gical state, and they give both stimulus and opportunity to the sane 
 to pretend to be insane, and to the insane to pretend to be sane. 
 
 § 392. Eminently, therefore, is it necessary to have a knowledge 
 
 of a patient's past history. That which is sanity in one 
 
 oiu" man man, and which is the state of mind which his antece- 
 
 insunity in dents necessitate, would be insanity in another. A man, 
 
 anotiier. f^p instance, is conscious of some secret guilt, and he 
 
 ' See Medecine Legale, par M. Orfila, ^ Supra, § 388. 
 tome 1. p. 389. 3 Liman's Casper, ed. 1871, p. 411. 
 
 328
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 394. 
 
 shelters himself, in contrition and self-loathing, from the public eye 
 
 in morbid seclusion ; or he flies from shadoAvs ; or he resorts to 
 
 violent action to cover up the traces of his crime. Or he is placed 
 
 in a position in which eccentricity if not incoherence may seem 
 
 essential to the maintenance of his rights. To penetrate the mask 
 
 of Hamlet's madness, for instance, it is necessary to understand 
 
 Hamlet's history. To explain Cain's wild flight it is necessary to 
 
 understand Cain's guilt. 
 
 § 393. Was, then, the alleged insane act one that stood out in 
 
 isolated insularity in the patient's history, or was it one 
 
 f I'll lie Insane act 
 
 of a sequence of morbid though sane, and, therefore, either iso- 
 
 criminal transactions ? Here, indeed, if the question be oneo°a 
 one relating to the mere proof of guilt, insanity being sequence, 
 disentangled from the issue, the Anglo-American practice differs 
 essentially from thjit which obtains on the continent of Europe. 
 By the former in criminal trials, it is not permitted for the prosecu- 
 tion to bring in evidence of the defendant's prior character ; and 
 character only comes in when invoked by the defendant itself. By 
 the latter, the defendant's whole history, so far as it is supposed to 
 throw light on the case, is introduced at the outset by the prosecu- 
 tion.^ But when the issue is insanity, the rule, according to the 
 Anglo-American practice, changes. The reasons are, first, because 
 insanity is usually set up by the party himself, or his representa- 
 tives, and from its nature drags into the issue the party's whole 
 life. Secondly, insanity is chiefly to be proved or disproved by 
 facts collected from the party's history. His counsel may put in 
 evidence prior alleged acts of insanity, or may rely on the insu- 
 lated or sporadic character of the particular act to show its insane 
 type. The contesting party may reply by showing that the alleged 
 insane acts were not exceptional and abnormal, but were the conse- 
 quences of voluntary and intelligently indulged passions, or of sane 
 design.^ 
 
 § 394. That there are such things as isolated and abnoi-mal acts, 
 which are even vehemently foreign and antagonistic to 
 
 1 » 1 • 11 • 1 1 i Isolated 
 
 the perpetrator s history and character, it needs but a aiui ai)nor- 
 slight acquaintance with the literature of this topic to pygsiW'i'e! 
 show. Of such may be mentioned, as an illustration, the 
 
 > Wharton's Conf. of Laws, § 892. * See supra, § 144. 
 
 329
 
 § 396.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 case of an affectionate and most exemplary father, hereafter to be 
 more fully noticed, who suddenly, under the influence of a sharp 
 but crushing attack of melancholia, accompanied by a delusion that 
 there was impending on the household a ruin only to be escaped by 
 death, killed one of his children and attempted the life of another. 
 Two similar cases are reported by Dr. Liman.^ Even when an 
 alleged insane act is a part of a sequence of alleged acts of intelli- 
 gent guilt, it is proper to inquire whether the whole sequence may 
 not be attributed to a diseased brain. Here, however, come in the 
 questions of motive, and of consequentiality, which are elsewhere 
 specially discussed.^ 
 
 § 395. It has been already observed that physical diseases, 
 
 especially those of a nervous type, are particularly wor- 
 
 nccessaniy thy of consideration in this respect ; but it is at the same 
 
 a cause of ^■^ alwavs to be remembered that there are no physical 
 
 moral acts. •• _ _ ^ *' 
 
 conditions which necessitate a specific moral act. Valu- 
 able indeed are the contributions to this branch of psychology which 
 have been made by Morel,^ Maudesley, and Ray. But we must, 
 nevertheless, accept as at present conclusive the assertion of Liman, 
 in his late authoritative exposition of Casper,* that the weight of 
 authority both psychological and psychopathical is that we have no 
 grounds to assume that in insanity disease stereotypes itself in act. 
 Diagnosis of physical disease may establish a.probabiliti/, but nothing 
 more. It is always a matter of admissible evidence ; but without 
 positive proof of mental disturbance it is entitled to no controlling 
 effect.^ 
 
 § 396. It should be noticed, also, that a man of unsound mind 
 generally chooses the most injudicious time and place for 
 
 Insane acts o .^ o i 
 
 generally the perpetration of the act, although the cunning and 
 ly and^*^"" address with which an offence was committed do not 
 avowedly, exclude the supposition of derangement,^ and repels with 
 indignation every intimation of his insanity ; in many cases assert- 
 ing that he committed the crime with perfect consciousness, and 
 
 ' Liman's Casper, ed. 1871, cases ^ See supra, §§ 146-150. 
 
 287, 289. 6 See Med. Leg., J. Briand, p. 553, 
 
 « See §§ 399-406. Paris, 1852 ; and see supra, §§ 3G1, 
 
 3 Traits de la Med. Leg., Paris, 1866. 389, 390. 
 ♦ Berlin, 1871, p. 420. 
 
 330
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 399. 
 
 when entirely in his senses, and disregarding all that is said to 
 
 extenuate it.^ 
 
 § 397. M. Falret thus speaks of the change of character which 
 
 is a prominent symptom of commencing insanity : Some- j^^ .^ . 
 
 times, instead of a simple exag";eration, it is a veritable ten changes 
 
 ' . , , , 1 . character, 
 
 transformation that the character undergoes. Avarice 
 
 gives place to prodigality, piety to irreligion, modesty to obscenity, 
 temperance to drunkenness, the love of truth to deceit, the most 
 tender and tried aflfections to indifference and even hate.^ 
 
 § 898, A frequent result is the neglect of the duties due to family 
 and society, disorder of conduct and derangement of affairs, and 
 those ebullitions of irritation and violence which momentarily and 
 sometimes forever destroy the harmony existing between relations 
 and friends. The changes of conduct observable in the incubation 
 of mental diseases are infinite ; the deranged show a neglect or an 
 unaccustomed zeal for their customary occupations, and for the cares 
 and attentions of family, and for social customs and duties. Patients 
 who were before sedentary in their habits, indulge in long absences 
 from their dwellings. Some show an indifference and neglect for 
 the persons and things they loved the most, and seek after objects 
 which they did not like. Others overwhelm you with demonstra- 
 tions of obligingness and devotedness. Generally those thus affected 
 are absent and forgetful ; the}' do not remember what they have 
 done or what they were about to do an instant before, and then 
 seem much surprised when these frequent absences of mind are 
 pointed out to them. Their conduct abounds in contrasts. Those 
 who were orderly become dissipated ; those who were careful in 
 business now enter upon the most dangerous speculations, and they 
 addict themselves to play, drinking, and sexual excesses, and in 
 fact to all the vices which were before unknown to them.^ 
 
 (c) Its inotivelessness.* 
 
 § 399. "It is assumed or implied," says Dr. Taylor, with great 
 justice, " that sane men never commit a crime without an apparent 
 
 ' Compare Friedreich, Handbuch der Mentale, M. Falret. 8th Le(;on, p. 
 
 gerichtsaertztlichen Praxis. Vol. i. 2U). Paris, 1854. Supra, § 378. 
 
 p. 370. < See supra, § 302. Medecine Legale, 
 
 « See s«;jrn, § 361. J. Briand, p. 548-49. Paris, 1852. 
 
 • Lemons Cliniques sur rAlienation Pinel, Alienation Mentale, p. 157. 
 
 331
 
 § 399.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Apparent motive, or one of delusive nature only in the perpetration 
 motivrn*ft of a criminal act. If these positions were true, it would 
 a proof of ije very easy to distinjjruish a sane from an insane crimi- 
 nal, but the rule wholly fails in practice. In the first 
 place, non-cUscovcri/ is here taken as a proof of the 71071-existence 
 of a motive ; while it is undoubted that motives may exist for 
 many atrocious criminal acts without our being able to discover 
 them — a fact proved by the numerous recorded confessions of 
 criminals before execution, in cases of which, until these confes- 
 sions were made, no motive for the perpetration of the crime had 
 appeared to the acutest minds. In the case of Oourvoisier, who 
 was convicted of tlie murder of Lord William Russell, in June, 
 1840, it was the reliance upon this alleged criterion, before the 
 secret proofs of guilt accidentally came out, which led many to 
 believe he could not have committed the crime ; and the absence 
 ' of motive' was urged by his counsel as the strongest proof of the 
 man's innocence. It was ingeniously contended, ' that the most 
 trifling action of human life had its spring from some motive or 
 other.' This is undoubtedly true, but it is not always in the power 
 of man untainted with crime to detect and unravel the motives 
 which influence criminals to the perpetration of murder. No rea- 
 sonable motive was ever discovered for the atrocious murders and 
 mutilations perpetrated by Greenack and Good; yet these persons 
 were very properly made responsible for their crimes. On the 
 trial of Francis for shooting at the queen, the main ground of the 
 defence was, tliat the prisoner had no motive for the act, and, there- 
 fore, he was irresponsible ; but he was convicted. It is difficult to 
 comprehend under what circumstances any motive for such an act 
 as this could exist ; and, therefore, the admission of such a defence 
 would have been like laying down the rule, that the evidence of 
 the perpetration of so heinous a crime should, in all cases, be taken 
 as a proof of the existence of an irresponsible state of mind. Crimes 
 have been sometimes committed without any apparent motive, by 
 sane individuals who were at the time perfectly aware of the crimi- 
 nality of their conduct. No mark of insanity or delusion could 
 
 Etudos Medico - Psychologiqiips siir Legale, M. Falret, Lecjon 2d, pp. 55-67. 
 
 I'Alienation Mentale, par L. F. E. Re- Paris, 1854. Also Medecine Legale, par 
 
 iiaiKlin. Paris, 18.54, chap. 18th, p. 779. Orfila, tome i. p. 304. Paris, 1840. 
 See also Lei,-oiis Cliniques de M6deciiie 
 
 382
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 401. 
 
 be discovered about them, and they had nothing to say in their 
 defence. They have, however, been very properly held respon- 
 sible. On the other hand, lunatics confined in a lunatic asylum 
 have been known to be influenced by motives in the perpetration 
 of crimes. Thus they have often murdered their keepers in revenge 
 for ill-treatment which they have experienced at their hands. ^ Thus 
 Farmer was acquitted as insane, while the clear motive for homicide 
 was revenge and ill-feeling. In another case the act of murder 
 was perpetrated from jealousy.^ On the whole, the conclusion with 
 respect to this assumed criterion is, that an absence of motive may, 
 when there are other strong evidences of insanity, favor the view 
 of irresponsibility for crime ; but the non-discovery of a motive for 
 a criminal act cannot of itself be taken as any proof of the existence 
 of homicidal monomania in the perpetrator. It is right to state, 
 however, that the law invariably acts on the humane principle, that 
 the absence of a sufficient motive forms a strong presumption of 
 innocence — the presence of one is no proof of guilt. "^ 
 
 That apparent mottvelessness is sometimes an accompaniment of 
 sanity, will be noticed hereafter.'' 
 
 § 400. It has been already said,* that it is the duty of the psy- 
 chological expert, before testifying on the question of 
 sanity, to explore the motives vrhich led to the perpetra- ^jofffJr 
 tion of the act or acts under examination. No act is study of 
 
 motive, 
 committed without motive. This motive may be sane or 
 
 insane. But so complex is human nature — so subtle are the influ- 
 ences which lead to human actions — that for the assignment of true 
 motive it is requisite not only to have an experimental knowledge 
 of the human heart in general in its manifold phases and possibili- 
 ties, but to have a special acquaintance with the history of the 
 person whose sanity is under investigation. In making such a 
 study, the following suggestions will be of use. 
 
 § 401. 1. It is rare that the motive to <in act is simple. There 
 is generally a confluence of motives, for and against a ^yi^^j^.g 
 particular step ; and the will may remain in equipoise rarely eim- 
 until some trifle, such as a prejudice scarcely ackuowl- 
 
 ' See the case of Queen ?;. Farmer, ^ Taylor's Med. .Jurisjirudeuee, pp. 
 
 York Spring Assizes, 1837. r)78, (J79. 
 
 2 Ileg. V. (Joule, Durham Summer * /"/'■"> § 782. 
 
 Assizes, 1845. ^ See supra, § 302. 
 
 333
 
 § 401.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 edged even by self, or an omen, or a lot, turns the scale. So far, 
 also, from particular motives acting on men with uniform force, they 
 vary in their eftccts as materially as do the characters of those on 
 whom they operate. What on one man has an overwhelming force 
 influences other men but slightly. What is rational to one man is 
 highly irrational to another. Sir Robert Walpole, for instance, 
 was a statesman of peace, and the war with Spain, which he was 
 goaded to undertake, was hostile to his whole system of policy ; 
 it could not be fitted into that system of policy ; it was to him 
 irrational. Lord Chatham, on the other hand, was a statesman of 
 war ; a patient peace policy was to him so unnatural and incongru- 
 ous that when he attempted it he was capricious, if not imbecile ; 
 while he carried on war with an adventurous and bold hand, and 
 displayed in its conduct the highest gifts of genius. To him, there- 
 fore, it was as rational to flash forth immediate war on a supposed 
 national afi'ront, as to Walpole it would have been gravely to con- 
 sider the issue, and, if it could be done honorably, to cause the 
 removal of the offence by arts of peace. Yet, for unjust war, when 
 it occurred, Walpole and Chatham would have been equally respon- 
 sible to public opinion, though the first embarked in such war from 
 a weak concession to rivals, the second from personal passion and 
 fire. So, to take a case that occurred in Philadelphia some years 
 since, a young man named Alexander, from one of the southwestern 
 States, educated in the most fantastic school of chivalry, received 
 a supposed insult in a broker's shop, and instantly shot the assail- 
 ant dead. To him, the act, on his code, was rational; it was the 
 natural result of his principles, which he had intelligently accepted; 
 he was as morally responsible to the law of the land, though it may 
 be in a different shade of guilt, as would be the assassin who, on 
 the principle that he will get what he can, kills the victim whom he 
 plunders, or the duellist who from cowardice shivers into a duel. 
 Insanity in neither case is to be presumed ; there is intelligent mo- 
 tive, though motive deriving its force from the character on which 
 it acts. So also in a parallel drawn by Liman.^ A wretch named 
 Markmann saw in the street an old woman carrying a basket, in 
 which was a clean linen shirt. lie wanted to have it ; he followed 
 the woman to rob her ; he struck her ; and from the blow she died. 
 
 ' Liman's Casper, ed. 1871, p. 422. 
 
 334
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 403. 
 
 H., an educated and refined young officer, was struck on the face 
 suddenly, in a public garden, in presence of his intended wife and 
 a large crowd of spectators ; and immediately shot the assailant to 
 the heart. Yet H. would not have been impelled to homicide by 
 desire to rob, nor Markmann by a desire to avenge wounded honor. 
 
 § 402. In each case, however, the motive that operated was one 
 that was adequate according to the defendant's own lights. It is 
 necessary, therefore, in order to determine upon the motivelessness 
 of an act, for the expert to place himself at the point of vision occu- 
 pied by the person whose act is under investigation. We have no 
 right to establish for the causa facinoris an arbitrary motive such 
 as would in reference to dispassionate men be rational. There are 
 no dispassionate men. Each man has his own idiosyncrasies which, 
 though more or less operative on his judgment, are consistent with 
 sanity. Eminently is this the case with wills. A man of high 
 honor may be peculiarly sensitive as to a child's unworthiness, and 
 from this disinheritance may spring. Another may disinherit a 
 relation for an offence, trivial in grade, and perhaps imaginary ; 
 yet, if there be no fraud or insanity proved aliunde, the will is 
 good.^ So also as to the causa facinoris in criminal cases. There 
 is no minimum below which a motive, in the eye of the law, ceases 
 to exist. Murders have been committed by the abject and avari- 
 cious for coppers ; while men almost stifled with wealth have been 
 known to seek to augment such wealth by perjuries and frauds. 
 Trivial motives, as they are sometimes called, are, considered by 
 themselves, proof rather of a mind familiar with crime than of 
 lunacy. 
 
 § 403. 2. Nor can we dare, as is sometimes done, to tvithdi-aw 
 
 instinctive passion from the ra7ige of res2)onsihle motives, j ^. . 
 
 As has been strikingly stated, in an argument elsewhere passion re- 
 . , , , . . . , . . , sponsible. 
 
 noticed,^ the question is, is the motive, in respect to the 
 individual under investigation, one that can be overbalanced by fear 
 of punishment ? Is, for instance, a man who flies into transports 
 of rage or lust capable of moderating these transports when the 
 fear of punishment or disgrace is held steadily and conspicuously 
 before his eye ? If so, the law must threaten such punishment and 
 
 ' See supra, §§ 83-86. * See supra, §§ 140-153, 188, 189. 
 
 335
 
 § 404.] MENTAL UNSOUNDNESS CONSIDERED PYSCHOLOGICALLY. 
 
 disgrace as the necessary consequence of the indulgence of such 
 passion ; and, where it threatens, it must execute. 
 
 § 404. 3. Nor can we, ivith any safety to the cominunity , or 
 -^. , any judicial consistency , declare as motiveless those 
 
 ness not offences which are stimulated by no other apparent pur- 
 pose than that of outraging lata, or that of inflicting 
 upon others pain or disgrace. It is true we may connect such 
 offences in their lighter phases with the desire to attract attention, 
 or to excite surprise, or to gratify curiosity as to how others will 
 behave in certain absurd relations in which they may be placed.' 
 Under this head may be mentioned the police adventures which 
 Cruikshank has recorded as fashionable among men of the town in 
 the days of the regency, and the practical jokes, sometimes very 
 cruel, designed by Theodore Hook. But there is another class of 
 offences, based simply on the love of malevolent action, and which, 
 without having even the excuse of vanity or curiosity advanced for 
 the last, are prompted by such malevolence pure and simple, and yet 
 which the law regards as in the highest degree criminal, and the 
 objects of its most signal penalties. In January, 1872, we hear of 
 a prosecution instituted against some laborers in a Pennsylvania 
 mining town who poured petroleum on a negro boy and then set fire 
 to him ; and with this may be grouped the case of a miscreant men- 
 tioned by Bottex, who threw a boy, a stranger to him, in the water, 
 simply to watch his drowning struggles ; of Earl Ferrars, who, in 
 cool malignity and with no imaginable other motive, killed his 
 steward ; of the Count of Charleroi (a Bourbon), who, among other 
 atrocities, out of " sport" shot one of his servants, from the roof of 
 a liouse, as he would have shot a wild beast; of the widow Zwan- 
 ziger who poisoned as a matter of curiosity ; of the fiendish mother 
 told of by Pohlman, who, after a series of cruelties, shut up her 
 child in a room with a nest of wasps. These cases, if we limit 
 motives to lust, to avarice, to revenge, to passion, to desire to secure 
 safety, are motiveless. They may, as has been well remarked, pass 
 over a wide range, from the boy who malevolently tortures a kitten, 
 to Tiberius who malevolently tortures a slave. They may spring 
 simply from the desire, more or less powerful, to inflict pain. Yet 
 
 ' See supra, §§ 1G3-178, 183, 189. For authorities, see Wh. Cr. L. 8th ed. 
 § 119. 
 
 336
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 406. 
 
 they are peculiarly amenable to penal justice for two reasons. 
 First, being what is commonly called " motiveless," they cannot be 
 warded off by any amount of personal, voluntary precaution. We 
 can defend ourselves by bolts from the burglar ; we can, by pru- 
 dence, keep out of the range of the predatory and deliberate assassin ; 
 we may cause the arrest of one by whom our life is threatened. No 
 precaution, however, is a defence against the merely malevolent 
 criminal, who fires a house, or shoots a stranger, simply to watch 
 the pain he inflicts. The only hand that can intervene is that of 
 the law. Secondly, such offenders are peculiarly open to the in- 
 fluences of fear. They are either thoughtless or cowardly. To 
 check them, it is essential for the law to announce to them in terms 
 unmistakable, "this thing will be signally punished." This, in fact, 
 is the only motive by wliich they can be restrained ; and by this, 
 when the motive is presented to them, and they believe in it, they 
 are restrained. But what the law thus announces, it must execute. 
 Nor can it speak to such characters, except by the example of pun- 
 ishment inflicted upon others, and therefore by punishment immi- 
 nent to self.' 
 
 § 405. Yet, making all these deductions, there is such a thing 
 as a legally motiveless act. When, witliout malevolence, 
 
 ' Yet there 
 
 and without any benefit or gratification to self, an act is may be a 
 done, the perpetrator cannot be regarded as intentionally [; yeieJs aet^ 
 and specifically criminal. 
 
 (<7) Neglect to escaped 
 
 § 406. Exculpatory subterfuges, and attempts to escape, if de- 
 signed before the commission of the offence, go a great 
 way to show that the offender was conscious that the arranged 
 intended act was wrong. When, indeed, such prepara- uot always^ 
 tions are intelligently and consistently made, very strong pi"oo'«of 
 proof of insanity must exist to overthrow the presump- 
 tion of sanity they supply.^ In the case of Christiana Edmunds, 
 
 ■ Cases of homicide, where tlie mo- kewiirdig(!r Verhrecheii, (Jiessen, 1828, 
 
 live was mere malevolence, and desire and by ]>iman, in his edition to Casper, 
 
 to inflict pain, and yet where this Berlin, 1871, p. 425. 
 
 motive was one which fear was able to ^ <j,^^ Wills on Circumst. Kv. 70 ; 
 
 control and subduff, are given by Feuer- Best on Presurap. 322 ; Wh. Ev. § 750. 
 
 bach, Aktenniiissige Darstellung Mer- ^ Sujiru,^^ l(j."-17i>. 
 
 VOL. I.— 22 337
 
 § 407.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 which is elsewhere fully noticed, this was the chief difficulty with 
 which the counsel for the defence had to struggle. The charge was 
 poisoning ; and it was shown that she had taken peculiarly skilful 
 means, both before and after the guilty act, to throw its burden 
 upon others. Yet it must be remembered that, when a mind other- 
 wise intelligent is controlled by an insane delusion, preparations 
 the most rational may be made to gratify this delusion, and subse- 
 quently to defend its gratification. Several cases have just been 
 cited to illustrate this ; and the discipline of lunatic asylums is 
 based upon the existence of such capacity, and upon the moral sen- 
 sibility displayed by such devices to avoid detection. But, after 
 all, it is rare that some insane freak does not ultimately, in cases 
 of true insanity, exhibit itself after the consummation of the act. 
 In a melancholy instance elsewhere noticed, a gentleman who had 
 planned and executed, under an insane delusion, the killing of one 
 of his children, made his escape, it is true, successfully, but dressed 
 himself simply in his night-clothes, and was hence at once arrested. 
 To this effect, also, is a case reported by Dr. Liman. An uphol- 
 sterer named Schulze, who, under a similar delusion, killed his 
 children whom he most tenderly loved, took the pains, before the 
 act, to send out of the house, on an errand, a woman who other- 
 wise would have been a witness of the act. But the pretext on 
 which he sent her was the delivery of a letter to a clergyman 
 whom he did not even personally know. When the letter was 
 opened, it was found to contain simply the words: "J5'u. WoJilge- 
 horen iSchuhe'^ — your honorable Schulze. 
 
 § 407. In cases where the sanity of a testator or obligor is con- 
 ^,, ... . tested, and where the point is the existence of an insane 
 
 fekill in ' i 
 
 coIK•('alin^' delusion, little can be inferred from the skill and caution 
 
 delusions ., ... iii- ••iii r 
 
 proves w'lth which such delusion is indulged. A testator, tor 
 
 '"'^" instance, under the delusion of infidelity or persecution 
 
 from his nearest and most devoted relatives, has been known most 
 artfully to conceal this delusion until, as in one or two reported 
 cases, it is drawn from him by his legal adviser when he makes his 
 will. So in the case of a gentleman against whom a commission of 
 lunacy w^as taken out in Philadelphia some years since, and in 
 which the evidence of insanity was incontestable, one of the delu- 
 sions was that animals were intelligent, and capable of correspond- 
 ence. He wrote letters to cows, for instance, which letters he 
 338
 
 HOW MENTAL UNSOUNDNESS IS TO BE DETECTED. [§ 409. 
 
 showed the utmost adroitness in concealing, and which he after- 
 wards attempted to excuse as a joke. Yet the precautions he dis- 
 played in mailing the letters, while they showed his sense of the 
 risks to which such wild acts exposed him, showed also the reality 
 of the delusion by which he was beset. 
 
 § 408. Yet here also the converse, especially in criminal cases, 
 
 fails. Prearranged subterfuges infer, no doubt, a con- 
 
 Iddocgdcg 
 
 sciousness that the act in question is reprehensible ; but not shown 
 the absence of such subterfuges does not prove a con- of pre-^°*^^ 
 sciousness that such act was innocent.^ For the sane 3^^^,^^°^^^ 
 culprit is often not in a position in which such prepara- 
 tions can be made. Crimes committed in sudden passion, in par- 
 ticular, are from their very nature incapable of being thus ante- 
 cedently shielded. 
 
 § 409. Equally complex, though essentially dissimilar, are the 
 
 questions that arise when the eftbrt is to draw the pre- 
 
 -IP Attempts 
 
 sumption of sanity from attempts at subterfuge or escape at escape 
 after the consummated offence. Men, sane and insane, rence no"'' 
 innocent and guilty, instinctively seek to escape danger. P''^^^ °^ 
 Innocent men, charged with crime, have sometimes in 
 quasi-'msamtj fled their country, and resorted to frantic, but 
 tortuous and even guilty efforts to turn upon others the impending 
 shock.- This, in several well-known cases in the United States, has 
 been the result of the attempt to blackmail men who, as it transpired 
 ultimately, were entirely innocent, but who were driven almost to 
 delirium by the attack. On the other hand, persons who, either 
 from revenge, or jealousy, or political enthusiasm, commit crimes 
 whose consequences they know they cannot evade, and in whose 
 character they glory, may resist this instinct, and boldly surrender 
 themselves after the successful commission of the act. Numerous 
 cases of this kind are found in trials for homicide through jealousy; 
 and among those where the impulse was political fanaticism may be 
 mentioned that of Ravaillac, who, after assassinating Henry IV., 
 exultingly declared his guilt. Yet it must not be forgotten that in 
 cases of imbeciles, and those acting under certain phases of insane 
 delusion, indifference to personal safety would, in such cases, be a 
 necessary incident of freedom from consciousness of wrong-doing. 
 
 ' Infra, § 782. * Wli. Cr. Ev. § 750. 
 
 389
 
 § 411.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ((?) Forgetfulness as to act. 
 
 § 410. Here we may notice another feature which accompanies 
 insane action, viz., suhsequent ohliviousness as to the en- 
 
 Subsequent . . 
 
 foriictful- tire occurrence} Several curious instances are given in 
 ticHi'ls a the books in which, after acts of marked and even atro- 
 piesump- gJQug lawlessness committed by the insane, there was an 
 
 tion oi in- •' ' 
 
 eanity. utter forgetfulness of the event, or a remembrance of it 
 
 only as something dreadful that occurred in a dream. The saiie 
 man sometimes trembles on waking, lest something he had dreamed 
 of doing, he had really done. The insane^ after committing the 
 act when awake, afterwards shivers at it as if it was only a dream, 
 yet a dream which he shudders to recall. Such was the state of 
 ]\Iary Lamb, after killing her mother, of which she had only a 
 blurred consciousness as of something she had dreamed of ; and not 
 rare are the cases in which maniacs, in lucid intervals, have asked 
 with cries of terror, as their first inquiry, for one whom in their 
 paroxysm they may have destroyed. This, we are told by Dr. 
 Liman, is peculiarly the case after injuries of the brain, and after 
 the transitory mania of persons aftected with epilepsy, hysteria, 
 uterine disease, acute intoxication, sleep-drunkenness, and uncon- 
 sciousness produced by anemia of the brain. Of cases of such 
 dreamy confusion and of misty terror at a vague but appalling 
 recollection, we have illustrations in trials, of which several are 
 reported in the United States, of mothers who, when in puerperal 
 fever, killed their children. Several cases where this defence was 
 psycliologically investigated are given in Liraan's Casper.^ 
 
 § 411. Yet, even here, when such oblivion is set up, there are 
 
 cautions to be interposed. It is always a matter of 
 But such a ••1,1 , 1 • , • 
 
 defence grave suspicion wlien the party under examination pro- 
 
 pfcion"^"^" fesses to have nn recollection of the event.^ Psycholo- 
 gically, such a supposition of two utterly distinct con- 
 sciousnesses is only probable when there is a loss of memory as to 
 the whole section of time in which the event in question is contained. 
 There are, therefore, grave reasons to believe the defence is feigned, 
 ■when, before the examination is instituted, and when the patient 
 thinks himself unobserved, he betrays a recollection of collateral 
 incidents embraced in the same scope of time. 
 
 » See infra, § 449. « Vol. ii. Cases 324, 325, 329. » Infra, § 449. 
 
 340
 
 DISTINGUISHING MENTAL UNSOUNDNESS. 
 
 CHAPTER III. 
 
 FROM WHAT MENTAL UNSOUNDNESS IS TO BE 
 DISTINGUISHED. 
 
 I. Emotions. 
 
 Insanity distinguishable from passion, 
 §412. 
 
 1. Remorse. 
 
 Remorse may approacli insanity, § 413. 
 
 Relation to derangement, § 414. 
 
 Cannot be always suppressed, § 415. 
 
 Remorse not a proof of sanity at time 
 of act, § 416. 
 
 Nor is absence of remorse a proof of in- 
 sanity, § 417. 
 
 2. Anger. 
 
 Anger and revenge less like insanity 
 tlian is remorse, § 422. 
 
 3. Shame. 
 
 Shame may produce a state resembling 
 
 insanity, § 423. 
 Instances of insanity caused by shame, 
 
 §424. 
 Suicide from shame, § 425. 
 
 4. Grkf. 
 Symptoms of grief, § 426. 
 
 Capacity to weep no test of grief, § 427. 
 Insanity not relieved by counter-irrita- 
 tion, like grief, § 428. 
 
 5. Home-sickness (^Nostalgia). 
 Nostalgia often like hysteria, § 429. 
 May run into delirium, § 430. 
 Nostalgia not always a mental disease, 
 
 §431. 
 May be eitlier cause or result of other 
 
 diseases, § 431 «. 
 
 6. Fear. 
 Distinction Ixitween sane and insane 
 fear important, § 432. 
 
 Importance of question, § 433. 
 
 Usually conditioned on a contingency, 
 §434. 
 
 Effects of fear vary with different con- 
 stitutions, § 435. 
 
 Symptoms of fear, § 436. 
 
 Relation of fear to the functions of the 
 mind, § 437. 
 
 Murder under the influence of fear, § 
 438. 
 
 1. To avert threatened disaster to 
 person killed, § 439. 
 
 2. In supposed self-defence, § 440. 
 
 3. In the case of imbecility, § 441. 
 Fear with those whose intellects are 
 
 disordered, § 442. 
 
 II. Simulated Insanity. 
 1. Examination. 
 Detection of feigned insanity, § 443. 
 Close observation of subject necessary, 
 §444. 
 
 2. Reasons for suspecting, § 445. 
 3. Forms generalli/ simulated. 
 
 Delirium the form of insanity most 
 usually simulated, § 446. 
 
 Yet imbecility easier to feign, § 447. 
 
 Mania difficult to feign, § 448. 
 
 Simulated oblivion frequent, § 449. 
 
 Physiognomy and health to be ex- 
 amined, § 450. 
 
 Comparison of cases the surest test, § 
 451. 
 
 4. Not proved by sanity at the trial. 
 Reasons for this, § 452. 
 
 Pretended insanity may turn into real, 
 § 453. 
 
 341
 
 § 412.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 5. Tests. 
 
 Suggestions for the discovery of feigned 
 insanity, § 454. 
 
 Artificial tests sometimes used, § 455. 
 
 Periodicity a test where it is a condi- 
 tion of insanity, § 456. 
 
 Silence or evasion of question is sus- 
 picious, § 457. 
 
 Real lunatics rarely acknowledge de- 
 lusions, § 458. 
 
 Consistent simulation almost impossi- 
 ble, § 459. 
 
 But simulation does not exclude in- 
 sanity, § 4G0. 
 
 Insanity 
 distin- 
 guishable 
 from pas- 
 sion. 
 
 I. EMOTIONS.^ 
 
 § 412. Briand says, that from the height of passion to madness 
 is but one step, but it is precisely this step which decides 
 the quality of the act. It is important then to know 
 exactly the precise characteristics of the passions and of 
 insanity. But here science fails, for it must be admitted 
 that we are unable to point out the place where passion ends or 
 where madness commences.^ M. Orfila draws the following dis- 
 tinction between a man acting under the impulse of the passions 
 and one urged on by insanity. The mind is always greatly troubled 
 when it is agitated by anger, tormented by an unfortunate love, 
 bewildered by jealousy, overcome by despair, humbled by terror, 
 or corrupted by an unconquerable desire for vengeance, etc. Then, 
 as it is commonly said, a man is no longer master of himself, his 
 reason is affected, his ideas are in disorder, he is like a madman. 
 But, in all these cases, a man does not lose his knowledge of the 
 real relation of things ; he may exaggerate his misfortune, but this 
 misfortune is real, and, if it carries him to commit a criminal act, 
 this act is perfectly well motived. Insanity is more or less inde- 
 pendent of the cause that produced it, it exists of itself ; the pas- 
 sions cease with their cause, jealousy disappears with the object 
 that provoked it, anger lasts but a few moments in the absence of 
 the one who by a grievous injury gave it birth, etc. Violent pas- 
 sions cloud the judgment, but they do not produce those delusions 
 
 ' See particularly Aristotle's dflinea- * Med. Leg. p. 551. Paris, 1852. See 
 tion of the Passions in the Second Book also infra, § 816, on the psychical indi- 
 
 of his "Rhetoric;" and see also L. 
 Krahmer, Handbuch der gericht. Med. 
 Halle, C. A. Schwetschke, 1851, § 12lj. 
 Observe, also, an essay by Leigh Hunt, 
 in his Miscellanies, p. 51. 
 
 342 
 
 cations of crime. See an article on 
 Emotional Insanity, 5 Journ. Nerv. & 
 Mfut. Diseases, 79.
 
 REMORSE. [^ 414. 
 
 which are observable in insanity. They excite for a moment 
 sentiments of cruelty, but they do not produce that deep moral 
 perversion which influences the madman to sacrifice, without motive, 
 the being he most cherishes.^ 
 
 1. Remorse. 
 
 § 413. "When remorse," says Cogan, "is blended with the fear 
 of punishment, and rises to despair, it constitutes the 
 supreme wretchedness of the mind."^ And of all stages ma^ap-^ 
 of passion, remorse is the one most liable, when the con- P'""?.^!^ ii^- 
 science is acute, to be mistaken for insanity itself. Of 
 this we have a melancholy case in our own local experience. A 
 young gentleman of peculiarly nice sense of honor and keen sensi- 
 bility, killed an intimate and beloved friend in a duel, hastily forced 
 on by his own undue susceptibility. For twenty years he has never 
 ceased to stride to and fro the chamber in which he has been con- 
 fined, firing an imaginary pistol at intervals, and then throwing him- 
 self back with the acutest expression of misery. In this instance 
 remorse has run into madness. In others it has made but a slight 
 progress in that direction ; in others entire sanity and responsibility 
 remain. And yet in all instances it presents symptoms which it is 
 well for the forensic physician to examine in relation to their moral 
 as well as their psychical origin. 
 
 § 414. Harpsfield, in his Ecclesiastical History, gives us the fol- 
 lowing crraphic report of the dvinor words of Cardinal „ , ,. 
 
 ^ ^ '■ , , . " . . Relation to 
 
 Beaufort, which is a powerful illustration of the eftect of derange- 
 
 this passion: "And must I then die I "Will not all my 
 riches save me ! I could purchase the kingdom, if it would save 
 my life. "What I is there no bribing of death ? When my nephew, 
 the Duke of Bedford, died, I thought my happiness and my autho- 
 rity greatly increased : but the Duke of Gloucester's death raised 
 me in fancy to a level with kings, and I thought of nothing but 
 accumulating still greater wealth, to purchase at last the triple 
 crown. Alas ! how are all my hopes disappointed ! Wherefore, 
 my friends, let me earnestly beseech you to pray for me, and 
 
 ' Med. Leg. tome i. p. 407. Paris, ^ Cogan on the Passions, vol. i. chap. 
 1848. This passage adopted in Mc- 2, § 3. 
 Farland's case, 8 Abbott (N. Y.) Prac. 
 C, N. S. 69. 
 
 343
 
 § 415.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 recommend my departing soul to God !" A few minutes before his 
 death his mind appeared to be undergoing the tortures of the damned. 
 He held up his two hands, and cried — "Away! away! why thus 
 do you look at mc ?" This same scene in the cardinal's chamber 
 is thus still more vividly depicted by Shakspeare : — 
 
 SCENE— r/ie CardinaVs bed-chamber. 
 Enter King Henry, Salisbury, and Warwick. 
 King Hen. How fares my lord ? speak, Beaufort, to thy sovereign. 
 Cardinal. If thou be'st death, I '11 give thee England's treasure, 
 Enough to purchase such another island. 
 So thou wilt let me live, and feel no pain. 
 Kinij Hen. Ah, what a sign it is of evil life, 
 
 When death's approach is seen so terrible ! 
 Wanvick. Beaufort, it is thy sovereign speaks to thee. 
 Cardinal. Bring me unto my trial when you will ; 
 
 Died he' not in his bed ? where should he die ? 
 Can I make men live whe'r they will or no ?— 
 Oh ! torture me no more, I will confess. — 
 Alive again ? then show me where he is ; 
 I '11 give a thousand pounds to look upon him. 
 He hath no eyes, the dust hath blinded them. 
 Comb down his hair ; look ! look I it stands upright, 
 Like lime-twigs set to catch my winged soul ! — 
 Give me some drink ; and bid the apothecary 
 Bring the strong poison I bought of him. 
 King lien. thou eternal Mover of the heavens, 
 
 Look with a gentle eye upon this wretch ! 
 
 Oh, beat away the busy meddling fiend 
 
 That lays strong siege unto this wretch's soul ! — 
 
 And from his bosom purge this black despair ! 
 
 Warwick. See, how the pangs of death do make him grin. 
 
 § 415. Schiirmayer'h^ views on this point are of peculiar interest, 
 as indicating!; the conservative iealousy which guards 
 
 Cannot be . , . , ,. . , . *^ , . , 
 
 always sup- against that involuntary dissimulation on the patients 
 prtfesc . p^^^ wliich makes real and yet at the same time responsi- 
 lle emotions so difficult to distinguish from irresponsible disease. 
 " Remorse," he says, " often affects the mind so powerfully as to 
 assume the appearance of insanity. The smothered self-reproach 
 of the criminal sometimes expresses itself in the shape of deep de- 
 
 ' Meaning the Duke of Gloucester. 
 
 34-4 
 
 2 See Gericht. Med., § 519.
 
 REMORSE. [§415. 
 
 jection, and sometimes in that of petulance and irritability. Al- 
 most every defendant who is guilty will be seen to lapse at least 
 periodically into a deep reverie, with the eyes staring into vacancy. 
 The most consummate villains alone are exempt from such feelings. 
 Criminals generally endeavor to suppress the voice of conscience, 
 because they fear to be betrayed by it. But this very reaction is 
 perfectly legible in their faces, gestures, and general bodily condi- 
 tion. Under these circumstances the qualms of conscience fre- 
 quently assume the appearance of disease. The accused, particu- 
 larly if in confinement, does not sleep at night for weeks, and con- 
 sequently looks pale and haggard, loses his appetite, and speaks 
 with hesitation, and sometimes with trembling. When this condi- 
 tion reaches a point of great intensity, the guilty is visited by 
 visions and hallucinations ; avenging angels appear to him, or evil 
 spirits, phantoms, or the shades of the dead and injured. Add to 
 this a little superstition, and the victim is firmly convinced of the 
 reality of these apparitions, and regards them as punishments sent 
 from heaven. In the course of the trial itself, these symptoms are 
 less perceptible ; and generally the culprit hesitates to tell an offi- 
 cial person what he suffers in seclusion, but the struggle within 
 frequently breaks out in spite of his efforts, or at least interferes 
 with the coherence of his speech. In such cases a man, perfectly 
 hale in mind and body, will frequently talk at random, or at least 
 express himself in so confused and stupid a manner as to induce 
 doubts of his sanity. It is remarkable, that those who confess their 
 guilt are subject to these attacks equally with those who deny it. 
 It might be supposed that the criminals who have made a public 
 confession would experience a regenerating sense of relief in con- 
 sequence of having removed a load from their minds ; but the con- 
 fession often precedes the first sensations of remorse, by directing 
 the attention to the moral and religious aspects of the deed. 
 
 " This proves that even a confessed criminal should be treated 
 with great circumspection. Instead of overwhelming him with re- 
 proaches, the victory gained by his integrity over his fears should 
 be held up to himself as a restorer of self-respect. 
 
 " The more depraved order of culprits do not allow their con- 
 sciences to drive them to despair, but only to petulance ; but even 
 this frame of mind sometimes goes so far as to lead the subject to 
 do the most incomprehensible things, such as asserting things against 
 
 345
 
 § 416.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 reason, refusing to answer, or causing constant trouble and vexation 
 in the prison. Such persons are often greatly misunderstood, some- 
 times by ascribing their offensive conduct solely to malice and spite, 
 and sometimes by regarding them as demented when, driven by 
 their chagrin, they lose all reflection, and say or do things to their 
 own injury. The consciousness of crime, coupled with the despair 
 of expiation consequent upon having denied it, produce an internal 
 schism which may result in the most singular and distracting 
 phenomena. 
 
 " A tolerably sure criterion of an awakened conscience is often 
 to be found in the desire of the culprits for some consolatory assur- 
 ance. Even those who deny their guilt are generally anxious to 
 know how they would be able to bear the condition of a criminal 
 sentenced according to law. In many cases there is an exaggerated 
 idea of the impending punishment, still further increased by the 
 imaginings which haunt the prisoner's solitude. When such errone- 
 ous notions come to the knowledge of the examining physician, it is 
 perfectly right in him to correct them, and the information thus im- 
 parted will generally produce a change of feeling which at once dis- 
 pels every idea of mental derangement."^ 
 
 § 41G. Remorse as i)7ipli/inij sanitt/} — Remorse, though some- 
 
 ^. , , times adduced as a test of sanity, is an emotion which 
 
 xsot a proof "^ ' 
 
 of sanity at is often most keenly felt by those who, in a shock of 
 transitory madness, have committed an illegal act. No- 
 thing, for instance, could have been more acute than the anguish of 
 Mary Lamb, as has been already noticed, when she awoke to the 
 consciousness that her mother had died by her hand ; and similar 
 were Cowper's expressions of misery when his reason was tempo- 
 rarily restored and he had gleamings of the fact that he had at- 
 tempted self-destruction when in a state of lunacy. An idiot or 
 imbecile, it is true, does not experience remorse ; and, in point of 
 fact, remorse or any other intelligent emotion would be conclusive 
 refutation of the allegation of idiocy or imbecility. And so, also, as 
 to maniacs while their mania continues.^ But, in cases of transitory 
 mania, remorse, or a feeling of distress very difficult to distinguish 
 
 ' Schiirmayer, Gericht. Med., § 510. ^ See on this point citations in pamp. 
 See infra, § 816. Trial of Andrews, Boston, 1868, pp. 
 
 « See infra, §§ 788-823. 276-7. 
 
 346
 
 REMORSE : ANGER. [§ 419. 
 
 from it, is not prevented, after recovery, by a conviction that the 
 act, being insane, was innocent. Persons of perfect reason often 
 suifer acute pain and distress from injuries inflicted on others through 
 their own mere misadventure, though there was on their part no 
 moral blame. And such is peculiarly likely to be the case with 
 those whose very susceptibility to mania rises from temperaments 
 that are highly strung. It has been noticed that by such the in- 
 tensity of their regret at insane misconduct is often in proportion to 
 the intensity of their prior mania. 
 
 § 417. On the other hand, absence of remorse is no proof of in- 
 sanity. " Indifferent to the moral turpitude of the act," . 
 is sometimes unfortunately brought forward by psycholo- absence of 
 gical experts as indicating insanity, but there are few proof of 
 hardened criminals by whom this indiiference is not dis- m^a^i^^y- 
 played. Undoubtedly our prison reports give instances of penitent 
 and reformed prisoners ; but, among those suffering second convic- 
 tions, such instances are very rare. Repentance is frequently 
 feigned in such cases, but is rarely proved by subsequent voluntary 
 reform. A chaplain in an English prison illustrates this by refer- 
 ring to a criminal who, having expressed great religious contrition, 
 spending much time in poring over the Bible, was pardoned, and 
 after his pardon returned the Bible to the chaplain, " because I 
 have no more use for it." 
 
 Dr. Liman tells us that he has observed a great number of mur- 
 derers, whom he had Avatched during their period of preliminary 
 arrest, and whom he had seen mount the scaffold or enter the peni- 
 tentiary for life, whose remorseless apathy, indifference, and even 
 levity, produced on him the most painful impressions. Such torpor, 
 though proving a depraved moral sense, is no distinctive evidence 
 of lunacy. 
 
 2. Anger. 
 
 § 418. Anger, as related to " homicidal insanity" will be here- 
 after distinctively considered.^ 
 
 § 419. "A morbid paroxysm of anger," Dr. Rush tells us, " ap- 
 pears in a preternatural determination of the blood to the brain, a 
 turgescence of the bloodvessels of the face, a redness of the eyes, 
 
 « Infra, § 586. 
 
 347
 
 § 422.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 an increased secretion of saliva, which is discharged by foaming at 
 the mouth, great volubility or a total suppression of speech, agita- 
 tions of the fists, stamping of the feet, uncommon bodily strength, 
 convulsions, hysteria, bleeding at the nose, apoplexy, and death. 
 Sometimes this disease appears with paleness, tremors, sickness at 
 the stomach, quick respiration, puking, syncope, and asphyxia. It 
 is in this case generally combined with fear, and hence arises the 
 abstraction of blood from the brain, and its determination to other 
 parts of the body."* 
 
 [§§ 420-421 are omitted in this edition for the purpose of con- 
 densation.] 
 
 § 422. Schiirmayer very justly remarks that in practice, anger 
 
 and revenge afford much less difficulty, because much 
 Anper and '.,,.. ■ ^ ^ ■, f • -^ L^ 
 
 revenue more rcadily distinguishable irom insanity than is re- 
 
 6anity\*^i'an morse. With the more depraved, experience tells us 
 i6 remorse, ^j j^^ ^|jj^| malignant hatred which led to crime is often 
 increased after the crime is committed, and is further aggravated 
 by displeasure at the unfavorable testimony of witnesses. The fury 
 of such miscreants is often directed against the judge, the keepers, 
 and all who contribute to the execution of their sentence. In the 
 case of Carrigan, who was convicted in North Carolina, some years 
 since, of murder, so high did his temper run, that the defendant, 
 immediately after the verdict of conviction was rendered, drew forth 
 a pistol, with which he aimed a shot at the prosecuting attorney, 
 and then shot himself. 
 
 In the fierce outburst of passion, it is quite possible to mistake 
 a man under such circumstances for a madman, particularly where 
 there is a sentimental predisposition to the extension of this plea, 
 and where science and skill are not at hand to correct such errone- 
 ous impressions. But these views will vanish if the examiner ab- 
 stains from doing anything which may still further stimulate the 
 passions, and preserves an imperturbable composure. If, after this, 
 a severe reprimand is found, either at once or after one or two 
 repetitions, to make a wholesome impression and quell the excite- 
 ment, there is certainly no derangement of the faculties ; for a man 
 with mania, or under the ravings of disease, will never be restored 
 to self-control by the voice of reason. Where the man is very wild 
 
 • Rush on the Mind, p. 332. 
 
 348
 
 ANGER : SHAME. [§ 424. 
 
 and debased, reproaches will not always answer the purpose, and it 
 becomes necessary to menace him with coercion. The manner in 
 which such announcements are received will also suffice to remove 
 all doubts of his sanity. 
 
 3. Shame. 
 
 § 423. The feeling of sJiame may also exert a very considerable 
 influence on the demeanor of an accused man, not en- 
 
 '11 ^ • Shame may 
 
 tirely lost to this sensation by a long course of vice, produce a 
 Shame rises and sinks with the feeling of honor : " shame sembHn'^ 
 is the disagreeable perception of the unfavorable opinions '"sanity. 
 entertained of us by others." Men of ordinary stamp, who value 
 external honor far above the dignity of self-respect, can imagine no 
 more dreadful fate than degradation in the eyes of the public. By 
 injudicious treatment such individuals may be reduced to a state 
 closely resembling insanity, particularly in the form of melan- 
 choly, which will disappear the moment a more judicious course is 
 resorted to. 
 
 It is not necessary for us, in order to make out the similarity of 
 symptoms between insanity and excessive shame, to find many 
 parallels to the story told by Dr. Benton, and cited without protest 
 by Dr. Bush, of a schoolmaster who was accidentally discovered 
 upon a close-stool by one of his scholars, and who in consequence 
 became deranged.^ 
 
 § 424. Dr. Bush also tells us of an American Indian, who be- 
 came deranged and destroyed himself, in consequence of 
 seeing his face in a looking-glass soon after his recovery of insanity 
 from a violent attack of smallpox. The loss of one eye ^H^^^e ^^ 
 by an aifray in a country tavern, which materially 
 affected the face, produced derangement in a young man who was 
 afterwards a patient in the Pennsylvania Hospital. There are 
 other facts which show the depth of this attachment to beauty, in 
 the human mind, and the poignancy of the distress occasioned by 
 its loss or decay. The once beautiful Lady Wortley Montague 
 tells a friend, in one of her letters, that she had never seen herself 
 in a looking-glass for eleven years, solely from her inability to 
 bear the mortifying contrast between her appearance in the two 
 
 > Rush on the Min.l, p. 38. 
 
 349
 
 § 426.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 extremes of her life. A clergyman in Maryland became insane in 
 consequence of having permitted some typographical errors to 
 occur in a sermon -which he had published on the death of General 
 Washington.' 
 
 § 425. A young gentleman of considerable promise, of high 
 Suicide natural and acquired attainments, had been solicited to 
 from shame make a spcech at a public meeting, which was to take 
 place in the town in which he resided. As he had never attempted 
 to address extemporaneously a public body, he expressed himself 
 extremely nervous as to the result, and asked permission to with- 
 draw his name from the published list of speakers. This wish was 
 not, however, complied with, as it was thought that when the 
 critical moment arrived he would not be found wanting even in the 
 art of public speaking. He had prepared himself with considerable 
 care for the attempt. His name was announced from the chair, 
 when he rose for the purpose of delivering his sentiments. The 
 exordium was spoken without any hesitation ; and his friends felt 
 assured that he would ac((uit himself with great credit. He had 
 not, however, advanced much in his prefatory observations when 
 he hesitated, and found himself incapable of proceeding. He then 
 sat down, evidently excessively mortified. In this state he retired 
 to a room where the members of the committee had previously met, 
 and cut his throat with his penknife. He wounded the carotid 
 artery, and died in a few minutes.^ 
 
 4. arief. 
 
 § 42G. Shakspeare touchingly as well as naturally describes the 
 Symptoms symptoms of that species of morbid grief which becomes 
 of grief. monomaniac by self-confinement and self-involution: — 
 
 " Grief fills up the room of my absent child ; 
 Lies iu liis bed, Wialks up and down with me ; 
 Puts on his pretty looks, repeats his words ; 
 Remembers me of his gracious parts : 
 Stuffs out his vacant garments with his form ; 
 Then I have reason to he fond of (jrief.'''' 
 
 " Physicians," says Dr. Rush, "in their unsuccessful efforts to 
 save life, are often obliged to witness this passion. It is of con- 
 scijuence for them, therefore, to be well acquainted with its symp- 
 
 ' Rush on the Mind, \>, 40. ^ Winslow's Anatomy of Suicide, p. 64. 
 
 350
 
 GKIEF. [§ 428. 
 
 toms and cures. Its symptoms are acute and chronic. The former 
 are, insensibility, syncope, asphyxia, and apoplexy ; the latter are 
 fever, wakefulness, sighing, with and without tears, dyspepsia, 
 hypochondriasis, loss of memory, gray hairs, marks of premature 
 old age in the countenance, catalepsy, and madness. It sometimes 
 brings on sudden death, without any signs of previous disease, either 
 acute or chronic. Dissections of persons who have died of grief 
 show congestion in and inflammation of the heart, with a rupture of 
 its auricles and ventricles."^ But there are instances in which the 
 sympathy of the heart with the whole system is so completely dis- 
 severed with grief, that the subject of it discovers not one mark of 
 it in his countenance or behavior. On the contrary, he sometimes 
 exhibits signs of unbecoming levity in his intercourse with the world. 
 This state of mind soon passes away, and is generally followed by 
 all the obvious and natural signs of the most poignant and durable 
 grief. There is another symptom of grief which is not often noticed, 
 and that is profound sleep. I have often witnessed it, even in 
 mothers, immediately after the death of a child. Criminals, we are 
 told by Mr. Akerman, the keeper of the Newgate, in London, often 
 sleep soundly the night before their execution. The son of General 
 Custine slept nine hours the night before he was led to the guillo- 
 tine, in Paris. These facts, and many similar ones that might be 
 mentioned, will serve to vindicate the disciples of our Saviour for a 
 want of sympathy with him in his suffering. They slept during his 
 agony in the garden, because their " flesh was weak," and in con- 
 sequence of " sorrow having filled their hearts."^ 
 
 § 427. Tears, or the capacity to weep, form no test in this re- 
 spect.3 Joanna, the mother of Charles Y., was never ^ .. , 
 
 i ' ' Capacity to 
 
 known to weep after the first shock of her husband's weep uo 
 
 test ol'^^riGi 
 
 death, and survived him forty-five years, brooding in 
 
 insanity over her loss, without, Mr. Prescott tells us, shedding a 
 
 tear.'* Insane persons are rarely known to Aveep. 
 
 ^ 428. One distinction, however, may be relied on Insanity 
 
 . , , . i-^ ■ c 1 • L ""•' r(ilieve<l 
 
 With almost certainty. Criet may be, m most cases, by counter- 
 relieved by the counter-irritation of some affection other |[|^y'gricf! 
 than that wounded ; but insanity never. 
 
 ' Late researches, however, indicate ' Cheync on Derangement in Con- 
 such cases to be very exceptional. nectioii with Relif,non, p. 107. 
 2 Rush on the Mind, pp. 1340, 347. * 3 Pres. Ferd. 8tli ed. 2(J0. 
 
 351
 
 § 431.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLT. 
 
 5. Home-sickness [Nostalgia).^ 
 
 Nostalgia § 429. This often assumes a shape hardly distinguish- 
 
 hjSeria.^ able from hysteria. Thus Goldsmith writes :— 
 
 " The intrepid Swiss that guards a foreign shore, 
 Condemn'd to climb his mountain-cliffs no more, 
 If chance he hear the song, so sweetly wild. 
 Which, on these cliffs, his infant hours beguil'd, 
 Melts at the long-lost scenes, that round him rise, 
 And sinks, a martyr to repentant sighs." 
 
 " It is remarkable," says Dr. Rush, " that this disease is most 
 common among the natives of countries that are the least desirable 
 for beauty, fertility, climate, or the luxuries of life. They resem- 
 ble, in this respect, in their influence upon the human heart, the 
 artificial objects of taste which are at first disagreeable, but which 
 from habit take a stronger hold upon the appetite than such as are 
 natural and agreeable.' "^ 
 
 § 4o0. Nostalgia, as SiebokP tells us, develops itself principally 
 in that period of childhood approaching puberty. When 
 juto the malady is of long continuance, it runs into voluntary 
 
 deiirmm. starvation, sleeplessness, delirium, derangement of the 
 senses, together with the usual melancholy consequences of unsatis- 
 fied desire. Sometimes symptoms of pyromania are discoverable. 
 Thus wc are told of a girl of ten years who exposed two children, 
 committed to her care, to the flames, under the stress of home- 
 sickness.'* 
 
 § 431. "Another variety of melancholia," says Griesinger, " is 
 
 that form which is characterized by a longing for one's 
 
 norahvays ii^tivc land, and by the predominance of those ideas 
 
 a mental -which refer to a return to one's home — home-sickness, 
 disease. , . , . 
 
 "An analogous affection is sometimes developed in 
 
 • Orfila gives the following symptoms ^ Rush on the Mind, pp. 38, 39. 
 
 by which nostalgia may be recognized : ' Gericht. Med. § 213. 
 
 Profound sadness to which succeeds a * See Jahrb. des Osterreich. Staates, 
 
 gloomy melancholy, silence and a great 1.5 Bd., 1834, § 597. See also the arti- 
 
 desire to be alone, a great indifl'erence cle under the head of Heimweh, by 
 
 for everything which does not recall .Jesse, in tlie Encyclop. Worterb. der 
 
 the objects regretted. Spasmodic con- Med. Wissensch., Band 25, Berl. 1841, 
 
 traction of the stomach, prostration of § 292. 
 mind and body, marasmus, etc. — Med. 
 Lrij., vol. i. p. 331. Paris, 1848. 
 
 • 352
 
 HOME-SICKNESS. [§ 431 a. 
 
 prisoners by want of employment, and frequently also by the co- 
 operating influence of bad nourishment, damp cells, and onanism. 
 Nostalgic melancholia is sometimes accompanied by symptoms of 
 congestion of the head, and even of cerebral inflammation (Larrey) : 
 in this form, too, the same kind of hallucinations appear (visions of 
 home scenes, etc.). Not unfrequently we see individuals affected 
 with a greater or less degree of nostalgia commit acts of violence 
 (for example, the murder of young children, incendiarism, etc., by 
 servants). Those acts proceed more frequently from evidently 
 selfish motives, as from the desire to escape from a forced and 
 painful position, than from the impulse, which also comes involun- 
 tarily in the melancholic, to procure a certain degree of solace 
 through the perpetration of some frightful deed. Naturally, home- 
 sickness is not always a mental disease : this is of importance in a 
 medico-legal point of view. In itself it is a mournful disposition of 
 spirit suggested by external circumstances. It becomes insanity 
 when this disposition so strongly impregnates all the faculties of 
 the mind as utterly to exclude the entrance of any other sentiment 
 and when it is accompanied by delirious conceptions and hallucina- 
 tions ; a state in which physical derangements — e. g.^ loss of appe- 
 tite, emaciation, etc. — are seldom absent. In short, home-sickness 
 ought in foro to be regarded as a mental affection only when it 
 presents the usual signs of insanity. The want of reflection, which 
 is the most important point in concrete eases, ought not to be ad- 
 mitted when the individual is perfectly competent to engage in his 
 usual avocations and perform his duties, as is the case with many 
 of those young incendiaries afflicted with home-sickness."^ 
 
 § 431 a. "A recent number of the Medical and Sargical Reporter 
 has a valuable paper from Dr. Calhoun, Surgeon-in-chief, -^^^ j^^ 
 2d division, 3d corps, on nostalgia as a disease of field eithrrciuise 
 
 ' i ' ° _ _ or result 
 
 service. After alluding to the peculiar causes operating of otiicr 
 
 . ,, ,. , . c • ^ liiisca.se.s. 
 
 to produce the disease, he mentions a case or simple 
 nostalgia, with loss of appetite and general impairment of functions, 
 occurring in an officer, and remarks : — 
 
 " But I fancy that pure uncomplicated cases of nostalgia, re- 
 quiring treatment, are seldom met with in the field. It is more 
 frequently a complication or a cause of other disease. The very 
 
 ' (Jriesingcr's Mental rathol., Syden. ed. 1867, § 122. 
 
 VOL. I. — 23 353
 
 § 433.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 existence of nostalgia presupposes a state of mental depression 
 extremely favorable to tlie contraction of disease. The typho- 
 malaria fever and camp diarrhoea are diseases asthenic in their 
 character, and always characterized by marked depression of all 
 the vital functions. The state of mental depression, that is coex- 
 istent with nostalgia, acts as a predisposing cause of these diseases, 
 or, as I have frequently found, is coexistent with them. Sometimes 
 the nostalgia is, on the contrary, produced by other diseases. 
 
 " The patient becomes disgusted with his condition, and sighs for 
 the comforts of home, until his yearning for home scenes becomes 
 morbid. But, be the nostalgia the cause or the result of diarrhoea, 
 dysentery, or typhoid fever, it is in either event a complication to 
 be dreaded as one of the most serious that could befall the patient."^ 
 
 6. Fear. 
 
 § 432. The distinction between sane and insane fear is one which 
 _,. ,. .. is of much importance in several branches of forensic 
 
 Distinction J 
 
 between mediciuc. A will is made, for instance, under the influ- 
 
 sane and . . , . . 
 
 insane fear ence 01 tear ; and the question to be determined is, is 
 nnpoi . 1 . ^j^^ yielding to this emotion the consequence of sane or 
 insane volition ? Or a contract is made under threats ; and here 
 again the same inquiry emerges. It is true that in both these cases 
 the question is mixed with that of iJuJiis or fraud. A party cannot 
 take advantage of his own wrong. lie who, by acting on the fears 
 even of a sane person, obtains an obligation from such person, can- 
 not, as a general rule, enforce such obligation ; and when a will is 
 obtained by fear, it recjuires but slight evidence of mental debility 
 in the testator to set the will aside. 
 
 § 433. In criminal cases, the question presents itself more 
 Importance squarely, A man, under the influence of fear, kills 
 ofqucstion. another. lie may kill a supposed enemy, in what is 
 claimed to be self-defence. Or he may kill his own children, to 
 avoid, lie may claim, sonic greater evil ])y which they are threat- 
 ened. Now, is the party under such circumstances sane or insane ? 
 Is he responsible so far as penal discipline is concerned ? 
 
 ' Amer. Journ. of Ins., April, 18f)4. 
 
 354
 
 FEAR. [§ 436. 
 
 § 434. First, in answering this question, let us remember what 
 fear is. Locke defines it to be " an uneasiness of the usually 
 mind upon the thought of some future evil likely to befall ^conditioned 
 
 f o •' on a contin- 
 
 us." It is the futuritt/ of the evil that forms the essence gency. 
 
 of the emotion. Shakspeare well says that — 
 
 "Present fears 
 (i. e. fears that are realized) 
 Are less than horrible imac/inings.^' 
 
 As the dreaded event becomes certain, fear, in its technical sense, 
 gives way to blank despondency. Thus, if we could foresee the con- 
 flagration by which our home is to be destroyed, or the death-stroke 
 by which one of our children is in a short time to be snatched from 
 us, this foreknowledge would envelop us in gloom, and paralyze 
 proportionally our energies. On the other hand, such certainty in 
 a coming disaster may produce a calm and adequate courage which 
 uncertainty might distract. True fear is of a contingent evil; in 
 which case the " horrible imaginings" of which Shakspeare speaks 
 find play. So far as concerns the intellect, the first eflFect of terror 
 of this kind is in the highest degree stimulating. The crowds that 
 collect around a telegraph office after a great battle ; the frenzied 
 anxiety with which newspapers are clutched ; the preternatural 
 rapidity with which their contents are mastered ; the intense acute- 
 ness of the hearing when the postman's step is awaited; the vividness 
 with which calculations are made as to the time when the news will 
 arrive ; the exhaustion which, when the result is known, measures 
 the intensity of the prior tension ; the haggard countenance ; the 
 hair which a single night's agony has turned gray ; these are illus- 
 trations of the eff'ect of fear. 
 
 § 435. On the physical side, the immediate effects of terror vary 
 
 with particular constitutions. There are some whom its gg-gptg ^f 
 
 first shock completely paralyzes.^ There are others fear vary 
 
 '■ ... . . with ditfer- 
 
 whom it prompts to rapid instinctive flight. There arc cnt cousti- 
 
 others — and each of these specifications applies to the 
 
 lower animals as well as to men — who are stung by it to wild and 
 
 destructive resistance. 
 
 § 436. " The appearances," says Mr. Bain, speaking of the 
 
 » See 19 Jouru. Ment. Sci. G21. 
 
 355
 
 § 437.] MENTAL UNSOUNDNESS CONSIDEKED PSYCHOLOGICALLY. 
 
 Symptoms physical results of fear,* " may be distributed between 
 o ear. efi'ects of relaxation and effects of tension. The relaxa- 
 tion is seen, as regards the muscles, in the dropping of the jaw, in 
 the collapse overtaking all organs not specially excited, in trem- 
 blings of the lips and other parts, and in the loosening of the sphinc- 
 ters. Next as to the organic processes and viscera. The digestion 
 is everywhere weakened ; the flow of saliva is checked ; the gastric 
 sensation arrested (appetite failing) ; the bowels deranged. The 
 expiration is enfeebled. The heart and circulation are disturbed ; 
 there is cither a flushing of the face, or a deadly pallor. The skin 
 shows symptoms of derangement — the cold sweat, the altered odor 
 of the perspiration, the creeping action that lifts the hair. The 
 kidneys are directly or indirectly aftccted. The sexual organs feel 
 the depressing influence. The secretion of milk in the mother's 
 breasts is vitiated. The increased tension is shown in the stare of 
 the eye and the raising of the scalp (by the occipito-frontalis mus- 
 cle), in the inflation of the nostril, the shrill cry, the violent move- 
 ments of 2)7-otectuni or jUgltt. The stare of the eye is to be taken 
 as an exaggerated fixing of the attention on the dreaded object ; 
 and there concurs with it an equally intense occupation of the 
 thoughts in the same exclusive direction." 
 
 § 487. In order to measure, in the next place, the legal relations 
 
 of fear, it is necessary to consider from what functions 
 fear to the of the mind it springs. Describing these functions ac- 
 oiUR-'iiihui cording to the definition already given, as (1) feeling, 
 
 (2) will or volition, and (o) thought, we may readily 
 conceive that fear, in its most simple and rudimental shape, may 
 flow directly and exclusively from feeluKj. A sleeping infant, or 
 an idiot, or an animal of the lowest grade, feels a puncture, and 
 starts convulsively back to prevent an extension of the wound. 
 But in almost every other conceivable case, fear is the result of 
 feeling and thought comliined. In fact, in most cases, fear involves 
 the several powers which intellect includes— memory, perception, 
 conception, abstraction, judgment, and imagination. If the mind 
 be diseased, then it coaununicates its disease to the fear which 
 flows from it, and this fear becomes an abnormal propensity. 
 
 ' Mental and Moral Science, London, ISGS, j). 233. 
 
 356
 
 FEAR. [§ 441. 
 
 § 438. Let us apply this to the case of a man killing Killing un- 
 another under the influence of fear. This killing may fluence of ' 
 have been in order to avert the threatened danger from ^^'^'"* 
 the person killed, or to avert it from self. 
 
 § 439. Of the first class the principal instances are those of 
 homicides by parents of children to preserve the children 
 from starvation or some other impending disaster. In threatened 
 such cases, it is hardly possible to view the mind as sane, person 
 However it may be in barbarous lands, the systems of ^^'^*"^- 
 charity existing in Christian countries are such as to make the kill- 
 ing of children by parents to avoid starvation explicable only on 
 one of two grounds — diseased imagination amounting to actual in- 
 sanity, or diseased pride by Avhich such insanity is closely ap- 
 proached. 
 
 § 440. But much more complex questions arise Avhen insane fear 
 is set up to excuse the killing of another in supposed self- ^ -. 
 defence. To consider these questions we must inquire posed seif- 
 what is the effect of fear on persons of imbecile or dis- 
 ordered intellects. 
 
 § 441. First, as to the imbecile. On this point some 3. In the 
 
 . . case of im- 
 
 interestmg observations are made by Professor Lazarus, beciies. 
 in the Zeitschrift fur Volkerjjsycliologie for 1868. 
 
 " We often find in our lunatic asylums a general, and it may be 
 even said absolute, fear (Schreckhaftigkeit, Pantophobia), which 
 with us is a symptom of deep disease, but which is mentioned by 
 travellers as a not unusual occurrence among nations of a low order 
 of development. . . . Does it not seem when we enter a ward con- 
 taining nymphomaniac or similarly affected patients, as if we had 
 entered into a company made up of parties of Laps, or Jakutes, 
 whom Castren and Erman describe: 'A woman, alarmed by a sud- 
 den clapping of the hand, tore about as if frantic, biting and scratch- 
 ing all who were by. Another, when alarmed, threw her child in 
 the sea. A blow having been struck by a hammer on the outer 
 wall of a hut in which some Laps were sitting in careless conversa- 
 tion, they all fell instantaneously on the ground, twitched for a mo- 
 ment with their hands and feet, and then lay as motionless as 
 corpses. After awhile they began to move again, and then behaved 
 as if nothing unusual had happened.' This last peculiarity is 
 highly characteristic. ' The Last-Jaken, like the T^aps,' remarks 
 
 357
 
 § 442.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOQICALLT. 
 
 Bastran, ' are very timid, and are frightened (as in Pantophobia) 
 by the merest trifles. . . . Every unexpected movement, every call 
 or whistle, and every surprise makes him beside himself, and throws 
 him in a sort of rage. By the Samojedens tlda rage is so great 
 that, without knowing tvhat they do, they seize the first axe, knife, 
 or other iveapon, and seek to ivound the bystanders.^ ^^ 
 
 Cases of a similar character are not unknown to our criminal re- 
 ports. Men of weak minds have been so affected by fear as in 
 their frenzy to strike down innocent strangers, and especially is 
 this the case with epidemic fears. Now, in such cases, the inquiry 
 is, was the defendant imbecile, or, at the best, of a low grade of 
 intelligence bordering on imbecility ? If he was, his action, in a 
 paroxysm of fear, was insane. But this mental imbecility must be 
 substantively proved.^ Fear itself is no defence ; for otherwise 
 there is no act of violence that could not be thus defended. 
 
 § 442. The same distinction applies when the defence is an in- 
 p ^ J sane delusion as to the person by whom the defendant 
 those whose believcs himself to be endangered. A man conceives 
 
 intellects i • i i -n i • • n- 
 
 are elisor- that another IS about to kill him, or to inilict on him 
 ^'^' ■ maiming or other great injury ; and in supposed defence 
 
 the assailant is intentionally killed. The plea of insanity, as is 
 elsewhere shown,^ may be rightfully interposed where the defendant 
 is acting under an insane delusion which, if true, would relieve the 
 act from responsibilit}^, or where his reasoning powers are so de- 
 praved as to make the commission of the particular act the natur^tl 
 conscipicnce of the delusion. Even where there is no pretence of 
 insanity, it has been held, that, where a man, according to his oivn 
 lights, has reasonable ground to believe himself in danger of death, 
 this would be a good defence.^ Such, indeed, was the ground of 
 the ruling in Le vet's case ; a case which has stood the test of two 
 centuries, and which may be viewed as at the basis of the English 
 common law. The defendant, in that celebrated case,* was abed 
 and asleep in his house, when he was told that thieves were break- 
 ing in ; and, in his fright, with his mind still torpid with sleep, 
 
 ' See articles in 1 Alienist and Neu- ' Ibid. This is fully sliown in Wh. 
 
 rologist, 106 ; 18 Journ. Ment. Sci. Cr. L. 8th ed. § 491 ei seq. 
 
 23'). 4 Cro. Car. 438 ; 1 Hale, 42, 474. 
 
 2 Supra, § 125. 
 
 358
 
 SIMULATED INSANITY. 
 
 [§ 443. 
 
 dashed down stairs, and ran his sword through a visitor who was 
 aiding one of the servants of the family. This was hekl homicide 
 by misadventure ; nor has this ruling ever been questioned. Nor, 
 though there is some conflict of decision when the defence set up is 
 simply weakness of intellect not amounting to imbecility, can it be 
 questioned that a similar result will follow in all cases where the 
 offence was the product of fear so shaped by an insane delusion as to 
 make the killing of the supposed assailant appear to the offender to 
 be the only means by which his own life could be preserved. 
 
 I. SIMULATED INSANITY.^ 
 
 \_For cases of simidation, see Appendix to tJiird edition of this 
 work, §§ 834, 885, 83G, 843.]2 
 
 1. Examination. 
 
 § 443. In every case the examining physician will be led at once 
 to inquire, whether the apparent abnormal state of mind 
 be real or feigned. One thing, however, must not be of feigned 
 overlooked, and this is that impostors of this kind are 
 very rarely able to keep up the character of the disease assumed 
 
 ' In reLation to simulated insanity, 
 M. Orfila says, that, as there exists in 
 the world a very false idea of madmen, 
 the one who simulates insanity, after 
 this idea, will perform, at every in- 
 stant, contradictory and false acts ; 
 thus, he will pretend not to remember 
 his past actions, he will not recognize 
 those whom he knows very well, he 
 will not make a single correct reply to 
 questions that are addressed to him. 
 His features will not have the expres- 
 sion of such a violent condition ; he 
 cannot for so long a time prevent him- 
 self from sleeping ; he will play the 
 fool particularly whilst he thinks him- 
 self observed ; finally, his pretended 
 malady will not have developed itself 
 until he feared the pursuit of justice; 
 it will not have been preceded by that 
 originality of character, by those 
 marked symptoms of moral disorder 
 which are observable in tlie majority 
 
 of cases of insanity. — Mtd. Leg., tome 
 i. p. 400. Paris, 1S48. See also Med, 
 Leg., J . Briand, p. 396. Paris, 1852. 
 See, on this point, Principles of Medical 
 Psychology, being the outlines of a 
 course of Lectures by Baron Ernest 
 von Feuchtersleben, M.D. Vienna, 
 1845. Translated from the German by 
 the late H. Evans Lloyd, Esq. Revised 
 and edited by B. G. Babington, M.D., 
 F.R.S., etc. London, printed for the 
 Sydenham Society, 1847, p. 376. See, 
 also, an article by Dr. Bucknill, 13 
 Am. Journ. of Ins. 354 ; and essay by 
 Dr. W. S. Chipley, in 22 Am. Journ. 
 of Ins. 5. 
 
 2 See, also, cases reported in IS Journ. 
 Ment. Sci. 390 ; Waltz's case, rep. 31 
 Am. Journ. Ins. 50 ; Gafl'ey's case, 35 
 Am. Journ. Ins. 534 ; Barr's cas(!, ibiil. 
 411 ; also an article in 31 Am. Journ. 
 Ins. 24. 
 
 359
 
 § 444.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ■with consistency, and without involving themselves in contradictions. 
 " How hard it is on the stage," remarks Dr. Bucknill,^ " and for a 
 few minutes only, for a man to represent the manners of a sailor, a 
 peasant, an old man, or any other characteristic manners, so that 
 the deception shall bo acknowledged complete ! But the histrionic 
 powers of a feigning maniac or melancholic must be kept for days 
 and weeks on the stretch in the representation of manners and modes 
 of thought far more difficult to imitate than those which are usually 
 the subject of theatrical art. Dr. Rush is reported to have dis- 
 criminated feigned from real insanity by the relative rapidity of the 
 pulse ; Dr. Knight and otlier writers have claimed the same power 
 for the sense of smell. At tlie present day the deposits in the 
 urine would, we suppose, be appealed to. Much reliance, however, 
 is not to be placed upon any one, or even upon several, of the 
 physical signs of nervous disturbance. They have a scientific but 
 scarcely a diagnostic value. They may serve to direct the inquiries 
 of the physician, or even to confirm his opinion founded upon other 
 data ; but standing by themselves they are of little importance in 
 the diagnosis of insanity." 
 
 § 444. It is important, to adopt here the precaution prescribed 
 
 by Sclitirraaycr,- to watch the subject most closely when 
 servation he supposcs himsclf least observed, as at such times he 
 ueces^ary generally drops his mask, which is irksome to him. In 
 
 all such investigations the physician must never show the 
 most trifling sign of doubt or hesitation ; he must, on the contrary, 
 appear to know everything, in order to discover everything, and 
 must present a firm and imposing front in all his intercourse with 
 the accused. Where the disease in question is of such a nature, 
 as, if genuine, to interfere Avith or suspend sleep, it becomes neces- 
 sary to watch the patient unobserved at night. To subject him 
 purposely to mental irritation or excitement is improper, reprehensi- 
 ble, and liable to cause harm. Threats of painful medicines or ope- 
 rations are in Germany admissible where the processes threatened 
 are really indicated by therapeutics, but the execution of such threats 
 must depend upon the principles laid down in another part of this 
 work, in reference to the tests applicable to feigned bodily diseases. 
 
 I Bucknill on the Diagnosis of In- 2 Gericht. Med. § 392. See §§ 341- 
 sanity. 344. 
 
 3G0
 
 SIMULATED INSANITY. [§ 445. 
 
 2. Reasons f 07' suspecting. 
 
 § 445. Schiirmayer gives the following reasons for suspecting 
 dissimulation or deception : — 
 
 1. When the party has committed some act, the punishment of which 
 he would escape by inducing a belief in his aberration of mind, in this 
 case the comparison of the offence committed, with the form of mental 
 disease assumed, will often suffice to confirm the suspicion.^ 
 
 2. When the individual has frequently expressed an aversion to 
 a particular occupation or profession he is expected to assume, as, 
 for instance, that of a soldier. 
 
 3. When the general character of the party is open to imputa- 
 tions of malice and deceit. ^ 
 
 4. When it is impossible to discover any previous indications, phy- 
 sical or mental, of the pretended derangement of the mental faculties.^ 
 
 A late German trial brings before us a state of facts well worthy 
 of being considered by those concerned in religious and moral 
 education. The parents of two girls, one eleven and the other 
 fifteen, claimed public relief on the ground that the latter were 
 subject to epileptic fits. The patients were for months subject to 
 medical scrutiny, and were received into a hospital, where, during 
 intermission, as well as of paroxysm, they were under constant ob- 
 servation. The elder, in particular, was aff'ected by the disease in 
 its worst shape ; being prostrated by convulsive attacks of extraor- 
 dinary violence, Avhich afterwards left her in a state of entire 
 exhaustion. Suspicion, however, was aroused as to the entire sin- 
 cerity of the patients, and one of the hospital officers, against the 
 vehement protestations of the medical attendants, threatened the 
 eldest of the two with severe discipline in case she should have 
 another fit. The attempt was successful. No fit was repeated ; 
 and the children confessed that, partly to excite sympathy, partly 
 to obtain money, the disease had been simulated. 
 
 In connection with this, we may observe the following remarks of 
 Dr. Carter, in his work on the Influence of Education on Diseases 
 of the Nervous System: — 
 
 ' Compare Heinrotli, System der psy- Icliro. Ansgabe von Danz. Lcipsic, 
 
 chisch gerichtliclieuMediziu. Lcipsic, 1812, p. 380. 
 
 1825, J). 453. " Frii'dreicli, Ilaiidlmcli dcr gcriclit- 
 
 2 Ik-inroth, Medizinische Zeiclioii- liulicii I'sychologic, ]>. 155. 
 
 361
 
 § 446.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 " When once a young woman has discovered her power to pro- 
 duce a hysteric paroxysm at will, and has exercised it for her own 
 gratification without regard to the anxiety or annoyance it may 
 entail on her friends, a very remarkable effect is speedily produced 
 upon her whole mental and moral nature. The pleasure of receiving 
 unwonted sjnnpathy, once tasted, excites a desire for it that knows 
 no bounds ; and, when the fits have become familiar occurrences 
 and cease to excite attention, their effect is often heightened by the 
 dcsiffned imitation of some other disease." Then, in the words of 
 Dr. Carter, " pleasure is morbidly associated with many ideas which 
 ordinarily excite pain. The girl, though originally amiable and 
 disinterested, derives a strange satisfaction from the sight of the 
 anxiety, and even the distress of her friends ; and thus proverbially 
 enjoys the idea of deceiving them." 
 
 Another writer thus speaks : " A person in the shattered state of 
 mind that follows some sudden affliction, finds the sympathy of 
 friends excited by very demonstrative grief. This in itself to many 
 minds is a natural outlet, and then with tiiat strange selfish cuaning 
 which never tempts the heart so fiercely as in such moments of 
 desolation, the paroxysms of grief are so timed as best to attract 
 the attention and secure the sympathy of those around. When 
 coarse ordinary grief ceases to do this, new forms of broken-heart- 
 edness are partly felt, partly feigned. Food is often refused. 
 Sleep is rejected. Very often these conditions, from being partly 
 affected, become wholly real. And yet, strangely enough, the suf- 
 ferer, when he thinks himself unobserved, will desist from them. 
 He will put on his mourner's air when he knows he is looked at ; 
 but, when he thinks himself unobserved, will permit himself to be 
 diverted. The only cure in sucli a case is for those about not to 
 pamper the hysteria, if such it be, by .petting and soothing it, other- 
 wise it may become irradicable." 
 
 3. Forms genrraUy simulated. 
 § 446. The species of mental unsoundness most frequently imi- 
 _, ,. . tated by the vulgar is delirium — which, at the same time, 
 
 Dehnuni .... 
 
 the form of is that Avliich it is the most difficult to sustain. Sheridan, 
 insanity • i i • i i • i • i i i i ^ 
 
 most usu- With his usual tact, hit upon this when lie made the mock- 
 
 hite/"""' author in the Critic throw his heroine into precisely this 
 
 stage : — 
 
 362
 
 SIMULATED INSANITY. [§ 447. 
 
 Enter Tilburina and confidant, mad, according to cnstom. 
 
 Sneer. But, what the deuce, is the confidant to be mad, too ? 
 Puff. To be sure she is ; the confidant is always to do what her mistress 
 does ; weep when she weeps, smile when she smiles, go mad when she goes 
 mad. Now, madam confidant — but keep your madness in the background, if 
 you please. 
 
 Tilb. . . . The wind whistles — the moon rises— see, 
 They have kill'd my squirrel in his cage ! 
 Is this a grasshopper ? — Ha ! no ; it is my 
 Whiskerandos ; you shall not keep him — 
 I know you have him in your pocket. 
 An oyster may be crossed in love ! — who says 
 A whale 's a bird ? — Ha ! did you call, my love ? 
 He 's here ! he 's there ! He 's everywhere ! 
 Ah me ! he 's nowhere ! [Exit. 
 
 Puff. There, do you ever desire to see any body madder than that ? 
 Sneer. Never while I live ! 
 
 Puff. You observed liow she mangled the metre ? 
 
 Dang. Yes — egad, it was the first thing made me suspect she was out of her 
 senses ? 
 
 Sneer. And pray, what becomes of her ? 
 
 Puff. She is gone to throw herself in the sea, to bo sure ; and that brings us 
 at once to the scene of action, and so to my catastrophe — my sea-fight, I mean. 
 
 § 447. Yet it is much more easy to counterfeit imbecility in its 
 
 lower stages, as maction rather than action is then re- 
 
 =■ ' Yetimbe- 
 
 quired. cllity easier 
 
 " The feigning madman in all ages has been apt to ° '^'^°' 
 fall into the error of believing that conduct utterly outrageous and 
 absurd is the peculiar characteristic of insanity. The absurd con- 
 duct of the real madman does not indicate a total subversion of the 
 intelligence ; it is not utterly at variance with the reasoning pro- 
 cesses ; but it is consistent either with certain delusive ideas, or with 
 a certain perverted state of the emotions. In the great majority of 
 cases, feigned insanity is detected by the part being overacted in 
 outrageousness and absurdity of conduct, and by the neglect of 
 those changes in the emotions and propensities which form the more 
 important part of real insanity. Sometimes mania is simulated — 
 the man howls, raves, distorts his features and his postures, grovels 
 on the ground, or rushes about his room and commits numberless 
 acts of violence and destructiveness. If he has had the oj)portunity 
 of observing a few cases of real insanity, and if he is a good mimic, 
 he may succeed in inducing a person who only watches him for a 
 
 303
 
 § 447.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 few minutes to believe that he is in the presence of a case of acute 
 mania ; but if the case is watched for a few hours or days, the de- 
 ception becomes apparent. No muscular endurance and no tenacity 
 of purpose will enable the sane man to keep up the resemblance of 
 acute mania : nature soon becomes exhausted, and the would-be 
 patient rests, and at length sleeps. The constant agitation, accom- 
 panied by symptoms of febrile disturbance, by rapid pulse, foul 
 tongue, dry and harsh or pallid, clammy skin, and long-continued 
 sleeplessness of acute mania, cannot be successfully imitated. The 
 state of the skin alone will frequently be enough to unmask the 
 pretender. If this is found to be healthy in feeling, and sweating 
 from the exertion of voluntary excitement and effort, it will afford 
 good ground for suspicion. If after this the patient is found to 
 sleep soundly and composedly, there will be little doubt that the 
 suspicion is correct. 
 
 " Chronic mania may be imitated ; and if this should be done by 
 an accurate observer of its phenomena, who also happens to be an 
 excellent mimic, it cannot be denied that the imitation may deceive 
 the most skilful alienist. It is remarkable that two of the most 
 perfect pictures of insanity presented to us in the plays of Shak- 
 spearc are instances of feigned madness — namely, the madness of 
 Hamlet, assumed to escape the machinations of his uncle, and that 
 of Edgar, in Lear, assumed to escape the persecutions of his 
 brother. These inimitable representations of the phenomena of 
 insanity are so perfect that in their per\isal we are insensibly led 
 to forget that they are feigned. In both instances, however, the 
 deception was practised ])y educated gentlemen ; and on the 
 authority of the great dramatic jjsychologist it may, perhaps, be 
 accej)tcd that the phenomena of insanity may be feigned by a 
 skilful actor like Hamlet so perfectly that no flaw can be detected 
 in the representation. Fortunately for the credit of psychologists, 
 insanity is rarely feigned except by ignorant and vulgar persons, 
 who are quite unable to construct and to act out a consistent system 
 of disordered mind. It must be remembered that all the features 
 of every case of insanity form a consistent whole, Avhich it requires 
 as much intelligence to conceive and to imitate, as it does to con- 
 ceive and to imitate any dramatic character. The idea which the 
 vulgar have of madness is of quite a different kind. They repre- 
 sent it as a monster, half man, half beast ; the emotions they repre- 
 364
 
 SIMULATED INSANITY. [§ 449. 
 
 sent unchanged and liuman, the intellectual functions they represent 
 entirely perverted, grovelling, and bestial. They think that mad- 
 ness entirely alters the character of a man's perceptions and utterly 
 destroys his judgment, so that he not only ploughs the shore and 
 sows salt for seed, but that he cannot recognize his own son or 
 avoid the destruction of his life. In more homely cases it will be 
 found that men feigning insanity pretend that they cannot read or 
 write, or count ten correctly, or tell the day of the week, or how 
 many children they have ; they answer every question wrongly, 
 which a real lunatic, who could be made to understand the question 
 and to answer it at will, would certainly answer right. "^ 
 
 § 448. The simulation of mania is beset with peculiar difficulties, 
 arisinof from the fact iust mentioned, that most simulants ,, . 
 
 . . . , . Mama 
 
 assume that maniacs reason illogically from logical pre- difficult to 
 mises, instead of logically from illogical premises. But, 
 as a general rule, the maniac follows, in mental processes, the neces- 
 sary laws of association.^ 
 
 § 449. The simulation of entire oblivion, as to the 7-es gestcv of 
 
 ffuilt, is a common but at the same time a suspicious „ 
 
 • 1 !« mi • 1 i- 1 • • Simulated 
 
 device of experienced offenders.^ The risk of this arises oblivion 
 
 from the fact that the conditions in which actual amnesia •'^1'^*^° • 
 intervenes are well known in medical science, and their absence 
 betrays the simulation. Thus the simulant is ready enough to 
 betray a remembrance of exculpatory facts coincident in time with 
 the condemnatory facts which he sedulously forgets ; and he is apt 
 to fluctuate in the limits which he assigns to his oblivion even of 
 inculpatory incidents. It is, as Dr. Kraft't-Ebing^ pertinently re- 
 marks, peculiarly suspicious, when oblivion suddenly protrudes 
 itself after arrest. On the other hand, cases are not rare where 
 persons of weak mind, shocked by a sudden accusation of guilt of 
 which they are innocent, have broken down mentally and nervously 
 under the charge, and have become actually deranged. An unre- 
 ported case may be mentioned as illustrative of this position. x\.n 
 American clergyman of respectability was charged, and on evidence 
 
 • Bucknill on Diagnosis of Insanity, see a learned essay by Dr. Nicholson 
 
 2 See on this Dr. Krafft-Ebing's in the Journal of Mental Science for 
 
 Essay on Simulation, in Friedrich's Jan. 1870. 
 
 Blatter for 1871, p. 1G3, and Combes's ^ See supra, § 410, 
 
 Annal. Med.-Psy, 18GG, p. 349, and ^ priedreich's BUUter for 1871, p. KiS. 
 
 3t)5
 
 § 451.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 of much strength, with a serious sexual crime. He was thrown into 
 a state of the highest nervous and mental excitement by the charge, 
 made an incoherent confession, and then fled the country. It sub- 
 sequently transpired that the charge was fabricated from beginning 
 to end, that the whole process was one of black-mailing, and that 
 the fugitive, whose mind was actually upset by the charge, was 
 entirely innocent. And, independently of the moral shock produced 
 by an accusation of guilt, imprisonment, by itself, may produce 
 insanity. 
 
 § 450. The physiognomy of mature madness does not admit of 
 
 imitation — tliough the case is otherwise Avith imbecility, 
 nomy iftid The demeanor of the individual under threats, or even 
 examiued^'^ under the application of painful remedies, is a criterion 
 
 of inferior value, because skilful impostors withstand the 
 test, and because many who are really affected, particularly before 
 the disease has assumed a settled character, manifest fear and dread 
 of such remedies, and retain, in a considerable degree, sensibility 
 to pain. The torpor of the stomach and bowels under the use of 
 emetics and purgatives is equally unreliable, because the same 
 condition is found unconnected with unsoundness of mind ; of greater 
 value is sleeplessness, which a deceiver will not long sustain after 
 the fashion of lunatics.' 
 
 § 451. The shortest road to certainty^ is by comparing the case 
 
 in hand with those recorded or experienced, and by a 
 soriofVases strict application of the inductive tests. Experience 
 tesV"""*'' teaches that the various abnormal conditions of the mind 
 
 have certain symptoms in common, by means of which 
 they admit of being arranged in greater or smaller subdivisions, 
 and finally of being reduced to certain clearly defined forms and 
 combinations of forms. Although every case, to a certain extent, 
 furnishes its own rule, yet this logical process will be of great avail 
 in detecting dissimulation, on the one hand, or groundless imputa- 
 tion of insanity, on the other. The more the phenomena of a case 
 of alleged insanity subject to examination differ from recorded ob- 
 servations, or the more a person of dubious insanity presents an 
 
 ' Scluirmayer, Gericlit. Med. § 533. choii Momente der Zureclinuiigsfaehig- 
 See supra, § 345. keit, p. 97. 
 
 * Ellinger, Uebor die anthropologis- 
 
 3G6
 
 SIMULATED INSANITY. [§ 452. 
 
 array of symptoms at variance with the form of the disease to 
 which they ought to belong, the more reason is there to guard 
 against deception.^ At the same time, it must be admitted that the 
 science of psychical medicine has not attained such a degree of per- 
 fection, as to exclude entirely the possibility of cases arising Avhich 
 would not admit of being classed with any of those already observed 
 and noted. At times they incline to mere moral perversity, and 
 are often treated as such for years ; or the disease itself is not yet 
 clearly developed ; or, finally, it has apparently ceased, or arrived 
 at a stage in which the patient is able to control and direct his con- 
 dition, as a drunkard his intoxication.^ 
 
 4. Not proved hy sanity at trial. 
 
 § 452. For the following reasons, simulation is not Reasons for 
 always to be inferred from the absence of insanity at 
 the time of the investigation: — ^ 
 
 a. Patients, whose minds are unsound on one subject only, have 
 the power of burying their madness in their own hearts, to such an 
 extent as to betray no sign of derangement in the course of the 
 examination ; because it is not necessary that the disturbance of 
 one function should impair the apparent action of the others. 
 There are many cases, which have been in part noticed, and some 
 of which will appear in the course of the following pages, in which 
 the sufferer is insane on one subject alone, while all the otlier 
 operations of his mind proceed as if unimpaired, so that any one 
 unacquainted with the fixed idea which controls him would pro- 
 nounce him perfectly rational.^ 
 
 h. It is established by experience, that lunatics, even when their 
 disease is not that of monomania, enjoy intervals in which their 
 understanding has not only its normal vigor, but even displays 
 uncommon powers.^ 
 
 c. A genuine mental disease may be suspended or removed by 
 
 ' Marc, Die Gelsteskrankheiten, etc., iialfii eiiiei- Aiistalt fiir Waliusiimige, 
 
 vol. i. p. 104. Hanover, 1804, p. 341. Esqiiirol, Note 
 
 " Scliiirinayor, Gericlit. Med., § r)33. sur la monomanie homicide;, I'ari.s, 
 
 3 Compare Friedreich, p. Kif). 1837, p. 3. 
 
 * Compare Wagner, Beitrage sur ^ Muratori, Ueber die iMnbildinigs 
 
 Philosophischen Anthropologic, Vien- Kr;ift, Jjcij)sic, 178.0, vol. ii. ji. 8. 
 
 na, 1794, vol. i. p. 114. Perfect, An- Reil's Rapsodien, p. 7<i. 
 
 367
 
 § 454.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the very circumstance which gives rise to the investigation, in 
 analogy to the cases of madmen restored to health by great mental 
 and moral shocks, as Avell as of persons attempting suicide from 
 melancholy or despair, who are cured of their folly by the impres- 
 sions received Avhile making the attempt.^ 
 
 § 453. Another consideration which must never be lost sight of 
 
 in investigations of the kind is this, that a pretended 
 insanity^ mental disease may turn into a real one.^ A man who 
 may turn niakcs every effort to appear deranged may be so much 
 
 affected by his efforts that what he pretends may assume 
 a reality in his mind, and he become in fact insane.^ In conclusion, 
 there is also a class of cases in which genuine paroxysms of mad- 
 ness alternate with pretended ones, which calls for especial caution 
 in pronouncing upon them.^ 
 
 5. Tests. 
 
 [See cases, in del edition, ^ 834, 835, cot d parti cularli/ § 836.] 
 
 § 454. There are persons of unsound mind, who, in the incipient 
 
 stages of the disease, retain sufficient consciousness to 
 
 tionsfor endeavor, for various reasons, to conceal their malady. 
 
 coveVvof ^ continued attentive observation of such individuals 
 
 concealed y\'i\\ however, suffice, in jreneral, to furnish the data for 
 
 insanity. ' _ ' ' o ? 
 
 a correct view of the case. But even in cases of con- 
 firmed insanity, an occult condition, so called, may occur, in which 
 the madman tries and manages to conceal his ailment, or rather his 
 impulses, fancies, and feelings. Tliis is particularly fre(|ucnt in 
 lucid intervals and in partial insanity.^ To interrogate the patient 
 directly to the point is of very little avail, for, if he is anxious to 
 conceal his madness, any questions will inspire him with a suspicion 
 
 ' Etudes Medico-Psyuhologiques sur Leipsic, 1852, p. 397. And Pye, Auf- 
 
 TAlienation Mentale, par L. F. E. saetze, etc., aus der gerichtlichen Arz- 
 
 Renandin, chap. ix. p. ^>'22. Paris, neiwissenseliaft, third series, p. 219. 
 
 1854. And see particularly Schiirmayer, § 
 
 2 For an interesting essay on Mono- 535, whence the above observations are 
 mania induced by imitation, see 1 Am. drawn. 
 
 .Journ. of Insan. 11<). ^ Friedreich, Diagnostik, p. 38 ; and 
 
 3 Ibid. 172. his Handbuch der gerichtlichen Psj- 
 * Compare Neumann, Die Krank- chologie, 175. 
 
 Leiten des Vorstellun<isvermoegens, 
 
 368
 
 SIMULATED INSA^TY. [§ 454. 
 
 of the questioner ^hicli must frustrate all such efforts. Under such 
 circumstances, the following suggestions will be found useful : — 
 
 a. By bringing the patient into a succession of different relations 
 of life, and regarding closely the effect produced upon him, some 
 indications of his fixed ideas may be made to escape him. If the 
 subject of his lunacy is thus brought into question, by contradicting 
 his views in connection with it, the perversion of his intellect will 
 be doubly apparent. 
 
 h. It is, as has been heretofore shown,' important to furnish the 
 party w^ith pen, ink, and paper, and induce him, under some pretext 
 or other, to write ; he Avill not be able to refrain from setting down 
 something which will throw more or less light on the nature of his 
 derangement. 
 
 c. Ileindorf proposes that the physician should narrate the 
 patient's own history, or so much of it as he had learned or could 
 surmise, to the patient, as tlie history of the physician; this is to 
 enlist the confidence of the patient and make him suppose a parallel 
 between his own case and that of the examiner, so that the didce 
 habere socium malorum may elicit circumstances which he would 
 otherwise have concealed. 
 
 d. A similar proposal is to associate the individual Avith another, 
 of equal rank, degree of education, social position, etc., with him- 
 self, as a confidant, as persons of this description generally display 
 more frankness towards people of their own order, than towards 
 those whom they regard as above them. This idea, however, it 
 will be easily seen, is very difficult of practical application. 
 
 The tests which may be applied at a medico-legal examination 
 have been noticed under a previous head.' 
 
 Though patients of this kind may conceal, they can never doiij 
 their fixed ideas. Many persons, says Ileinroth, who, in a healthy 
 state, had no scruples in telling a large series of falsehoods, when- 
 ever their interest required it or a confession of the truth would 
 subject them to a disagreeable exposure, forget all this the moment 
 they have a fixed idea to maintain. Then they overlook every ad- 
 vantage, and stand at no absurdity and no disgrace. To hold fast 
 the fancy which enchains them, is their only aim. If the physician 
 can discover this fancy, he has but to ply the party with questions 
 
 « Supra, § 386. « Supra, §§ 345-382. 
 
 VOL. I.— 24 369.
 
 § 457.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in reference to it, to make him betray himself, and in many cases 
 
 disclose more than the inquirer had ever thought of investigating. 
 
 § 455. Artificial instrumentalities , though sometimes of doubt- 
 
 . .„,. ful propriety, have been not infrequently used to test 
 
 tests some- simulation. The consequence may be at least to relieve 
 times used. , . « i , , mi t-\ o i, • 
 
 the question oi doubt, ilius Dr. btoltz, in an essay in 
 
 the Wiener Med. Wo eh en. tch rift for 1870, mentions an instance 
 where chloroform was employed in such a way as to show that the 
 plea of irresponsibility Avas well-founded. The patient purported 
 to be deaf and dumb, and he was narcotized, with the expectation 
 that, if he was really capable of speech, this capacity would exhibit 
 itself, either when he was in the condition of trance, or in tlie pro- 
 cess of recovery of consciousness. He was placed under the influ- 
 ence not only of alcohol, but of chloroform, without an articulate 
 sound being produced. The conclusion was that his disease was 
 not feigned. In cases of simulated insanity. Dr. Stoltz is strongly 
 of opinion that chloroform and ether may be successfully used as 
 detectives. Dr. Nicholson, in the Journal of 3fe)ita.l Science for 
 January, 1870, expresses the same opinion as to the use of electri- 
 city ; though as a general rule, he considers the use of artificial 
 agencies in such cases as objectionable on moral and humane 
 grounds.^ 
 
 § 456. Periodicitif is a necessary condition, as has been seen, 
 of certain phases of insanity, and when this periodicity 
 
 Periodi- . \ "^ ' . *^ 
 
 city a test fails, whcn, in other words, the symptoms which should 
 a coudi- t^ periodical and intermittent are exhibited in uninter- 
 tion of 111- niitting constancy, then there is serious j^round for sus- 
 picion. 
 
 § 457. 3jy counsel who arc charged with examining alleged 
 lunatics, the following points may be kept in mind : — 
 
 a. Silence or evasion of questions, on the plea of weakness of 
 
 memory, or confusion of thought, is always suspicious. 
 Silence or -r, • • ^^ ^ ■ 
 
 evasion of -Lt IS, as IS well known, and as was conspicuously illus- 
 
 suspi^i'ous' ^'^'^^ed in the case of the Italian witnesses produced to 
 
 criminate Queen Caroline, the usual resort of a witness 
 
 who fabricates a case, and who has skill enough to know that full 
 
 and free replies will involve him in contradictions. To the idiot, it 
 
 ' See appendix No. ix. 3d ed. of this work. 
 
 370
 
 SIMULATED INSANITY. [§ 459. 
 
 is true, or the maniac whose phase is silence, silence is natural ; 
 but cases such as these are capable of abundant proof aliunde. The 
 imbecile, however, and the person laboring under the ordinary 
 phases of amentia, is talkative enough, and answers where he can, 
 Avhether coherently or incoherently. Suspicion should be pecu- 
 liarly aroused when the examinant, on the plea of weakness of 
 mind, avoids answering, not merely those questions concerning 
 which such weakness might naturally be pleaded, but those which 
 concern facts which must be indelibly imposed on the memory, such 
 as parents, place of education, prominent places of abode. The 
 tendency of true imbeciles to vague and rambling conversation is 
 unmistakable. Their attention is not to be fixed on the examiner ; 
 their eyes wander ai'ound the room, and, if they see a relative or 
 friend, they look to such dependently to help them to a reply ; they 
 often repeat feebly to themselves the question, as if to lead them in 
 their reply. 
 
 h. § 458. The allegation of " delusion," or " hallucination" is 
 one which the real lunatic rarely advances. Just be- 
 
 , ... Real hnia- 
 
 cause he believes m these fancies, he is loath to speak of tics rarely 
 them when under examination, because he is loath to ed<'e deiu- 
 have them the subjects of criticism. The difficulty, in- ^^o"''^- 
 deed, of extracting from the real lunatic a confession of such be- 
 liefs, is well known ; sometimes the most experienced examiner is 
 baffled for hours, and the secret is at last only elicited by a surprise.^ 
 On the other hand, simulants are apt to push, such alleged delu- 
 sion, especially that of " persecution," prominently forward, for- 
 getting that for a person to declare that he suffers under a delusion 
 that he is persecuted, is to admit that he knows that he is not per- 
 secuted at all.^ 
 
 c. § 459. Most difficult is it for the simulant to play consistently 
 for any length of time his feigned part. lie has, in the 
 first place, to select intelligently some one particular simuiatioii 
 phase of insanity, for such phases are several, with very py"'Jj[^iJ'''' 
 distinct characteristics. lie must then, when he writes, 
 or when he speaks, in the court room, and in his charaljer Avhen he 
 believes himself unobserved, in periods of lassitude as well as in 
 periods of excitement, preserve these characteristics. In this even 
 
 ' See supra, § 378. ^ See Rupra, § 385. 
 
 371
 
 § 460.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY, 
 
 the most consummate actors would fail ; and simulants of insanity 
 are not often consummate actors. They generally seize upon de- 
 lirium, and in this, if they are long watched, they are betrayed by 
 their over-acting w-hen they think themselves watched, and their 
 repose when watching appears to them to have ceased. The real 
 maniac, also, is laboring under a nervous excitement which makes 
 him sleepless, and invests him with singular and persistent muscular 
 vehemence. The simulant has no such abnormal frenzies ; he must 
 sleep and rest, as a recruiting process for his very simulation. 
 This, however, is but a single type. The simulant may select some 
 other ; often some of which he may have had opportunity of per- 
 sonal observation. But in the long run similar discrepancies will 
 be betrayed. And again, there are some signs which it is very 
 difficult to imitate. Muscular twitching ; vague simpering and self- 
 talking both when alone and in company ; the eye, whether lack- 
 lustre or wild ; these no mimic can persistently feign. 
 
 d. § 460. Yet it must not be forgotten that simulation does not 
 
 exclude insanity. Epileptics, and persons subject to 
 
 latiim does hystcria, are apt to exaggerate some symptoms, and sim- 
 
 uot exclude uiate others. But this kind of simulation confines itself 
 lusauiiy. 
 
 to those symptoms which are likely to attract sympathy, 
 such as delusions and ner\-ou3 or physical disease. Simulated 
 mania or idiocy rarely is attempted except by the responsible or 
 sane. 
 
 372
 
 AS CONNECTED WITH PHYSICAL DISORDEKS. 
 
 CHAPTER IV. 
 
 MENTAL UNSOUNDXESS AS COXXECTED WITH PHYSICAL 
 
 DISORDERS. 
 
 I. As CONNECTED WITH DERANGEMENT OF 
 
 THE Senses, and Disease. 
 1. Deaf and duvih. 
 
 (a) Psijcholof/icalli/. 
 Responsibility of deaf-mutes condi- 
 tioned on education, § 461. 
 
 Test of capacity, § 462. 
 Capable of instruction, § 463. 
 
 (b) Legally. 
 
 Prima facie capable of business and 
 
 responsible, § 464. 
 Illustrations, § 466-468. 
 
 2. Blind, 
 Blindness does not affect responsibility, 
 § 469. 
 
 3. Epileptics. 
 
 Peculiar tendency of epilepsy to insan- 
 ity, § 471^. 
 
 Nature of epilepsy, § 471. 
 
 Distinction between the several classes, 
 §472. 
 
 Existence of obscure epilepsy, § 473. 
 
 Different stages of the disease, § 474. 
 
 Epilepsy not affecting responsibility, 
 § 475. 
 
 Rule as to intermediate stages, § 476. 
 
 Tests laid down by C'larus, § 477. 
 
 Different conditions of intermediati; 
 stages, § 478. 
 
 Dr. Maudsley on moral effects of epi- 
 lepsy, § 480. 
 
 Murder during epileptic attack — Law- 
 tou's case, § 481. 
 
 IL As CONNECTED WITH SlEEP. 
 
 Division of this subject, § 482. 
 General effect of sleep on the senses, 
 §483. 
 
 1. Somnolentia, or sleep-drunkenness. 
 
 Somnolentia defined, § 484. 
 
 Cases of irres]3onsibility produced by 
 sleep-drunkenness, § 485. 
 
 Somnolentia distinct from somnambu- 
 lism, § 487. 
 
 Necessary tests to determine responsi- 
 bility, § 488. 
 
 Observations of Dr. Kriigelstein, § 489. 
 
 Cases given by Dr. Taylor. § 490. 
 
 Somnolentia as a defence may be un- 
 duly strained, § 491. 
 
 2. Somnamhidism. 
 
 Conditions of somnambulism, § 492. 
 
 Somnambulism a species of delirium, 
 § 493. 
 
 Instances of somnambulism producing 
 nneonsciousness and irresponsibility, 
 § 494. 
 
 Dr. Abercombie's vi(;ws on subject — 
 somnambulist not responsible for bis 
 acts, § 496. 
 
 Instances of somnambulism, § 498. 
 
 Causing involuntary hoiuicide, § 499. 
 
 Opinion of Sir W. Hamilton tbat con- 
 sciousness is present in somnambu- 
 lism, § 500. 
 
 Statement of Prof. .lessen, § 501. 
 
 37a
 
 § 461.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in. As AFFECTING THE TEMPERAMENT. 
 
 1. Depression. 
 
 Depression often a transition stage to 
 
 insanity, § r)02. 
 Views of Morel on depression, § 503. 
 Of Reid, § 505. 
 Depression often intermittent, § 500. 
 
 2. Hypochondria, 
 
 Hypochondria the state of total depres- 
 sion, § 508. 
 
 Description of hypochondria, § 5O0. 
 
 Ilypocliondria does not destroy respon- 
 sibility unless complicated and aggra- 
 vated, § 511. 
 
 Is often complicated with other diseases 
 diminishing resi)onsibility, § 512. 
 
 Distress of body may relieve distress of 
 mind, § 513. 
 
 Hypochondria may be controlled by 
 the will, § 514. 
 
 Or dispelled, § 515. 
 
 3. Hysteria. 
 
 Hysteria much like epilepsy, § 517. 
 
 Symptoms of hysteria, § 518. 
 
 Hysteria may produce delusions affect: 
 ing responsibility, § 520. 
 
 But attacks of hysteria rarely exclude 
 responsibility, § 521. 
 
 Dr. Maudsley's description of hysteria, 
 § 522. 
 
 4. Melancholia. 
 
 Melancholia is settled and continuous 
 depression, § 523. 
 
 Cliaracteristics of melancholia, § 524. 
 
 It is often due to sexual causes, § 525. 
 
 May produce mental confusion and loss 
 of self-control, § 520. 
 
 And development of abnormal im- 
 pulses, § 527. 
 
 Or conscious acts induced by halluci- 
 nations or delusions, § 528. 
 
 Homicide or suicide under influence of 
 depression, § 529. 
 
 Generally preceded by a state of calm, 
 § 530. 
 
 I. AS CONNECTED WITH DERANGEMENT OF THE SENSES, AND DISEASE. 
 
 1. Deaf and dumb.^ 
 (a) P^ycltologicaJlij. 
 ^ 4til. The dc(tf and dumh^ where their infirmity is congenital, 
 
 or contracted in early infancy, are always in an abnor- 
 mal mental and moral condition, owing to the absence of 
 hearing and speech, the two main faculties for culture.^ 
 For this reason, only the permanently and absolutely 
 deaf and dumb come now under consideration, and in 
 such cases the point of in(|uiry will be the degree of development of 
 the mental and moral powers, that is to say, of the power of under- 
 standing the conseipiences and the wrongfulness of the act cora- 
 
 Respoiisi- 
 bility of 
 deaf-nmtes 
 conili- 
 ticined on 
 edui-ation. 
 
 ' See an interesting treatise on this Deaf-mutes will be found in the Pro- 
 point, S Am. .lourn. of Ins. 17. L. ceedings of tlie N. Y. Med. Leg. Soc. 
 Kralimer, Handbuch der a.'ri(-lit. Med. (N. Y. 1872) pp. 510-545. 
 Halb-. ('. A. S.liwctschk.-, 1.S51, § 122. 2 Friedreich, Handbuch der Gericht- 
 A valuable essay l)y Dr. K. Pcct on lichen Psychologie, p. 05D. 
 
 374
 
 DEAF AND DUMB. [§ 462. 
 
 mitted. What will always exert great influence is the question 
 whether the deaf and dumb person has received any, and Avhat 
 instruction ; where no instruction has been efficient, there is always 
 great reason to conclude that the psychological conditions are want- 
 ing upon which moral responsibility depends.^ The most difficult 
 part of the task is alwaj^s the examination of the individual, which, 
 to lead to a reliable result, requires the assistance of an adept — 
 that is to say, a teacher of the deaf and dumb. In pronouncing 
 upon such cases, it must not be forgotten that the permanently and 
 absolutely deaf and dumb have a peculiarly irascible disposition, 
 and that many of them, especially those whose features are marked 
 by froward, morose, gloomy, and sinister expression, and more or 
 less resemble those of the cretins, are born with a tendency to 
 deceit, malice, cunning, duplicity, and cruelty.* 
 
 § 402. In regard to the form and manner in which the intellectual 
 condition of the deaf and dumb should be examined and Tests of 
 probed, Hoffbauer and, after him, Freidreich have given capacity-. 
 a series of directions substantially as follows : Where the deaf and 
 dumb person is able to understand spoken words by following the 
 motions of the lips, the inquirer must speak distinctly and with 
 marked articulation, so as to enable the patient to see what he says. 
 Where oral examinations are impracticable or unsatisfactory, the 
 scrutiny, if possible, must be made in writing, when it becomes 
 especially important to propound simple questions, intelligible to 
 every one. But they must not be such merely as the patient is 
 likely to expect beforehand, for these might be answered promptly 
 and correctly ; not, however, because he has properly examined 
 into and understood their meaning, and properly concentrated in 
 his own thoughts the answer he returns, but because he considers 
 the question as written down, without tliinking further about it, as 
 a request to commit to paper that which may be a mere mechanical 
 form. And yet so long as these answers are correct, or, if not 
 correct, at least congruous, there is room to believe that the ques- 
 tions were understood by the patient, and that he is able, to a cer- 
 
 ■ See J. Briaiid, Med. Leg., article Paris, 1848. Also, Traitii dcs maladies 
 
 stir la siirdi-mutite, p. 569, Paris, de I'oreille et de raiiditioii, par Itard, 
 
 1852. See also M. Orfila, Med. Leg. vol. xi. 
 
 sur la surdi-mutite, tome i. p. 4(J0, ^ Schtirmayer, Oerielit. Med., § 5(J2. 
 
 375
 
 § 463.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 tain extent, to make himself intelligible to others by means of 
 writing. ]>ut the contrary does not appear if his answers are 
 incongruous. But if several answers are incongruous, and particu- 
 larly if it is found that a certain number of answers are constantly 
 repeated, no doubt remains that the individual, however capable of 
 tracing written characters, is not able, in the proper sense of the 
 word, either to read or write. Where it is necessary to converse 
 with the deaf and dumb person by means of signs, and for this pur 
 pose to call in the assistance of an expert, the capacity of the latter 
 must be so far taken into account as to obtain the assurance that he 
 will speak and interpret according to the intention of the judicial 
 purpose had in view ; for which reason it will be important to instruct 
 the interpreter fully on this subject. It may also be necessary, 
 and is declared indispensable by some,^ to employ two interpreters 
 at the hearing. Itard is of opinion that the intellectual capacity of 
 a deaf and dumb person should be tested by a written collocjuy, 
 and that, if incapable of taking part in such communications, he is 
 to be looked upon as lacking the necessary instruction, and idiotic. 
 The same high authority further remai'ks that, if a deaf and dumb 
 man denies having received any instruction, in the hope of escaping 
 piniishmcnt on the score of ignorance, the proper course is to accuse 
 him of a graver crime, and one of another character from that 
 imputed to him,^ and that, on the whole, a deaf and dumb man who 
 understands the ([uestions asked of him in writing is much the same 
 as a man entirely compos nwutis. Marc says that, when the re- 
 sponsibility of a deaf and dumb person who has been taught to con- 
 verse is in question, a hearing should be had, without any judicial 
 preparation, under the form of a conversation on general subjects 
 entirely foreign to the oftence committed, from which, by an asso- 
 ciation of ideas, a transition should be effected to general questions 
 of morals and social order. 
 
 § -l<J-5. "There is but little difference," says Orfila, "between 
 Capable of ^hc uninstructcd deaf and dumb and the idiot, and such 
 iustruftion. jg ^jjg affinity existing between these two conditions of 
 the intelligence, that more than the fortieth part of the deaf and 
 
 ' Kleinschrod. in order to justify himself, and will 
 
 2 If he knows how to write, he will thus show the whole range uf his in- 
 have innnediate recourse to this method telligence. 
 
 3<^5
 
 DEAF AND DUMB. [§ 464. 
 
 dumb are afflicted with idiocy. It may be that this mental incapa- 
 city is the result of inaudition, or it may depend upon the same 
 cause that paralyzed the auditive sense. It should be observed, 
 however, that the idiot is incapable of learning, whilst the deaf and 
 dumb, on the contrary, can receive an almost complete education. 
 Even if the uninstructed deaf and dumb do not know all the conse- 
 quences of certain criminal actions, still chey are not slow in learn- 
 ing that these actions are censurable, and even that they are the 
 subject of punishment."^ But, though a party seeking to charge 
 an uneducated deaf-mute has the burden on him of proving some 
 degree of intelligence on the part of the defendant, yet, when this 
 is shown, the defendant can no longer plead his disability as a bar. 
 
 {b) Legally. 
 § 461. In addition to the former remarks on this point,^ it may 
 now be stated:— ^ rnma facie 
 
 a. The deaf and dumb can exercise control over prop- capable of 
 
 -r^^., , ,,. Ill business 
 
 erty. In 1^04, a woman born deal and tlumb, upon andrespon- 
 arriving at the age of twenty-one years, applied to the 
 English court of chancery for the possession of her real estate, and 
 for the enjoyment of her personal estate (it is presumed that she 
 had been previously under the control of a guardian). Upon her 
 appearing before the chancellor. Lord Hardwicke, he put questions 
 to her in writing, and, receiving suitable written answers, her appli- 
 cation was granted. 
 
 h. They can take by descent, a point which we believe has never 
 been disputed. 
 
 c. When otherwise of disposing capacity, they can make a valid 
 will. 
 
 d. Even though uneducated, if capable of intelligently bargaining 
 (though it seems the burden of proving this is on the l)arty seeking 
 to charge them), they may make a valid contract, or convey real 
 and personal estate.^ 
 
 e. If compos mentis they can contract matrimony.* 
 
 1 Med. Leg., tome i. p. 400, Piiris, * Swiubtinie on Spousals, eited 13 
 1848, Am. Joiirn. Ins. 127. 
 
 2 Supra, § 95. 
 
 ' See supra, §§ 95-98. 
 
 377
 
 § 464.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 /. They can be examined as witnesses in courts of justice ; and 
 for this purpose it is proper that their testimony should be inter- 
 preted through media which they best understand.^ 
 
 g. They are legally responsible for crimes in the same way as 
 other persons, though, in determining the question of sanity, their 
 disability, when not removed by education, should throw on the 
 prosecution the burden of proving them to have some degree of in- 
 telligence.^ 
 
 " The favor of courts and jurists may also be justly invoked for 
 a deaf person in cases where he has acted under erroneous impres- 
 sions natural to one in his circumstances. Deaf-mutes, and deaf 
 persons Avho are not quite dumb, are often suspicious and irritable, 
 from their inability to hear and take part in what is going on around 
 them. They sometimes take as intentional annoyance and insult 
 gestures of practical jests, unskilfully made, which were merely in- 
 tended as friendly pleasantry. Piroux records the case of Jean- 
 Baptist Villemin, a deaf-mute of twenty-nine years, very imper- 
 fectly educated, and of feeble capacity. Placed by the Avealth of 
 his family above the necessity of manual labor, and incapable of 
 intellectual labor, he fell into dissolute habits, wandering idly about 
 the fields and frecjuenting public houses. One night, in a tavern, 
 he met a man named Marchand, who attempted to amuse himself 
 and tlie company by making signs to the deaf-mute which the latter 
 did not understand. Villemin indicated by a gesture that he de- 
 sired to be let alone ; but Marchand continued to annoy him, seizing 
 his head, making a bite at his nose, and brandishing round his head 
 a cane, which he then held in the attitude of firing a gun, saying to 
 the company that he wished to invite Villemin to go a hunting. 
 Villemin naturally lost his patience ; unable to understand what 
 Avas meant by Marchand, or to express his own sentiments, except 
 by actions, he seized the aggressor, flung him on the floor, and gave 
 him a kick on the head. Marchand was only slightly hurt. The 
 company declared, and he admitted, that he was himself to blame; 
 and he said he harbored no ill-will to Villemin for what had passed. 
 Returning home, a distance of several leagues, on foot, he fell sick 
 and died of a disease of the chest, which his family chose to ascribe 
 
 • Wh. Cr. Ev. § 375 ; 13 Am. Journ. 2 See supra, §§ 95-98. 
 Ins. 155. 
 
 378
 
 DEAF AND DUMB. [^ 466. 
 
 to the blows which he had received from Villemin — which, however, 
 was disproved by the medical witnesses. The deaf-mute was, in 
 the first instance, sentenced to two months' imprisonment ; but, on 
 an appeal to the Cour Roy ale of Nancy, in consideration of the un- 
 fortunate condition of Villemin, and of the brutal and inconsiderate 
 conduct of Marchand, the term was reduced to six days.^ 
 
 § 4(35. " Other cases may easily be supposed in which a deaf 
 person may be led to violent conduct by his inability to hear, and 
 to understand what is meant by others. An impatient man, for in- 
 stance, requests a deaf-mute to get out of his way, and, not know- 
 ing that the latter could not hear his request, attempts to shove him 
 aside, thus provoking a manual retort. A deaf-mute may also 
 erroneously conceive himself wronged in making change, or in price, 
 weight, or measure, and break out into violence. In such cases, 
 we are confident, there are very few who would undertake a prose- 
 cution for violence by a deaf-mute, after becoming aware of his 
 peculiar condition 
 
 § 466. " At Cologne, on the 14th and loth of August, 18:i9, the 
 royal court of assizes was occupied by an accusation mustra- 
 against a deaf and dumb journeyman shoemaker, Johann ^^""*^- 
 Schmit, of Kreuznach, who, enraged at being upbraided for the 
 defects of his work, had stabbed his master with a knife. The 
 principal question discussed Avas whether the early instruction and 
 moral and intellectual state of the deaf-mute made for or against 
 his accountability. The jury found that the unfortunate murderer 
 was not accountable; and he was, therefore, acquitted of the charge, 
 and dismissed free into the street. This (adds the editor of the 
 Hamburg Report), it is to be hoped, was not without that solicitude 
 that might secure a better education to the unfortunate man, then 
 twenty-three years old, and sufficient precautions lest he sliould 
 become possessed with the idea that he could do such acts with 
 impunity." 
 
 "- A much more aggravated case than the foregoing was that of 
 Michael Boyer, an uneducated and vagabond deaf-mute, of about 
 twenty-seven or twenty-eight years, who was brought before the 
 court of assizes of Cantal (France), under the triple charge of rape, 
 murder, and robbery, committed on a girl of eleven years, whom he 
 
 ' Piroux's Journal, i. 4G, 59. 
 
 379
 
 § 467.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 met in a lonely place on Christmas day, 1843, on her way to the 
 residence of an aunt in a distant village, with whom she was to 
 spend the winter in order to attend school. Boyer was proved to 
 have pursued other females with evident intentions of violence, and 
 had been, some years before, condemned to three years' imprison- 
 ment for theft. The evidence, though circumstantial, was con- 
 clusive. It is not to our purpose to detail it. We observe, however, 
 that the prisoner, being interrogated through M. Riviere, director 
 of the school for the deaf and dumb at Rodey, denied, energeti- 
 cally, the principal facts imputed to him, and succeeded in making 
 it understood that he maintained that the blood observed on his 
 garments came from a Avound in the head, occasioned by a fall 
 while in liiiuor. What plea was by his counsel set up in defence 
 we are not informed. The jury found him guilty of the triple 
 charge, but admitted extenuating circumstances — a verdict the effect 
 of which was to save the prisoner's life. He was condemned to 
 hard labor for life, and to the exposition jjuhlique (pillory, or 
 stocks).^ It should be observed that the only extenuating circum- 
 stances that appear in the narrative of this fearful crime were the 
 total deprivation of instruction, and neglected, vagabond state of the 
 
 criminal 
 
 § 407. "Another deplorable instance of the ungovernable pas- 
 sions of too many uneducated mutes is furnished by the case of 
 Pierre Lafond, who having been repeatedly detected in thefts of 
 the property of his uncle and aunt, by whom he had been adopted 
 and brought up, his aunt was at length provoked to the degree of 
 following and reproaching him in the presence of a young neighbor, 
 of whom Lafond was enamored. Watching an opportunity to exe- 
 cute the vengeance that rankled in his heart, he availed himself of 
 the absence of his uncle to attack his aunt at night, in her bed, 
 with several of the shoe-knives used by him in his trade. Iler 
 daugliters, coming to her assistance, were also grievously wounded, 
 but, providentially, none of the victims were mortally touched. 
 Taken, a day or two afterwards, wandering in the fields, Lafond 
 alleged, by the aid of an interpreter conversant with his signs, that 
 he coumiitted the act under the influence of a sudden fri;:ht and 
 hallucination. However, neither this adroit defence nor his uufor- 
 
 ' Morel's Aunak'S, ii. lGG-170. 
 
 380
 
 DEAF AND DUMB. [§ 468. 
 
 tunate position could make the jury forget the aggravating circum- 
 stances of the case. He was found guilty, and condemned to ten 
 years at hard labor .^ 
 
 " In the several French cases that have been cited (and we 
 might have cited other similar cases from Bebian's, Piroux's, and 
 Morel's Journals), no difficulty appears to have been experienced 
 in relation to the formalities of a trial ; the questions that were 
 raised related to the degree of moral accountability of the deaf and 
 dumb. But the few English and Scotch cases we have are mostly 
 of a different character. In these cases the defence set up for 
 deaf-mutes accused of crime has generally turned on legal forms 
 and technicalities. As this paper has already extended to an unex- 
 pected length, and as the cases to which we refer can be consulted 
 at large in standard works, we shall restrict ourselves to brief out- 
 lines. 
 
 § 468. " In July, 1817,^ Jean Campbell, an uneducated deaf and 
 dumb woman, the mother of three children by three different fathers, 
 was charged before the court of justiciary, in Edinburgh, with mur- 
 dering her child by throwing it over the old bridge at Glasgow. 
 Mr. Robert Kinniburgh, an eminent teacher of the deaf and dumb, 
 was called as an expert. He understood, from her signs, that she 
 maintained that, having the child at her back, held up by her cloak, 
 which she held across her breast with her hands, and being partially 
 intoxicated, she had loosened her hold to see to the safety of some 
 money in her bosom, thus allowing the child to fall over the parapet 
 of the bridge, against which she was resting. She indignantly de- 
 nied having intended to throw it in the river. 
 
 " Mr. Kinniburgh, being asked whether he thought she could 
 understand the question, whether she was guilty or not guilty of 
 the crime of which she was accused, answered, that in the way in 
 which he puts the question, asking her by signs whether she threw 
 the child over the bridge or not, he thought she could plead not 
 guilty by signs, and this is the only way in which he could put the 
 question to her ; but that he had no idea, abstractly speaking, that 
 
 ' Ibid. i. 5G. Deaf and Dumb, which was lirst ()|ien 
 
 * Beck gives this date 1807, whicli in 1»10, was called in the case, and 
 
 is a manifest error, as Mr. Kinniburgli, referred to it in his report for Ibl.j. 
 
 of the Edinburgh Institution for the 
 
 381
 
 § 468.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 she knew what a trial was, but she knew she was brought into court 
 about her child. 
 
 "John Wood, Esq., auditor of excise (who is deaf and partially 
 dumb), gave in a written statement upon oath, mentioning that he 
 had visited the prisoner in prison, and was of opinion that she was 
 altogether incapable of pleading guilty or not guilty ; that she stated 
 the circumstances by signs, in the same manner she had done to the 
 court when questioned before the court by Mr. Kinniburgh, and 
 seemed to be sensible that punishment would folloAV the commission 
 of a crime. 
 
 " The court were unanimously of opinion that this novel and im- 
 portant question, of which no precedent appeared in the law of this 
 country [Scotland], deserves great consideration, and every infor- 
 mation that the counsel on each side could procure and furnish. 
 
 "At a subsc(|uent period the judges delivered their opinion as 
 follows : — 
 
 " Lord Ilermand was of opinion that the panel (prisoner) was 
 not a fit object of trial. She was deaf and dumb from her infancy; 
 had had no instruction whatever ; was unable to give information to 
 her counsel, to communicate the names of her exculpatory witnesses, 
 if she had any, and was unable to plead to the indictment in any 
 way whatever, except by certain signs which he considered no 
 pleading whatever. 
 
 "The four other judges, however, overruled this opinion, refer- 
 ring especially to a case (already mentioned in a former part of 
 this paper) that had occurred in England, in 1773, in which one 
 Jones, who had stolen five guineas, appearing to be deaf and dumb, 
 and being found by the jury impanelled on that point to be mute 
 ' from the visitation of God,' was arraigned by the means of a woman 
 accustomed to converse with him by signs, found guilty and trans- 
 ported. And it was also observed that it might be for the prisoner's 
 own good to have a trial ; for, if the jury found that her declara- 
 tion, that she did not intend to throw her child in the river, was 
 true, she would be acquitted and set free ; whereas, if not found 
 capable of being tried for a crime, she must be confined for life. 
 The woman Campbell was accordingly placed at the bar, and, when 
 the (juestion was put, guilty or not? 'her counsel, Mr. McNeil, 
 rose, and stated that he could not allow his client to plead to the 
 indictment, until it was explained to her that she was at liberty to 
 382
 
 blind: epileptics. [§ 470. 
 
 plead guilty or not. Upon it being found that this could not be 
 done, the case was dropped, and she Avas dismissed from the bar 
 simjjUciter. Thns, though it is established that a deaf-mute is doli 
 capax, no means have yet been discovered of bringing him to trial.' 
 
 " Certainly the system of laws of Scotland must be defective, 
 under which important leading cases are decided, not on broad, 
 general principles, but on mere formalities and technicalities."^ 
 
 The manner in which deaf and dumb persons are to be arraigned 
 has been noticed in another work.^ 
 
 2. Blind. ■ 
 
 § 4G9. Blindness^ can only come in question here when it is 
 congenital or has originated in early infancy, for then 
 only can it exercise decisive influence on the mental and does not 
 moral development. In general, however, blindness gponsibmtv 
 is no reason to suspend the personal responsibility of an 
 agent ; the defects of the mental and moral nature consequent upon 
 it are not diseases ; and the bearing which they have upon the 
 degree of culpability ascribable to an act committed in violation of 
 law must be referred to the discretion of the court, as guided by 
 the circumstances of each case.^ 
 
 3. Uplhj/tics.^ 
 
 § 470. Epileptics, from their nervous susceptibility and their 
 tendency to mental alienation, should be regarded with 
 peculiar tenderness by those to whom is committed the temiency of 
 administration of public justice. Nor should the idea of a t'P'i''P*y to 
 
 '■ "^ , in!>aiiity. 
 
 recent recovery ever exclude one who has been so afflicted 
 from that protection which would secure at least a patient investi- 
 gation of the question of moral responsibility. Recent investiga- 
 tions, conducted by men of eminent sagacity and great opportunities 
 
 ' Essay by Dr. Peet ; see supra, § 96. * See L.Kralimer, Handbncli (Icricht. 
 
 2 Wh. Cr. L. § 532.- Med. Halle, C. A. Schwetsclike, 1851, 
 
 3 Shiirmayer, Gericht. Med. 503 ; § 122 ; see J. Briand, Med. L6g. p. 508, 
 and see L. Krahraer, Handbueh de Paris, 1852 ; M. Orfila, Med. Leg. 
 Gericht. Med. Halle, C. A. Seliwet- tome i. p. 332, Paris, 1848 ; M. Falret, 
 schke, 1851, § 122; supra, § i)5. Cliniqiies de Medecine Mentale, i).521, 
 
 * Compare Friedreich, 070, where Paris, 1854. 
 th(i learning on this subject is col- 
 lected. 
 
 383
 
 § 472.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 of observation, liave led to the conclusion that epilepsy produces 
 not only general mental prostration, but anomalies in the entire 
 moral and intellectual system. And although the malady sometimes 
 coexists Avith great intelligence, yet the patient retains, not only 
 during the attack, but for an indefinite period afterwards, but an. 
 imperfect use of his faculties.^ 
 
 § 471. Epilepsy 2)roper consists in periodical attacks of insensi- 
 Natureof ^i^i^Ji accompanied with involuntary, convulsive, and 
 epilepsy. more or less violent motions of the limbs. That persons 
 committing a violation of law, while in this condition, are entitled 
 to the full benefit of all the considerations which affect the respon- 
 sibility of the agent, needs no argument after what has been already 
 said on the subject of unsoundness of mind. The case, however, 
 admits of more difficulty when the question is whether, in the in- 
 terval between the attacks, a state of mind does or does not exist 
 calcvdated to destroy or diminish responsibility .^ 
 
 § 472. It will be peculiarly necessary, here, to make a division 
 between the several classes of epileptic diseases. The 
 betwofu infirmity is well known to appear in very different degrees 
 ci'a^e^'^™ of intensity under different circumstances, and, as it arises 
 from different physical causes, it may be considered as 
 exerting different retroactive influences on the mind and the body. 
 It may affect the intellectual faculties in a very subordinate degree, 
 as the cases of men like Cresar, Xapoleon, and Mohammed suffi- 
 ciently prove. The doctrine therefore results, that, ivi general 
 cpih'j/s//, the usual j^^'t'sumption of respcnisibilift/ applies to acts 
 committed in the intervals bettoeen 07ie attack and another.^ 
 
 ' Boilcau do Castlcnau : D(^ Tepi- de la Salpetriere, giving photographs 
 
 lepsie dans ses raijports avec Faliena- of cases of hystero-ei)ilepsy, somnani- 
 
 tion mentale, consideres au point de bulism, partial epilepsy, etc., Bourne- 
 
 vue meilico-judiciare. Aunales d'Hy- ville and Kenaud, Paris, 1878. 
 giene i)ubl. et de Medeciue Leg., Avril, ^ According to Briand, moral liberty 
 
 1842, >'o. 114. Krhardt-Ueber Zurech- is entirely suspended during the at- 
 
 nungsfiibigkeit der Epileptischen. tacks. An epileptic, he argues, who 
 
 2 ychiirmayer, Gericht. Med. § 565. commits a homicide during the height 
 
 See articles in the Am. Journ. of Ins. of his disease, has had no criminal 
 
 for 1S72, pp. 341. 723, and vol. 30, p. intention, and therefore cannot incur 
 
 1 ; a resume of cases in 13 Bulletin responsibility. See a report of the 
 
 Med. Leg. Soc, N. Y., p. 205 ; an case of Isabella .Tenisch, in 31 Am. 
 
 article in 10 Journ. Mcnt. Sci. i>. lit ; Journ. of Ins. p. 430. 
 and the Iconogra]>liie photographique 
 
 384
 
 EPILEPSY. [§ 475. 
 
 § 473. Obscure epilepsy, as to the existence of Avliich there can 
 be no doubt, since the explorations of Morel/ may be 
 confined in its symptoms to dimly periodic epileptoid of obscure 
 conditions, to twitching of particular muscles, to occa- ^^^ ^'^^^' 
 sional fixity of the eye, temporary stiffening or stoppage of the 
 organs of speech, and to parenthetical loss of memory, vertigo epi- 
 leptica. It is maintained still further by this acute observer — and 
 this Avith the concurrence of Liman, an author whose conservative 
 tendencies in this respect we have already noticed — that these 
 periodic attacks may exhibit themselves exclusively in mental dis- 
 turbance, in extraordinary excitability, in impulses to homicide and 
 suicide, in sudden losses of memory, ultimately, though perhaps not 
 till a long progress, culminating in epilepsy proper. These cases, 
 however, are rare, and credence should be suspended until the full 
 development of the disease is reached. 
 
 § 474. In particular cases the responsibility of the agent may be 
 
 destroyed, where real symptoms of deranijfement present 
 
 1 • • ■^^ ^ Different 
 
 themselves, and where it is possible or probable that the staLresof 
 
 offence was brought on by such abnormal state of the ^"^ '**^ ^^" 
 faculties. The higher grades of the disease, where it is of long 
 standing, and where the attacks recur at brief intervals, cast a 
 doubt upon the psychical requirements of responsibility, even where 
 nothing is observed which expressly characterizes an aberration of 
 the mental faculties. The stage which immediately precedes an 
 attack, the premonitory symptoms of heaviness in the head, dizzi- 
 ness, loss of consciousness, etc., as well as that which immediately 
 succeeds an attack, and consists in a manifest disorder of the bodily 
 and mental functions of the subject, is to be treated as connected 
 with the immediate attack.^ 
 
 § 475. The moral requirements of responsibility are satisfied when 
 the disease is not of great intensity, and where the inter- 
 vals show no trace of an alteration of the intellectual notatiect- 
 functions produced by it, and the incitement to the act gi'^ij[[y'*""' 
 complained of is found not in the obtuseness or ebullition 
 generally peculiar to such i^tient, but in a selfish motive, and 
 
 ' Traits dos maladies mentales, Paris, ^ Scliiirmayer, Geriuht. Med. § 5tJ7. 
 1866, p. 480. 
 
 VOL. I.— 25 385
 
 § 477.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ^vhere the execution of the act betrays forethought, reflection, and 
 wilfulness. 
 
 ^ 470. Persons truly epileptic are easily excited to anger and 
 revenixe on the slightest provocation, in the intervals be- 
 inteime- twccn their attacks. Although these attacks do not 
 diate stage, g^^^yj^yg attain to such a degree as to deserve the name of 
 mental derangement, yet it should never be forgotten that there is 
 always a morbid predisposition to insane ebullitions, and in general 
 a morbid irritability, which must impair, if not destroy, the moral 
 responsibility of actions growing out of them. And, even where a 
 sentence of punishment is pronounced, it must not be overlooked 
 that its execution may possibly exercise a most deleterious influence 
 on the health of the individual, by aggravating the disease, and 
 perhaps in forcing it into real insanity. It is not advisable, there- 
 fore, to execute a sentence of punishne7it upon an epileptic, untliout 
 Jiavitig submitted the case to the examination of a duly authorized 
 forensic physician.^ 
 
 § 477. Different views, however, have existed on this point, 
 riatnci^ denies the responsibility of cori/ epileptic what- 
 
 Tests laid .,, .. i • • , • i i 
 
 down by cvcr. Olarus"^ takes a view more in harmony with those 
 "^"''" we have just advanced, maintaining the following propo- 
 
 sitions : — 
 
 1. All actions and omissions which take place during the paroxysm 
 of epile})sy are invalid and irresponsible. 
 
 2. Wlien the attack of lial/itual epilepsy is succeeded by, or 
 alternates with, a state of mania or imbecility, all responsibility is 
 at an end, even where this latter state is but transitory, because no 
 human insight or experience can decide with certainty whether the 
 patient, at that particular instant, was in an entirely sane condition. 
 On the other hand, civil acts done under such circumstances, if in- 
 telligent, may be valid. 
 
 ?). Swooning, heaviness of the head, Aveakness of memory, fever, 
 enhanced irritability, etc., which precede or follow the attack, de- 
 
 ' llii.l. § r.lJS. For a case of here- 2 Qua>st. Med. For., p. vi. 
 
 ditary tyjte of epih^psy, see the report 3 ]5eitrage zur Idrkenntniss und 
 
 of ytaiiderinairs case, 32 Am. .louni. ]5eurth<'iluiig zweifelhaften Scelenzus- 
 
 Ins. p. 459. yee also report of a ease taende, Leipsie, 1828, p. 96. 
 of luiiaey in 2-i .Jouni. Meiit. Sci. i)U. 
 
 380
 
 EPILEPSY. [^ 478. 
 
 stroy as well the responsibility as the validity of acts committed 
 during their continuance. 
 
 4. Where it is capable of proof, that the epileptics, in the inter- 
 vals of their attacks, betray symptoms of malice and obtuseness, 
 justice demands that their faults should be regarded as effects of the 
 disease, and that they should be held irresponsible for acts com- 
 mitted in an ebullition of rage or other passion, while such condition 
 should operate in mitigation Avhere the crime presupposes forecast 
 and reflection. 
 
 5. Where the signs of an altered state of mind are wanting both 
 before and after the attacks, the possibility still remains that these 
 signs continue undetected because of their minuteness, and that 
 patients of this description are less able to resist sudden impulses 
 than persons in good health ; which Avould suggest a mitigation of 
 punishment for actions of violent passion, but not for those involv- 
 ing reflection. 
 
 6. All these propositions apply only to idiopathic and habitual 
 epilepsy ; not to isolated attacks which ensue upon other diseases, 
 and where no trace remains after their cessation. 
 
 7. The diseases connected with epileptic symptoms, particularly 
 hysterical spasms, accompanied with insensibility, and diseases of 
 the generic character of St. Yitus's dance, are subject to the rules 
 above laid down, under the restrictions mentioned in the last head, 
 because the presumption of a latent propensity to ebullitions of 
 passion is not, in such cases, vouched by experience.^ 
 
 § 478. The difficulties, in cases of pronounced epilepsy, confine 
 themselves to the question of moral agency during the 
 intervals between the attacks. While the attack lasts, eonaitions 
 the epileptic cannot be viewed as a free agent ; and the jjat" stages 
 inquiries Avhich the forensic psychologist has to answer 
 concern, therefore, the intermediate conditions of the patient. Is 
 he, in such periods, responsible for obligations entered into, or 
 offences committed ? Of course, in replying to this, we must put 
 aside those cases where mental disease, as it frequently does in the 
 
 ' Compare, on the responsibility of The Am. Journal of Insanity, vol. xii. 
 
 epileptics, Friedreicli, Handbuch dcr p. 122, gives a valuable translation 
 
 gerichtlichen Psychologie, p. (j37, and from Delasiaure on Epilepsy. See also 
 
 Henke, AbhandlungenausdeuiGebiett! an article on Nocturnal Epilepsy, 24 
 
 der gerichtlichen Medizin, vol. iv. p. 1. Juurii. Ment. Sci. 568. 
 
 387
 
 § 480.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 type of dementia, positively exhibits itself in the patient in such 
 intervals. This condition as such destroys his responsibility. We 
 have to meet what may be called an intermediate condition — a con- 
 dition, it may be, of abnormal excitability, of melancholy in its less 
 settled phases, of intellectual debility more or less marked. Or 
 we are presented with cases in which the epileptic convulsions are 
 but rare, slight, and tremulous ; and in which the preponderating 
 and far more conspicuous symptoms are hypochondria, irritability, 
 dislike and even animosity to associates and relatives, suspicious- 
 ness, or sense of injury from others resulting in overt acts of de- 
 fence or retaliation. Or a still more advanced phase of disease 
 may exhibit itself in a sort of temporary dreaminess, producing in- 
 coherent and insensible acts, of which there is subsequently but a 
 confused recollection.^ In itself this loss of memory is, as has 
 been seen, an important proof of suspension of responsibility. But 
 the difficulty of proving such loss of memory is much complicated 
 by the well-known tendency of epileptics to simulate symptoms, or 
 to exaggerate those which really exist. 
 
 § 471). Liman^ suggests, as to this point, that the patient should 
 be examined as to loss of memory on other topics than that which 
 is the subject of judicial investigation. He also argues that such 
 intermediate loss of consciousness is not to be assumed when the 
 litigated transaction required for its consummation complicated in- 
 tellectual activity, and was elaborated through weeks or months, 
 and when for collateral points the patient's memory is shown to 
 have been good. Certainly any less stringent test would work great 
 injury, both to epileptics, by their business disfranchisement, and 
 to the community, which would be obliged to thus recognize them 
 as a privileged class of outlaws emancipated from the restraints of 
 the penal law. 
 
 § 48U. The moral effects of epilepsy have been nowhere more 
 Dr Mai dr ^^P^'^^tically recorded than by Dr. Maudsley, in his re- 
 icy on markable lectures, published in 1870, under the title of 
 
 uiiucts of " Body and Mind." He reminds us that a single epilep- 
 epiiepsy. ^j^, gj. ^^^^ hecn known to result in an entire transforma- 
 tion of character in the patient, causing one who had formerly been 
 
 ' These states are delineated by 2 Limau's Casper, 1S71, p. 442. 
 Morel, in liis work already referred to, 
 and also by Griesinger, Archiv, i. 319. 
 
 388
 
 EPILEPSY. [§ 481. 
 
 gentle, amiable, and tractable, to appear rude, vicious, and perverse. 
 Among confirmed epileptics, the periods preceding convulsions are 
 marked by moodiness, irritability, and sometimes by a sullen fierce- 
 ness ; while in the intervals the patient may be amiable and tracta- 
 ble. Sometimes epileptic neurosis may exist for a long period in a 
 masked and suppressed state, exhibited, not by convulsions, but by 
 moral or mental perversion.^ 
 
 § 481. " We have had opportunities," says Mr. Browne (1871), 
 in his work on the Medical Jurisprudence of Insanity,^ 
 
 Murder 
 " of inquiring into the case of George Lawton, who was during epi- 
 
 an inmate of the West Riding Lunatic Asylum up to the taek.^Law- 
 24th of March last, when he was committed by the cor- ^'^^'^ ^''^®''- 
 oner to take his trial for the wilful murder of attendant Lomas, at 
 the assizes then being held at Leeds. L^pon Monday, the 27th in- 
 stant, George Lawton was placed at the dock to take his trial. Mr. 
 Baron Cleasby was the presiding judge. Upon the evidence of Dr. 
 Crichton Browne, Medical Director of the West Riding Asylum, 
 being taken, the jury were asked to return a verdict as to the capa- 
 bility of the prisoner to plead, and returned a verdict that he was 
 incapable. The circumstances of this case, as gathered from the 
 depositions, are these : Lawton was admitted into the asylum in 
 1863, and suffered from epileptic fits of a severe character. Dur- 
 ing his residence in the institution he several times attempted to 
 commit suicide, and, shortly before the murder of tlie attendant, he 
 had struck a fellow-patient in the face with a dinner-knife. The 
 deceased (Lomas) was principal attendant in No. 14 ward, in which 
 Lawton had been placed. Upon the afternoon of Friday, the 24th 
 instant, Lomas remained in the ward in charge of Lawton and three 
 other patients, while the other attendants and their charges went 
 out for a walk. About three o'clock an attendant in the airing 
 court heard a cry, and, looking up at the second story, saw Lawton 
 striking violently at something on the ground, with what appeared 
 to be a stick. lie hastened to the ward, and met a patient on the 
 step, who said, ' He's killed, and he's killed,' and, upon entering 
 
 ' As to tlie effect of paralysis, see paper by Dr. Meredith Clyiner, Pro- 
 
 Lond. Med. Rec. N. S,, No. 43, ]>. H ; eeedings of N. Y. Med. Leg. Woe, 1872, 
 
 and a report of tlie Affair (Miorinsky, pp. 444-407. 
 1!) Journ. Mcut. Sci. 308. See also a ^ I'^i^" -^'J- 
 
 389
 
 § 481.] MENTAL UNSOUNDNESS CONSIDERED PSYCEOLOGICALLY. 
 
 the padded-room, he found Lomas lying in a corner, with his skull 
 fractured in many places. The room was spattered with brains and 
 blood. Lawton Avas in the day-room of the ward when he Avas first 
 seen, lie had a poker in his hand, and he said to the attendant, 
 as he Avas about to enter, ' I'll serve you the same if you come in 
 here.' That is the Avhole story. The attendant died ten minutes 
 after the medical assistant Avas in attendance. The notes of the 
 post-mortem examination upon the body of Lomas indicate that he 
 must have been struck repeatedly Avith the utmost violence. The 
 condition of the Avails and roof of the room in Avhich the murder Avas 
 committed points to the same conclusion. During the Avhole of the 
 Friday night succeeding the murder, LaAvton Avas restless and mani- 
 acal, lie sprang out of bed Avhenever the attendants, Avho Avere in 
 charge of him, turned their heads. The same excitement and rest- 
 lessness continued during the forenoon of Saturday. Towards 
 evening he became calmer, and could talk rationally concerning the 
 crime he had committed. We had a long conversation Avith the 
 patient upon the afternoon of Sunday, and came to the conclusion 
 that at the time Ave observed him he Avas to all intents and purposes 
 a sane man. lie certainly Avas weak minded. But he described 
 tiie Aviiole circumstances of the murder Avith intelligent accuracy. 
 He maintained that he had no ill-Avill to the deceased, that he did 
 not knoAV Avhy ho had done it, and that the deceased had always 
 been very kind to him. When pressed, he said that he had seen 
 ships and railways on the ceiling of his room before going to sleep; 
 but Ave did not come to the conclusion that these Avere insane illu- 
 sions. He confessed to having done many things to get rid of his 
 fits ; to iiavc held Ids head under the cold-Avater tap, to have gone 
 Avithout butter or beer for months past, to have drunk his urine, and 
 all Avith a view to cure himself of epileptic seizures. He described 
 liis condition during the day previous to the murder. He had 
 known that a fit Avas coming on, and had deposited his money and 
 tobacco Avith the store-keeper, lest they should be taken from him 
 by some other patient during the unconsciousness Avhich Avas inci- 
 dent to the attack. He had felt a stiffening of the muscles of his 
 limbs, and had, according to his own account, had a severe seizure 
 in tiie day-room upon that day. 
 
 " His memory Avith regard to the occurrences of the morning of 
 390
 
 EPILEPSY. [§ 481. 
 
 the Friday was not perfect. He sometimes said he remembered 
 being spoken to while at dinner by the medical superintendent, and 
 at other times he did not remember it. He said that he had 
 refrained from taking meat that day, because he thought it would 
 do his soul good. He said that he himself was a Methodist, but 
 that he did feel better upon the Saturday morning for the absti- 
 nence. With regard to the crime itself he knew it was wrong. He 
 knew that persons who were in their right mind, and who committed 
 murder, were hanged, but he seemed to regard himself as exempted 
 from punishment because he had fits, and because he sometimes did 
 not know what he was doing. He said he knew swearing was 
 wrong; he though it more heinous than murder. He imagined that 
 if Lomas was good, he must have gone to heaven, and he said he 
 hoped he had not done him any harm. He repeatedly asserted that 
 he liked Lomas, the murdered man, and that he did not know why 
 he had done what he had done. He spoke of having on a former 
 occasion tried to jump through a glass door, and having, before he 
 was admitted to the asylum, laid himself down on the rails that he 
 might be run over. He seemed to connect these acts, or the con- 
 ditions existing when they were done, with the murder of his 
 attendant, or the conditions which were present at the time of the 
 commission of the crime. From the whole interview — from what 
 he said, from his manner of saying it, from the muscular tremors 
 which every now and then were observable in his limbs — we came 
 to the conclusion that the crime for which he was to be tried was 
 due to a simple suggestion, arising during the stupid condition 
 which succeeds an attack of epilepsy, and that the temporary imbe- 
 cility was succeeded by epileptic mania, which was in its turn fol- 
 lowed by a gradual restoration to the normal condition of health. 
 In our presence the patient sliowed that he was able to read, that 
 he understood the simple rules of arithmetic, and that he was cog- 
 nizant of the ordinary doctrines of religion in much the same way 
 as other people of the same chiss and with the same amount of 
 education are. Tliere was considerable mental weakness, but it 
 seemed to us to be of such a kind as would not have incapacitated 
 the patient in any way, civil or criminal, liad he been free from 
 epilepsy." 
 
 391
 
 § 483.] MENTAL UNSOUNDNESS CONSIDERED PSYCnOLOGICALLY. 
 
 II. MENTAL UNSOUNDNESS AS CONNECTED WITH SLEEP, ^ 
 
 § 482. Under this general head may be grouped somnolentia^ 
 Division of or slcep-drunkenncss (Schlaftrunkenheit), somnaynhu- 
 this subject jig^^ ^nd nightmare, the two last of which may be con- 
 sidered together. In the forensic treatment of such maladies, it is 
 important for the court to consider whether the person subject to 
 such a disorder was properly aware of it, and of the possible conse- 
 quences, and able to take the precautions by which those conse- 
 quences might have been averted. 
 
 § 483. Sleep would seem to be only a peculiar form of cerebral 
 life, and not a negation of the life of the brain producing 
 effect of consC(iuent fatigue, exhaustion, or weakness ; it is not to 
 thTscmses ^^ supposed that the state of sleep issues out of the 
 intellect itself, but the intellect is diverted by the pecu- 
 liar change of the action of the brain into that state of existence 
 which we call sleep. But the intellect does not sleep ; nor can it 
 ever be said that its activity diminishes during sleep ; we merely 
 cease to perceive its activity. On the other hand, we cannot doubt 
 that the activity which involves sleep may also be morbid, abnormal, 
 and connected with cramps or convulsive symptoms. Sleep is in- 
 terrujited by whatever terminates the peculiar condition of the 
 brain upon which sleep depends ; by the natural expiration of this 
 peculiar state of the brain ; by vivid and sudden impressions on the 
 senses, and by disagreealde sensations. Now, in a certain morbid 
 condition of the brain this awaking is not complete, and does not 
 restore the waking state with a full and correct perception of sur- 
 rounding things ; but an intermediate state between sleeping and 
 waking is produced, Avhich resembles intoxication, and is called the 
 intn.i-ication of deep (^SehJitft ni xkenlH'it ) . This state admits of 
 action which is directed by the pliantoms of the dream ; talking in 
 sleep being very nearly allied to Avaking, and dreams themselves 
 being midway between sleep and waking, for in the depths of sleep 
 we no longer become conscious of dreams. 
 
 Nightmare and somnabulism, on the other hand, arc, as will be 
 seen, distinct abnormal conditions of continuous sleep, and, under 
 
 ' See Med. Leg. M. Orfila, toin(; i. p. 2'»'), Paris, 1S54; Leroiis Cliniques de 
 
 4r,G, I'aris, 3 848; Me<L Le-. M. P.riand, M. Falret, Lecou 4th, p. 117, Paris, 
 
 p. rii;:3, Paris, ]8r)2; liciiaiidiii sur lSr)4. 
 PA!i<'iiation Meiital(>, chap. (Jtli, p. 
 
 392
 
 SLEEP-DRUNKENNESS. [§ 485. 
 
 certain external circumstances, may lead to acts of violence. In 
 examining such cases it is important to inquire into the existence of 
 abnormal physical conditions, such as plethora, predisposition to 
 congestions in the head or breast, actual congestions, diseases of 
 the heart, abnormal plethora, suppressed hoemorrhoids, ei'uptions 
 of the skin, or other habitual secretions which have been driven in, 
 nervous affections of various kinds, impure air in the bedroom, a 
 hearty meal, or indulgence in ardent spirits immediately or shortly 
 before going to sleep. Somnambulism is not a mere intensified 
 dream, but inforo medico must be treated as a morbid independent 
 state, and, in a legal point of view, every act shown to have been 
 committed under its influence is disconnected with voluntary moral 
 agency. \ 
 
 1. Somnolentia, or sleejy-drmikeii^iess. 
 
 § 484. Sleep-drunkenness may be defined to be the lapping over 
 of a profound sleep on the domains of apparent wakeful- 
 
 , . . , . . . Deflnitiou. 
 
 ness producing an involuntary intoxication on the part 
 
 of the patient, which destroys at the time his moral agency. Under 
 
 the name of somnoleyitia, Avhich was given to it by Ploucquet and 
 
 subsequent French writers, and of ScJdqftrunJcenheit, which it was 
 
 styled by the German school, it became the subject of general 
 
 discussion at the beginning of the present century. The first case 
 
 in which the symptoms were unmistakably reported was that of 
 
 Buchner.2 A sentry, who had fallen asleep during his watch, 
 
 being suddenly aroused by the officer in command, fell upon the 
 
 latter with his drawn sword, with an attack so furious Ihat the most 
 
 serious consequences were only averted hy the interposition of 
 
 bystanders. The result of the medical examination was, that the 
 
 act was involuntary and irresponsible, being the result of a violent 
 
 confusion of mind consequent upon the sudden involuntary waking 
 
 from a profound sleep. 
 
 § 485. Shortly afterwards occurred the case of a day-lal)orcr, 
 
 who killed his wife with a wagon-tire, tlie blow being case of 
 
 struck immediately upon his starting up from a deep jln'ity'pro- 
 
 sleep, from which he was forcibly awakened. In this ^V'.'T^'M'nn 
 
 case there was evidence aliunde that the defendant was Uiuuess. 
 
 • Scluirmiiyer, Goricht. Med. § 5G1. ^ s^e Ilenke's Zcitschr. 10 15. p. li'3 . 
 
 393
 
 § 485.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 seized when \Yaking Avith a delusion that a " woman in white" 
 had snatched his wife from his side and was carrying her away, 
 and that his agony of mind was so great that his whole body was 
 wet with perspiration. There was no doubt of the defendant's 
 irresponsibility.^ In this country, the case properly would fall 
 under the head of excusable homicide by misadventure.* In prac- 
 tical result, these cases vary little from an early English case, 
 already noticed, in which, though there was no psychological de- 
 fence made, there was proof of the same delusions as to danger 
 heightened by the same disturbances of mind as are produced by a 
 sudden waking up from a deep sleep. The defendant, being in bed 
 and asleep in his house, his maid-servant, who had hired the de- 
 ceased to help her do her work, as she was going to let her out 
 about midnight, thought she heard thieves breaking open the door, 
 upon which she ran up stairs to the defendant, her master, and 
 informed him thereof. Suddenly aroused, he sprang from his bed, 
 and, running down stairs with his sword drawn, the deceased hid 
 herself in the buttery, lest she should be discovered. The defend- 
 ant's wife, observing some person there, and not knowing her, but 
 conceiving she was a thief, cried out, " Here are they who would 
 undo us ;" and the defendant, in the paroxysm of the moment, 
 dashing into the buttery, thrust his sword at the deceased and killed 
 her.^ Tlie defendant was ac(iuitted under the express instructions 
 of the court, and the case has stood the test of the common law 
 courts for over two hundred years, during which it has never been 
 questioned. It is important to observe, however, that, if it differs 
 from the two'cascs already noticed under this head, in the increased 
 iMturalneiis of the delusion under which the defendant was laboring, 
 it differs from them in the comparatively longer interval in Avliich 
 his perceptive faculties had the opportunity to arrange themselves. 
 Let it be supposed that it Avas the wii'e, and not the hushand, who 
 had slain the deceased. Under the circumstances, the result would 
 hardly have been different, and yet in this case the distinction be- 
 tween her responsibility and that of the laborer who killed his Avife 
 on the Avaking spasm is simply in the (h-qree of probability of delu- 
 sions Avhich in both cases were unfounded. If in the one case this 
 improbability Avas more glaring, let it be recollected that there Avas 
 
 ' Wihlbcrg's JalirbiK-h, 2 Bd. p. 32. 3 Level's case, Cro. Car. 538 ; 1 Hale, 
 2 :<ee Wharton on Horn. 210. 42, 474. 
 
 39-4
 
 ■ SLEEP-DRUNKENNESS. [§ 486. 
 
 much less time afforded to the patient to compose himself to a rea- 
 soning state of mind. 
 
 § 480. Much more recently, a case occurred which led to the 
 whole question being re-examined and discussed. A young man, 
 named A. F., about twenty years of age, was living with his 
 parents in great apparent harmony, his father and himself being 
 alike distinguished for their extravagant devotion to hunting. In 
 consequence of the danger of nocturnal attacks, they were in the 
 habit of taking their arms with them into their chamber. On the 
 afternoon of September 1st, 1880, the father and son having just 
 returned from hunting, their danger became the subject of particu- 
 lar conversation. The next day the hunting was repeated, and on 
 their return, after taking supper with the usual appearance of har- 
 mony, the family retired at about ten o'clock, the father and mother 
 occujiying one apartment, and the son the next, both father and son 
 taking their loaded arms with them to bed. At one o'clock, the 
 father got up to go into the entry, and on his return jarred against 
 the door opening into the entry, upon which the son instantly sprang 
 up, and. discharging his giin at the father, gave the latter a fatal 
 wound in the breast, crying at the same time, " Dog, what do you 
 want here ?" The father fell immediately to the ground, and the 
 son, then first recognizing him, sank on the floor crying, " Jesus! 
 it is my father." The evidence was, that the whole family were 
 subject to great restlessness in their sleep, and that the defendant 
 in particular was affected by a tendency to be easily distressed by 
 dreams, which lasted for about five minutes on waking, before their 
 effect was entirely dissipated. His own version of the affair was, 
 " I must have fired the gun in my sleep ; it was moonshine, and we 
 were accustomed to talk and walk in our sleep. I recollect hearing 
 something jar ; I jumped up, seized my gun, and shot where I heard 
 the noise. I recollect seeing nothing, nor am I conscious of having 
 spoken. The night was so bright that everything could have been 
 seen. I must have been under the delusion that thieves had broken in." 
 The concurrent opinions of the medical experts examined on the trial 
 were, that the act was committed in a state of mmnoh'nthi or kIccj)- 
 drunJccnnens, and that it was not that of a free and responsible agent.' 
 
 ' Ilciike's Zcitsc.lirift, 1853, vol. Ixv. (J('sct/,;,'(il)iiiig, etc., viii. H., liciliii, 
 pp. l!)n_l ; and HOC also a caso of laucli 171)8 ; and Miillcr's gericlitlicdie Ar/Aun- 
 greatur doubt in Klein's Annahai der wissonscliaft, vol. i. 302. 
 
 895
 
 § 488.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 487. It is important to distinguish somnolentia, or sleep- 
 drunkenness, which is a state that to a srreater or less 
 
 Somnoleii- ' ... 
 
 tia distinct extent is incidental to every individual, from somnambu- 
 nambu- " lism, Avhich is an abnormal condition incident to a very 
 ^^®'"" few. The experience of e very-day life demonstrates 
 
 how much the former enters into almost every relation. Children, 
 particularly, sometimes struggle convulsively in the effort to wake 
 up, which often is continued for several minutes. The very ex- 
 clamations, " Wake up" — " Come to" — which are so common in 
 addressing persons in the waking condition, are scarcely necessary 
 to bring to the mind many recollections of cases where the waking 
 struggle has been peculiarly protracted. Of course there are con- 
 stitutions where this struggle is peculiarly distressing, just as there 
 are constitutions in which the tendency to sleeplessness is equally 
 marked. Dr. Kriigelstein tells us of a merchant of distinction who 
 had an irrepressible tendency to sleep in the afternoons, and yet 
 who, whenever he was wakened up, was for a few moments over- 
 come with a paroxysm, over which he had no control. Dr„ Meis- 
 ter himself^ relates the following phenomenon: "I was obliged to 
 take a journey of eight miles on a very hot summer's day, my seat 
 being with my back to the horses, and the sun directly in my face. 
 On reaching the place of destination, and being very Aveary and 
 with a slight headache, I laid myself down, with my clothes on, on 
 a couch. I fell at once asleep, my head having slipped under the 
 back of the settee. My sleep was deep, and, as far as I can recol- 
 lect, without dreams. When it became dark, the lady of the house 
 came with a light into the room. I suddenly awoke, but, for the 
 first time in my life, without collecting myself. I was seized with 
 a sudden agony of mind, and, picturing the object which was enter- 
 ing the room as a spectre, I sprang up and seized a stool, which, in 
 my terror, I would have thrown at the supposed shade. Fortu- 
 nately, I was recalled to consciousness by the firmness and tact of 
 the lady herself, who, with the greatest presence of mind, succeeded 
 in composing my attention until I was entirely awakened." 
 
 § 488. The existence of this intermediate state between sleeping 
 and waking, and of the " drunkenness" by which it is sometimes 
 
 ' Ilcnko's Zeitsclirift, vol. Ixv. 4JG. See Krafft-Ebing, Trausitorisclie Irre- 
 seiu, 1868. 
 
 396
 
 SLEEP-DRUNKENNESS. [§ 489. 
 
 accompanied, is recognized by even the older elementary Necessary 
 writers. Thus Wendler^ says : " Discerni autem possit termine re- 
 expergefactio naturalis a prreternaturali. Etenim somno ^P^i^sibii- 
 sensira reficitur sensibilitas anirai, qure, cum in eum eve- 
 hitur gradum, ut solemnibus pistoque non fortioribus excitamentis 
 ad cogitandum excitetur, naturalis expergefactio est ; contra ubi 
 facultate ilia parum aucta, insolita incitamentorum vis animum 
 cogit ad statum vigiliae, prasternaturalem banc dicimus expergefac- 
 tionem." 
 
 The following tests it is important to apply in order to determine 
 the question of responsibility : — 
 
 a. A general tendency to deep and heavy sleep must be shown, 
 out of which the patient could only be awakened by violent and 
 convulsive effort. 
 
 h. Before falling asleep, circumstances must be shown producing 
 disquiet which sleep itself does not entirely compose. 
 
 c. The act under examination must have occurred at the time 
 when the defendant was usually accustomed to have been asleep. 
 
 d. The cause of the sudden awakening must be shown. It is 
 true that this cannot always happen, as sometimes the start may 
 have come from a violent dream. 
 
 e. The act must bear throughout the character of unconscious- 
 ness. 
 
 f. The actor himself, when he awakes, is generally amazed at 
 his own deed, and it seems to him almost incredible. Generally 
 speaking, he does not seek to evade responsibility, though there are 
 some unfortunate cases in which the wretchedness of the sudden dis- 
 covery overcomes the party himself, who seeks to shelter himself 
 from the consequences of a crime of which he was technically, 
 though not morally, guilty. 
 
 § 489. A very intelligent observer, Dr. Krugelstein, has given 
 us a critical and extended observation of those cases in 
 which crimes have been committed in the supposed som- tio'iTs'urbr. 
 nolential state, in which he draws the inferences that Kiu^i'i- 
 
 ... stem. 
 
 this species of mania occurs chiefly, if not entirely, with 
 
 persons who are sound sleepers, and are suddenly startled, by some 
 
 • Dissertatio de Somno. Lijisirc, lar caso in his Trans. Irresein, 1S(J8, 
 1805, p. 23. KrafTt-Ebing gives a simi- p. 8. 
 
 397
 
 § 401.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY. 
 
 violent exterior cause, from a sleep which, from indigestion or other 
 causes, has been already disturbed and excited by dreams of pecu- 
 liar vivacity. Such cases are universally marked with a want of 
 consciousness in the actor, and followed when he awakes by entire 
 astonishment and then violent remorse.^ 
 
 § 490. Dr. Tayloi^ gives us the following case on the same point : 
 A peddler, who Avas in the habit of walking about the 
 byDit Tay- country armed with a sword-stick, was awakened one 
 ^"'"' evening, while lying asleep on the high-road, by a man 
 
 who was accidentally passing seizing him and shaking him by the 
 shoulders. The peddler suddenly awoke, drew his sword and 
 stabbed the man, wdio afterwards died. He was tried for man- 
 slaughter. His irresponsibility was strongly urged by his counsel, 
 on the ground that he could not have been conscious of an act per- 
 petrated in a half-waking state. This was strengthened by the opinion 
 of the medical witness. The prisoner was, however, found guilty. 
 Under such circumstances it was not unlikely that an idea had arisen 
 in the prisoner's mind that he had been attacked by robbers, and 
 therefore stabbed the man in self-defence.^ 
 
 Dr. Hartshorne, in a note, tells us that a somewhat similar case 
 occurred in Philadelphia, a few years back, in which a man was 
 shot with a pistol by an acquaintance whom he had suddenly aroused 
 from sleep, late at night, in an open market-house. The plea was, 
 that the deceased was mistaken for a robber when the pistol was 
 fired; but the jury found a verdict of manslaughter. 
 
 § 4'Jl. Two jiersons, in a case cited by Mr. Best, who had been 
 huntinii; durinii; the day, slept together at night. One of 
 tia as a de- them was renewing the chase in a dream, and imaginins; 
 be unduly himself present at the death of the stag, cried out " I'll 
 strained. kui him I I'll kill him'." The other, awakened by the 
 noise, got out of bed, and by the light of the moon beheld the 
 sleeper give several deadly stabs with a knife, in that part of the 
 bed which his companion had just quitted. Suppose a blow 
 given in this way had proved fatal, and the two men had been shown 
 to have (juarrelled previously to retiring to rest ! But a defence of 
 
 > K iigolstein, Ueb.T die in Zustande 2 Med. Jiir. 51)9, 600. 
 derh^chlaftrunkeiiheitveri'ibtenGewalt- ^ R. v. Milligan. Lincoln Autumn 
 
 th'atigl<eiteu in gerichtsarztlieher Be- Assizes, lS3(j. 
 zieliung. 
 
 308
 
 SOMNAMBULISM. [^ 492. 
 
 this kind, as is well remarked hy Dr. Taylor, may be unduly 
 strained. Thus, where there is an enmity, with a motive for the 
 act of homicide, the murderer while sleeping in the same room may 
 select the night for an assault, and perpetrate the act in darkness 
 in order the more effectually to screen himself. In the case of Reo-. 
 V. Jackson,^ it was urged in defence that the prisoner, who slept in 
 the same room with the prosecutor, had stabbed him in the throat, 
 owing to some sudden impulse during sleep ; and the case of Milli- 
 gan, above given, was quoted by the learned counsel in support of 
 the view that the prisoner was irresponsible for the act. It was 
 proved, however, that the prisoner had shown malicious feelings 
 against the prosecutor, and that she wished him dead. The knife 
 with which the wound had been inflicted bore the appearance of 
 having been recently sharpened, and the prisoner must have reached 
 over her daughter (the prosecutor's wife), who was sleeping in the 
 same bed with him, in order to produce the wound. These facts 
 are quite adverse to the supposition of the crime having been per- 
 petrated under an impulse from sleep, and the prisoner was con- 
 victed. In another case, Reg. v. French,- it was proved that the 
 prisoner while sleeping in the same room had killed the deceased, 
 who was a stranger to him, under some delusion. There was, how- 
 ever, clear evidence that the prisoner was insane, and on this ground 
 he was acquitted under the direction of the judge. ^ In a subse- 
 quent case in Ireland, Avhere the same defence could with much 
 justice have been presented, the defendant, though under circum- 
 stances throwing much doubt on the verdict, was convicted.^ 
 
 2. Somnamhidism. 
 
 § 492. Somnambulism, according to the usual acceptation, in- 
 volves (1) continuotisness, not beini: merely a transition 
 momentary state between sleepnig and waking ; (::) a of.«)iiiiiaiu- 
 sort of supersensual or ecstatic consciousness, which 
 enables the patient to find his way with his eyes closed, or with his 
 vision so abnormally excited as to fail to present to him anything 
 more than a certain path, or certain objects on which his attention 
 
 ' Liverpool Autnmu Ass. 1847. ' Taylor's M.><1. Jurispriidoiicc, py. 
 
 2 Dorset Autumn Ass. 184(J. 51)9, GOO. 
 
 * See 22 Am. Jour, of Ins. 25. 
 
 899
 
 ^ 493.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 is absorbed. Perhaps the hitter condition may be more correctly 
 defined as that of a state of dreamy abstraction, in which the ob- 
 jects of a dream are exclusively observed and pursued. In a 
 limited degree this is fre(|ucntly observable in children, who at 
 night, especially when the room is lighted by the moon, will rise 
 from their bed and wander into their mother's room, apparently in 
 a dreamy state, incapable of giving clear answers, and without 
 subsequent Avaking recollection of having made such a move. But 
 as to adults, it is to be observed that the condition is easily simu- 
 lated, and that as the cases of adult somnambulism reported in re- 
 cent years are very rare, and are sustained by meagre proof, we 
 may indulge in a reasonable doubt whether most of the earlier 
 cases are not to be solved by the hypothesis of simulation, or of 
 mythical exaggeration. Certainly, when an act is intelligently 
 done by an adult, and for an intelligible purpose, the defence of 
 somnambulism is one of the wildest that can be oftered. 
 
 § 4U3. " Dreaming," says Dr. Rush, " is a transient paroxysm 
 
 of delirium. Somnambulism is nothing but a higher 
 
 buiism'a' gi'fide of the same disease. It is a transient paroxysm 
 
 species of Qf niadncss. Like madness, it is accompanied with mus- 
 
 deelinuiii. . _ '■ 
 
 cular action, with incoherent or coherent conduct, and 
 with that complete oblivion of both which takes place in the worst 
 grade of madness. Coherence of conduct discovers itself in per- 
 sons who are affected with it undertaking or resuming certain 
 habitual exercises or employments. Thus we read of the scholar 
 resuming his studies, the poet liis pen, and the artisan his labors, 
 while under its influence, with their usual industry, taste, and cor- 
 rectness. It extended still furtlier in the late Dr. Blacklock, 
 of Edinburgh, who rose from his bed, to which he had retired at 
 an early hour, came into the room where his family were assembled, 
 conversed with them, and afterwards entertained them with a 
 pleasant song, without any of them suspecting he was asleep, and 
 without his retaining after he awoke the least recollection of what 
 he had done."' 
 
 ' Rush oil the Mind, pp. 302, 303. Handbuch der Clericht. Med. Halle, C. 
 
 See E. L. Ileim, vermischte med. A. Scliwetschke, 1851, § 115. Sieliold, 
 
 Scliriften, herausg. von A. raetsch. Lelirbuch der Gericht. Med. Berlin, 
 
 Leipsic, 183(5, § 33(!. L. Krahmer, 1S47, § 1D(3. 
 
 400
 
 SOMNAMBULISM. [§ 495. 
 
 § 494. A German psychologist' gives us, in great minuteness, 
 a narrative of a young woman, a somnambulist, who, 
 when twenty-three years old, having been previously in of somnam- 
 good health, and regular in her menstx'uation, was seized dudng^un- 
 with epilepsy in consequence of a fright produced by an nesrand^' 
 attack of robbers. She soon became the victim of som- irresponsi- 
 nambulisra, which manifested itself in all its ordinary 
 incidents, such as deep sleep, want of memory and firmness in her 
 movements when under its influence. While in the somnambulic 
 condition, she had the habit of concealing articles of various kinds, 
 the result of which was that she was charged with theft. Under 
 the advice of Dr. Dornbliith she was finally acquitted, and under 
 his care was gradually restored to health. 
 
 § 405. Dr. Upham gives us the following American illustration: 
 "A farmer in one of the counties of Massachusetts, according to 
 the account of the matter which was published at the time, had 
 employed himself for some weeks in the winter thrashing his grain. 
 One night, as he was about closing his labors, he ascended a ladder 
 to the top of the great beams in the barn, where the rye which he 
 was thrashing was deposited, to ascertain what number of bundles 
 remained unthrashed, Avhich he determined to finish the next day. 
 The ensuing night, about two o'clock, he was heard by one of the 
 family to arise and go out. He repaired to his barn, being sound 
 asleep and unconscious of what he was doing, set open his barn 
 doors, ascended the great beams of the barn where his rye was 
 deposited, threw down a fiooring, and commenced thrashing it. 
 When he had completed it, he raked oif the straw and shoved the 
 rye to one side of the floor, and again ascended the ladder with 
 the straw, and deposited it on some rails that lay across the great 
 beams. He then threw down another flooring of rye, which he 
 thrashed and finished as before. Thus he continued his labors 
 until he thrashed five floorings, and on returning from throwing 
 down the sixth and last, and in passing over part of the liaymow, 
 he fell off", where the hay had been cut down about six feet, to the 
 lower part of it, which awoke him. He at first imagined himself 
 in his neighbor's barn, but, after groping about in the dark for a 
 long time, ascertained that he was in his own, and at length found 
 
 ' DornV)liitli, (Jeschicl»t« eiiicr Kaclitwandlerin, llcnkc's Zcitsdirift, xxxii. 2. 
 
 VOL. I.— 26 401
 
 § 496.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the ladder, on which he descended to the floor, closed his barn- 
 doors, which he found open, and returned to his house. On coming 
 to the light he found himself in such a profuse perspiration that his 
 clothes were literally wet through. The next morning, on going to 
 his l):ini, he found tliat he had thrashed during the night five 
 bushels of r3'e, had raked the straw off in good order and deposited 
 it on the great beams, and carefully shoved the grain to one side 
 of the floor, without the least consciousness of what he was doing, 
 until he fell from the hay."' 
 
 "A man in this state," says Falret, " has no longer the same 
 relations with the exterior world, lie enters into movements which 
 seem the result of the will, since he avoids blows and falls with the 
 greatest nicety ; and yet he does not seem to see, or at least his 
 sight appears very confused. The mind is evidently in action, 
 since somnambulists often write things which they were unable to 
 do when awake, maintain conversation, and perform actions imply- 
 ing regular ideas. And yet after the attack they preserve no 
 remembrance of their thoughts, feelings, or actions, as if conscious- 
 ness had been entirely obliterated Avhilst it lasted."^ 
 
 § VM. The views of Abercrombie have been so long appealed 
 to on this point that we cannot refrain from irivinir them 
 
 Dr. Aber- , . ,. „ -, ,,.,,, o ^ 
 
 erombk-s hcre in full: " bomnambuhsm, he says, "appears to 
 
 sublcVt— differ from dreaming chiefly in the degree in which the 
 
 soiniiaiii- bodily functions are affected. The mind is fixed, in the 
 l)ulist not -^ _ _ _ ' 
 
 responsible same manner as in dreaming, upon its own impressions 
 
 as possessing a real and present existence in external 
 things; but the bodily organs are more under the control of the 
 will, so that the individual acts under the influence of erroneous 
 conceptions, and holds conversation in regard to them. lie is also, 
 to a certain degree, susceptible of im])ressions from without, through 
 his organs of sense ; not, however, so as to correct his erroneous 
 im})ressions, but rather to be mixed up with them. A variety of 
 remarkable phenomena arise out of these {)eculiarities, which will be 
 illustrated by a slight outline of this singular affection. The first de- 
 gree of somnambulism generally shows itself by a propensity to talk 
 
 • Upliam on Mental Action, pp. 182, 2 Le(;ons Cliniques de I'Alienation 
 183. See also article hy M. Alfred de Mentale, par M. Falret, Lecon 4, p. 121. 
 Maury, 18 Am. Journ, of Ins. 23(3. Paris, 1854. 
 
 402
 
 SOMNAMBULISM. [§ 496. 
 
 during sleep — the person giving a full and connected account of Avhat 
 passes before him in dreams, and often revealing his own seci'ets or 
 those of his friends. Walking during sleep is the next degree, and that 
 from Avhich the affection derives its name. The phenomena connected 
 with this form are familiar to every one. The individual gets out 
 of bed ; dresses himself ; if not prevented, goes out of doors ; walks 
 frequently over dangerous places in safety ; sometimes escapes by a 
 ■window and gets to the roof of a house ; after a considerable inter- 
 val, returns and goes to bed; and all that has passed conveys to 
 his mind merely the impression of a dream. A young nobleman 
 mentioned by Hortensius, living in the citadel of Breslau, was ob- 
 served by his brother, who occupied the same room, to rise in his 
 sleep, wrap himself in a cloak, and escape by a window to the 
 roof of the building. He there tore in pieces a magpie's nest, 
 wrapped the young birds in his cloak, returned to his apartment, 
 and went to bed. In the morning he mentioned the circumstance 
 as having occurred in a dream, and could not be persuaded that 
 there had been anything more than a dream, till he was shown the 
 magpies in his cloak. Dr. Prichard mentions a man who rose in 
 his sleep, dressed himself, saddled his horse, and rode to the place 
 of a market which he was in the habit of attending once every week ; 
 and Martinet mentions a man who was accustomed to rise in his 
 sleep and pursue his business as a saddler. There are many in- 
 stances on record of persons composing, during the state of somnam- 
 bulism : as of boys rising in their sleep and finishing their tasks 
 which they had left incomplete. A gentleman at one of the English 
 universities had been very intent during the day in composition of 
 some verses which he had not been able to complete : during the 
 following night he arose in his sleep and finished his composition, 
 then expressed great exultation, and returned to bed. In these 
 common cases, the affection occurs during ordinary sleep ; but a 
 condition very analogous is met with, coming on in the daytime, in 
 paroxysms during which the person is affected in the same manner 
 as in the state of somnambulism, particularly with an insensibility 
 to external impressions: this presents some singular phenomena. 
 These attacks in some cases come on without any warning; in 
 others, they are preceded by a noise or sense of confusion in the 
 head. The individuals then become more or less abstracted, and 
 are either unconscious of any external impressions, or very confused 
 
 403
 
 § 496.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in their notions of external things. They are frequently able to 
 talk in an intelligible and consistent manner, but always in reference 
 to the impression which is present in their own minds. They in 
 some cases repeat long pieces of poetry, often more correctly than 
 they can do in their waking state, and not unfrequently things 
 which they could not repeat in their state of health, or of which 
 they were supposed to be entirely ignorant. In other cases they 
 hold conversation with imaginary beings, or relate circumstances or 
 conversations which occurred at remote periods, and which they 
 were supposed to have forgotten. Some have been known to sing 
 in a style far superior to anything they could do in their waking 
 state ; and there are some well-authenticated instances of persons 
 in this condition expressing themselves correctly in languages with 
 which they were imperfectly acquainted. I had lately under my 
 care a 3'Oung lady who is liable to an affection of this kind, which 
 comes on repeatedly during the day, and continues from ten minutes 
 to an hour at a time. Without any warning, her body became 
 motionless, her eyes open, fixed, and entirely insensible, and she 
 became totally unconscious of any external impression. She has 
 been frequently seized while playing on the piano, and has con- 
 tinued to play, over and over, part of a tune with perfect correct- 
 ness, but without advancing beyond a certain point. On one occa- 
 sion she was seized after she had begun to play from the book a 
 piece of music which was new to her. During the paroxysm she 
 continued the part which she had ])layed, and repeated it five or 
 six times with perfect correctness ; but on coming out of the attack 
 she could not play it without the book. During the paroxysms the 
 individuals arc, in some instances, totally insensible to anything 
 tiuit is said to them ; but in others they are capable of holding con- 
 versation with another person with a tolerable degree of consistency, 
 though they are influenced to a certain degree by these mental 
 visions, and are very confused in their notions of external things. 
 In many cases, again, they are capable of going on with the manual 
 occupations in which they had been engaged before the attack. 
 This occurred remarkably in a watchmaker's apprentice mentioned 
 by Martinet. The paroxysms on him appeared once in fourteen days, 
 and commenced with a feeling of lieat extending from the epigastrium 
 to the head. This was followed by confusion of thought, and this 
 by complete insensibility ; his eyes were open, but fixed and vacant, 
 404
 
 SOMNAMBULISM. [§ 496. 
 
 and he was totally insensible to anything that was said to him, or 
 to any external impression. But he continued his usual employ- 
 ment, and was always much astonished, on his recovery, to find the 
 change that had taken place in his work since the commencement 
 of his paroxysm. This case afterwards passed into epilepsy. Some 
 remarkable phenomena are presented by this singular affection, 
 especially in regard to exercises of memory and the manner in 
 which old associations are recalled into the mind : also, in the dis- 
 tinct manner in which the individuals sometimes express themselves 
 on subjects with which they had formerly shown but an imperfect 
 acquaintance. In some of the French cases of epidemic ' extase,' 
 this has been magnified into speaking unknown languages, predict- 
 ing future events, and describing occurrences of which the persons 
 could not have possessed any knowledge. These stories seem, in 
 some cases, to resolve themselves merely into embellishment of Avhat 
 really occurred, but in others there can be no doubt of connivance 
 and imposture. Some facts, however, appear to be autlientic, and 
 are sufficiently remarkable. Two females, mentioned by Bertrand, 
 expressed themselves during the paroxysm very distinctly in Latin. 
 They afterward admitted that they had some acquaintance with the 
 language, though it was imperfect. An ignorant servant-girl, men- 
 tioned by Dr. Dewar, during paroxysms of this kind showed an 
 astonishing knowledge of geography and astronomy ; and expressed 
 herself in her own language in a manner which, though often ludi- 
 crous, showed an understanding of the subject. The alternations 
 of the seasons, for example, she explained by saying that the world 
 was set a-gee. It Avas afterwards discovered that her notions on 
 this subject had been derived from hearing a tutor giving instruc- 
 tions to the young people of the family. A woman who was some 
 time ago in the Infirmary of Edinburgh on account of an affection 
 of this kind, during her paroxysms mimicked the manner of the 
 physicians, and repeated correctly some of their prescriptions in 
 the Latin language. Another very singular phenomenon presented 
 by some instances of this affection is what has been called, rather 
 incorrectly, a state of double consciousness. It consists in the 
 individual recollecting, during a paroxysm, circumstances which 
 occurred in a former attack, though there was no remembrance of 
 them during the interval. This, as well as various other phenomena 
 connected with the affection, is strikingly illustrated in a case dc- 
 
 405
 
 § 496.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 scribed by Dr. Dyce, of Aberdeen, in the Edinburgh Philosophic 
 Transactions. The patient was a servant-girl, and the affection 
 began with fits of somnolency, which came upon her suddenly during 
 the day, and from which she could, at first, be aroused by shaking, 
 or by being taken out in the open air. She soon began to talk a 
 great deal during the attacks, regarding things which seemed to be 
 passing before her, as a dream ; and she was not, at this time, 
 sensible of anything that was said to her. On one occasion she 
 repeated distinctly tlie baptismal service of the Church of England, 
 and concluded with an extemporary prayer. In her subsequent 
 paroxysm she began to understand what was said to her, and to 
 answer with a considerable degree of consistency, though the 
 answers were generally, to a certain degree, influenced by her 
 hallucinations. She also became capable of following her usual 
 employments during the paroxysm ; and at one time she laid out 
 the table correctly for breakfast, and repeatedly dressed herself 
 and the children of the family, her eyes remaining shut the whole 
 time. The remarkable circumstance was now discovered, that dur- 
 ing the paroxysm she had a distinct recollection of what took place 
 in her former paroxysms, though she had no remembrance of it 
 during the intervals. At one time she was taken to church while 
 under the attack, and there behaved with propriety, evidently 
 attending to the preacher ; and she was at one time so much affected 
 as to shed tears. In the interval she had no recollection of having 
 been at church ; but in the next paroxysm she gave a most distinct 
 account of the sermon, and mentioned particularly the part of it by 
 which she had been so affected. This woman described the parox- 
 ysm as coming on with a cloudiness before her eyes, and a noise in 
 the head. During the attack her eyelids were generally half-shut; 
 her eyes sometimes resembled those of a person afflicted with amau- 
 rosis — that is, with a dilated and insensible state of the pupil, but 
 sometimes they were quite natural. She had a dull vacant look ; 
 but, when excited, knew what was said to her, though she often 
 mistook the person who was speaking ; and it was observed that 
 she seemed to discern objects best which were faintly illuminated. 
 The paroxysms generally continued about an hour, but she could often 
 be roused out of them ; she then yawned and stretched herself, like 
 a person awaking out of sleep, and instantly knew those about her. 
 At one time, during the attack, she read distinctly a portion of a 
 406
 
 , SOMNAMBULISM. [§ 498. 
 
 book which was presented to her ; and she often sung, both sacred 
 and common pieces, incomparably better, Dr. Dyce affirms, than 
 she could do in a waking state. The affection continued to recur 
 for about six months, and ceased when a particular change took 
 place in her constitution." 
 
 § 497. " We have another very remarkable modification of this 
 affection, referred to by Mr. Combe, as described by Major Elliot, 
 Professor of Mathematics in the United States Military Academy 
 at West Point. The patient was a young lady of cultivated mind, 
 and the afiection began with an attack of somnolency, w^iich was 
 protracted several hours beyond the usual time. When she came 
 out of it, she was found to have lost every kind of acquired knowl- 
 edge. She immediately began to apply herself to the first elements 
 of education, and was making considerable progress, when, after 
 several months, she was seized with a second fit of somnolency. 
 She was now at once restored to all the knowledge which she had 
 possessed before the first attack, but without the least recollection 
 of anything that had taken place during the interval. After an- 
 other interval she had a third attack of somnolency, which left her 
 in the same state as after the first. In this manner she suffered 
 these alternate conditions for a period of four years, with the very 
 remarkable circumstance that during one state she retained all her 
 original knowledge, but during the other, that only which she had 
 acquired since the first attack. During the healthy interval, for 
 example, she was remarkable for the beauty of her penmanship ; 
 but during the paroxysm, wrote a poor, awkward hand. Persons 
 introduced to her during the paroxysm, she recognized only in a 
 subsequent paroxysm, but not in the interval ; and persons whom 
 she had seen for the first time during the healthy interval, she did 
 not recognize under the attack."^ 
 
 § 498. Carus tells us in his lectures (Leipsic, 18:31), of a clergy- 
 man Avho was a somnambulist, who would get up in his 
 
 Instances 
 sleep, take paper, and write out a sermon. If a passage of som- 
 
 did not please him, he would strike it out, and correct it 
 
 with great accuracy. We are told by Steltzer of a somnambulist 
 
 who clambered out of a garret window, descended into the next 
 
 ' Abercrombic on the Intellectnul Powor.s, p. 23<S, etc. 
 
 407
 
 § 500.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 house, and killed a young j^irl who was asleep there. ^ As a set-off 
 to these, -we have the case of a preassumed somnambulism for the 
 purpose of cloaking an intended crime. ^ 
 
 § 409. A curious example of somnambulism, observed in a monk, 
 
 is mentioned by M. de Savarin, as related to him by the 
 i-;uisin^'an pi'ior of the convcnt where it happened, who was an eye- 
 iiomie/ac"^ witncss of the occurrence. " Very late one evening the 
 
 patient somnambulist entered the chamber of the prior, 
 his eyes were open but fixed, the light of two lamps made no im- 
 pression upon him, his features were contracted, and he carried in 
 his hand a large knife. Going straight to the bed, he had first the 
 appearance of examining if the prior was there. He then struck 
 three blows, which pierced the coverings, and even a mat which 
 served the purpose of a mattress. In returning, his countenance 
 was unbent, and was marked by an air of satisfaction. The next 
 day the prior asked the somnambulist what he had dreamed of the 
 preceding night, and the latter answered that he had dreamed that 
 his mother had been killed by the prior, and that her ghost had 
 appeared to him demanding vengeance, that at this sight he was so 
 transported by rage, that he had immediately run to stab the 
 assassin of his mother ; that, a little while after, he awoke bathed 
 in perspiration, and very content to find he had only dreamed." 
 ^I. de Savarin adds, that, if under these circumstances the prior 
 had been killed, the monk somnambulist could not have been pun- 
 ished, because it would have been upon his part an involuntary 
 homicide.^ 
 
 § 500. " You have all heard," said Sir "William Hamilton, in one 
 
 of his lectures on metaphysics, " of the phenomenon of 
 
 Opinion of t i i i i 
 
 .Sir w. somnambulism. In this remarkable state the various 
 
 Hamilton . -i n ii- n- i-i i c 
 
 that fon- mental laculties are usually in a liigher degree oi power 
 
 sciousness ^j j^-^ j.^^^ natural. The patient has recollections of 
 
 IS present ^ 
 
 insonuiam- what he has wholly forgotten. He speaks languages of 
 
 which, when awake, he remembers not a word. If he 
 
 uses a vulgar dialect when out of this state, in it he employs only 
 
 a correct and elegant phraseology. Tlie imagination, the sense of 
 
 • SteltziT, iilier den Willcn, Leips., ^ Physiologic ilu gout, tome ii. p. 3. 
 1817-ls. 1.. 27:5. Paris, 1834. 
 
 2 Falinrr, System der Ger. Arznei. 
 1 Bd. p. 43. 
 
 408
 
 SOMNAMBULISM. [^ 500. 
 
 propriety, and the faculty of reasonincr, are all in general exalted. 
 The bodily poAvers are in high activity, and under the complete 
 control of the Avill ; and, it is Avell known, persons in this state have 
 frequently performed feats, of which, when out of it, they would 
 not even have imagined the possibility. And, what is even more 
 remarkable, the difference of the faculties in the two states seems 
 not confined merely to a difference in degree. For it happens, for 
 example, that a person who has no ear for music when awake shall, 
 in his somnambulic crisis, sing with the utmost correctness and with 
 full enjoyment of his performance. Under this affection persons 
 sometimes lie half their lifetime, alternating between the normal 
 and abnormal states, and performing the ordinary functions of life 
 indifferently in both, with this distinction, that if the patient be dull 
 and doltish when he is said to be awake, he is comparatively alert 
 and intelligent when nominally asleep. I am in possession of three 
 works, written during the crisis by three different somnambulists. 
 Now it is evident that consciousness, and an exalted consciousness, 
 must be allowed in somnambulism. This cannot possibly be denied; 
 but mark what follows. It is the peculiarity of somnambulism — it 
 is the differential quality by which that state is contradistinguished 
 from the state of dreaming — that we have no recollection, when we 
 awake, of what has occurred during its continuance. Consciousness 
 is thus cut in two ; memory does not connect the train of con- 
 sciousness in one state with the train of consciousness in the other. 
 When the patient again relapses into the state of somnambulism, he 
 again remembers all that had occurred during every former alterna- 
 tion of that state ; but he not only remembers this, he recalls also 
 the events of his normal existence ; so that, whereas the patient in 
 his somnambulic crisis has a memory of his whole life, in his wak- 
 ing interval he has a memory only of half his life. At the time of 
 Locke, the phenomena of somnambulism had been very little studied ; 
 nay, so great is the ignorance that prevails in this country in regard 
 to its nature even now, that you will find this, its distinctive cha- 
 racter, wholly unnoticed in the best works upon the subject. But 
 this distinction you observe is incompetent always to discriminate 
 tiie state of dreaming and somnambulism. It may be true that if 
 we recollect our visions during sleep, this recollection excludes som- 
 nambulism, but the want of memory by no means proves that tlie 
 visions we are known by others to have had were not common 
 
 409
 
 § 501.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 dreams. The phenomena, indeed, do not always enable us to dis- 
 criminate the two states. Somnambulism may exist in many differ- 
 ent degrees ; the sleep-walking from which it takes its name is only 
 one of its higher phenomena, and one comparatively rare. In 
 general, the subject of this affection does not leave his bed, and it 
 is then frequently impossible to say wliether the manifestations ex- 
 hibited are the phenomena of somnambulism or of dreaming. Talk- 
 ing during sleep, for example, may be a symptom of either, and it 
 is often only from our general knowledge of the habits and predis- 
 positions of the sleeper, that we are warranted in referring this 
 effect to the one and not the other class of phenomena. We have, 
 however, abundant evidence to prove that forgetfulness is not a de 
 cisive criterion of somnambulism. Persons whom there is no reason 
 to suspect of this affection, often manifest during sleep the strongest 
 indications of dreaming, and yet, when they awaken in the morning, 
 retain no memory of what they may have done or said during the 
 night. Locke's argument, that, because we do not always remem- 
 ber our consciousness during sleep, we have not, therefore, been 
 always conscious, is thus on the ground of fact and analogy dis- 
 proved."^ 
 
 § 501. Prof. Jessen, of Iloraheim, near Kiel, a distinguished 
 practical alienist, gives the following: — 
 
 " On a wintry morning, between five and six o'clock, I was 
 aroused, as I thought, by the head nurse, who reported 
 of rrof. to rae that some people had come for one of the male 
 patients, and who at the same time asked me whether I 
 had any particular orders to give. I replied that the patient might 
 depart, and after he had left the room I turned around to go to sleep 
 again. All at once it struck me that I had previously not heard 
 anything regarding the intended departure of this patient, but that 
 only the prospective departure of a woman of the same name had 
 been reported to me. This compelled me to inquire more particu- 
 larly after the circumstances, and accordingly I lighted a candle, 
 rose, dressed myself, and went to the room of the head nurse. To 
 my surprise I found him only half dressed, and, in reply to my in- 
 ((uiry after the people wiio had called for the patient, he said, with 
 an expression of astonishment, that he did not know anything of it, 
 
 ' Lectures on Metcaphvsics, p. 282. 
 
 410
 
 DEPRESSION. [§ 503. 
 
 as he had but just left his bed, and no one had called on him. This 
 answer did not arouse my consciousness, but I rejoined that then 
 the steward must have been in my room, and that I should accord- 
 ingly go to see and ask him regarding the matter. When descend- 
 ing a few steps in the middle of the corridor which led to the room 
 of the steward, I suddenly became conscious of having dreamed 
 only what until that moment I had believed to be an experience 
 whose reality I had not doubted in the least." 
 
 III. MENTAL UNSOUNDNESS AS AFFECTING THE TEMPERAMENT.* 
 
 1. Depression."^ 
 
 § 502. By this term may be designated a condition of despon- 
 dency which continues for a long time, even for years, Depression 
 without assuming the form of real aberration of mind, ^'^^'^'^..P' 
 
 o ' transition 
 
 but which derives peculiar importance and significance stage to 
 
 1 . • P 1 f 1 • iusauity. 
 
 in matters oi penal jurisprudence, trom the tact that m 
 
 such cases a criminal act often introduces the transition to patent 
 
 insanity, inasmuch as it makes its appearance as the first decisive 
 
 symptom, which is rapidly followed by others. 
 
 § 503. To Morel we are indebted for the following sketch of 
 
 primitive or simple depression. ^ x\s there exists a mania yfg^g of 
 
 which shows itself rather in insanity of action than of ^lorei on 
 
 " . this topic. 
 
 mind (manie instinctive), so likewise there exists a state 
 of melancholy without delirium. Without our often being able to 
 instance other causes than those phenomena which accompany the 
 change from adolescence to puberty, from puberty to age, and from 
 mature age to the critical period ; at these critical periods of life, 
 we feel a vague weariness, a motiveless fear, an indefinable sad- 
 ness, which sometimes is only transitory, and at others is the start- 
 ing point of the most serious disturbances. It is, says Guislain, a 
 state of sadness, of dejection accompanied with or without the 
 shedding of tears, without any notable aberration of imagination, 
 
 ' See Etudes Medico-Psycliologiques 1851, § 100 ; Siebold, Lehrbuch der 
 
 sur I'Alit'nation Mentale, par L. F. E. Gericlit. Med. Berlin, 1847, § 200. 
 
 Renaudin, chapter II. p. 3(J. Paris, " Trait6 tlieoriiiue et pratique des 
 
 1854. Maladies Mentales, par M. Morel, tome 
 
 2 See Krahmer, Ilandbuch der 'ic- i. p. 38(). Paris, 1852. 
 riclit. Med. Halle, C. A. Schwetsclike, 
 
 411
 
 § 505.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOaiCALLY. 
 
 intelligence, or feeling. The heart apparently is the seat of the 
 disease ; but soon the malady shows itself in a prostration of all 
 the intellectual powers, a state which absorbs all individual energy, 
 and appears to leave only the capacity of suftering. There are few 
 who have not experienced these painful feelings for a time ; and if 
 by an eifort of reasoning we are able to affix the form of continuity 
 to these sensations, we will have a correct idea of this intolerable 
 state. 
 
 § 504. When a like condition, adds Guislain, is accompanied 
 with anxieties, groaning, sobs, a desire to commit suicide, or any 
 other determination, it is no longer in its simplest state. . . . 
 He proceeds to argue that depression can continue in connection 
 with the above-mentioned tendencies. IIow else, he asks, could we ex- 
 plain those suicides without reason, those irregular actions of which 
 we see so many examples in instinctive mania, the affection which, 
 above all others, has the closest relation to melancholy ? In the 
 greater number of cases, these forms are distinguishable less per- 
 haps by the diversity of the acts than by the nature of the depres- 
 sive principles. We may readily admit that instinctive maniacs 
 generally betray themselves by more capricious deeds, and by more 
 sudden and more cruelly enei'getic and destructive determinations, 
 than the simple hyporaaniacs, who rather turn against themselves 
 their fatal homicidal impulses. In the first case, also, the depravity 
 of the instincts is often more connected with the organic affections, 
 a vicious education, or a prior state of immorality, whilst in the 
 latter class the impulse whicli the patients themselves deplore is the 
 harder to be understood, because (1) the individual is generally 
 placed in the most favorable social condition ; (2) his education has 
 left nothing to be wished for, and (o) his past history would never 
 cause the actions to which he is irresistibly forced in this unfortu- 
 nate unhealthy state to be expected. 
 
 § 505. " Depression of mind," says Reid, " may be owing to 
 
 melancholy, a distemper of the mind which proceeds from 
 Of Reid. , f. ,,-,,., , ■,. , 1 
 
 the state or the body, which throws a dismal gloom upon 
 
 every object of thought, cuts all the sinews of action, and often 
 
 gives rise to strange and absurd opinions in religion, or in other 
 
 interesting matters. Yet, where there is real worth at the bottom, 
 
 some rays of it will break forth even in this depressed state of 
 
 mind. A remarkable instance of this was exhibited in Mr. Simon 
 
 412
 
 DEPRESSION, [§ 506. 
 
 Brown, a dissenting clergyman in England, who, by melancholy, 
 was led into the belief that his rational soul had gradually decayed 
 within him, and at last was totally extinct. From this belief he 
 gave up his ministerial function, and would not join with others in 
 any act of worship, conceiving it to be a profanation to worship 
 God without a soul. In this dismal state of mind he wrote an 
 excellent defence of the Christian religion against Tindal's ' Chris- 
 tianity as Old as the Creation.' To the book he prefixed an epistle, 
 dedicatory to Queen Caroline, wherein he mentions ' that he was 
 once a man, but, by the immediate hand of God for his sins, his 
 very thinking substance has, for more than seven years, been con- 
 tinually wasting away, till it is wholly perished out of him, if it be 
 not utterly come to nothing;' and, having heard of her majesty's 
 eminent piety, he begs the aid of her prayers. The book was pub- 
 lished after his death without the dedication, Avhich, however, having 
 been preserved in manuscript, was afterwards printed in the ' Ad- 
 venturer.' Thus this good man, when he believed that he had no 
 soul, showed a most generous and disinterested concern for those 
 who had souls. As depression of mind may produce strange opin- 
 ions, especially in the case of melancholy, so our opinions may have 
 a very considerable influence either to elevate or depress the mind, 
 even where there is no melancholy. Suppose, on one hand, a man 
 who believes that he is destined to an eternal existence ; that He 
 who made and who governs the world maketh an account of him, 
 and hath furnished him with the means of attaining a high degree 
 of perfection and glory. With this man compare, on the other 
 hand, the man who believes nothing at all, or Avho believes that his 
 existence is only the play of atoms, and that after he has been 
 tossed about by blind fortune for a few years, he shall again return 
 to nothing. Can it be doubted that the former opinion leads to 
 elevation and greatness of mind, and the latter to meanness and 
 depression ?"^ 
 
 § 50G. "A pleasant season," says Dr. Rush, " a fine day, or 
 even the morning sun, often suspends the disease. Mr. ]),,j„.,,f;j,i(,„ 
 CowTjer, who knew all its symptoms by sad experience, j^ "'♦;''•' '"- 
 bears witness to the truth of this remark, in one of his 
 letters to Mr. Haly. ' 1 rise,' says he, ' cheerless and distressed, 
 
 » Reid on tho Active J'owers of Opinion, p. f)?!!. 
 
 418
 
 § 508.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 and brighten as the sun goes on.' Its paroxysms are sometimes 
 denoted ' low spirits.' They continue from a day, a week, a month, 
 a season, to a year, and sometimes longer. The intervals differ — 
 1, in being accompanied with preternatural high spirits; 2, in being 
 attended with remissions only ; and, 8, with intermissions, or, in 
 other words, in correctness and eciuanimity of mind. The extremes 
 of high and low spirits, which occur in the same person at different 
 times, are happily illustrated by the following case : A physician 
 in one of the cities of Italy was once consulted by a gentleman who 
 was much distressed with a paroxysm of this intermitting state of 
 hypochondriacism. He advised him to seek relief in a convivial 
 manner, and recommended him in particular to find out a gentleman 
 of the name of Cardini, who kept all the tables in the city, to which 
 he was occasionally invited, in a roar of laughter. 'Alas! sir,' said 
 the patient, with a heavy sigh, ' I am that Cardini.' Many such 
 characters, alternately marked by high and low spirits, are to be 
 found in all the cities in the world."' 
 
 § 507. In cases of settled depression, the patient on the one 
 hand is fully convinced that his notions and wishes ought to be 
 realized ; but on the other he feels the impossibility of eilfecting 
 their realization. He, therefore, makes no effort to render possible 
 the impossible ; yet he cannot resign the ideal, which he bears in 
 his bosom; he loves his fictions, or the objects of his wishes so 
 much, that he cannot part with them. Thus he consumes his 
 existence in a monotonous grief ; he cannot take interest in any- 
 thing except the object of his sadness." 
 
 2 . Hiipoclion dria.^ 
 
 § 508. When the morbid despondency noticed under the last 
 head extends to the general tone of bodily sensations, a condition 
 
 ' Rush on the Mind, pp. 82, 83. 1854. See also on this point the fol- 
 
 2 Ranch's ]\syoh()k)gy, 151. lowing works : Confessions of a Hypo- 
 
 3 See Krahraer, llandliuch der Ge- ehondriae, or the Adventures of a 
 richt. Med. Halle, C. A. Schwetsehke, Hypochondriac in search of Health, 
 1851, § 109; Siehold, Lehrbuch der Saunders & Otley, London, 1849; Re- 
 (iericht. Med. Berlin, 1747, § 208. See view of same, Journ. of Psychol. Med. 
 De I'Hypochondrie et du Suicide, par vol. iii. \). 1. See also an article in 20 
 .J. P. Palfret, Paris, 1822; Renaudin Am. Pract. 19. 
 
 snr I'Alienation Mentale, p. !)9, Paris, 
 
 414
 
 HYPOCHONDRIA. [^ 509. 
 
 is produced which we commojily call hypoelwndria. In Hypochon- 
 
 the inferior stages the patient retains sufficient self-control gtatVof 
 
 to conceal if not forget his condition, and proceed un- ^otaide- 
 ° , _ ' 1 pressiou. 
 
 hindered in his occupations ; but in the higher degrees 
 he becomes so absorbed in his bodily sensations as to exhibit it in 
 his appearance and conduct, disregarding every effort made to raise 
 his spirits, and reducing all his reflections to the common machinery 
 of personal questions and answers.^ As this sort of selfishness 
 increases, the mind is often filled with envy, hatred, bitterness, 
 suspicion, and revenge towards others, and particularly towards 
 those in whom the patient believes himself to detect a want of 
 sympathy, or even of respect, or whom he regards as the authors 
 of his distress. The result of this is too apt to be a series of unjust 
 surmises and accusations, personal ill-treatment of others, and even 
 murderous threats and assaults against the supposed wrong-doers, 
 as well as the commission of suicide. In the judicial scrutiny and 
 consideration of such a case, it is essential to inquire how far and 
 for what length of time the attention of the patient can be directed 
 from his bodily feelings to other objects ; what is his personal 
 opinion of his own condition ; whether any, and if any what, insane 
 ideas possess his mind, and what is his general demeanor. Where 
 the perceptive faculty is not so far involved in the progress of 
 the disease as to falsify the impressions of the senses, and deprive 
 the consciousness of the power of correcting them, the defendant, 
 for reasons we have already given, is to be held responsible ; but 
 the judge in passing sentence will nevertheless take into account 
 the morbid impulse which Avas a subsidiary cause in the commission 
 of the crime. ^ 
 
 § 500. The following description of the hypochondriacal charac- 
 ter is to be found in the M^decine Ldgale de M. Orfila.^ ^ . . 
 
 ^ _ UcsL-nptioii 
 
 "Hypochondriacs are distinctively remarkable for their i>r hypo- 
 exaggerated fears upon the state of their health, and the 
 foolish ideas they give utterance to in expressing their sullerings. 
 Their temper is very unequal ; they pass almost without motive 
 from hope to despair, from grief to gaycty, from bursts of pas- 
 
 ' Ellinger, p. 105. views in Schiinnriyer, Ocricht. Med. § 
 
 2 Supra, §§ 125 etseq. See Uie above 542. 
 
 ' Tduu! i. ]). 41 C. Paris, lt;48. 
 
 415
 
 § 510.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 sion to gentleness, from laughter to tears ; many are timid, pusil- 
 lanimous, fearful, morose, irascible, restless, hard to please, a tor- 
 ment and fatigue to every body. They are easily moved ; a trifle 
 vexes and agitates tliem, producing fears, torments, and attacks of 
 despair. Tlic greater number show a marked change in their 
 aftections ; they arc egotistical ; the slightest motives cause them to 
 pass from attachment to indifference or to hate. They are often 
 susceptible of an exaltation or depression of spirits, of a rapid 
 succession of the most opposite ideas and emotions, without the 
 will being able to control the thought. 
 
 " But those thus affected have a very good judgment in whatever 
 relates to their own interests, and generally in everything which 
 is foreign to their health, unless the disease should end in a total 
 loss of reason, a thing which is of very rare occurrence. The 
 peculiar characteristics above described render hypochondriacs more 
 likely to yield to fear, and more easily moved to contract engage- 
 ments ; and the faintest suggestions of danger exercise considerable 
 influence upon their mind. Finally, the jealous, suspicious, irritable, 
 headstrong character of hypochondriacs would be an extenuating 
 circumstance, if, under a first impulse, they should commit a repre- 
 hensible act." 
 
 § 510. " The hypochondriac, constantly preoccupied with his 
 afflictions, seeks by every possible means to analyze them, lie 
 often feels his pulse, examines his tongue and his excretions, and 
 frequently discovers in these investigations causes for fear or hope, 
 which he sometimes, though the details may be very disgusting, 
 takes a sort of pleasure in communicating to every body. The 
 great desire to be cured induces liira frequently to change his phy- 
 sician and his treatment. He seeks for instruction by reading 
 medical books, and often changes his opinion regarding the nature 
 of his malady, inasmuch as he applies to his own case all which he 
 reads or hears of. The mere mention of a disease is sufficient to 
 start the notion that he himself labors under it ; and, influenced by 
 this idea, he now discovers in the corresponding organs phenomena 
 which he had never before experienced. 
 
 " But not always is it the fear simply of ordinary bodily dis- 
 eases which occupies the attention of the hypochondriac and is the 
 object of his anxiety. Frequently the mental element in his ma- 
 lady does not escape his notice, and the complete change of his 
 416
 
 HYPOCHONDRIA. [§ 511. 
 
 personality, the possession by morbid sensations and ideas, espe- 
 cially, however, a certain anomaly particularly in the mental 
 sphere, in the sensorial sensations, whereby these, although per- 
 ceived as formerly, no longer produce the same impressions, fre- 
 quently form the great subject of his complaint. This last and 
 very remarkable state, which the patients themselves have much diffi- 
 culty in describing, which we also have ourselves observed in several 
 cases as the predominant and most lasting symptom, is as well as 
 possible described in the following letter of oneof Esquirol's patients. 
 
 " I still continue to sutler constantly ; 1 have not a moment of 
 comfort, and no human sensations. Surrounded by all that can 
 render life happy and agreeable, still to me the faculty of enjoy- 
 ment and of sensation is Avanting — both have become physical im- 
 possibilities. In everything, even in the most tender caresses of 
 my children, I find only bitterness. I cover them with kisses, but 
 there is something between their lips and mine ; and this horrid 
 something is between me and all the enjoyment of life. My exist- 
 ence is incomplete. The functions and acts of ordinary life, it is 
 true, still remain to me ; but in every one of them there is some- 
 thing wanting — to wit, the sensation which is proper to them, and 
 the pleasure which follows them. . . . Each of my senses, 
 each part of my p)roper self, is as it were separated from me, and 
 can no longer afford one any sensatioii; this impossibility seems to 
 depend upon a void which Ifeel in the front of my head, and to be 
 due to the diminution of the sensibility over the whole surface of 
 my body, for it seeins to me that I never actually reach the objects 
 tvhich I touch. Ifeel well enough the changes of temp)erature on 
 my skin, but I no longer experience the internal feeling of the air 
 when I breathe . . . my eyes see and my spirit perceives, 
 but the sensation of that which 1 see is completely wanting,''^ etc.^ 
 
 § 511. That hypochondria, in its simple and primarj^ forms, 
 does not juridically divest the suiferer of responsibility, 
 will be admitted Avhen we recall the long number of pa- ,irh'i"('iiH""' 
 tients, some of them among the most active and useful "•*'' 'ii'^tr^y 
 
 ' ° ri'spoiisihi- 
 
 members of society, whom, if this position be accepted, lity imiess 
 
 • ,111 ... fompli- 
 
 it would be necessary to sequestrate at once in a hmatic catcd and 
 asylum. But there are cases of aggravated and com- '^fi^'''^^*^ ^< • 
 
 • Griesingcr's Mental Patliol. Syden. cd. (1SG7) § 114. 
 
 VOL. I.— 27 417
 
 § 512.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 plex hypochondria when the patient can he no longer considered a 
 moral agent, and when it becomes necessary to strip him of his 
 business capacity, and to place him imder restraint. Leurot men- 
 tions, for instance, a hypochondriac who sold his farm, placing the 
 produce in the funds, so as to be relieved from care — whose inces- 
 sant attention was bestowed on his health — whose sole occupations 
 were " ennui" and sleep — who at last would not make the effort of 
 undressing himself, sat constantly in a half-darkened room, and 
 who, in his absorbing sense of misery, seemed to lose taste, smell, 
 and motion. A still more acute case is given by ]\Iorel, where the 
 patient's intrusive misery was such that his demands for sympathy 
 from his mother and sisters, and the nervous vehemence with 
 which he forced his griefs upon them, operated to destroy their 
 health. Of course, when hypochondria reaches such a pitch as 
 this, sequestration is necessary to the welfare both of the patient 
 and of his friends. 
 
 § 512. Nor should it be forgotten that hypochondria often is 
 complicated with other forms of psychical disease by 
 coinpii- which responsibility is suspended. Thus with hypochon- 
 otheriiis- driacs illusions of personal danger often intervene; and 
 H'"^^^'? . , these illusions are complex and occasionally overwhelm- 
 iiiir rcspuu- ii^n;. Sometimes the sufferer is watched by an evil 
 
 sibility. ^ ., . . . . . "^ 
 
 eye. Sometimes he is the victnn of witchery, magnet- 
 ism, or poison. Sometimes honor, reputation, liberty, are imperilled 
 by a hostile conspiracy. An Orange Irishman, for instance, some 
 years back, in Philadelphia, conceived himself to be in danger of 
 his life from a conspiracy of Roman Catholics. He in consequence 
 killed one of his supposed assailants ; and, though there was too 
 strong evidence of design on his part, and too clear proof of his 
 consciousness of the illegality of the act, to permit his ac(|uittal, 
 yet the penal sentence imposed by the court was commuted by the 
 governor to banishment. And it is possible to conceive cases of 
 hypochondriacal delusions of such a nature that a person committing 
 an offence under their influenee may think he is doing not wrong 
 but riglit. In such case responsibility for the particular act does 
 not juridically exist.'' 
 
 ' Supra, § 125. 
 
 418
 
 HYPOCHONDRIA. 
 
 [§ 515. 
 
 § 513. Sometimes, as we are told by Dr. Rush, the pain of a 
 bodily disease suspends, for a short time, the mental dis- Distress of 
 tress. Mr. Boswell, in his life of Dr. Johnson, relates a i>ody often 
 story of a London tradesman who, after making a large distress of 
 fortune, retired into the country to enjoy it. Here he ^^^ 
 became deranged with hypochondriasis, from the want of employ- 
 ment. His existence finally became a burden to him. At len"-th 
 he was afflicted with the stone. In a severe paroxysm of this dis- 
 ease a friend sympathized with him. "No, no," said he, "don't 
 pity me, for what I now feel is ease compared with the torture of 
 mind from which it relieves me." 
 
 § 514. Dr. Haindorft, in his German translation of Dr. Reid's 
 " Essay on Hypochondriasis," in allitding to the possi- „ ^ 
 bility of a patient laboring under hypochondriasis being dria may 
 able, by an exercise of the power of volition, to control trolled by 
 his morbid sensations, justly observes, " We should have * ^ ^^''^' 
 fewer disorders of the mind if we could acquire more power of voli- 
 tion, and endeavor by our own energy to disperse the clouds which 
 occasionally arise within our own horizon ; if we rcisolutely tore tin- 
 first threads of the net which gloom and ill-humor may cast around 
 us, and made an effort to drive away the melancholy images of a mor- 
 bid imagination by incessant occupation. How beneficial would it 
 be to mankind if this truth were universally acknowledged and acted 
 upon, viz. that our state of health, mental as well as bodily, prin- 
 cipally depends upon ourselves !" 
 
 " By seemiii'j r/nij we grow to what we seem." 
 
 It was the remark of a man of great observation and knowledge of 
 the Avorld, " Only wear a mask for a fortnight, and you will not 
 know it from your own face."' 
 
 § 515. A French writer mentions the case of a rich peasant who 
 was possessed with the idea that he was bewitched, and ^^ ,.^ 
 who complained to his medical attendant that seven devils pdied by 
 
 ,.,,.,.,, , d(ecj)tioii. 
 
 had taken up their abode m his body. " feeven, not 
 more ?" was the physician's inquiry. " Only seven," was the 
 reply. The physician promised him to rid him of the visitors, one 
 each day, upon condition that for the first six he was paid twenty 
 francs, but for the seventh, who was the chief of the band, forty. 
 
 ' Wiiislow on Suicide, pji. 100, 170. 
 
 419
 
 § 517.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 The patient agreed, and was subjected by tiie physician, who set 
 apart the fee for charity, to a series of daily shocks from the 
 Leyden jars, the seventh and last of which was so powerful as to 
 produce a fainting fit in the supposed demoniac, who, however, 
 awoke from it entirely freed from his delusion.* 
 
 § 516. Burns suffered much from indigestion, producing hypo- 
 chondria. Writing to his friend, Mr. Cunningham, he says: "Canst 
 thou not minister to a mind diseased ? Canst thou speak peace and 
 rest to a soid tossed on a sea of troubles, without one friendly star 
 to wuide her course, and dreading that the next surge may over- 
 whelm her ? Canst thou give to a frame, tremblingly alive to the 
 tortures of suspense, the stability and hardihood of a rock that 
 ])raves the blast? If thou canst not do the least of these, Avhy 
 wouldst thou disturb me in my miseries with thy inrpiiries after 
 me ?" From early life, the poet was subject to a disordered 
 stomach, a disposition to headache, and an irregular action of the 
 heart. He describes, in one of his letters, the horrors of his com- 
 plaint : " I have been for some time pining under secret wretched- 
 ness. The pang of disappointment, the sting of pride, and some 
 wandering stabs of remorse, settle on my life like vultures, when 
 my attention is not called away by the claims of society, or the 
 vagaries of music. Even in the hour of social mirth, my gayety is 
 the madness of an intoxicated criminal under the hands of an ex- 
 ecutioner. My constitution was blasted, <th origine^ with a deep, 
 incurable taint of melancholy that poisoned ray existence."" 
 
 § 517. jri/stcrid, Avhich only attacks individuals of the female 
 sex, or males having a feminine organization, resembles 
 
 Ilv.steria ,',...'' , . ® , , 
 
 mucii like hypochondria m its mental and moral symptoms; but the 
 t'pi •'P'^J- nauseous and painful feelings manifest themselves in con- 
 vulsions, and the alternation between the different states of feeling 
 is far more abrupt.^ 
 
 Hysteria presents the same difficult complications as epilepsy. 
 
 ' Aiinrilcs Med. Psyc, 1847. Ilandbuch der (lericht. Med. Ilalle, C. 
 
 2 Wiiislow on Suicide, 147. A. Si-hwetschke, 1851, § 110. 
 
 * Siebold, Lehrbiich der Gericlit. ■* Sehiirmayer, (xericht. Med. § 543 ; 
 Med., Berlin, 1847, § 208; Kralmier, Krahmer, Handbucli de Gericht. Med. 
 
 Ilalle, C. A. Scliwetschke, 1851, § 109. 
 
 420
 
 HYSTERIA. [§ 519. 
 
 Psychical disease may either be intermingled with, or entirely 
 absorb, physical. Sometimes the mental type may be that of 
 ecstasy ; sometimes that of profound terror-stricken anguish, influ- 
 encing the patient to abnormal if not illegal acts. 
 
 § 518. Liman^ mentions as psychical symptoms of hysteria, irri- 
 tability ; impressionability ; want of psychical energy symptoms 
 and positiveness ; thraldom to physical and psychical im- of hysteria, 
 pressions ; capriciousness ; rapid change of mood on little or no 
 cause ; inclination to deceit, falsehood, exaggeration, and simula- 
 tion ; propensity to the odd, the eccentric, the evil, and the unworthy, 
 coupled with sharp intelligence. These psychical traits, he men- 
 tions, are to be found, more or less pronounced, in connection both 
 with the intermittent and the remittent corporeal symptoms of those 
 suffering with hysteria ; and these symptoms often, either in their 
 own course, or in concurrence with other causes, mature into an 
 insanity whose actions are progressively more and more wild, and 
 in which self-control is ultimately lost. The erotic element, accord- 
 ing to Liman, exhibits itself in this disease with much less frequency 
 than is generally supposed. On the other hand, JMorel calls atten- 
 tion to the well-substantiated fact that patients of these classes some- 
 times tenaciously ciierish delusions and hallucinations that they have 
 been the subject of sexual wrongs from others (^e. g., rape, abor- 
 tion, impregnation); and detail the circumstances of such wrongs 
 with a consistency and exactness which, in those unacquainted with 
 the patient's condition, secure belief. 
 
 § 519. With this may be mentioned cases of intense domestic 
 irritability, resulting in quarrels at home, and sometimes, as Liman 
 mentions, in disputes with and rapid changes of medical attendants. 
 The excitement is more intense at the catamenial period, and sub- 
 sides during the intervals. So, also, with regard to admissions 
 into and dismissal from asylums, which may rapidly alternate. 
 These patients are the peculiar annoyances, so speaks this experi- 
 enced observer, of such institutions. Nothing is acceptable to 
 them but the past and the impossible ; the present and the attain- 
 able are the causes of petulant disgust. Yet they are peculiarly 
 subject to discipline. If this discipline can be firmly maintained, 
 they may be controlled, if not cured. 
 
 ' Liman's Casper, 1871, p. 443. 
 
 421
 
 § 521.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 520. The foro-psychical question in such cases is, are the sense 
 
 of right, and the power to do what is right, destroyed ? 
 
 may pro- No doubt is thcrc that in hysteria there sometimes exist 
 
 ^ioiisaflVct- ^^^^^ psychical illusions as make it necessary to answer 
 
 iu'jr respou- ^his oucstion in the affirmative. Patients afflicted with 
 
 sibility. ' • i i 
 
 this disease, we are told by the experienced and accurate 
 observers who have been just cited, sometimes believe, not merely 
 that they have lost hand, eye, or ear, but that they are poisoned, 
 or subjected to great indignities, which, if the delusion be sincere, 
 they would naturally endeavor to resent. Yet the difficulty here 
 arises from the tendency, sometimes epidemic, sometimes sporadic, 
 in this class of patients to simulate. Any symptom which would 
 increase personal importance, or draw attention, or excite sympathy, 
 if not felt, will be feigned. No one who attends such patients but 
 will be struck, indeed, with the fecundity with which new symp- 
 toms will be created when old ones have lost their effect. Hence it 
 is that in hysteria there should be close scrutiny applied to all cases 
 dependent on the sincerity of such delusions. No doubt, wherever 
 it appears that a delusion is sincere, the patient is not responsible 
 for an act committed under its stress. But in view of the fact that 
 hysteria is fomented by indulgence — in view of the danger to the 
 community which would result from the emancipation of such pa- 
 tients from penal control — in view of the injury to which they 
 would themselves be subjected if they were as a class to be removed 
 from the sphere of liberty tempered by law to that of confinement 
 in lunatic asylums, under whose restraints it would be necessary to 
 place persons so emancipated — hysteria itself cannot be juridically 
 regarded as suspending moral agency unless mental unsoundness as 
 an independent state be substantively proved. 
 
 § 521. Attacks of hysteria, although in appearance bearing con- 
 siderable analogy to those of epilepsy, rarely produce a 
 of hysteria State 01 Complete insensibility, and, although they may 
 .'•xihuie ^^^^ longer, tiiey never leave behind them final bewilder- 
 ii'-iHmsi- nicnt of mind. However frequently they may occur, 
 they hardly ever produce mania or dementia, and there- 
 fore they rarely exclude responsibility.^ 
 
 ' Briaiid, Med. L6g., p. 509. 
 
 422
 
 MELANCHOLIA. [§ 523. 
 
 § 522. Hysteria is described by Dr. Maudsley,^ in his lectures 
 (London, 1870), as sometimes exhibiting itself in acute 
 maniacal excitement, with great restlessness, rapid and ley's cfe^ ^" 
 disconnected and yet not entirely incoherent conversa- f^"P*i?ii of 
 
 •^ _ "^ hysteria. 
 
 tion sometimes tending to the obscene, and perversity of 
 conduct more or less incoherent and seemingly wilful. " With the 
 perverted sensations and disordered movements there is always 
 some degree of moral perversion. This increases until it swallows 
 up the other symptoms ; the patient loses more and more of her 
 energy and self-control, becoming capriciously fanciful about her 
 health, imagining or feigning strange diseases, and keeping up the 
 delusion or the imposture with a pertinacity that might seem in- 
 credible, getting more and more impatient of the advice and inter- 
 ference of others, and indifferent to the interests and duties of her 
 position. Outbursts of temper become almost outbursts of mania, 
 particularly at the menstrual periods. An erotic tinge may be ob- 
 servable in her manner of behavior ; and occasionally there are 
 quasi-ecstatic and cataleptic states. It is an easily curable form of 
 derangement if the patient be removed in time from the anxious but 
 hurtful sympathies and attentions of her family, and placed under 
 good moral control ; but, if it be allowed to go unchecked, it will 
 end in dementia, and it is especially apt to do so when there is a 
 marked hereditary disposition. ''^ 
 
 Hysteria, as an element in what is called religious insanity, is 
 hereafter discussed.^ 
 
 4. MclanclioJia.* 
 
 § 523. Melancholia may be defined as settled and continuous 
 depression. In its higher degrees, the various gloomy and morbid 
 
 ' See talso Dr. Hammond's Diseases to that species of melanclidly whieh is 
 
 of the Nervous System, N. Y., 1881, most affected by the weather and hy 
 
 and authorities cited under this head. otiier depressing circumstances. Tliis 
 
 2 Body and Mind, London, 1870, p. term lias been seriously adopted by 
 79. Siebold, Gericht. Med. § 212. Melan- 
 
 3 Infra, § 676. cholia Anglica, sive Autochira. Fr. B. 
 * Siebold, Lehrbuch der Gericht. Osiander, in his interesting volume on 
 
 Med., Berlin, 1847, § 208. Dr. Cheyne, Suicide, discusses the same topic, 
 rather jocularly than otherwise, ap- llanuov., 1813, 8, § 2U7 
 X)lied the term, "The English Malady," 
 
 423
 
 § 523.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Meiaiuho- feelings are accompanied by distinct imaginings, which 
 and^cou- ^ take their character from the sort of agitation in which 
 
 tinuous de- ^-^^ disease commenced, the general opinions and cha- 
 pression. . . 
 
 ractcr of the individual, the pui'suits which last occupied 
 
 him, and the trials to which he may have been subject.^ For all 
 these feelings the patient seeks explanations, and finds them either 
 in Jiim self {melancholia conccntrica), or in surrounding things and 
 circumstances (rnelancliolia peripherica'). In the former case he 
 takes himself severely to task for small or inconsiderable errors, or 
 declares, with an air of sincere conviction, that he has committed 
 great crimes, as murder, etc., and has incurred, by his inexpiable 
 fault, the displeasure of God and of the world, and eternal damna- 
 tion. In melancholia reli//iosa such sufferers ask to be tried and 
 punished ; they complain of the loss of wliat is most dear to them, 
 apprehend poverty for themselves and their families in the future, 
 or even imagine themselves possessed by demons. In melaneholia 
 dcemonica^ they accuse other persons of malevolence and persecu- 
 tion, to which they ascribe their ailments. It is characteristic of 
 this phase of disease, that the patient never sees surrounding things 
 as they are, but always in a light corresponding to his gloomy frame 
 of mind ; frequently, also, this false coloring turns into a real illu- 
 sion of the senses, particularly in the peripheric form, which is the 
 reason that it so frequently ends in lunacy. The external conduct 
 of the patients, the manner in which they execute the dictates of 
 their wills, is very various. In melancholia attonita they sit motion- 
 less and speechless ; in other cases, they can hardly find words 
 enough to depict their distress ; sometimes they are perpetually in 
 motion — melancholia activa et errahunda. In peripheric melan- 
 choly they scold and swear about their grievances, become noisy 
 and excited, and resort to violent means of resistance or revenge. 
 In this manner, melancholy often becomes the occasion of mur- 
 derous assaults, and sometimes murders of the most cruel kind, as 
 well as of suicide.- 
 
 1 Schi'innayer, Geiicht. Med. § 544; of perioilic melancholy, The Med. Rec, 
 
 compare l']llinger, p. 108 ; Le<,'oiis Clin- Aug. 14, 1875. For articles on suicide 
 
 iques sur I'Alidnation Mentale ; Falret, see Proceedings of N. Y. Med. Leg. Soc. 
 
 Le(,'on Tth, p. 185. Paris, 1854. Etudes (N. Y. 1S72), pp. 1-37. 
 
 Medico-Psychologiquessur I'Alienation 2 xhc above summary is taken from 
 
 Mentale. L. F. E. Renaudin, chap. iv. Schiirmayer, Gericht. Med. § 544. 
 p. 17>'. Paris, 1854. See, for a case 
 
 424
 
 MELANCHOLIA. [^ 524. 
 
 § 524. Melancholia, or "Ali6iation partielle depressive," as it 
 has been called by Falret, has, as its name indicates, for 
 its principal characteristic, a depression, slowness and i^l^i^^of^'^' 
 prostration of all the faculties united with general anx- ™eiancho- 
 iety. This fundamental disposition of the sensibility and 
 intelligence produces, in the greater number of those thus affected, 
 a crowd of analogous consequences. Everything is viewed bv them 
 in a distorted light ; all their relations with the external world are 
 changed ; they look upon everything Avith repulsion and antipathy ; 
 they bear with difficulty the kindest remarks of their relations and 
 friends, and consolation itself irritates them. In entire contradic- 
 tion to nature, the patient cannot retire within himself. He finds 
 nothing within but anxiety, doubt, and mistrust, both of himself 
 and others. Everything seems changed around him. He is often 
 afflicted, and sometimes irritated by it, and thinks the alteration 
 due to those that surround him, rather than to any personal change. 
 Thence come irritation, anger, and violence, against himself and 
 others. He then abandons the world that injures him, and sinks 
 into complete inactivity. 
 
 Frequently it is not only against the world in general, but against 
 his best friends, that the patient directs his suspicions, his mistrusts, 
 and his hatred. To this general state of depression, anxiety and 
 gloominess succeed. After this comes both a physical and moral 
 prostration, in which there is more or less complete suspension of 
 sensibility and intelligence. Whilst the sensibility is thus op- 
 pressed and aifected, the will is equally enfeebled, inactive, and 
 powerless. 
 
 The physiognomy is concentrated and anxious, expressing dulness 
 and stupidity, followed by habitual and sometimes entire silence, 
 and slowness of movement carried sometimes to immobility. These 
 external signs correspond with the internal condition we have just 
 described, and form an exact picture of this kind of mental disease. 
 
 Among the sufferers of this class, some, feeling a general anxiety, 
 think they have done a bad action, have committed a crime, sup- 
 pose themselves reserved for severe punishments, both in tiiis world 
 and the other, and, overwhelmed with scruples, they criminate 
 themselves for the most innocent actions of their lives, or imagine 
 themselves possessed by the devil and abandoned of (»od. Others, 
 in consequence of the sentiment of mistrust which controls them, 
 
 425
 
 § 525.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 imagine themselves to be surrounded by spies or invisible enemies, 
 and, according to their previous ideas, their education, or the age 
 in which they live, think themselves under the power of sorcery, 
 magic, magnetism, the police, etc. Others, entirely wrapped in 
 their sadness, think themselves ruined, accused, dishonored, or even 
 betrayed by their relations and friends. In a word, the delirious 
 ideas which become the centre of the greater part of the preoccu- 
 pations of the intelligence and of the feelings, and which appear, 
 at first sight, to constitute all the delirium, are in reality only the 
 relief to the general condition which gives birth to them. In spite 
 of their infinite variety, they all partake of the general character 
 of the disease. 
 
 There is not, then, in melancholy, as has often been asserted, a 
 concentration of the attention, or even of all the moral and intellec- 
 tual powers, upon one sad idea, but a general state of sadness and 
 depression Avhich shapes itself in one predominant idea, and mani- 
 fests itself by a crowd of other morbid phenomena.^ 
 
 § 525. Melancholia is apt to arise in men from excessive sexual 
 
 indulgence or self-abuse ; in women from derangement 
 
 due to of the menstrual functions. This is peculiarly the case 
 
 sexual y,-\t\\ that revolution of the system which accompanies a 
 
 causes. '' i 
 
 cessation of menstruation. There are in this state " all 
 sorts of anomalous sensations of bodily distress, attesting the dis- 
 turbance of circulation and of nerve functions ; and it is now that 
 an insane jealousy and a propensity to stimulants are apt to appear, 
 especially when there have been no children. When positive insan- 
 ity breaks out, it usually has the form of profound melancholia, 
 with vague delusions of an extreme character, as that the Avorld is 
 in flames, that it has turned upside down, that everything is clianged, 
 or that some very dreadful but undefined calamity has happened 
 or is about to happen. The countenance has the expression of a 
 vague terror and apprehension. In some cases, short and transient 
 paroxysms of excitement break the melancholy gloom. These 
 usually occur at the menstrual periods, and may continue to do so 
 for some time after the function has ceased."^ 
 
 1 See Lecjoiis Clinique sur FAlit'iia- London, 1870. See also Dr. Luke's 
 tion Mentale, de M. Falret. Le(,'oii 0. Insanity of Pregnancy, Puerperal In- 
 Paris,18r)4. sanity, and Insanity of Lactation ; and 
 
 2 Body and Mind, l)y Dr. Maudslt>y, Dr. Storer's Insanity in Women. 
 
 426
 
 MELANCHOLIA. [§ 527. 
 
 § 526. In some phases of this disease, the motives are not pres- 
 ent to the consciousness, and the act is committed in a 
 
 . . May pro- 
 
 state 01 mental contusion, preceded sometimes by the duce men- 
 
 ahnost imperceptible symptoms of silent depression, gionand^' 
 sometimes by the traces broad and deep of havoc in the lo^s "f seif- 
 affective faculties, and accompanied often by a sudden 
 loss of self-control, visible paroxysms of terror, and a fancied pur- 
 suit by fiends.^ The transition from melancholy to mania is open 
 to the simple explanation, that melancholia is the first stage of 
 psychical disease in general, and contains within itself the germs of 
 all other phases.^ 
 
 § 527. In other cases there is also an absence of conscious mo- 
 tives, but in their place an uncontrollable restlessness, an 
 indistinct but overawing feeling of dread, and an incess- opinent of 
 ant morbid approach of those abnormal moral propensi- l^npuises. 
 ties which will be considered under the next head. 
 EUinger correctly observes,^ that " impulses of this kind often ex- 
 cite the most desperate struggles in the mind ; evoke the most 
 various external means to overcome them ; place the murderous in- 
 strument into the hands of the individual, from which reason wrests 
 it again ; drive him again into solitude and far from the subject of 
 the mad desire, and induce him to give warning to the threatened 
 victim, to plan and to attempt suicide ; and, Avhen at last the fatal 
 deed is nevertheless accomplished, there is a calmness and a clear- 
 ness in the manner in which he anticipates the impending punish- 
 ment, which to an unpractised observer must exclude every idea of 
 an underlying mental derangement. Such subjects either betray 
 the ordinary symptoms of depression, or only those incident to the 
 specific propensity, which throws the consciousness into a state of 
 distraction, and fills the mind with fear and dread. In cither case, 
 the impulse whether preceded or not by a brief relaxation, comes 
 suddenly, in which case it will be found in connection with disturb- 
 ances of the bodily functions, among which may be enumerated 
 cessation of the natural period or of other natural or ordinary 
 evacuations, rush of blood to the head, exhaustion by loss of blood, 
 protracted nursing, excesses, epilepsy, approach of severe attacks 
 of sickness. The immediate occasion of the act may be the view of 
 
 ' Kllingor, p. 112. 3 EUinger, p. 114. 
 
 2 Schiirmayer, (Jcriclit. Med. § r)45. 
 
 427
 
 § 529.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 a naked figure, the sight of an execution, of blood, of a murderous 
 
 instrument or other means of committing crimes, or the recital of 
 
 such an occurrence ; the ultimate cause is found, according to Ideler, 
 
 in the associations of feelings and desires according to their contrast, 
 
 and the struggle and contradiction thus arising." 
 
 § 528. In still another order of cases, as we are told by Schur- 
 
 maycr, the consciousness is not only in full possession of 
 Or con- -11 • '11 ^ c 
 
 scions acts thc motivcs, but tlie act is conceived on the ground or a 
 
 haiiucina-^' chain of reasoning and executed with a degree of arrange- 
 tions or de- ^ag^t and circumspection apparently inseparable from a 
 
 lusions. ^ ^ _^ •' ^ _ 
 
 clear state of the understanding. Here, as will be seen 
 more fully hereafter, the motives are sometimes hallucinations, par- 
 ticularly of the ear (voices heard), which give commands to the 
 madman, sometimes a wish to die without the courage to commit 
 suicide directly, but with the design of incurring capital punish- 
 ment by the murder of others (persons the subject of an old grudge, 
 or such as are entirely innocent, as children) ; sometimes the notion 
 that the destruction of the world is at hand, or that a terrible mis- 
 fortune impends, against which it was necessary to protect tlie ob- 
 ject of particular atlection, which is best effected by death. Under 
 such circumstances, as will presently be more fully seen, suicide, or 
 self-inculpation, is common, and sometimes a vindictive feeling 
 against the supposed authors of the person's suffering, wliich the 
 mind often debates with itself for a length of time, until all doubt 
 is removed by some new hallucination. 
 
 § 529. This brings us to the cases, to which reference has been 
 Homicide olsewiiere made,* of suicide, or of the homicide of chil- 
 or suicide drcu, undcr the influence of deep mental depression. 
 
 under infill- . . . ^ '■ 
 
 ence of de- The patient's condition becomes one of hopeless melan- 
 prtssion. choly. The most terrible calamities he believes to be 
 gathering over himself and those whom he loves. Life, if it con- 
 tinues, will be to them misery unutterable, incomparable. Death, 
 under such circumstances, is a blessing. To invite it he considers 
 a duty, and to kill his children, and then himself, the highest 
 office of self-sacrificing love. Tliis state has been well termed 
 Precordial Anguish. It has been so abundantly and unequivocally 
 illustrated that as to its existence there can be no doubt. In addi- 
 
 ' See §§ 155, 529, 030, and Appendix to 3d ed. of this work §§ 837, 83'j, 842. 
 428
 
 MELANCHOLIA. [§ 530. 
 
 tion to the cases already given, may be mentioned that of the father, 
 referred to by Casper, who, before killing his children under the 
 influence of this feeling, shook hands with them and caressed them, 
 as if on the eve of a solemn and tender sacrifice which was to re- 
 lease them from all their cares. 
 
 § 530. One peculiar phenomenon sometimes connected with this 
 state has been noticed by psychologists. Between the 
 resolution and the performance of the terrible act the preceded 
 mind of the patient becomes preternaturally calm. The of J^^fi^^'''^ 
 tumult and terror which preceded the purpose have sub- 
 sided. There may be even a sort of ecstasy in the relief from the 
 agitation which had attended the prior conflict between aff"ection in 
 its lower and what is believed to be affection in its higher stage. 
 This peculiarity, indeed, is common to sanity as well as insanity. 
 When we have been torn by conflicting motives as to the duty of 
 any particular step, and at last have come to a determination, even 
 though this determination has been caused by the preponderance of 
 a mere straw, then unrest is succeeded by rest, and our sole care is 
 that the purpose be duly executed. Such periods of lull, and of 
 quiet and calm preparation, have been sometimes observed in those 
 who, under the influence of melancholy, have been parties to the 
 fearful acts which have just been noticed. It has been hence super- 
 ficially inferred that they were at the time sane. But the lull is 
 no proof that there has not been a prior unloosening of the stays of 
 sanity. All the fastenings of the mental mechanism may have been 
 previously removed. The machine may run for awhile longer with 
 apparent ease, but the crash will eventually come, as in an engine 
 whose rivets have been withdrawn. Yet this unsoundness is not to 
 be presumed. The mind's prior perturbations, the shocks to which 
 it may have been previously subjected, its congenital or hei*editary 
 weaknesses — these must be proved. But when these are shown in 
 such a way as to establish melancholia as a disease, the calmness 
 which immediately preceded the act must not be treated as proof of 
 sane design. From insanity this state of lull issued, and to insanity 
 it will revert.^ 
 
 ' Sec, as illustrating this interme- melancholia, in whom, prior to fh(^ 
 
 diate intelligence, two cases mentioned act, tlie same calmness was notici'd. 
 
 l)y Brierre de Boismont, in the Annales ^w,, for this point view(!d legally, 
 
 d'llygieiie, pub. 18G3. Dr. Liman siijim, §§ 14(J-1(>2. 
 speaks of "hundreds" of suicides in 
 
 429
 
 MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 CHAPTER V. 
 
 CENTAL UNSOUNDNESS AS AFFECTING THE MORAL SENSE. 
 
 I. Cteneral " Mokai, Insanity." 
 
 "Moral insanity" repugnant to sound 
 psychology, § 531. 
 
 Depends npon false assumptions, § 532. 
 
 Mental and moral functions not s(^para- 
 ble, § 533. 
 
 Thought necessary to all action, § 534. 
 
 Ambiguity of terms, § 538. 
 
 Reason and moral sense are interde- 
 pendent, § 53i). 
 
 Burden on those who set uj) moral in- 
 sanity, § 540. 
 
 1. Aiilliorities in the affirmatice. 
 
 Ellinger and Fine], § 541. 
 
 Esciuirol, § 542. 
 
 Gall, § 543. 
 
 Prichard, the originator of tin; term, 
 § 544. 
 
 In later times, Ray, § 545. 
 
 Carpenter, § 54G. 
 
 Morel, § 547. 
 
 Campagne, § 548. 
 
 Brierre de Boismont, § 540. 
 
 Mittermaier has been incoi'rectly cited 
 as approving this view, § 550. 
 
 Its most consistent advocate is Prosper 
 Despinc!, § 551. 
 
 2. Present ice'ujld of (intlioriti] is in the 
 7ief^ntire. 
 
 On the negativ(! side are Ilelnrich 
 Leubnscher, and (iray, § 552. 
 
 Schiirmayer and Winslow, § 553. 
 
 And Mayo, § 554. 
 
 Analysis by Dr. Gray, § 555. 
 
 Criticism by trriesinger, § 556. 
 
 By McFarland, § 557. 
 
 By .Jules Falret, § 558. 
 
 430 
 
 By Workman, § 559. 
 
 And repudiated by the Association of 
 
 Superintendents for the Insane, § 
 
 561. 
 b^o by Liman, § 562. 
 (ierman law opjiosed to doctrine of 
 
 moral insanity, § 563. 
 Krafft-Ebing's tests for moral insanity, 
 
 § 564. 
 Convicts only rarely insane, § 565. 
 
 II. Special " Moral Monomanias." 
 
 1. At present repudiated. 
 
 Doctrine of special moral monomanias 
 assumes a subdivision of "moral 
 insanity," § 567. 
 
 This doctrine disproved by former rea- 
 soning, § 568. 
 
 Additional authorities : Ideler, § 56D. 
 
 Krafft-Ebing, § 570. 
 
 Casper, Griesinger, and Liman, § 571. 
 
 2. Psijchological ahsurditij of classification. 
 
 Analysis should be subjective and not 
 objective, § 572. ■ 
 
 Classification of tlie "moral-insanity" 
 theorists not harmonious, § 573. 
 
 Defects of classification, § 574. 
 
 III. Pkominent Forms of Supposed 
 
 Monomania. 
 1. Homicidal mania. 
 Its distinctive features, § 578. 
 Approved Vjy Ray, § 579. 
 Tests suggested by him, § 580. 
 Supposed instances of homicidal mania, 
 
 § 581. 
 Maudsh^y maintains that this mania is 
 distinctive, § 583.
 
 MENTAL UNSOUNDNESS AFFECTING THE MORAL SENSE. 
 
 Manias not irresistible, § 585. 
 
 Mania, if existing at all, is general, 
 not special, § 586. 
 
 No defence when reason exists, § 588. 
 2. Kleptomania. 
 
 Analysis by Ellinger, § 590. 
 
 Illustrations, § 591. 
 
 No defence when reason continues, § 
 592. 
 
 Proof cases indicate general insanity, 
 § 593. 
 
 Value of article stolen not necessarily 
 an element, § 590. 
 
 Criticism of Krafft-Ebing, § 597. 
 
 Unreasonableness does not prove in- 
 sanity, § 598. 
 
 Kleptomania not a proof of insanity, 
 § G02. 
 
 3. Pyromania. 
 
 Pyromania a symptom of insanity, § 
 b'04. 
 
 Ray's opinion, § 605. 
 
 Disapproved inforojudicio, § 606. 
 
 Checks proposed by Hencke, § 606 a. 
 
 Opinion of Griesinger that pyromania 
 is impossible, § 607. 
 
 So Krafft-Ebing, § 608. 
 
 Statistics on subject disprove the mania 
 theory, § 609. 
 
 Doctrine has arisen from misconcep- 
 tion of experts, § 610. 
 
 But pyromania may be a symptom of 
 insanity, § 611. 
 
 Insanity must be shown to make it a 
 defence, § 612. 
 
 Analysis of cases by Flechner disprov- 
 ing doctrine of pyromania, § 615. 
 
 Juridically and psychologically "pyro- 
 mania" has no existence, § 616. 
 4. Erotomania. 
 
 Sexual passion distinct from other 
 natural instincts, § 617. 
 
 Irresponsible sexual insanity impossi- 
 ble, § 618. 
 
 Views of those in favor of the doctrine, 
 § 619. 
 
 Responsibility ceases when act is the 
 result of physical causes, § 620. 
 
 Instances of morbid erotic impulses, 
 § 621. 
 
 But these must proceed from general 
 insanity, or else could be resisted, 
 § 622. 
 
 5. Pseudonomania. 
 
 Unreasonable to consider this a dis- 
 tinct mania, § 626. 
 
 The habit is voluntary, § 627. 
 
 Even insane are responsible for volun- 
 tary untruths, § 628. 
 
 Habit does not create irresponsibility, 
 § 629. 
 
 6. Oikeiomania. 
 
 Prichard's description of this "mania," 
 
 § 630. 
 Domestic perversity often associated 
 
 with social urbanity, § 631. 
 Instances of this "mania," § 633. 
 Oikeiomania not a distinct mania and 
 
 cannot create irresponsibility in the 
 
 insane, § 635. 
 
 7. Suicidal mania. 
 
 Suicidal propensity consistent with 
 sanity, § 636. 
 
 Not always a symptom of insanity, 
 § 637. 
 
 8. Dipsomania. 
 
 Periodic craving for liquor not an un- 
 common disease, § 639. 
 
 But " dij^somania" not a distinct form 
 of insanity, § 640. 
 
 Analogy with other appetites, § 641. 
 
 A physical not a moral disease, § 642. 
 
 9. Fanatico-numia. 
 («) Supernatural or psmdo-snpcrnatural 
 demon iaral possession . 
 (a') Such possession a priori impossihU', 
 
 § 644. 
 (h^) Solruhilitij of this evidence by niilii- 
 ml tests, 
 (a-) Disease. lirain inlUii'iiced liy 
 
 stomach, § 646. 
 (//2) Morhid imitative sipnpathij. Hys- 
 terical emotions often become e])i- 
 demic, 5 647. 
 
 431
 
 § 532.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Most cases of supernatural possession 
 really hysterical, § 648. 
 
 Instances of morbid epidemics, § 649. 
 
 (c*) Leijerdemain and fraud. Appa- 
 rently inexplicable occurrence often 
 mere deception, § 651. 
 
 So in supposed supei-naturalism, § 652. 
 
 ((/2) Mistake of senses. Supposed ap- 
 parition often due to mistake of 
 senses, § 654. 
 
 Or optical delusion, § 655. 
 
 (e') Knowledge attributed to dreams 
 probably procured from other 
 sources, § 656. 
 
 Supernatural presentiment often an 
 awakening of memory, § 657. 
 
 Memory independent of corporeal con- 
 ditions, § 65S. 
 
 (y^) Natural phenomena at present in- 
 explicable. 
 
 Such are "ecstasies" and magnetic 
 phenomena, § 659. 
 ((•') Historical evidence of such posses- 
 sion . 
 
 Belief in demonology taught by ancient 
 philosophers, § 660. 
 
 Conflict of opinion as to authority of 
 New Testament on the subject, § 661. 
 
 Demoniacal possession does not now 
 exist, § 661 a. 
 
 (b) Religious insanity. 
 
 («') Christianitii taken in its practical 
 sense, has no tendency to produce in- 
 sanity, § 662. 
 Philosophical necessity and liberta- 
 
 rianism, neither inconsistent with 
 
 reason, § 664. 
 Religion conducive to sanity, § 6G5. 
 
 (?;') What is called religious insanity is 
 produced — 
 (a^) By a departure from practical 
 
 Christianity, § G69. 
 By appeal to unscriptural supernatu- 
 
 ralism, § 670. 
 Desire for sympathy often becomes 
 
 chronic and hysterical, § 675. 
 Selfishness a germ of hysteria, § 676. 
 (h'^) By constitutional idiosyncrasies, 
 
 § 677. 
 
 (c) Fanatico-mania as a defence. 
 Cannot per se confer irresponsibility, 
 
 § 678. 
 
 10. Politico-mania. 
 Politico-mania no defence, § 681. 
 
 I. CEXERAL "MORAL INSANITY." 
 
 § 531. The doctrine of "Moral Insanity" — i.e. supposed insanity 
 "Moral ^^ ^^^^ moral system coexisting with sanity of the mental 
 Insanity'' — jjr^g ])qqx\ already examined in its legal relations, 
 
 repugnant ^ , ^ ^ 
 
 to sound and has been shown to lie incompatible not only with 
 ^" ' '" the reported decisions of the courts, but with the 
 principles of philosophic penal jurisprudence.^ It remains now to 
 demonstrate that this doctrine is eijually repugnant to sound psy- 
 chology. 
 
 § 5o2. The coexistence of mental sanity with an alleged moral 
 insanity is, as will at once be seen, essential to the independent 
 existence of this supposed phase of diseased irresponsibility. AVe 
 must therefore exclude, from tlie category of distinctive " moral 
 
 ' See supra, §§ 163-189. 
 
 432
 
 GENERAL MORAL INSANITY. [§ 533. 
 
 insanity," all those cases in which the mind is insane. To establish 
 this hypothesis, therefore, the following points must be proved: — ■ 
 
 First, that the moral and mental functions are so 
 separable that one can be insane without involving the upon"faise 
 
 other. assump- 
 
 . . , tions. 
 
 Secondly, that this severance actually exists in the 
 cases which are vouched as establishing moral insanity. 
 
 Thirdly, that, even supposing such severance, the peculiar con- 
 dition of morals that thus is assumed confers irresponsibility. 
 
 The tliird of these points has been already discussed, it being 
 peculiarly a proposition of law.' The first and second we will now 
 examine. 
 
 § 533. Sir William Hamilton, to repeat a citation already made, 
 
 in defining the mind, says : " If we take the mental 
 
 to the exclusion of material phenomena, that is, the moraffunc- 
 
 phenomena manifested through the medium of self-con- *'""^ "°*' 
 " _ ® _ separable. 
 
 sciousness or reflection, they naturally divide themselves 
 into three categories or primary genera : the phenomena of know- 
 ledge ox cognition^ the phenomena o^ feeling or o^ pleasure and 
 jiain, and the phenomena of conation or of will and desire.'''' Mr. 
 Bain, belonging to a very different school, arrives, as we have pre- 
 viously seen, substantially at the same result.^ "The only account 
 of mind strictly admissible in scientific psychology consists in speci- 
 fying three properties or functions — -feelirig, will or volition, and 
 thought or intellect, through which all our experience, as well ob- 
 jective as subjective, is built up. This positive enumeration is 
 what must stand for a definition." He proceeds to say that 
 " FEELING includes all our pleasures and pains, and certain modes 
 of excitement, or of consciousness simply, that are neutral or indif- 
 ferent as regards pleasure and pain. The pleasures of warmth, 
 food, music, the pains of fatigue, ^xwrr^y, remorse, the excitement 
 of hurry and surprise, the supporting of a light weight, tlie touch 
 of a table, the sound of a dog harliing in the distance, arc feelings. 
 The two leading divisions of the feelings are commonly given as 
 
 ' See supra, §§ 163-189. Heguiii, Dr. J(^wel!, and Dr. F(.ls(»n, in 
 
 2 Mental and Moral Science (2ded.), tlio North American Review for Janu- 
 
 London, 1868, p. 2. On this topic see ary, 1882. 
 
 essays by Dr. Elwell, Dr. Beard, Dr. 
 
 VOL. I.— 28 433
 
 § 534.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 sensations or emotions." "Will or volition comprises all the 
 actions of human beings in so far as impelled or guided hy feelings. 
 Eating, -walking, building, sowing, speaking arc actions performed 
 with some end in view ; and ends are comprised in the gaining of 
 pleasure or the avoiding of pain. Actions not proynpted hy feeling 
 are not voluntary. Such are the powers of nature — wind, gravity, 
 electricity, etc. — so also the organic functions of breathing, circu- 
 lation, and the movements of the intestines." "TiioUGdT, intel- 
 lect, intelligence or cognition includes the powers known as per- 
 ception, memory, concc])tion, abstraction, reason, judgment, and 
 ima<''ination. It is analyzed, as will be seen, into three functions, 
 called discrimination or consciousness of difference, similarity or 
 consciousness of agreement, and retentiveness or memory. Tlie 
 mind can seldom operate exclusively in any one of these three modes. 
 A feeling is apt to be accompanied more or less by will and by 
 thought. When we are pleased, our will is moved for continu- 
 ance or increase of the pleasure (will) ; we at the same time dis- 
 criminate and identify the pleasure, and have it impressed on the 
 memory (thought)." 
 
 ^ oo-i. Let us apply this analysis to some of the cases which 
 are adduced as illustrations of moral insanity by the 
 necessary writcrs ou this specialty. A man, lor instance, is as- 
 to all ac- saulted by another, or conceives himself so to be, so as 
 to be in danger of losing either life or that which is 
 more precious to him than life. Feeling is the first function of 
 the mind which is here addressed ; but this necessarily involves 
 thought. "Is the assault intentional?" "Was it designed ?" 
 " Can I infer, judging from former assaults, or from what I have 
 observed or heard, that it is aimed at life ?" " Can it be repelled 
 in no other way than by killing the assailant ?" Pursuing intjui- 
 ries such as these, feeling, guided by thought, directs the will 
 to the particular object. Without thought, feeling would strike 
 blindly into mere space. Even in the lowest point of view, dis- 
 crimination is needed to distinguish the victim from others, and 
 judgment to determine that killing him is a proper act of self-de- 
 fence. TiiOU(JiiT, therefore, is necessarily involved in the act of 
 killing, and the killing takes place because the assailant thinks 
 it best. To constitute a valid plea of derangement in such a case, 
 it is necessary to show that the perceptive and reasoning powers 
 434
 
 GENERAL MORAL INSANITY. [§ 539. 
 
 were deranged. Otherwise, the case would not differ from that of 
 homicide in a sudden fit of rage. 
 
 § 535. Or take the case of " kleptomania." The feeling 
 which lies at its base is longing for some particular thing. But 
 to shape as well as to effectuate this longing, thought must be in- 
 voked. Thought is needed to identify the object with that which 
 previously gave gratification ; to distinguish it from other objects ; 
 to secrete it ; to carry it successfully away. In true kleptomania, 
 so far from the derangement being distinctively in the feeling, such 
 derangement is to be peculiarly traced to thought or intellect. It 
 is no mark of derangement on entering a jewelry store to desire a 
 brilliant that may lie on the counter. But to tldnk either that it 
 is right to take it, or that it can be taken without disgrace, assumes 
 an abnormal and insane condition of intellect. 
 
 § 537. The same reasoning applies to all cases of alleged mono- 
 mania. A child sets fire to a house (pyromania). Here the child 
 selects the particular house by thoui/Iit ; applies the match with 
 thovf/Jit; is determined to the act by a mental process on whose 
 sanity or insanity the question of responsibility depends. Or 
 sexual propensity is yielded to without restraint (erotomania) ; and 
 here, also, thought, in its lower phases of memory, distinction, and 
 identification, is necessary to procure gratification, while in its 
 higher phase of reason and sense of right, where it exists it creates 
 responsibility. This form of insanity, in other words, cannot be 
 psychologically shown, unless it affects tJiouf/Jtt. 
 
 §538. The difficulty is that "moral insanity," in the popular 
 acceptation of the term, includes two distinct diseases. Aniiiitmitv 
 The first, following the phraseology of Bain and Harail- o^' terius. 
 ton, as just stated, is that of enfeebled or paralyzed thought, ap- 
 proaching dementia. Here, feeling, held in but slight check by 
 the reasoning powers, acts on the will, involving thought only so 
 far as is necessary to i<Ientify and secure the object of desire. The 
 other case is that of delirious or deluded thought, where unreal 
 objects are set up for feeling to desire. But in both cases, the 
 primary seat of the disease is in thought and intellect. 
 
 § 530. How unsatisfactory are the analogies which are invoked 
 to ex\)\si\n this aWcgcd separatencfis of the moral sense, Ucason and 
 will readily be seen. The reason, the memory, the !''.'!'':''''';'r' 
 
 J T 'J ' arc iiiicrUc- 
 
 moral sense, it is declared, are each packed away in a pcndunt. 
 
 435
 
 § 539.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 scries of hermctical compartments ; and. so far from their mu- 
 tually commingling, one may be actually insane without the 
 others being in any sense aftccted. Man is thus like an iron 
 steamboat, whose hull is divided into a series of water-tight cham- 
 bers, so arranged that if the rivets of one chamber loosen, or its 
 plates decay, the injury sustained is to itself alone. But it would 
 be far more correct to compare the ego to the steamer's machinery, 
 in which the derangement of one particular part is the derangement 
 of the whole. Taking reason in its large sense, we must all admit 
 that reason and the moral sense are in the highest degree inter- 
 dependent. Thus, if an act is repugnant to our moral sense, the 
 closest logical process will fail to convince us of its propriety. On 
 the other hand, waiving the question whether there is such a thing 
 as an innate moral sense, there is no doubt that this function is one 
 which, supposing it to be actually wanting, or naturally weak, may 
 be built up by education.^ Dr. Arnold, whose cheerful temper and 
 whose liberal theology alike remove from him the suspicion of 
 pessimism in this relation, and whose experience was wide and 
 close, tells us that in the boy nature the moral sense is weak and 
 capricious, and that " conscience" as a power is greatly developed 
 by education, lie quotes with emphatic approbation the well- 
 known lines : — 
 
 " The old man clogs our early years 
 
 And simple childhood comes i\w last."** 
 
 ' See particularly ,s?(y;m, §§115,188- })orn without reason, or possessing it 
 
 403. only to a low degiee, becomes an in- 
 
 2 On this point we have the follow- stance such as we often see, illustrating 
 
 ing corroborating remarks of Dr. Mc- tliis point. The instincts of the idiot 
 
 ]''arland : "Another (ixplanation of are low, and are prevented from be- 
 
 the j)henomena termed moral insanity coming depraved only by the amount 
 
 should not be lost sight of. We are of reason which he has. The small 
 
 apt to forget tin; vast conservative pow- degree of n^ason that he possesses may 
 
 er of rrason in saving man from the de- educate the faculties of fear, of censure 
 
 ])rave(l ajipetites and instincts conunon and punishment, and love of approba- 
 
 to him with the brute creation. Swift tion, and may cause him to imitate his 
 
 lias well shown the liuniiliatiun of our su])eriors by a propriety of conduct 
 
 species wlien man's rrason was given that may set him above criminal acts, 
 
 to the lirute and himself left without The same power exerted over the moral 
 
 it. \\\- all remember, in the enter- propensities hj the processes of pure 
 
 taining narrative of Captain Gulliver, reasoning is also shown in the cases of 
 
 what a sorry brute man becomes when children. Chililhood, notwithstanding 
 
 thus transformed. A human being, the praises bestowed on it as the un- 
 
 436
 
 GENERAL MORAL INSANITY. 
 
 [§ 539. 
 
 Few acts are so cruel, few so immoral, he tells us, as to shock 
 the moral sense of boys steeped in the atmosphere of a public 
 school. He applies to morals, though not in the same words, 
 Fichte's aphorism as to faith ; man's attitude in infancy is yes ; in 
 youth, no ; in maturity, yes. The moral sense in infancy is obedi- 
 ence ; in youth, chaos ; in maturity, obedience. As we grow older and 
 wiser and more thoughtful, a thousand things, at which our moral 
 sense in youth would not pause, become to us abhorrent. And, if 
 moral sense, in its higher relations, be not congenital, a con- 
 sciousness that there is a law imposed on us which will punish us if 
 we do wrong, acts as a substitute which rises in value precisely as 
 the law is known to be executed evenly and surely. We may take, 
 as illustrating this, those very criminals who are declared to be 
 " destitute" of moral sense ; men who present every test of what 
 is called moral insanity ; men who show no shame or remorse for 
 wrongs done by them, and with whom the recollection of their 
 crimes is as evanescent as their recollection of their daily meals. 
 Yet even such men are arrested, when concocting crime, by the 
 fear of punishment, if that fear is made sufficiently reasonable to 
 them. They will, indeed, seek to gratify their passions, but they 
 will do so in channels Avhich punishment does not block up. They 
 are like blockade runners who carefully scrutinize the coast — who 
 avoid the roads on which the blockading squadron stands guard — 
 
 sullied springtime of existence, does 
 not compare Avith mature age in the 
 rightfulness of its acts. The bui-glary 
 and murder of birds-nesting peculiarly 
 gratify the juvenile heart, and liovv 
 often must the gliost of the family cat, 
 done to death by truant hands, liaunt 
 tlie little murderer's pillow ! Whoever 
 has looked, too, upon a quarrel in 
 petticoats, waged for a bit of cake, sees 
 a ferocity as great almost as the death- 
 struggle of mortal foes. Yet what but 
 the power of pure reason, woi-king 
 tlirough years, changes tlu-se riibb(M'S, 
 murderers, falsiliers, and belligiu-ents 
 into discriminating judges and revered 
 dispensers of the gospel of mercy and 
 peace ? And how easily and naturally 
 
 will an inclination to those same acts 
 return wluui that essence wliicli has 
 rescued frou^ tliem is witlidrawn. 
 
 " Hence the positinu taken, that 
 moral insanity, if by that term is meant 
 a disease of the effective faculties, in 
 which the intellect has no share, has 
 no proved existence ; and that what 
 has received that appellation is notliing 
 more than (Mther tlie result of a latent, 
 undet(;<;ted delusion, whose moilns ope- 
 ramli we arc; unable to demonstrate;, or 
 the i)assive (slTect of a weakened inllu- 
 ence of the reasoning powers over 
 man's base instincts." — .l/«. Journ. of 
 /,is., July, isc;',. 
 
 Kei', also, observations by Dr. Seguin, 
 in the North Am. Rev., for Jan. 18S2. 
 
 4;]7
 
 § 539.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ■who lie outside until they discover some unguarded passage ; and 
 Avho then, under cover of night, with muffled wheels, and stealthy 
 motion, slink in through the gap. If the venture cannot be made 
 ■with good hope of success, then the adventurer creeps sulkily back. 
 If it is known that the port is thoroughly guarded, then the attempt 
 is not even made. All this shows reason, and reason sometimes of 
 a high order, operating in such a way as to create obedience to 
 law. Even the outlaw avoids the act which he knows the law will 
 certainly detect and punish. Supposing, then, the compartment 
 containing the moral sense to be actually empty — supposing, in 
 other words, there be a man destitute of moral sense — then reason, 
 saying, " if you do this you will be punished," comes in and fills 
 the compartment with a principle, which, though inferior to dis- 
 interested virtue, yet is sufficient to preserve peace in the commu- 
 nity, and to keep its most desperate classes in check.' These, it is 
 true, may be said to bo extreme cases. We may justly assert 
 
 ■ Garroters are as a class the most 
 desperate and brutish of English crim- 
 inals ; and as long as the worst which 
 the clianccs of conviction ofl'ered was 
 teansportation, or imjirisonment under 
 the present humane mitigations of pris- 
 on life, the jmssiou for garroting was 
 irresistible. It is otlierwisi;, li()\vev(!r, 
 since Hogging has been revived as a 
 punishment for violent robl)eries. The 
 following is from an English paper of 
 1872: "Two years ago the house of 
 commons introdiici'd and passed a 
 measure providing for corporeal ])un- 
 ishment by the common hangman in 
 cases of garroting and rol)beries, witli 
 violence, from tin; i)ers(iu. An account 
 of the prisoners Hogged has just been 
 issutul. Only the initials of the con- 
 victs are given, with the nature, rca,- 
 sons, and amount of the punishment, 
 the persons by whom it was ordered, 
 and those by whom it was witnessed. 
 In the seven years coverecl by tlie re- 
 turn, 5014 floggings were administd'eil 
 in luigland and Wales. The great in- 
 strumc'Ut is still the birch, and boys 
 
 438 
 
 are its chief subjects. Most of the boys 
 thus birclied were over ten years of 
 age ; the majority seem to be between 
 eleven and fourteen. There are, how- 
 ever, a considerable number at eight 
 and nine ; about a couple of dozen at 
 seven years of age, and one small in- 
 corrigibli' who stands in the catalogue 
 as only four — which we are inclined to 
 hope is a ndsprint of fourteen. He is 
 down as having been sentenced at the 
 Marylebone police court in April last, 
 and as having received ten strij^es with 
 till! bii-ch. The more formidable in- 
 strument of punishment is, of course, 
 only used for older criminals. The 
 ' cat' appears to h^\ used in about one 
 case in fifty. In 17S cases it had been 
 administered under the powers of the 
 act of l.S(;4. It is a noteworthy fact 
 that since garroters have been sen- 
 tenced to floggings the ofl'enco has al- 
 most disappeared from tlui criminal 
 records of England." To same effect, 
 see Statement of Sir Edward Thornton, 
 in North Am. llev., Jan. 1882, p. 7-
 
 GENERAL MORAL INSANITY. [§ 541. 
 
 that there is no man entirely destitute of moral sense ; that there is 
 always some flickering of conscience, and that there is always a 
 moral capacity which education develops or perverts. But this 
 makes the case the stronger. Education is reason acting on certain 
 supplied data ; and it is the duty of government to make these data 
 plain and right — to declare that crime will be followed by punish- 
 ment — so that the right conclusions may be drawn. On either 
 view we find reason either modifying the moral sense, or creatine 
 something in its place. So far, therefore, from reason and moral 
 sense being separate and independent functions, they are so inti- 
 timately allied that the one cannot be deranged without disturbing 
 the action of the other. There can be no insanity of the moral 
 sense which does not imply insanity of reason. There can be no 
 insanity of reason which does not produce insanity of the moral 
 sense. 
 
 § 540. The second necessary factor to the reception of the doc- 
 trine is, as above stated, that this alleged severance of 
 
 ' T , ' ,11 Burden on 
 
 the moral and mental factors should appear to be not those who 
 
 merely possiMe but actual, i. e., that it should be proved nwr-l\ m- 
 
 by recorded cases of persons who are at the same time ^^^^^^y- 
 
 morally insane and mentally sane. If, as has just been seen, there 
 
 can be no moral without mental insanity, it follows that in all cases 
 
 where moral insanity exists, there must be mental disease, however 
 
 occult. That such is the case will be hereafter shown, when the 
 
 various forms in which alleged moral insanity exhibits itself will be 
 
 specifically examined. 
 
 As introductory to this inquiry, however, come properly the 
 
 opinions of experts. Does the iveight of authority among experts 
 
 substantiate the existence of this supposed distinctive disease ^^ . 
 
 1. Authorities in the affirmative. 
 
 § 541. For the idea of "moral insanity" we must go back to 
 Ellinger, Avho speaks of it, though only speculatively, EUinn-er 
 under the name of melancholia sine delirio sive pertur- '"'^ I'mol. 
 hatio mentis, mania sine delirio. Pinel (1745-1820) made at one 
 time the general statement " that there are madmen in whom tiiero 
 is no perceptible alteration of the intellectual process, of the per- 
 ceptions, judging faculty, imagination, or memory, and yet a perver- 
 sion of the manifestations of the will, in a blind impulse to the 
 
 4;jl)
 
 § 542.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 commission of violence, or even of bloodthirsty rage, without any 
 assignable dominant idea, any delusion of the imagination, which 
 could cause such a propensity." Pinel is no doubt entitled to the 
 highest respect, both for his skill and his humanity. Under his 
 administration, the Bicefcre and the Salpebri^re were in time rescued 
 from barbarous neglect, and placed in a condition of comparative 
 health, moral as well as physical. A rightful reaction from the 
 cruelty of the old French conception of insanity, acting, it is true, 
 in his case on a mind not free from romanticism, naturally led him 
 to accept Rousseau's idea that crime is itself an insanity. Yet, 
 when we scrutinize his writings, we Avill be surprised at finding how 
 cautious his speculations really were. Manie sans dellre he no 
 doubt spoke of as a specific form of insanity ; but the illustrations 
 he used to establish this are all cases of melancholia or of suppressed 
 mania, whose distinctive feature was not the absence of mental dis- 
 turbance, but simply the absence of delirium and incoherence. He 
 positively tells us that he has rarely seen cases of this class in 
 which the mind was not " changed or perverted." 
 
 § 542. Es([uirol (1TT2-1840) was PineFs assistant at the Sal- 
 pe:ri^re, and imbibed, though under more strictly scien- 
 
 E.s(iuiroL , ' . . . T^ 1 
 
 tihc conditions, Ins master s liumanitarian views, iiut he 
 concedes that psychologically there can be neither '-moral insanity," 
 nor " reasoning mania," nor insanity of any kind, in which the 
 understanding is not " more or less affected." In fact his argu- 
 ment on this point is precisely that used in the following pages to 
 show the psychological absurdity of an exclusively moral insanity. 
 " Were it not thus'^ (that the understanding is affected), " the 
 insane would permit themselves to he controlled hi/ their understand- 
 ing, and would discover that their views are false, and their ac- 
 tions iniusual and strant/e. Their understanding is more or less 
 at fault ; it has lost its infuence over the will, and is no longer in 
 harmong with the other faculties. Among the insane who, tvithout 
 motive, are dranni aivag instinctivdg to the commission of repre- 
 hensible acts, which would he criminal if tlteg enjoyed the use of 
 their reason, intellectual action is suspended.^'^ 
 
 ' For tlie translation cand citations of Am. Joiirn. of Ins. for 1866 (vol. 23), 
 this and the jirior quotation I am in- p. 30. 
 dcbtcd to au article by Dr. Chipley, in 
 
 440
 
 GENERAL MORAL INSANITY. [§ 544. 
 
 § 543. To Gall (1758-1828) we are indebted for most of the 
 well-known and well-used anecdotes which form the chief 
 proof-cases of moral insanity. Like Pinel, of whom he 
 was the contemporary, he was tinged in his philosophy by the sen- 
 timental humanitarianism of Rousseau ; but unlike Pinel, he was 
 as devoid of any practical experience as an attendant on the in- 
 sane as he was deficient in scientific accuracy as a psychologist. 
 Of the truth of his phrenological surmises it is unnecessary here 
 to speak ; it is sufficient to say that he based these surmises on 
 statistics the most careless. Reports of experts, testimony which 
 had been rendered on judicial examinations, judgments of courts, 
 seem to possess no interest to him ; and most of the proof-cases 
 already alluded to, and Avhich hereafter will frequently recur to 
 our attention, are cited by him from " personal observation," or 
 from " German newspapers," Avithout any references which will 
 enable the citations to be verified. Xor does he pretend to give 
 a full report even of those cases which without a full report would 
 be worthless. Thus he tells us of persons who had " irresistible 
 impulses" to commit certain crimes ; but he gives us no evidence 
 from which we can infer that the case, having been duly explored, 
 was not one where general insanity could be proved. It was this 
 looseness which, notwithstanding the ingenuity of the Eecherches 
 sur le Sy^thnie Nerveaux, etc., presented by him to the Academy, 
 left him with but a single vote when his name was proposed for 
 membership to that body. 
 
 § 544. To Dr. Prichard (178G-1848), however, the term "moral 
 insanity" owes its origin, and the idea, such as it is, its 
 
 -TT- ■ ■ n 1 • 1 • Prichard 
 
 conception, liis scientihc researches were mainly in the oriui- 
 ethnology. Psychology received from him little notice, "ij'^'tu,?,^, 
 nor does it appear that until 1841 he paid much atten- 
 tion to the condition of the insane. His practice, down to that 
 period, was in Bristol, England, but his reputation was rather 
 literar}^ than medical ; and no one can glance at the medical con- 
 troversies of the day witiiout seeing that his rank in his own \m)- 
 fession Avas not high. Hence it was that the term " moral in- 
 sanity," when introduced by him, was often treated with ridicule, 
 and was invested with an extreme meaning Avhich he never in- 
 tended to convey. For he is far from saying that the "morals" 
 could be exclusively and irresponsibly insane. He tells us that 
 
 441
 
 § 546.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in " moral insanity " there is " in many cases " " hereditary 
 tendency to madness;" in others, prior "madness;" in others, 
 " a slight attack of epilepsy, or some fever or inflammatory dis- 
 order." 
 
 § 545. Prominent among more recent exponents of this view is 
 In I'lter I^^'" R^y. " In fact, it has always been observed," 
 times, Ray. gj^yg ^\^\g eminent and experienced physician, " that 
 insanity as often affects the moral as it does the intellectual per- 
 ceptions. In many cases there is evinced some moral obliquity 
 quite unnatural to the individual, a loss of his ordinary interests 
 in the relations of father, son, husband, or brother, long before a 
 single word escapes from his lips ' sounding to folly.' Through 
 the course of the disease the moral and intellectual impairments 
 proceed pari passu, while the return of the aifections to their 
 natural channels is one of the strongest indications of approaching 
 recovery. Such being the fact, it ought not to be a matter of 
 surprise that in some cases the aberration should be confined to 
 the moral impairment, the intellectual, if there be any, being too 
 slight to be easily discerned." 
 
 § 546. Bearing on the question on its physiological 
 Carpenter. . , , ^ r ^^ t ^ ■ p t-v n 
 
 Side, we have the lollowed observations ot Dr. Carpen- 
 ter :— 
 " The more active forms of delirium pass by almost imperceptible 
 gradations into the state of mania, which is usually characterized 
 by the combination of complete derangement of the intellectual 
 powers with passionate excitement upon every point which in the 
 least degree affects the feelings. There is, however, a considerable 
 amount of variety in the phases of mania, depending upon differ- 
 ences in the relative degree of intdlectual and of emotional distur- 
 bance. For there may be such a derangement of the former as 
 gives rise to complete incoherence in the succession of ideas, so that 
 the reasoning power is altogether suspended ; and yet there may 
 be at the same time an entire absence of emotional excitement, so 
 that the condition of the mind is closely allied to that of dreaming 
 or of rambling delirium. On the other hand, the intellectual powers 
 may be themselves but little disturbed, the trains of thought being 
 coherent, and the reasoning processes correctly performed ; but 
 there may be such a state of general emotional excitability, that 
 nothing is felt as it should be, and the most violent passion may be 
 442
 
 GENERAL MORAL INSANITY. [§ 549. 
 
 aroused and sustained by the most trivial incidents, or by the wrono' 
 ideas which are formed by the mind as a consecjuence of their mis- 
 interpretation. Between these two opposite states, and that in 
 which the disturbance affects at the same time the intellectual and 
 emotional parts of the mental nature, there is a complete succession 
 of transitional links ; but under all the phases of this condition 
 (these often passing into each other in the same individual) there 
 is one constant element, namely, the deficiency of volitional control 
 over the succession of thought. Ttiis deficiency appears to be a 
 primary element in those forms which essentially consist in intellec- 
 tual disturbance ; whilst in those of which emotional excitement is 
 the prominent feature it seems rather to result from the overpower- 
 ing mastery that is exercised over the will by the states of uncon- 
 trollable passion which succeed each otlier with little or no interval. 
 It seems probable, however, from the phenomena of intoxication, 
 that the very same agency which is the cause of the undue emotional 
 excitability also tends to produce an absolute diminution in the 
 power of volitional control.''^ 
 
 § 547. As inclining to accept the doctrine of mania sine delirio, 
 though with great cautiousness of expression, we may 
 
 !•• -iiT-i • • Morel. 
 
 cite Morel, a recent distmguislied i^rench writer on in- 
 sanity, from whom copious translations are made in the third edition 
 of this work. 
 
 § 548. Campagne^ may be also ranked as a modified adherent of 
 the same school, though, with the usual French passion 
 
 . . ^ , Campa-rne. 
 
 lor novel discrimination, he expurgates from his " moral 
 insanity" all the supposed " moral monomanias," and ends by re- 
 jecting Pinel's descriptive title, '•'• foJie ralsonnante.^^ 
 
 § 549. M. Brierre de Boismont^ has been cited as a vindicator 
 of the same doctrine, though not very accurately. In Bncrre de 
 the first place, it may be observed that he disowns the Boisiuont. 
 French parentage of the disease, calling it the "' moral insanity 
 of the English ;" closing his eyes to the fact that it is repu- 
 diated in toto by English jurists. In tiie second place, when he 
 comes to define this " moral insanity of the English," he gives 
 
 ' Carpenter's Physiology, Phil., Ib'A), ^ Sec; his essay in AuiiaU-s (Vnygieiio 
 
 §§ 704, 707. ]'ul)liqii(>, Nos. fiS, rj4. JS(;7. .Seo 
 
 2 Traite de la Mauie Ifaisoiiiiaiite, Maschka's llaiidbiich (uTieh. Med. 
 
 par le Doeteur Cauipagne. Paris, IbGD. Tiibingeii, 1!^S2. 
 
 443
 
 § 551.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 symptoms very different from that phase of moral insanity which is 
 described by exponents of tliis view among ourselves. Thus he 
 declares that the disease in question is but a symptom or manifesta- 
 tion of general insanity. Intellectual derangement exists and will 
 be displayed by the patient when off his guard. A cautious and 
 protracted examination will even discover marks of mania in his 
 letters. He does not trouble himself, we are further informed, 
 al)Out his acts of guilt, and generally does not regard them as 
 wrong. Certainly tliis " moral insanity of the English" would not 
 be regarded by English writers of this school as convertible with 
 moral insanity as defined by themselves. 
 
 § 550. Mittermaier, a jurist of great abilit}'', has also been cited as 
 T^jjj^ approving this view ; but, when his writings on this topic 
 
 maierhas ^rc Scrutinized, it will be found that this assumption is 
 been incor- 
 rectly cited erroneous. In his edition of Feuerbach's Lehrhuch des 
 
 fnifth'il"^' J^eiuUehes llechts,^ he is careful to declare (1), that 
 ^''^'^^'- tlie so-called latent insanity (^amentia occulta^ is not a 
 
 substantive, independent disease, and ( 2 ) that the assumption of 
 monomania is gratuitous, because all alleged cases of insane, mono- 
 mania are resolvable into other forms of disease, and in sane mono- 
 mania, responsibility is not extinguished. This brings him to the 
 (piestion of " irresisti])le" impulse. lie admits this condition, but 
 he sjjeaks of it as the incident of disease ; and he links the symp- 
 tom with melancholia, maintaining that ^ohen. thus constituted there 
 exists a powerful impulse, an irresistible force (f/w geivalthdti(jer 
 Trieh, cine unundrrxtehUclie Kraft^. Tliis is very strong language ; 
 but he adds that to constitute this state, there must be at the time 
 a suspension of self-consciousness. When this is conceded, and 
 when we remember that ho rejects the hypothesis both of amentia 
 occulta and of monomania^ we find that all that he admits is that in 
 certain states of mental disease, there are, in connection with melan- 
 cholia, irresistil)le impulses. 
 
 § 5.)1 . But the most consistent and philosophical vindication of 
 these views is to be found in the Psiiclioloqie Naturelle. 
 
 Its most T. I 1 rn ■ I • / -i ■ • 
 
 consistent or xAudc SUV Ic 1 raitcnient dcs Ahotes ct dcs (Jnminels, 
 Prosper^''' by Dr. Prosper Despine, published in Paris in 18t)8. 
 De.spjne. Capital punishment this learned theorist emphatically 
 
 ' Giessen, 1847, p. 1C3, § 90«. 
 
 444
 
 GENERAL MORAL INSANITY. [§ 551. 
 
 denounces as an invasion of inalienable human rights. Retributive 
 punishment of any kind is to be discarded, and only such punish- 
 ment as is reformatory applied. Moral sense, he declares, is not 
 the result of knowledge, and cannot be acquired. Some men are 
 destitute of it, and these men are not to be taught. Such a defi- 
 ciency is moral insanity or moral idiocy. There may be intellectual 
 clearness, and the capacity to reason accurately, coexistent with 
 this derangement of the moral sense. To sustain this position, 
 Despine is obliged to start a new definition of free will (libre 
 arbitre), which he informs us can only exist Avhen there is capacity 
 to act from a sense of duty. He tvlio acts from other motives than 
 a sense of duty is not a free age-rit. Hence from the category of 
 free agents are to be removed (1), he who does acts which appear 
 to him indiiferent, i. e. neither good nor bad, and (i?) he who does 
 an act which appears pleasant to him, because it is pleasant. Duty 
 he declares to be the great moral motive of life, compared with 
 which all other moral motives are coarse and egoistic. He alone 
 who acts in obedience to duty is free from selfishness and egoism. 
 He, for instance, who obeys his parents from love is egoistic and 
 selfish. He obeys from the pleasure he receives in obeying. He 
 Avho obeys from duty, on the other hand, acts irrespective of his own 
 pleasure and advantage. He alone is unselfish. Yet duty is the 
 high prerogative and the exclusive test of a moral agent. Except 
 by those Avho are governed by a sense of duty, there can be no 
 moral agency. He who is governed, not by duty, but by affection, 
 or by any other form of feeling (the author forgets that sense of 
 duty is also a feeling) simply follows the lower animals in the points 
 in which they differ from man. Hence it is, according to Despine, 
 that he alone who acts under a sense of duty is responsible. Those 
 who are destitute of a sense of duty are not responsible. These 
 propositions are supported by a very copious list of criminals wiiom 
 Despine announces to have been destitute of moral sense ; which, 
 with a boldness of assumption like tliat Avhich characterizes his other 
 psychological assertion, he declares to be proved by an absence in 
 such cases of remorse or repentance for their evil deeds. In otlicr 
 words, where there is no remorse there is no moral sense, and where 
 there is no moral sense, there is no responsibility, and where there 
 ii no rcsfonsibility there is no proper punishability. And this is 
 then carried a stage further by the declaration that absence of moral 
 
 445
 
 § 552.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 sense is to be inferred from the commission of all gross and cruel 
 crimes, and hence that such crimes imply irresponsibility. In other 
 words, every great criminal is, in the moment of his crime, morally 
 insane ; and it is as unjust to punish such as it is unjust to punish 
 lunatics. The fallacy of this reasoning rests, it need scarcely be 
 said, in the assumption that " sense of duty," like the various other 
 faculties and properties of the mind, is contained in a separate and 
 hermetical compartment; and that, when this compartment is empty, 
 it cannot be filled by reason. But there is no such separation, as 
 has been already fully shown, of the mind's several faculties and 
 functions ; and it is notorious that in persons most destitute of natu- 
 ral sense of duty, this faculty may be supplied by reason. A man 
 may naturally, for instance, be destitute of a sense of duty to 
 government ; but let government show that it means to be respected, 
 and this sense of duty will soon spring up. So a child who, under 
 a lax and indulgent mother, shows no sense of duty to parents, will 
 soon, on the intervention of a firm and wise father, learn that there 
 is such a duty, and act accordingly. Enlightened duty, in fact, is 
 often the creature of positive law. Of course as to the insane there 
 is no capacity to detcrniii^e this law, and no material, therefore, 
 from which duty can be deduced. But in the sane, it is the busi- 
 ness of the law to create and guide this sense of duty, and this must 
 be done by precept and penalty. 
 
 2. Pre^otf nu'iijlit »f author it// is in the negative. 
 § ")")2. Among those by whom the theory was contested imme- 
 diately after its promulgation may be mentioned Ilein- 
 irativi; side rich* and Leubuscher,- two very experienced German psy- 
 an-llnii- diological phvsicians. With these may be classed, though 
 
 ru'Ii, Leu- o 1 J -J t r> 
 
 bu«-iK'r, later in date. Dr. Grav, of Xew York, whose great prac- 
 
 and (iruv. . . . ." . .„.,., 
 
 tical experience is given in a series oi articles m the 
 American Journal of Insanity. It is interesting to observe also 
 that in five essays by eminent psycliological physicians (Dr. Elwell, 
 Dr. Beard, Dr. Scguin, Dr. Jewell, and Dr. Folsom), in the North 
 
 ■ Kl•iti^;clle Alihaiidluiig iilicr die von ^ Picmcrkungen iiber Jloral Insanity 
 Pricliard als Moral Insanity gescliil- nnd iilinliche Krankheitszustiinde. 
 dorto Krankheitsfonn. AUgemcin. C'asi)er'.s Woclienschr., Nr. 59 u. 51. 
 Zeitschr. fiir Psycliiatrie, V. Bd. 4 
 Hft. 
 
 446
 
 GENERAL MORAL INSANITY. 
 
 [§ 552. 
 
 American Review for January, 1882, " moral insanity," as such, 
 finds no support.^ 
 
 ' From the London Laic Times of 
 Dec. 17, 18S1, we take the following 
 extract from the Lancet, a journal 
 which speaks with high medical au- 
 thority : — 
 
 "We fancied the 'plea of insanity' 
 had been redi;ced to absurdity in the 
 ridiculous attempt made to show that 
 Lefroy was Insane ; but it seems that 
 the apotheosis of stupidity is to take 
 place in America. It is high time the 
 nonsense recently talked and written 
 about ' irresponsibility ' should be 
 exposed and ended. If the supreme 
 triumph of medical psychology is to 
 be sought in the attempt to prove that 
 men are mere machines, and that the 
 wrong they do is not their doing, but 
 the outcome of disease, the sooner this 
 branch of science is discountenanced 
 by tlie common sense of the profession 
 the better will it be for tlif; credit and 
 influence of our cloth. If a man is 
 not acting iinder a recognizable and 
 formulated delirium when he commits 
 a crime, he is clearly responsible, and 
 ought to be so held unless he is un- 
 questionably, and on grounds other 
 than those arising out of or associated 
 with his crime, shown to be insane. 
 The mistake into which ' experts ' 
 and those who follow their lead com- 
 monly fall is to confound the evidences 
 of a neurotic constitution with the 
 symptoms of mental disease. Tlie in- 
 heritor of an organism which predis- 
 l^oses to insanity is not necessarily in- 
 sane. Lefroy was not insane, and 
 Guiteau is not insane. The only in- 
 sanity accruing to the latter case is 
 that which those who support the jdea 
 may themselves import into it. Tlu^ 
 position of matters in regard to this 
 question is becoming one of exceeding 
 
 gravity, and it will soon need to be 
 very seriously discussed." 
 
 The Times, in a leading editorial, 
 says : — 
 
 " The trial now in progress at Wash- 
 ington and the controversy which took 
 place just before Lefroy's execution 
 are foretastes of a discussion which 
 is pretty sure to recur whenever any 
 crime a little oiit of the common order 
 is committed. The fact is that opi- 
 nion has got decidedly astray as to 
 insanity. People have cast away the 
 old notions without getting any safe or 
 certain siibstitute for them. Was 
 there ever a more striking scene of 
 confusion than that which is repeated 
 day after day at Washington ? The 
 witnesses are at sixes and sevens. 
 Each expert feels bound to start a 
 separate theory. One doctor, who 
 thought Guiteau insane, threw a vivid 
 light on the value of his testimony by 
 adding that one of every five persons 
 in business might be considered as on 
 the border line of insanity. Others 
 were certain of the prisoner's insanity 
 because he has talked so much about 
 being inspired. Some of the experts 
 are most influenced by the shape of 
 his head ; others by the strangeness 
 of his utterances. The poor jurymen 
 are to be pitied if they try to sift out 
 the few grains of wheat in this prodi- 
 gious heap of chair. Unfortunately, 
 they are not likely to be better oft' if 
 they shut tlieir ears to the ' mad doc- 
 tors,' and try to follow the legal test 
 of insanity. That has, no doubt, the 
 merit of definiteness. It may be arbi- 
 trary ; it is at least clear. Wlietlier a 
 man knew that he was doing wrong 
 or not is a test wliich the dullest jury- 
 man can understand and apply. But
 
 § 553.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 558. Explicit in rejecting this hypothesis is Schiirraayer. He 
 insists that it is )iot to he supposed that a single impulse is diseased, 
 
 great authorities quote Pincl, and say 
 that tliis is a criterion worthy of the 
 darkest ages, and tliat if it were put 
 in practice, humanity would be shocked 
 at the consequences. Only a few lu- 
 natics are wholly destitute of the sense 
 of right and wrong. Maniacs who kill 
 their children or their wives in \yA- 
 roxysms of passion have often an un- 
 easy sense that they are acting wrongly; 
 to escape some terrible and oppressive 
 phantom of the brain, they are im- 
 I^elled to stab or mutilate those who 
 are dearest to them. The 'mad doc- 
 tors' ' vi(!vv of tlie matter is that we 
 should put the legal test aside as anti- 
 quated ; tliat we sliould recognize in 
 courts as elsewhere the existence of a 
 vast number of types of insanity ; that 
 what Pinel called ' madness without 
 delirium' is common; and that we 
 should refrain from punishing many 
 persons wlioni tlie legal theory would 
 consign to jirison or to the scalfold. It 
 is amazing what an extension is thus 
 given to insanity. L(>t any one look 
 into a book of the sixteenth century 
 about iJisf/iiisiiidiics iMcn/icc, or the 
 science of diidilcrie, as then under- 
 stood, and it will be seen that, mak- 
 ing allowance for alteration of lan- 
 guage and ideas, there is something 
 like r(!semblance between the witch- 
 finders of other times and some of tlie 
 ingenious S])ecialists of the present 
 day. The latter do not talk of per- 
 sons being possessed with or agitated 
 by demons. They may quote a (Jretdi 
 word instead of iuuigining the pre- 
 sence of an evil spirit. But both agree 
 in their ingenuity in detecting the ex- 
 istence of mental anomalies. What 
 adds to the confusion of simi)l(^ jx'ople 
 is that lawyers also are found to be 
 divided in o])iniou as to this matter. 
 
 448 
 
 It is true that ever since MacNaghten 
 was tried for the murder of Mr. Drum- 
 mond the test in criminal matters lias 
 been that 'if the accused was con- 
 scious that the act was one which he 
 ought not to do, and if that act was at 
 the same time contrary to the law of 
 the land, be is punishable.' But even 
 lawyers are not quite satisfied with 
 this criterion. Certainly it is not ac- 
 cepted in all systems of jurisprudence. 
 When the present criminal code for 
 Germany was l)eing prepared, the 
 framers of it, of course, discussed the 
 (question of sanity ; and the sugges- 
 tions offered were most diverse. The 
 conclusion ultimately arrived at was 
 very different from the test in use here. 
 hjo shaken by criticism is the lega,l 
 standard that it is every-day expe- 
 rience in courts of justice that counsel 
 put forward a plea of insanity when 
 tliere is not the slightest pretence for 
 suggesting tliat the prisoner did not 
 know what he was about. And what 
 is more, this is often done with suc- 
 cess. The jury are merciful, and side 
 with the doctors against the lawyers. 
 Indeed, the legal theory in all its 
 strictness is j'jractically obsolete. No 
 jury, for instance, would be got to con- 
 vict a person who, knowing that it was 
 contrary to the law to kill, took the 
 lift! of some one whom he believed he 
 was providentially calliMl upon to de- 
 stroy. In one class of cases the medi- 
 cal theory of insanity may be said to 
 have triumi)lied. An eccentric person 
 makes a will or executes a deed in 
 favoi- of a stranger. lie leaves his 
 property to the Crown. He directs 
 his body to be dissected. His will is 
 disputed by his relatives. They have 
 not got to show that he was imbecile 
 or a manaic, or that ho was oblivious
 
 GENERAL MORAL INSANITY. [§ 553. 
 
 ivhih all the other functions of the mind retain their SchUr- 
 healthy action. While the entire intellect enjoys sound WiDsiow"*^ 
 
 of all moral distinctions. They may 
 admit that he was clever and shrewd 
 and of more than average intelligence, 
 and yet impeach his fitness to make a 
 will. The late Mr, Smee, once secre- 
 tary to the committee of treasnry of 
 the Bank of England, was a competent 
 man of business ; he took an active 
 part in politics ; he wrote shortly be- 
 fore his death a clever pamphlet on 
 the malt tax. Yet he labored under 
 a hallucination that he was tlie son of 
 George IV., and a will by which he 
 left his property to the corporation of 
 Brighton was set aside on that account. 
 In fact, in the probate court, the doc- 
 tors' view, that a partial delusion not 
 in any way afl'ecting a man's sense of 
 right and wrong may be treated as in- 
 sanity, is acted upon. At the Old 
 Bailey it is otherwise." 
 
 The New York Tribune of .January 
 2, 1S82, gives the following summary 
 of the expert testimony in the Guiteau 
 case : — 
 
 '• Twenty-three physicians have been 
 examined upon the stand with regard 
 to insanity. One, Dr. Fordyce Barker, 
 was questioned generally upon the 
 subject, as bearing upon responsibility 
 for crime, etc., without any direct re- 
 ference to the prisoner. Seven j^hysi- 
 cians were asked and answered a hypo- 
 thetical question for the defence, which 
 assumed the insanity of the prisoner, 
 and could hardly be answered, if at 
 all, in any other way than by an ad- 
 mission that, assuming the statements 
 to be true, he was insane. These were 
 Dr. Charles II. Nicholas, of the Bloom- 
 ingdale Asylum ; Dr. Charles F. Fol- 
 som, of the Harvard Medical College ; 
 Dr. Golding, of the Government Hos- 
 pital for the Insane ; Dr. .James H. 
 McBride, of the asylum near Mihvau- 
 
 VOL. I.— 29 
 
 kee. Wis. ; Dr. Walter Channing, of 
 Brookline, Mass. ; Dr. Theodore W. 
 Fisher, of Boston, and Dr. James G. 
 Kiernan, of Chicago. The defence made 
 no attempt to elicit from these gentle- 
 men the result of examinations made 
 at the jail. It is understood that if 
 they had been questioned upon this 
 l)oint, most, if not all, of them would 
 have pronounced Guiteau sane. 
 
 " Fourteen experts in insanity have 
 testified that Guiteau is, in their opi- 
 nion, sane. These included four ex- 
 perts originally summoned for the de- 
 fence : Dr. Samuel Worcester, of Salem, 
 Mass.; Dr. Theodore Dimon, of Auburn, 
 Dr. Selden H. Talcott, of the New York 
 Homa?opathic Asylum at Middletown, 
 and Dr. Henry I\ Stearns, of the Re- 
 treat for the Insane at Hartford, Conn. 
 The remaining ten were Dr. Loring, 
 the oculist, Dr. Allan McLane Hamil- 
 ton, of New York ; Dr. Janin Strong, 
 of the asylum near Cleveland, 0.; Dr. 
 S. M. Shew, of the Middletown (Conn.) 
 Asylum ; Dr. Orpheus Evarts, of the 
 College Hill Asylum, near Cincinnati ; 
 Dr. A. E. Macdonald, of the New York 
 City Asylum ; Dr. Randolph Barks- 
 dale, of the Richmond Asylums ; Dr. 
 John H. Callender, of the Nashville 
 Asylum ; Dr. Walter Kemj)ster, of the 
 Northern Asylum of Wisconsin, and 
 Dr. John P. Gray, of Utica, N. Y. All 
 these gentlemen positively i)i-onounced 
 Guiteau sane. To their number can 
 1)0 added Dr. Noble Young, the jail 
 physician. Of tlie twenty-four physi- 
 cians in all examined, one only — Dr. 
 E. C. Spitzka, of New York — gave it 
 as his personal judgment that tlio pri- 
 soner is insane. There were a number 
 of (>xperts in attendance, such as Dr. 
 Pliny Earle, who would have testified 
 tliat (iuiteau was sane, but were al- 
 
 449
 
 § 553.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 health, there is nothing in which a morbid desire of theft, mur- 
 der, etc., couhl originate, and such a phenomenon is a psycho- 
 logical impossibility, and the assumption of such requires a psy- 
 chological contradiction. A mania sine delirio, a mania without 
 a morbid participation or disturbance of the perceptive faculties, 
 is, therefore, out of the question, as a desire to injure or destroy 
 is impossible without an act of the mind by Avhich this purpose is 
 entertained, and as reason and understanding are alike disordered 
 whether they insinuate a wrong motive for the morbidly-conceived 
 purpose of the act, or whether they entirely omit the suggestion of 
 any reason whatever,' 
 
 So, also, Dr. Winslow : " Is there not," he says, " a mysterious, 
 inscrutable, and inexplicable onoiess in the constitution of the 
 human mind, defying all attempts at an accurate and minute classi- 
 fication and separation of its powers ? If such a state of mutual de- 
 pendence, action, and union obtains between various states of mind 
 (I will not use the arbitrary term ' faculty' or ' power') in a condi- 
 tion of health, oL fortiori^ how impossible it is to disjoin, separate, 
 and individualize the mental faculties when under the influence of 
 disease. Can we draw the line of demarcation between a diseased 
 and healthy condition of the delicate structure of the vesicular 
 neurine of the brain ? Is it not obviously impossible for the most 
 experienced anatomist to say. This is the territory which separates 
 the morbid from the healthy portion of the brain ? or for the physi- 
 
 lowed to go home on account of sick- toms wliicli a man claiming his delusion 
 
 ness or for domestic reasons. ought not to have, and has none of th(^ 
 
 "The t(!Stimony given by the ionv- symptoms and traits which he ought 
 
 teen experts covers every ground upon to have. If he is insane, there must 
 
 which insanity has been or can bt; be a new classification of insanity, and 
 
 claimed. As accunnilated, it is an Guiteauism must be given a place in 
 
 avalanchoof proof against the assassin, tlic V)ooks with mania, melancholia. 
 
 It has been shown that he has none of and dementia." 
 
 the physical signs of insanity; in the To this it niay be added that Dr. Gray's 
 
 shape of the skull, condition of the testimony was emphatic, not only to 
 
 skin, tongue, or palate, appearance of tin; sanity of Guiteau, but to the non- 
 
 tlio eye, habits of sleep, digestion, etc. existence of "moral insanity" as a 
 
 It has been shown that if he is insane, distinct disease proilucing irresponsi- 
 
 Iie is an exception to all the intellec- bility. See infni, § G57, for Guiteau's 
 
 tual manifestations S(H>n in the expe- case in detail. 
 
 rience of the most distinguished alien- ' Sciiiirmayer, Gericht. Med. § 54[> ; 
 
 ists. He has all the traits and sym2)- supra, § 58, etc. 
 
 450
 
 GENERAL MORAL INSANITY. [§ 553. 
 
 cian to assert, such an extent of disorder of the mind is consistent 
 with safety and responsibility, but beyond the boundary danger and 
 irresponsibility commence ? 
 
 " But, apart altogether from the metaphysical objection to the 
 theory, let us for a moment consider whether such a form of disease 
 as partial insanit}^ or monomania comes under the observation of 
 the practical physician. There are, undoubtedly, forms of insanity 
 in which there is an unhealthy j^rf(,Zo/^if»a?^ ft; and exaltation given 
 to particular mental impressioris or delusions ; where certain states 
 of morbid thought and feeling stand out in bold and prominent re- 
 lief, giving, as it were, a character or type to the mental disease ; 
 hut I never yet smv a case of alienatioyi of 7nind in wliicli the delu- 
 sion or hallucination was in reality confined to one or tivo ideas, 
 those ideas exercising no injiuence over the conduct of the j^erson, 
 and not implicating, to a certain degree, the other facidties of the 
 mind. It is impossible to circumscribe the operation of morbid 
 conditions of thought, or to draw a line of demarcation between 
 those states of mind that are clearly under the influence of disease, 
 and those operations or faculties of the intellect that remain appa- 
 rently unaffected. A man believes himself to be our Saviour, or 
 iSIahomet the prophet. Apparently the man's mind is sound upon 
 all other points ; but witliin what limits can we confine and restrain 
 the influence of so serious a delusion ? 
 
 " A slight accession of bodily disease, a severe attack of indi- 
 gestion, congestion of the liver, or a torpid state of the bowels, 
 may make all the difference between security and safety in such a 
 case. A person laboring under the dominion of one palpable insane 
 delusion or hallucination (I am now using the term delusion in its 
 strictly medical acceptation), ought not to be treated (juoad the 
 question of criminality as a sane and rational man. But let me for 
 a minute revert to the question as to the existence of ])artial insan- 
 ity, or monomania. Foville, a French physician of great celebrity, 
 who had for many years the medical charge of the Charenton 
 Lunatic Asylum near Paris, when speaking of monomania, observes : 
 ' Monomania consists in a delirium, partial and circumscribed to a 
 small number of objects. Monomania, in its most simple condition, 
 is excessively rare ; the number of patients who only rave on one 
 subject is infinitely small compared to the luunber of those who arc 
 called monomaniacs. Under tliis head are often confoiuided all 
 
 451
 
 § 554.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 those who have some habitual dominant idea. I have only seen 
 two cases which rigorously merit the name, and these two even 
 were aflccted from time to time with more extended delirium.' 
 
 " He again remarks : ' Let any one examine the hospitals of 
 Paris, of Bicetre, of Charenton, and he will sec that amongst the 
 thousands of insane, there is scarcely one true monoma,mac^ perhaps 
 not one. Insanity attacks principally, at one time the intellectual, 
 at another the moral or affective faculties ; and, again, the sensa- 
 tions and movements. Each of these may be more or less affected 
 than the others ; and so, when the intellect, ivitliout being unaf- 
 fected^ is less deeply involved than the other faculties, we fall into 
 the error of considering it sound, and call these monomaniacs. 
 Indeed, it seems to me as though the descriptions of monomania 
 had been written upon the word,, and not from nature ; that is to 
 say, that writers have described what might merit the title of 
 monomania, but of whicli they can find no instance in practice.' 
 
 " jNIoreau, also a great authority in France, says: ' It is impos- 
 sible to admit that the intellectual faculties can be modified in a 
 partial manner. In the slightest as well as the most severe forms 
 of insanity, there is necessarily a complete metamorphosis — a radi- 
 cal and absolute transformation of all the mental powers of the one. 
 In other words, we are insane or we are not insane : we cannot be 
 half deranged or three-quarters, full face or profile.' 
 
 " Baillarger, an eminent French psychological physician, adopts 
 the same view of the question, and maintains that the alleged mono- 
 maniacal idea is more frequently predominant than exclusive. If 
 we look to Germany, we find the first psychological authority of 
 that country, Damerow, declaring that ' he never knew a case of 
 the disease of the mind called monomania, in which there was not 
 a fundamental, general psychical disorder.' '" 
 
 \ 554. Dr. Mayo thus speaks on tlie same point: " I may observe 
 that the theory of either moral or impulsive insanity is 
 
 And ^Livo. T 1 1 c , • 1 Tx -r. • 1 1 1 1 
 
 too liable, tor anything that Dr. rrichard has suggested, 
 to occasion the sudden outbreaks of the brutal character — a cha- 
 racter under rapid development, at present, in the lower orders of 
 
 ' Dr. Follies Wiiislow's Essay on the vol. xv. p. 173. See an article in 13 
 Legal Doctrine of Responsibility, re- Bulletin Med. Leg. Soc, N. Y., IGl. 
 printed in Am. Journal of Insanity, 
 
 452
 
 GENERAL MORAL INSANITY. [§ 554. 
 
 the country — to find refuge under this plea. Such was the appli- 
 cation of it which, some years ago, protected the Honorable Mr. 
 Touchet from the penal consecjuences of a great crime. That o-en- 
 tleman put to death, by a pistol-shot, the marker of a shooting- 
 gallery. The act was sudden, and there was no apparent motive ; 
 hut it was not performed under any semblance of delirium. Mr. 
 Touchet was eccentric, and he was blase. He fancied that he de- 
 sired to be hanged — at the gallows he would probably have thought 
 diiferently — and he was reckless and brutal enough to give himself 
 a chance of this fate, at the expense of the life of a fellow creature. 
 I have noticed him since in the criminal department of Bedlam, in- 
 souciant and indifferent enough, but certainly not insane in any 
 sense of the word that would not entirely disintegrate its meaning; 
 neither when we proceed to consider the sense which the law in- 
 tends to give to the expression of the certificate — ' unsoundness' — 
 shall we find this epithet at all more appropriate to Mr. Touchet's 
 case, which was simply one of brutal recklessness. With respect 
 to the misapplication of the plea of insanity to hysteria, we have 
 the case of a nursery-maid, placed in Bethlehem Hospital in 1846. 
 A trifling disappointment, relative to an article of dress, had pro- 
 duced in her a wayward state of mind. She labored, at the time, 
 under diminished catamenia. An object to which she Avas generally 
 much attached came in her way, namely, the infant whom she had 
 nursed, and she destroyed it, as a fanciful child breaks, in its moodi- 
 ness, a favorite doll. Xo fact more nearly approaching to delirium 
 than the above was stated in exculpation or excuse at the trial. 
 But Dr. Prichard's work, on the Different Forms of Insanit}^ in re- 
 lation to Jurisprudence, was published in 1842 ; and, by 1846, 
 juries had learned to convert the uncontrolled influences of temper 
 into what he terms Instinctive Insanity." 
 
 " As an instance of this class of cases in which the judicial au- 
 thorities came rightly to a very different conclusion, I will quote to 
 you the following one, from Sir Woodbine Parish's last work on 
 Buenos Ayres. Having spoken of a certain wind occasional in that 
 climate, which in some persons produces peculiar irritability and ill- 
 humor almost amounting to a disorder of their moral faculties, he 
 proceeds as follows : ' Some years ago, Juan Antonio Garcia, aged 
 between thirty-five and forty, was executed for murder at Buenos 
 Ayres. He was a person of some education, and rather rcuuirk- 
 
 453
 
 § 555.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 able for the civility and amenity of his manners ; his countenance 
 open, his disposition generous. AVhen this vento-norte — this pecu- 
 liar nortli wind — set in, he appeared to lose all command over him- 
 self; and such became his irritability, that during its continuance 
 he was engaged in continual quarrels and acts of violence. Before 
 his execution, he admitted that it was the third man he had killed, 
 besides being engaged in various fights with knives. When he 
 arose from his bed in the morning, he told Sir Woodbine's informant, 
 he was always aware at once of its accursed influence upon him ; a 
 dull headache first, and then a feeling of impatience at everything 
 about him. If he went abroad his headache generally became 
 worse ; a heavy weight seemed to hang over his temples. He saw 
 objects as it were through a cloud, and was hardly conscious where 
 he went. He was fond of play, and if, in such a mood, a gambling 
 house was in his way, he seldom resisted the temptation. Ouce 
 there, a turn of ill luck would so irritate him, that he would proba- 
 bly insult some one of the bystanders ; if he met Avith any one 
 disposed to resent his abuse, they seldom parted without bloodshed. 
 The relations of Garcia corroborated this account, and added that 
 no sooner had the cause of excitement passed away, than he would 
 deplore and endeavor to repair the effects of his infirmity. ' The 
 medical man,' says Sir Woodbine, ' who gave me this account, at- 
 tended him in his last moments, and expressed great anxiety to save 
 his life, under the impression that he was hardly to be accounted a 
 reasonable being.' ' ]jut,' he ailds, ' to have admitted that plea, 
 would have led to the necessity of confining half the population of 
 the city when the wind sets in.' I quite agree with the conclusion 
 which this remark implies, as to the fate of Garcia. He was him- 
 self aware of the murderous instinct to which he was liable, and of 
 its exciting causes. Surely, when such knowledge is in the posses- 
 sion of the delinquent, he must be made responsible for the non- 
 avoidance of exciting causes."^ 
 
 § 55v). It is further insisted, as a question of fact, that in the 
 An;iiv.^istiv so-calied cascs of moral insanity, mental unsoundness can 
 '"■"}■. almost in every instance be shown to exist by positive 
 
 [•roof. This is illustrated by an " analysis of fifty-two cases of 
 insanity marked by a disposition to homicide," furnished to the 
 
 ' Mayo on Medical Testimony in Lunacy, 58, 59, GO, Gl, G2. 
 
 454
 
 GENERAL MORAL INSANITY. [§ 555. 
 
 American Journal of Insanity, for October, 1857, by Dr. J. P. 
 Gray.^ From this the following summary is extracted : — 
 
 " Sex. — Of those who committed the act, nineteen were males 
 and five females ; of those who made unsuccessful attempts, twenty 
 were males and five females. 
 
 " Habits. — Of the entire number (fifty-two) twenty-three were 
 intemperate, or vicious, bad men, and twenty-nine were of unex- 
 ceptionable character and habits. 
 
 " Hereditary Predisposition. — In twenty-one of the fifty-two 
 cases there existed a marked hereditary predisposition, in nine no 
 such predisposition existed, and in twenty-two no facts touching 
 this point were ascertained. 
 
 " Mental Disease. — The form of mental disease was acute mania 
 in fourteen cases, subacute mania in three, paroxysmal mania in 
 two, chronic mania in four, dementia in twenty-four, melancholia in 
 four, mania-a-potu in one. Four of the cases of mania and one of 
 dementia were accompanied by epilepsy. 
 
 " Time. — Twenty-two of the twenty-four homicides were com- 
 mitted in the daytime, the remaining two in the early part of the 
 evening. Of the twenty -five attempts, twenty-one were made in the 
 daytime, two in the night, and tAVO both in the day and night. 
 
 " Object of Attack. — A father was the victim in one case, a 
 brother-in-law in one, a husband in one, wives in four, children in 
 ten, a cousin in one, neighbors in four, neighbors' children in three, 
 and entire strangers in seven cases. In nearly the same propor- 
 tion the immediate relations of the patients Avere the objects of 
 attack in those cases in Avhich the attempt Avas unsuccessful. 
 
 " Suicidal Disposition. — In ten of the fifty-tAvo cases a suicidal 
 tendency accompanied the disposition to homicide. 
 
 " Commitment to Asijlwm. — Of the tAventy -four homicides, eleven 
 Avere acquitted by the courts before Avhich they Avcrc arraigned, 
 on ground of insanity, and ordered to the asylum ; one Avas found 
 guilty, but sentence Avas suspended ; four Avere sent here on pre- 
 liminary trial, six Avithout any criminal proceedings ; and two Avere 
 placed in the asylum by their friends. 
 
 " Results. — Of the twenty-four patients Avho committed homicide, 
 seven recovered, eleven are unimproved, tAvo eloped, and four have 
 
 > See a similar article by the same author in 32 Am. Jonrn. Ins., pp. 1, ir)3. 
 
 455
 
 § 556.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 died. Of the twenty-five patients who Avere prevented from carry- 
 ing their homicidal purpose into execution, eight recovered, thirteen 
 are unimproved, and four have died. 
 
 "Arranging these cases under Dr. Bucknill's very convenient 
 modified classification of Esquirol, we have the following result: — • 
 
 " 1. ' Those wherein the crime has been occasioned by delusion, 
 and no reasonable person can doubt or object to the irresponsibility 
 of the offender.' In this class we have thirty -four of the fifty-two 
 cases. 
 
 " 2. ' Wherein the offender, though suff"ering from cerebro-mental 
 disease, has committed the crime under the influence of some motive 
 not of a delusive character.' In this class we have seven of the 
 fifty-two cases. 
 
 "3. 'Where with general symptoms of cerebro-mental disease 
 neither delusion nor motive for the crime is discernible.' In this 
 class we have eleven of the fifty-two cases." 
 
 § 550. Griesinger's eminence as an expert in this branch of 
 science, no one can uuestion. We may not fully accept 
 
 Critioii-m ' ^ . . 
 
 by Grie- the statement of Dr. Robertson and Dr. Rutherford, his 
 ^ ■ English translators,' that " he is essentially the repre- 
 
 sentative and the acknowledged leader of the modern German 
 medical thought," for this, so far as the question of primacy goes, 
 may be contested ; but we cannot contest the position, that, as a 
 careful and ])liilosophic observer of mental phenomena, no modern 
 authority surpasses him, either as to philosophic conception or 
 sober accuracy of induction. On the suhject before us, he thus 
 speaks: " ]jefore concluding the consideration of this subject it 
 may be well to say a few words regarding the so-called majtia aiiw 
 delirin, a i)athological variety established by Pinel, we may say, to 
 the detriment of science ; for so true and so serviceable was the 
 remark which Pinel deduced from his observations, that the violent 
 actions in mama are not altrui/s founded uj)on perversion of the 
 ideas- — we are of opinion now-a-days that originally this is alto- 
 gether not the case — so confusing was it to give the same designation 
 to two diltcrent morbid mental states ; namely, on the one hand, to 
 actual jjcriodic attacks of fury with very little delirium, and, on the 
 other hand, and principally, to those moderate states of mental ex- 
 
 ' Sydenham ed., 18G7. 
 
 456
 
 GENERAL MORAL INSANITY.^ [§ 556. 
 
 altfition referred to in the former paragraph, in which the patients 
 perform foolish actions and show perversity of demeanor, but are 
 also in a position to justify and to explain their conduct by a course 
 of coherent reasoning which still lies within the bounds of possi- 
 bility, i. e.,foUe raisonnante. The disciples of Pinel have even 
 ranged other states under the same title ; for example, that con- 
 dition which we have described as a moderate degree of melan- 
 cholia with violence, and, more than this, even outbreaks of 
 violence in consequence of hitherto concealed fixed ideas : for the 
 latter there is not even the appearance of reason. 
 
 " If we consider more closely to which maniacal states the desig- 
 nation mania sine delirio can be applied, we recognize the funda- 
 mental fact that in no single case of mania is the conscious thought, 
 the intelligence, perfectly free from any disorder. 
 
 " Even in the very slightest degrees of mania the intelligence 
 participates in the general exaltation, though it be only to the 
 extent of increased liveliness and rapidity of thought ; generally, 
 however, there is incoherence. 
 
 " In all attacks of fury, clear, calm, hearty thought is (juite 
 impossible. It is true that maniacs can occasionally, by means of 
 exhortation, be brought for a short time to their senses, and be 
 enabled to give correct answers ; but this only shows, as Jessen 
 remarked, the possibility of temporary remissions and intermis- 
 sions; 'the patient is not delirious when he speaks sensibly, and he 
 docs not speak sensibly in those moments in which he is delirious.' 
 Neither can we speak of the absence of delirium in those cases, 
 which we have described, where there is a morbid impulse to 
 commit acts of violence. Then those murderous ideas which are 
 not at all in accordance Avith external moral causes, but awakened 
 by a morbid disposition, are already in themselves delirious ideas, 
 just as in furious mania and in all violent emotion — for example, 
 rage — there arise new ideas, opinions, and conclusions, correspond- 
 ing to the morbid disposition. 
 
 " Those states in which there is least confusion of ideas and 
 delirious perceptions, in whicli there is the greatest amount of 
 logical coherence in thought, are tlie slight states of exaltation 
 which we have described in the foregoing paragraj)ii, Avhich, how- 
 ever, are generally merely the forerunners of the commencement of 
 violent mania. For these, for folie raisonnatifc, we might, as 
 
 457
 
 § 557.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Pinel in part did, use the name mania sine delirio ; but, as in 
 concrete cases it is of little practical advantage to range cases under 
 consideration under certain names, but of far more to obtain a 
 psychological appreciation of the fundamental morbid psychical 
 state, the circumstances Avhich have caused its development and its 
 consequences, it is, at all events, more advisable to allow those 
 obscure names which provoke the curiosity of lawyers and other 
 laymen to fall completely into disuse."^ 
 
 ^557. "Truly unfortunate has it been for our professional 
 By Mc- speciality," remarks an experienced American psycholo- 
 
 Faiiand. g\Q^\ physician, Dr. McFarland, " that the term ' moral 
 insanity' has ever had mention. The phrase itself is a luckless in- 
 vention, not only liable to an infinitude of misconception, but con- 
 veying ideas calculated wholly to mislead. It is as if there was 
 some separate kind of insanity, located in some ' terra incognita' 
 ■which no man has yet discovered, wholly independent of the brain 
 or any of its functions or operations. What is its seat or -what are 
 the organs of its abode or production, are questions Avhich those 
 who employ the term are themselves puzzled to answer. 
 
 " It does not seem to be considered by those who give currency 
 to the expression that its whole idea implies another centre of 
 sensations, emotions, or passions, than their great legitimate one, 
 the brain. In the first place, it may seriously be questioned whether 
 such a case as is usually described to set forth the idea, is ever actu- 
 ally seen. Experience brings before the mind a multitude of cases, 
 not actually realizing the full idea, but which are close approxima- 
 tions to it. Now it is this close resemblance between cases which 
 do exist and a certain ideal of disease borne in the imagination 
 Avhich leads us astray. The small difference which does exist be- 
 tween the case which every one has in hand and the ideal one, is 
 always enough to destroy the value of the instance. It has always 
 seemed as if all that is included in the idea of moral insanity might 
 be better disposed of by a closer reference to phenomena of insanity 
 which are of every-day occurrence. Every one realizes how few 
 of the delusions of the insane mind are ever revealed, and how 
 readily they are revealeil under one sot of circumstances and con- 
 cealed under others. All insane asylums abound in cases of un- 
 
 ' firicsingpi- on Mental Diseases. Syden. ed. (18G7), § 140. 
 
 458
 
 GENERAL MORAL INSANITY. [§ 558. 
 
 (luestionable mental disease, where its palpable manifestations are 
 so slight that the unskilled observer would doubt its existence. A 
 certain suspicious reserve, a mysterious shyness of manner, some 
 haughtiness of bearing, or something marked and singular in gait, 
 or tone of voice, some strange attachment to a particular seat, or 
 special stress applied to the doing of some trivial act, may be all 
 that distinguishes the individual from other men. Yet one guided 
 by experience has no hesitation in declaring such cases to be in- 
 stances of latent delusion ; and is prepared for the sudden exhibi- 
 tion of extreme or violent acts of which any of these almost unob- 
 served antecedent peculiarities furnishes the explanatory key. In 
 such cases, the extent of the disease is not at all measured by what 
 appears on the surface. 
 
 " The delusion which has possession of the mind may even have 
 no outward form of manifestation whatever, that can be detected, 
 and yet may give, rise to all those singular, inexplicable, and per- 
 haps violent acts, which a failure to explain by any anterior indica- 
 tions of delusion has styled moral insanity. It is very easy espe- 
 cially with those much conversant Avith the insane, to conceive a 
 case possessing all the attributes assigned to the form of disease 
 here called in question ; but before admitting any such case as an 
 existing fact, the possibility of a latent delusion underlying its char- 
 acteristic perversities of conduct should be deeply considered."* 
 
 § 558. Dr. Jules Falret, in an able paper read by him at a meet- 
 ing of the Society Medico- Psychologique, in January, j^,j„jgg 
 18GG, argued with great fulness and power to the same Fairei. 
 effect.2 
 
 From this paper we make the following extracts : — 
 
 " I shall only say that, for my part, I firmly believe, theoretically 
 and practically, in the perfect unity of action of the various mental 
 faculties, both in the sane and the insane. In reasoning or moral 
 insanity clinical observation proves, in my opinion, that there may 
 be a great excess of disorder in the moral and instinctive faculties, 
 but that it is never entirely absent from the intelligence. Psycholo- 
 gists do not admit, in tiie healthy mind, the distinct existence of the 
 several faculties, exce})t as a convenience of study. Tlicse faculties 
 
 ' Anicrioan Joui-n;il of Insanity, ^ Sc; fr;uislation in 2:5 Anicr. Journ. 
 
 Ainil, 18fj:3. of Insanity, 40(J. 
 
 459
 
 § 559.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 arc then, in reality, only different modes of action of one indivisible 
 mind. They can no more act separately in a state of health than 
 they can be affected separately by disease. Several faculties always 
 co-operate for the production of each one of our mental acts ; and 
 thus every one of these is a product of the simultaneous action of 
 more than one of the primitive powers of the mind. So in disease, 
 there may and often does exist a predominant lesion of a single 
 faculty, but there is never an affection of one alone, the others be- 
 ing left entirely untouched. 
 
 " In Germany, the medical alienists of the first part of the cen- 
 tury, such as llcil, lleinroth, lloffbauer, etc., also sustained the 
 reality of an insanity without delirium ; but in 1822, Ilenkc, the 
 celebrated founder of the Journal of Legal Medicine, which is con- 
 tinued to the present time, began to question this prevalent doctrine. 
 Since that period the contest among (xcrman physicians upon this 
 capital (piestion has been very animated ; but, little by little, the 
 opinion first maintained by Ilenke has finally triumphed, and it is 
 to-day the dominant one in Germany. 
 
 " Professor Griesinger, in his Treatise on Mental Diseases, asserts, 
 in effect, very distinctly, that there is no such thing as insanity 
 without lesion of the understanding, lie even goes so far as to say 
 (p. oniy), that the creation of 'inanie sans delire, by I'inel, was a 
 misfortune for science. 
 
 § 550. " In France, in 1810, my father, in his thesis, commenced 
 the reaction against the opinion of Pinel, by denying, absolutely, 
 the existence of manic sans delire. Since then. Marc, Georget, and 
 most of the disciples of Pinel, have sustained tlie doctrine of their 
 masters, and the possibility of the separate lesion of the intellec- 
 tual and instinctive faculties in insanity is yet generally admitted 
 among us. Nevertheless, many medical alienists have begun to 
 abandon this extreme position, and, for my part, I am convinced 
 that the more rigorous and complete study of the facts now brought 
 arbitrarily together under the name oi folic sans delire will lead all 
 conscientious observers to admit the correctness of that doctrine 
 which is to me a demonstrated truth, namely, that there does not 
 exist in mental disease an isolated lesion of the feelings, or of the 
 instincts; in other words, that there is no such thing as folic sa)is 
 
 delire.'''' 
 
 460
 
 GENERAL MORAL INSANITY. [§ 563. 
 
 § 5G0. " It is very questionable," says one of the most eminent 
 and experienced of American alienists, Dr. Joseph Work- g 
 man,^ " whether more injury than benefit has not been Workman, 
 rendered to the interests of justice and humanity by the earnestness 
 Avith which the moral insanity section have urged their views ; or, 
 perhaps, more correctly speaking, by the confusion which they have 
 introduced into a subject requiring to be investigated with rigid 
 philosophic exactitude."^ 
 
 § 561. It is also proper to mention that the theory of moral 
 
 insanity, as such. Avas emphatically repudiated by the 
 
 ' .'I *' Repudiated 
 
 great body of the members of the Association of Medical by Associa- 
 
 Superintendents for the Insane, at the meeting in Wash- s^uperinten- 
 
 ington on April 20th, 1866, reported in the American ^,'^"^:- ^*^'" 
 ^ i _ ' '1 the lusaue. 
 
 Journal of Insanity of that year.^ 
 
 § 562. Dr. Liman's edition (1871) of Casper's ^ledical Juris- 
 prudence is the highest contemporaneous medico-juridi- goby 
 cal authority in Prussia, if not throughout all Germany. Liman. 
 In this work he repeatedly denounces the theory of an insanity 
 exclusively moral as absurd, as repugnant to all sane psychology, 
 as utterly without any inductive basis of fact, and as destructive of 
 sound penal jurisprudence. To the same effect, he reports a series 
 of decisions of governmental experts, being the most eminent men 
 in their profession in the German states. 
 
 § 563. Dr. A. F. Berner, Professor of Jurisprudence in the 
 University of Berlin, may be viewed as one of the most 
 
 . . .... 1 German 
 
 accurate and authoritative of German jurists in this de- law op- 
 partment. In the fifth edition of his Lehrhueh des doctrine of 
 DentscJien Strafreclds^ published in Leipzig, in 1871, he " '""i';'' 
 
 •J ^ I to' ' insanity. ' 
 
 states the German law on this subject with great posi- 
 tiveness, and this is reafiirmed in 1877. "To constitute responsi- 
 bility," he says,* " that is to say, penal accountability, it is neces- 
 sary that there should exist, (1) consciousness of self ; (2) con- 
 sciousness of the exterior world ; and (3) a developed consciousness 
 of duty. In these incidents of intelligence inner freedom is in- 
 volved ; this freedom is not, therefore, to be proved independently 
 
 ' 19 Am. .Journ. of Ins. 40G. ' See also remarks of Dr. Chiplcy, 
 
 2 .S. P. Review, by Dr. And. McFar- anpru, § 175, note ('>')• 
 land, ibid. 402. * § 77. 
 
 461
 
 § 564.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 as a substantive essential of responsibility. A lunacy of tbe will 
 (and tbus a derangement of freedom) as coexisting with underanged 
 intellect {mania sine delirio) is impossible." 
 
 ^ 564. Dr. Kraft't-Ebing, a German psychological physician of 
 „ ^ \\vA\ eminence both for psychological acuteness and for 
 
 Ebiiisr^s great practical experience, was for years physician to 
 moral the asylum at lUenau, in Baden, one of the largest 
 
 iiisauity. ^^^^ most admirable in Europe. In an essay in Fried- 
 reich's Blatter for September, 1871, this eminent writer distin- 
 guishes " moral insanity" from sane criminality, by the fact tiiat 
 the illegal act in the former is involuntary, springing from cerebral 
 disease, while in the latter it is voluntary, the reason remaining 
 unimpaired. " We have learned from experience," so he declares, 
 " that immorality, ethical depravation, and criminal proclivities, 
 may spring from physical as well as from moral grounds." " If 
 we can perceive general signs of cerebral disease, and trace to this 
 disease the distinguishing psychical symptoms, then we make out 
 the distinction betAveen a voluntary surrender to immoral inclina- 
 tions, and an immoral criminal life, on the one side, and, on the 
 other side, a state that is only apparently voluntary, but is really 
 conditioned oti organic causes." As tests of this cerebral disease, 
 he gives the following: — 
 
 1. Either a diseased cerebral organization is congenital, or a 
 serious cerebral disease is shown to have subsequently attacked the 
 patient and produced change of character. In the former case the 
 condition is one of moral idiocy. The latter is technically that of 
 " moral insanity." The former is traceable to hereditary causes, 
 to epilepsy, derangement, drunkenness in the parent. "When the 
 " moral" symptoms result from cerebral injury, they are apt to 
 betray their progressive character in the prodromal stages of de- 
 rangement — melancholy, incipient pai'alysis, hysterical and epilepti- 
 cal attacks. The close connection between the physical and the 
 moral in this respect is shown by the fact tliat a diseased perversion 
 of the moral feelings often follows attacks of mania, of epilepsy, of 
 apoplexy, of meningitis, and of cerebral disease induced by 
 mechanical injuries and Ijy alcoholic excesses. In women, ob- 
 stetrical causes 0{)erate in the same way. 
 
 "i. In most cases there exist in the sphere of the nervous sys- 
 tem other functional disturbances as well as physical deformities. 
 402
 
 GENERAL MORAL INSANITY. [§ 564. 
 
 Among the latter may be noticed malformations of the skull, 
 imperfections of the senses, deformities in the extremities {e. g. club- 
 feet), strabismus, obstructions of the sexual organs. 
 
 3. Cerebral diseases, resulting from the peculiar cerebral organi- 
 zation above stated, are more common than with individuals normally 
 constituted. 
 
 4. There is a peculiar tendency to congestion of the brain, and 
 with this are coupled capricious and motiveless changes of disposi- 
 tion, morbid fixed prejudices, excessive irritability, and vehement 
 transient passions. 
 
 5. There is a perceptible contraction of the scope of the intel- 
 lectual renditions, approaching to actual imbecility, though this is 
 less prominent from the conspicuousness of the moral deficiency in 
 such patients, and their instinctive cunning and viciousness. 
 
 G. With these symptoms coexist anomalies of the natural pas- 
 sions, especially of the sexual instinct, which is developed in morbid 
 precocity, and strikes out in directions which are perverse and for- 
 eign to natural life. 
 
 7. The organic basis of the disease {ivlticli is only superficial!}/ of 
 an exclusively ethical character) exhibits itself in features which 
 are progressive and entirely independent of outward circumstances; 
 and in this form, certain immoral instincts, such as those for drink, 
 stealing, and vagabondage, start to light sometimes with marked 
 periodicity. 
 
 Hence, to constitute " moral insanity,"' it is necessary, according 
 to this accomplished observer, that it should be the result of ascer- 
 tainable cerebral disease. So far from the mind being sane, in 
 this state, he emphatically argues that the contrary is the case. 
 Insane ideas and delusions of the senses, it is true, may not exist ; 
 but he declares that it is impossible in the face of an exact clinical 
 analysis, to maintain that the intellectual processes run an undis- 
 turbed course. In spite of the cunning and energy, he declares, 
 with which such patients seek to carry out their abnormal instincts, 
 they are " intellectually weak, unproductive, incapable of practical 
 business or orderly activity, are marked by defective capacity for 
 education, are one-sided and twisted in their mental action, and of 
 very contracted judgment. In no case marked by tiiis obtrusive 
 moral debility, is there wanting some intellectual defect ; and most 
 patients of this class are intellectual imbeciles." " It i-^ worthy of 
 
 403
 
 § 565.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 notice," he continues, that in this disease " there is a peculiar dis- 
 order of the perceptive faculties, namely, in the process of repi'o- 
 duction, so that the reproduced representation is never identical 
 ^vith the original perception, though the patient holds it to be such. 
 Hence, he appears ethically a liar, and exhibits his supposed ex- 
 periences in an entirely distorted shape. . . Here it is that an 
 abstract, a formal, intellectual knowledge of right and wrong, with- 
 out ethical capacity for the same, intervenes. . . In persons of 
 this class occur further formal disturbances of the perceptions — 
 divergent processes of ideas, unique associations of ideas, peculiar 
 fixed fancies, conceptions emanating from abnormal passions. That 
 "which in such persons stands out in marked peculiarity, and which 
 can be traced only to intellectual defect, is their incapacity to distin- 
 guish not merely what is immoral, but that which is positively and 
 unnaturally perverted, and the injury wrought by their own acts to 
 themselves, coupled with their neglect, in their crimes, of the ordi- 
 nary rules of prudence, and a want (notwithstanding many marks 
 of mental subtlety) of every quality of self-control and self-gui- 
 dance." 
 
 §565. It has been said that the rejection of " moral insanity," 
 
 . , mania si)u' ddirio. instinctive mania, etc., has led to the 
 Convicts _ _ ' _ ' ' 
 
 only nireiy conviction of a number of persons who are really insane 
 
 insane. , . -i i i i ii ^ ^ 
 
 and irresponsible, but who, on the narrow tests adopted 
 by the courts, are pronounced sane. This assertion, however, is 
 unsupported by fact. In Prussia, " moral insanity," mania sine 
 dclirii), and instinctive mania, are repudiated not only by the courts, 
 but by the eminent physicians who act as authorized medical ex- 
 ])erts. An examination of the reported cases down to 1872 Avill 
 show that the tests applied emphatically exclude " insanity exclu- 
 sively moral," and " irresistible impulse," from the category of 
 legitimate defence. Now how is it with the persons so convicted ? 
 Have they, in any number, proved to be insane? The Berlin 
 Criminal-Gefangniss records, between 1841 and 1870 (oO years), 
 189,167 prisoners. Among these only 148 are reported as insane. 
 " In a great criminal prison," says Dr. Liman, commenting on this 
 return, " which serves as the sewer of the Proletariat of a great 
 city, and which receives very many old and previously convicted 
 criminals, there is, therefore, on an average, only from three to five 
 lunatics to ten thousand prisoners ; and among all the reported sick- 
 464
 
 GENERAL MORAL INSANITY. [§ 566. 
 
 nesses, from the slightest rheumatism upwards, were only three- 
 tenths out of a hundred insane. This, so far from beins an un- 
 favorable proportion, is surprisingly favorable. We have here a 
 proportion of lunatics to our population of criminals that does not 
 materially differ from the proportion to the entire population. It 
 is true the Stadtvoigtei (the prison referred to) is a prison of ordi- 
 nary detention, and for convicts is not often permanently assigned. 
 But even in the prisons with solitary confinement, so far as, in and 
 out of Germany, I have obtained information of these institutions, 
 I have found no marked increase of this proportion ; and so far as 
 concerns our great prison of this class, I can say distinctly that 
 from its opening to the present day, a disproportionate number of 
 lunatics has never been observed there, though it is a prison assigned 
 only to those guilty of the more atrocious crimes." 
 
 § 566. It is true that we have, as disputing these conclusions, 
 two publications (18T0), by Dr. J. Thomson, physician to the 
 Scotch Central Penitentiary.^ It is maintained by Dr. Thomson 
 that the statistics of prisons show that crime is sometimes here- 
 ditary ; that it descends coincidently with physical defects ; that 
 there is such a thing as an irreclaimable criminal class, and that in 
 this class crime is largely mixed with insanity. He argues that in 
 this class the moral sense is absolutely wanting ; and as proof he 
 cites (1) the frequent relapses of professional law-breakers ; (2) the 
 tendency of such persons to commit crimes Avhen in prison ; (o) their 
 apparent incapacity for remorse, exhibited by their quiet sleep and 
 their moral apathy, and (4) their inaccessibility to educational and 
 reformatory influences. Their proclivity to insanity he seeks to 
 show by their disposition to cerebral disorders ; and he asserts that 
 in the Scotch prisons the percentage of insanity is three times 
 greater than obtains in the population at large. But the replies 
 to this are obvious. As to percentage of insanity, the results are 
 in conflict with those of the German statistics, which cover a far 
 wider sphere, and are based on observations much more exact; and 
 even if we take Dr. Thomson's returns as exhaustive, we must re- 
 member that unbridled passions have of themselves a tendency to 
 produce insanity, and that this is an additional reason why j)assion, 
 by education and penal discipline, should be placed under re- 
 
 ' Journal of M<aital yciciicc, Jan. and Oct. 1870. 
 
 VOL. I.— 30 465
 
 § 566.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 straint,^ Nor should it be forgotten that among moral agents the 
 power to do right implies the power to do wrong ; that each suc- 
 cessive indulgence of guilty passion makes the temptation to future 
 indulgences stronger, and the restraints less ; that the knowledge 
 that character is lost hj public conviction and disgrace removes one 
 of the most important of such restraints. These considerations, 
 therefore, instead of prompting to sentimentalize crime by treating 
 it as a mere disease, should lead us to take even more stringent 
 measures to prevent its commission. In other words, the very 
 circumstance that crime generates crime, if not insanity, is an 
 additional argument for penal laws which, while humane, shall be 
 widely pu1)lished and firmly executed. 
 
 To the charge of cruelty it may be well replied (1) that a lax 
 view of crime, at a period when the character is forming, is apt to 
 lead to those first and incipient offences, which, if the view here 
 contested be correct, generate a seijuence of other offences, each 
 surpassing its predecessor in facility and obduracy ; (2) that the 
 alternative proposed by Dr. Thomson, of the indefinite incarcera- 
 tion of such off'enders " during puberty,"^ is at least as inhuman as 
 the corrective and limited imprisonments that a due administration 
 of justice awards ; and (3) that if there be any cruelty in penal 
 jurisprudence that is peculiarly reprehensible, it is that which 
 treats any class of offenders as absolutely irreclaimable. Nor is 
 this latter assumption founded on fact. Of course it is a Avell- 
 known moral law, as has just been stated, that each repetition of 
 crime makes reform more difficult. But the reports of the American 
 prison discipline societies siiow that in proper conditions, where the 
 convict, on discharge, is aided in his efforts to move into a new sphere 
 where the disgrace of his convictions will not drag him down, re- 
 forms have been frequent.^ 
 
 ' See Kripra, §§ 11"), 188, 403. dora which were formerly quite iin- 
 
 2 See supra, § 187. known. . . Suppose tliey all know 
 
 3 " Madmen," says Mr. Stephen, in that anyone of them might murder, 
 his authoritative work on Englisli ravish, or mutilate any other without 
 Criminal Law,*" " in the present day, the fear of punishment, the result 
 are treated with a degree of humanity would be that their liberty would have 
 and intrusted with an amount of free- to be greatly restrained, and that they 
 
 ' London, 1803, p. 96. See, also, articles hy eminent physicians in this de- 
 j)artment in the North American Review for January, 1882. 
 
 466
 
 SPECIAL MORAL MONOMANIAS. [§ 569. 
 
 II. SPECIAL " MORAL MONOMANIAS." 
 
 1. At present repudiated. 
 
 § 567. "Moral insanity," as has just been seen, rests on the 
 general assumption that the moral and the mental func- Doctrine of 
 tions occupy separate and detached compartments, so ^P^ciai 
 that one can be insane without in any way affecting monoma- 
 the other. The doctrine of special " moral monoma- sumes a 
 nias" assumes a still further subdivision. Each partic- of'^''?mora? 
 ular moral instinct has its own subchamber, in which insanity." 
 it dwells in like seclusion, so that insanity on its part not only does 
 not affect the mental properties, but is not necessarily communi- 
 cated to its own fellow instincts and affections. A man may thus 
 liave an insane and irresistible propensity to kill or to steal, for 
 which he is irresponsible, though not merely his mind as a whole, 
 but his remaining moral functions are sane. 
 
 § 568. We have already noticed the conclusive psychological 
 objections which apply to the "compartment" theory, 
 so far as it assumes that the moral system can become trine dis- 
 insane while the mental is sane, and Ave have shown that ibriner 
 the great weight of present medico-psychological autho- reasoumg. 
 rity is against this assumption. Of course, all reasoning against 
 the general separation of "moral and mental" insanity applies a 
 fortiori to the assumption that each particular "moral mania" 
 dwells in non-contagious isolation in its own particular cell. One 
 or two authorities, however, bearing on this particular point may 
 now be added : — 
 
 § 569. Ideler, a very eminent and experienced psj^chological 
 physician,' thus emphatically speaks: "How can we ^,i,jjtioj,ai 
 pretend to separate the orbit of particular fixed ideas autiionties, 
 (or monomanias) from the entire sphere of mental action 
 in such a way as to decide whether the origin of an unlaAvful pur- 
 pose is within or without such orbit? Practically it is impossible 
 for us to separate the diseased from the healthy portions of the 
 
 would have to be treated on the foot- lim, but of animnh, to be governed by 
 iiig, 7wt of moral agents to be governed by force.'" 
 
 I Lehrbuch, j). 2r>4. 
 
 467
 
 § 572.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 mind, so that the diseased portion should be punished, and the 
 healthy declared irresponsible." 
 
 § 570, Dr. Krafft-Ebing, whose eminence as an observer has 
 Krafft- ^^^'^ noticed, in lIoltzendorff"'s Encyclopedia (1871), a 
 
 Ebing. work of the highest juridical authority, under the title 
 
 Wahnsinn^ speaks as follows : " As part symptoms of general 
 psychical disease, Ave may undoubtedly class morbid impulses to 
 kill, steal, etc. These have been erroneously called monomanias, 
 and the general condition of disease has been by this process ig- 
 nored. Tlie doctrine of monomania is to-day rigidly abandoned. 
 It is based on the erroneous assumj)tion that the psychical faculties 
 are separate from each other., and capable of isolated action.''''^ 
 
 § 571. To the same conclusions Casper, Griesinger, and Liman, 
 in the works already quoted, add their high authority. 
 Griesinger, Indeed, as has been incidentally shown, and will pre- 
 an inian. g^j^^jy j^g g^g^ more fully, the doctrine of " moral mono- 
 mania" is now left with scarcely a single authoritative adherent 
 either in Germany, England, or France. 
 
 2. Psychological absurdity of classification. 
 
 § 572. In addition to the general objections already adduced to 
 the doctrine of exclusively moral insanity, we may here 
 ehouici be naturally notice, when we are asked to enter on a still 
 andriorob- niore minute division, how extraordinarily vague and 
 jcctive. fluctuating is the analysis which this new process involves. 
 
 In the first place it takes, as the basis of analysis, not the sub- 
 ject, which is the individual man, but the objects, e. g., houses to be 
 burned, goods to be stolen, other men to be killed, to which the in- 
 
 ' See infra, § 608. moral idiocy, and lie enumerates, as 
 
 2 It is true that this distinguished its positive features, " comparative im- 
 
 observer afterwards s^jeaks of the ex- becility, with an entire absence of all 
 
 istence of a state which he thinks pro- moral and judicial feelings, a comph^te 
 
 per to call the " English moral in- depravation of character with criminal 
 
 sanity;" but it will be seen at once immoral impulses and activities, which 
 
 that the "moral insanity" he thus can easily be confounded with immo- 
 
 recognizes is very far from being th(i rality,y?-om which, however, they are dis- 
 
 mania sine delirio of Pinel, or tlic in- tiiigttished bi/ their causes, their mode of 
 
 sanity of irresistible impulse of later tjrowth, their progressive course, and the 
 
 writers. For he gives, as its (iermau periodicity of certain symptoms.'''' 
 rendering, " Sittlicher Blildsinn," or 
 
 468
 
 SPECIAL MORAL MONOMANIAS. [§ 573. 
 
 dividual man, in this relation, may address himself. It is as if, 
 when we were analyzing steam, we should speak of it under one 
 name, and as possessing distinct properties, when it propels a boat, 
 and under another name, and possessing other properties, when it 
 propels a locomotive. If such a course should be taken, we would 
 no doubt have a hundred different kinds of steam to talk about, and 
 the dissimilarity of these various distinct powers might be the sub- 
 jects of much subtle discrimination. But such a discussion would 
 mislead us from the true issue. It would divert us from analyzing 
 the properties of steam itself, which are invariable, no matter what 
 may be the objects to which it may be turned, to investigating what 
 are its special accidents, and to investing these accidents with a false 
 autonomy. So it has been with the doctrine of moral monomania. 
 The subject of the monomania is the monomaniac himself. " Is he 
 insane?" This is a question for psychological and medical investi- 
 gation. The object, the end to whicli this alleged insanity directs 
 itself, is a matter for exclusively legal examination. " Did- he do 
 this thing?" " If so, supposing him to be sane, what is the pun- 
 ishment ?" To decide this is the exclusive function of the courts of 
 law. 
 
 § 573. We have a right, also^ to ask, when the " compartment" 
 theory of monomanias is proposed to us, that the com- ciassiflca- 
 partments in which these distinct functions dwell in such f'"" "f the 
 
 f _ _ _ , '■ moral iii- 
 
 isolation that one may be insane without in any way sanity" 
 affecting the others — that these compartments should be not harmo- 
 proved to be stable, fixed, and permanent. Instead of i^"^"'*- 
 this, we find that they vary according to the views of each theorist. 
 Pinel began by having a single insane chamber, and in this chamber, 
 so well guarded that the inmates could not escape to disturb the 
 " mind," dwelt what he called " mania sine deUrio." Esquirol, im- 
 proving on his master, declared that there exists, in like isolation, 
 a " mayiie instinctive,'''' which, issuing from its own separate apart- 
 ment, can go forth, commit depredations on the outside world, and 
 then furtively return, without in the least degree disturbing the 
 equanimity, awakening the repugnance, or even exciting the atten- 
 tion of the mind's other inmates, whicli go on in their normal 
 work with clearness and logical cohesion, not even taking notice of 
 the extraordinary neighbor who is dwelling under their common 
 roof. But French passion for classification could not be content 
 
 469
 
 § 573.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOQICALLY. 
 
 with this. It was soon argued that every wrong that can be per- 
 petrated must have its own particular wrong-doer, and that this 
 wrong-doer sliouhl have his particuhir exclusive and detached abode. 
 It was at first thought that it be enough if there were separate 
 apartments of this kind for certain general criminal propensities ; 
 and these were introduced to us under the titles of Kleptomania, 
 Homicidal mania, Aidoiomania, Pjromania, etc. But it was soon 
 found that this classification Avas not adequate. If each criminal act 
 requires a distinct particular propensity, or " nianie instmctive,''^ 
 and if each of these propensities is to be a separate factor, capable 
 of executing its work without either implicating the mind as a whole, 
 or even disturbing its fellow propensities, then the old theory of 
 cerebral architecture must be declared imperfect, and we must be 
 informed of a new plan, containing a largely increased number of 
 separate chambers in which these insane factors Qinsfincts mala- 
 difs) may abide in the requisite isolation. This was accordingly 
 done, and as new crimes started up, new " monomanias" were recog- 
 nized and duly assigned to separate abodes. Thus the Marquise de 
 Brinvilliers, feeling an irresistible instinct to poison, and yet being 
 admitted to be entirely sane, gave rise to a new " manie instinctive," 
 called To.vieoma'iiie, and which was announced to coexist not only 
 with mental sanity, but with morality and amiability in everything 
 except poisoning. 
 
 About the time when among French alienists the fashion of settinn; 
 apart new varieties of monomanias was at the highest, arose the 
 Piqueurs, who ranged the streets of Paris, cutting the clothes of 
 women and inflicting other injuries ; and forthwith this epidemic 
 mischief was declared a " monomania." The " Piqueurs" were 
 imitated by the " MiTedchenschanders" of Augsburg, who, in 1820 
 and afterwards, infested the streets of that town, and would rush 
 out from their lurking places, inflict a slight stab on young girls 
 with some sharp instrument, and then retreat.^ There is reason to 
 believe that the chief offender in the latter performances was really 
 insane ; and such certainly was the case with the perpetrator of analo- 
 gous outrages which some years since were committed in New York.^ 
 
 ' See infra, § (!21. York, in October, 1849. He was sliown 
 
 2 The case referred to is that of a to liave left his house immediately 
 
 young man, named Charles II. Sprague, after breakfast to go to his business, 
 
 wlio was tried in Kings County, New which was that of a printer ; to have 
 
 470
 
 SPECIAL MORAL MONOMANIAS. 
 
 [§ 573. 
 
 This can hardly, however, be said of the " Zopfabschneiders" of 
 1858, who, in some of the towns of South Germany, amused them- 
 
 overtaken a young lady, to have thrown 
 her down, to have snatched a shoe 
 from one of her feet, and to have run 
 away. She wore a chain and locket 
 and other jeweli-y in sight ; but he did 
 not attempt to take anything except 
 the shoe, nor to do violence to her per- 
 son in any way. He then proceeded 
 round a square, and on his way called 
 at his wife's father's, and asked if his 
 father was in town, a matter as to 
 which he was perfectly well informed. 
 He then left the house, came directly 
 back to the very spot where he had 
 just taken the shoe, and continued on, 
 without stopping, to his place of busi- 
 ness. He was tried for highway rob- 
 bery, and on trial the defence of in- 
 sanity was set up. "The principal 
 witness was the defendant's father, a 
 clergyman of the higliest resj^ectability, 
 whose testimony was corroborated in 
 every particular by several other wit- 
 nesses ; indeed, by all the court thought 
 it worth while to have brought for- 
 ward. Charles Spraijae' s paternal great- 
 graiidfat/ier, grandmother, great-uncle, and 
 three great-aunts — being four out of a 
 family of six — and a cousin, ore or hare 
 been insane. lie had himself in ijouth re- 
 ceived several severe blows and falls upon 
 the head, and within a year from the last 
 fall he began to suffer headache, and his 
 friends observed an unnatural prominence 
 of the eye, with varying dulness and glassi- 
 ness of these organs. Simultaneously 
 with this, Sprague began to exhibit a 
 propensity to abstract and conceal the 
 shoes of the female members of his 
 family. In the majority of instances 
 one shoe only was missed, and it was 
 usually found about tlie liousc, b/iving 
 been thorouglily soaked witli water, 
 twisted up like a rojic, and tlicii hid 
 away between a feather and straw bed, 
 
 or in the depths of a trunk, or liung 
 up in a closet with garments conceal- 
 ing it. 
 
 " Suspicion at first rested upon the 
 servants, but the real agent, being de- 
 tected and questioned, remained silent, 
 and on subsequent explanations gene- 
 rally denied the possibility of his 
 agency until within the last six years. 
 During this period, when remonstrated 
 with on his singular habit, he would 
 admit that he must have taken the 
 shoe, though he had no recollection of 
 it, and did not know for what he 
 wanted it. The intermissions in tins 
 practice have at no time exceeded 
 tliree or four months at one time. 
 
 "After the practice became estab- 
 lished, Sprague's mother and sisters, 
 and the female servants, habitually 
 locked up their shoes ; yet occasionally 
 one was missed and discovered twisted 
 and crumpled after being wet. It was 
 rumored at one time in the family that 
 Sprague had attempted to remove the 
 shoe from the foot of a domestic, and 
 his sister once alarmed her fatlier at 
 night on finding him abstracting her 
 shoes from a locked drawer. In the 
 early part of the year of the trial, two 
 females, one residing in Brooklyn, liad 
 a shoe or shoes taken from their feet 
 wliile walking in the street in the even- 
 ing, but the offender has never been 
 certainly known." — (1 Beck, Med. 
 Jur., ed, of ISOO, p. 732.) There was 
 no monomania about tliis case. It 
 was general insanity manifesting itself, 
 among other ways, in this particular 
 caprice. And tlie only proper disci- 
 pline' for such case, if general insanity 
 existed, was that compulsory seclusion 
 from society which general insanity 
 rciiuires. 
 
 471
 
 § 574.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 selves by darting out in the dark on women who wore the long 
 tresses of hair then in fashion, and cutting off and pocketing these 
 tresses. These propensities were epidemic, and were declared by 
 the perpetrators to be beyond repression when the fancy came on. 
 It was soon, it is true, found that a little cudgelling caused the 
 " propensity" to subside. It did not subside, however, until it had 
 for a while been enfranchised as a " monomania," to the great dis- 
 turbance of public decency and public peace. 
 
 § 574. The disinclination felt by intelligent but depraved French- 
 
 .A ^ . „ women to rear children — the " instinct" which leads 
 Defects of 
 
 ciassiflca- them to destroy such children, has, even by so acute a 
 physician as Boileau de Castelnau,^ been set apart, under 
 the title of Misope.die, as a distinct mania, capable, like other manias, 
 of doing its work without implicating or embarrassing the mother 
 herself, who is only an innocent victim of this mania, being in all 
 other respects " amiable" and " sane." Nor does the process stop 
 here. If the theory be right, there must be a constant readjust- 
 ment of the cerebral system, so as to let in new duly authenticated 
 and verified " monomanias." But if such readjustment be absurd, 
 then the theory falls. 
 
 So tlie same destructive argument may be drawn from the 
 inexhaustive capriciousness of the classifications which have been 
 given by philosophers of this school. If we are to have a classifi- 
 cation at all, we have a right to demand that it should be complete. 
 Nor, we may Avell add, if each passion is to have an exclusive 
 compartment to itself, in which it may become insane without affect- 
 ing its neighbors, can we conceive why such an accommodation is 
 refused to gluttony. Gluttony is as wide spread and eager a 
 passion as are any of those which had been elevated to the rank of 
 monomanias. The history of all nations, the rudest as well as the 
 most cultivated, records its prowess. The African kings, described 
 to us by Speke, who gorged to such an extent tliat they finally 
 became too gross to move, arc not more conspicuous illustrations of 
 the powers of gluttony than was Cambac^rc^, who spent half his life 
 at the dinner table, and made the dinner table the supreme end of 
 the state. Domitian, when Rome was needing the full wisdom and 
 
 ' AnnaU'S medico-psycliologiquos, ISiJl, vii. p. 553. 
 
 472
 
 SPECIAL MORAL MONOMANIAS. [§ 575. 
 
 energy of her sons, convoked the senate to determine how a turbot 
 was to be cooked : — 
 
 " But when was joy unmixed ? no pot is found 
 
 Capacious of the turbot's ample round : 
 
 In this distress he calls the chiefs of state, 
 
 At once the objects of his scorn and hate" — 
 " The Emperor now the important question put, 
 
 How say ye, Fathers, shall the fish be cut ?" 
 
 Charles V. was in most respects a great contrast to Domitian. 
 He was wise, tolerant, laborious, and inured to hardships when 
 great public ends were to be achieved. Yet Charles V., in his 
 retirement, would push aside the couriers who came to him from 
 his son entreating advice, in order to consult with those who Avere 
 to bring delicacies to the table ; and shortened his life because, in 
 defiance of his physician's advice, he would not shorten his meals. 
 " A very considerable percentage of the miseries of mankind," says 
 a late (1871) ingenious writer,' " may be said to spring from this 
 source alone. Peevishness, ill-humor, domestic breezes, hypo- 
 chondria, ghost-seeing, melancholy, suicide itself, with many other 
 evils, may often be traced to the poor digestive sac, when wearied 
 and insulted by the hard work to which it is condemned."' Per- 
 haps the reason why gluttony has not been spoken of as irresistible, 
 and assigned to a place among the monomanias, is the varieties it 
 assumes, and the consequent necessity of further subdivision. 
 "Dipsomania" may be called a kind of gluttony, and if so would 
 have to be deposed from its place as a monomania in chief. "With 
 it, but with separate compartments, would have to be ranked the 
 passion for opium, and, if recent statements are to be relied on, the 
 passion for chloroform. Nor could we admit these without assign- 
 ing distinct phases to passions for distinct articles of food. 
 
 § 575. A still more striking illustration of the inadc(iuateness 
 of this classification is to be found in its omission, among the 
 alleged irresistible impulses, of that for (jaming. Certainly if 
 " pyromania," an impulse which at the best is occasional and rare, 
 is to be recognized as a distinct insanity, requiring a distinct mental 
 compartment, at least equal distinction should be assigned to the 
 passion for gaming, a passion far more widely spread, and at least 
 equally irresistible. Several instances are reported in French his- 
 
 1 llargroaves, Blunders of Vice and Folly, p. 24. 
 
 473
 
 § 575.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 tory, of public men who in their early career gave promise of great 
 political usefulness, who sacrificed everything to this passion, and be- 
 came ultimately miserable outcasts. Nor is this peculiar to France. 
 Mr. Fox, as remarkable for strong sense as he was for argumentative 
 vigor, squandered, early in life, ^£154,000 given him by his father, 
 on the gaming table, which he did not desert until his life was 
 nearly spent ; and such was his infatuation, that he gave up whist, 
 in which his skill made him a winner in the long run, for hazard, 
 in which he knew that in the long run he must lose. Sir John 
 Bland and Lord Mountford, as Horace Walpole tell us, dissipated 
 in gaming their entire estates, aud then committed suicide. The 
 Marquis of Drogheda " ruined himself over and over again, till ho 
 was obliged to live on a small annuity paid quarterly. As soon as 
 he received his money he lost it at the gaming table, and after- 
 wards had to live in the greatest privation till quarter-day came 
 again, when the allowance was dissipated in the same way." "A 
 
 certain Captain H , after losing a considerable sum, would walk 
 
 up to a mirror, and begin a stormy colloii^uy with his image. The 
 substance reminded the shadow of the resolutions he had made ; he 
 showered down abusive epithets upon himself, and became so ex- 
 cited that he would assume a menacing attitude and appear as if he 
 Avere about to inflict chastisement upon the unfortunate reflection. 
 This was done in a public saloon, and in the presence of a large 
 company." " Sometimes the foolery of the gamester rises to a 
 height which seems to be positively preternatural. There was 
 once a person of the name of Shelton, of some note as a pugilist in 
 his day, who indulged in betting at pitch and toss to such an extent, 
 that one day, having lost all his earthly goods, he went on to stake 
 his very life. lie lost : will it be believed that the man cheerfully 
 proceeded to a lamp-post and hung himself to the projecting bar ?"' 
 Cases of this character are not rare. Among civilized nations — 
 putting aside, for the present, barbarous lands in which gaming 
 often exercises an influence equally potent — we may assume that 
 there are a thousand gambling houses, each with its body of fre- 
 quenters, numbering from fifty to a hundred. We may take as 
 favorable illustrations those places of better resort, where strict 
 police regulations, and social restraint generated by the compara- 
 
 ' Ilargreavps, Blunders of Vice and Folly, London, 1871, p. 47. 
 
 474
 
 SPECIAL MORAL MONOMANIAS. [§ 576. 
 
 lively high positition of the participants, maintain a superficial 
 decorum. Yet, even under this mask, no one can visit these tables, 
 without seeing that the habitual gamesters who frequent them form 
 a distinct as well as a numerous class of men, far more numerous 
 than " kleptomaniacs" or " pyromaniacs," and that they are driven 
 from risk to risk by a frenzy which has at least as high claims to 
 be considered irresistible as any which modern psychology has 
 brought to light. They know that gaming in the long run will ruin 
 them. They feel that the very process is consuming them by its 
 fires, yet they persevere till ruin comes, and then give themselves 
 up to the pauper's misery, or the suicide's grave. Why then is not 
 the morbid passion for gaming announced as a "monomania"? 
 What is there in it less vehement, less general, less marked, than 
 the other " monomanias" which have hereafter to be noticed? 
 
 § 570. If this classification is minute enough to give us " Toxi- 
 comanie" and " jNIisopedie," and to embrace " Piqueurs" and 
 " Mffidchcnsclianders," why does it find no place for gluttony and 
 gaming ? If it has no place for gluttony and gaming, what right 
 has it to demand the recognition, as " monomanias," of other pas- 
 sions, certainly not more abnormal, or more pregnant with what are 
 called " monomaniac" characteristics ? And if the classification 
 this theory presents be thus fluctuating and defective, what claims 
 has the tlieory to judicial recognition ?^ 
 
 It may, indeed, scarcely need so copious a recapitulation as the 
 above to show that the theory of special " moral monomanias" is 
 not only unphilosophical but impracticable. But in view of the 
 persistency with which this view is still pressed on the courts, it is 
 important to show that, even if the position is true as theory, it is 
 false in practice. And then, if it appear that even in the most 
 comprehensive classifications, there remain a number of passions 
 and impulses without their necessary exclusive abodes ; if it also 
 appear that these abodes, even when designated, instead of having 
 permanent inmates, are occupied capriciously by a series of visitors, 
 
 ' Tli(3 following new manias inay ]<o at Nurembiirg in 1877, a new primary 
 liere noticed: Agoraphobia, 1!) Journ. form of insanity was recognized, called 
 Ment. Sci. 45G; Metaji/u/siml mimiii,, Wahiisinu. See the Psychiatr. Central- 
 see 23 .lonrn. Ment. Sci. (UI8 ; Awhi- blatt, Oct. and Dec. 1877, and an ar- 
 tious mania., IS id. 431. At a me.-ting tich; on Necropliilisni in liH Jonrn. 
 of the (Jernian Visrein and physicians Ment. Hci. .OOl. 
 
 475
 
 § 577.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 appearing from time to time with new names and new attributes — 
 this throws just discredit on the theory as a theory. If we can 
 establish the entire isolation of the instincts in question, then we 
 can conceive of one being insane without affecting the other. But 
 when we find, that, so far from such isolation being established, 
 these instincts cannot even be separately numbered, then their 
 separate existence must be regarded as unproved.^ 
 
 III. PROMINENT FORMS OF SUPPOSED MONOMANIA. 
 
 § 577. It remains to notice the more prominent forms of supposed 
 
 ^ ^ monomania. They will be fjrrouped under the followins 
 
 Forms of j a i o 
 
 mouomaiiia heads, not because they have any psychological basis as 
 
 ' " Tlie gravity of this question does 
 not diminish when we consider the 
 fact that the aUeged insane class is 
 increasing ont of all proportion to the 
 general increase of the population of 
 the country ; and with this increase of 
 the insane comes a more liberal defini- 
 tion of insanity every year, constantly 
 growing widtjr and wider, until jier- 
 sons who were formtady considered 
 perfectly sane are now most hospitably 
 taken within tlie fold of the irresponsi- 
 ble, and assigned to a ward or class in 
 the vast nomenclature or nosology of 
 modern insanity — classes and divisions 
 numerous enough and wide enough to 
 (embrace the entire human family, sane 
 and insane. We find in the ' moral' 
 department alone divisions, subdivi- 
 sions, and douljle subdivisions as ex- 
 tensive as the propensity of the luiman 
 family to commit crime, to wit : homi- 
 cidal mania, klejitomania, oikeioma- 
 nia, suicidal mania, fanatico-mania, 
 politico-mania, etc. etc., without end. 
 To tlie old and constantlj' increasing 
 nomenclature of insanity of the books 
 there has lately been added another, 
 covering the loss of memory. To es- 
 cape being classed with the insane, 
 one must liave a good memory. Whe- 
 ther he must come up to the high 
 
 476 
 
 standard of Macaulay, who could re- 
 cite the ' Times' newspaper, adver- 
 tisements, and all, after reading it ; or 
 of Niebuhr, who restored from memory 
 a burnt book of public accounts ; or of 
 Leibnitz, who could repeat from me- 
 mory the whole of the iEneid, we are 
 not told. The 'London Lancet,' from 
 which we have already quoted, says on 
 this subject : ' At the present moment, 
 insanity would seem to be anything 
 experts choose to make it. There is 
 no clearly formulated idea of sanity, 
 and the least ' strangeness' or weak- 
 ness is held to be, if the general cir- 
 cumstances appear to render the as- 
 sumption convenient, a sufficient pi'oof 
 of insanity to deprive an individual of 
 his liberty and social privileges.' (The 
 learned editor might have added with 
 equal truth, ' or make him irresponsi- 
 ble for murder,') The ' Lancet' con- 
 tinues : ' A master in lunacy has just 
 ruled that loss of memory is to be re- 
 garded as evidence of insanity, al- 
 though at least one experienced expert 
 medical practitioner — not a specialist — 
 had no hesitation in declaring that the 
 jiati.mt, or, as we would prefer to say, 
 victim, was not insane.' " — Dr. Elwell, 
 in North Am. Rev., Jan. 1882, p. 8.
 
 HOMICIDAL MONOMANIA. [§ 578. 
 
 distinct manias, but simply because, as incidents of general insanity, 
 it is convenient to view them in this order. 
 
 1. ^'■Homicidal mania^' (morbid propensity to kill). 
 
 2. ^^ Kleptomania^^ (morbid propensity to steal). 
 
 3. "Pyromania^' (morbid incendiary propensity). 
 
 4. '■^ Erotomania^ ^ (morbid sexual propensity). 
 
 5. " Pseudonomania" (morbid lying propensity). 
 
 6. ^'Oikeiomania^' (morbid state of domestic affections). 
 
 7. '■^ Suicidal mania'' ^ (morbid propensity to self-destruction). 
 
 8. "Dipsomania" (morbid propensity for drink). 
 
 9. " Fanatico-mania" (morbid state of the religious feelings). 
 10. "Politico-mania" (morbid state of political feeling). 
 
 1. Homicidal moyiomania. 
 
 \ 578. '•'■Homicidal monomania'' ^'^ is not to be confounded, ac- 
 
 cordinti; to Marc, with the sudden murderous impulse ,. ^ . 
 
 , . . i^ Its destruc- 
 
 with which madmen are occasionally seized under the tivefea- 
 influence of revenge, or of some other passion which con- 
 trols them ; and it is, in like manner, important to distinguish it 
 from delirium. Esquirol understands the term to mean a partial 
 insanity, distinguished by more or less violent cravings of a mur- 
 derous nature ; and subdivides it into — 
 
 a. Cases in which the murder is caused by a firm but insane 
 conviction — the monomaniac being carried away by an avowed but 
 irrational motive, and always manifesting conclusive signs of a par- 
 tial insanity of the understandino; or the feelings. 
 
 h. Cases in which the monomaniac displays no perceptible distur- 
 bance of the understanding or the feelings, but is carried away by 
 a blind instinct, by an inexplicable somethiiig, which impels him to 
 the commission of murder. As, however, is very pertinently re- 
 marked by Schiirmayer, the distinctions and definitions by Marc 
 and Esquirol do not advance us in the field of forensic psychology 
 a single step beyond what we had already reached by means of the 
 physiology of insanity in general ; while their assumed homicidal 
 monomania falls, on the one hand, into the well-known rank of 
 
 « Siebold's Gericht. Med. § 219; Gott. 1835 ; Artikel Mania sine ddirio, 
 
 Hoffbaur's Psychologie, § 122; Con- in Jesse's Encyclop. Wiirterb. der Med. 
 
 radi's Commentatio der mania sine Wissench. Bd. 22, Berlin, 1840, p. 
 
 delirio, Gott. 1827,4 ; Conradi's Beitrag 410. 
 zur Geschichte der Manie sine delirio, 
 
 477
 
 § 579.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 mania, and is easily recognized and considered as one of its acci- 
 dental manifestations, or, on the other hand, draws into the circle 
 of its definition every murder of which the author is in a condition j 
 to assert, that he was compelled to commit it by an impulse which 
 he found to actuate him.^ 
 
 § 579. Dr. Hay, among all Anglo-American authorities, gives 
 Aj)proved ^his species of mania the widest sweep. " It was first 
 hyKay. distinctly described by Pinel," he says, " and, though 
 its existence as a distinct form of monomania was for a long time 
 after doubted, it has subsequently been admitted by the principal 
 writers on insanity — by Gall and Spurzheim, Esquirol, Georget, 
 Marc, Andral, Orfila, and Broussais, in France ; by Connelly, 
 Combe, and Prichard, in England ; by Iloifbauer, Platuer, Ettmul- 
 ler, Henke, and Friedreich, in Germany ; by Otto, of Copenhagen ; 
 and by Rush, in this country. It has received the various appella- 
 tions of monomanie homicide, monomanie meurtrih'e, melancholie 
 homicide, homicidal inmnity, instinctive monomania. Esquirol, in 
 his valuable memoir, first published in the shape of a note in the 
 French translation of Hofi"bauer's work, observes, that homicidal 
 insanity, or monomajiie homicide, as he terms it, presents two dis- 
 tinct forms, in one of which the monomaniac is always influenced 
 by avoAved motives more or less irrational, and is generally regarded 
 as mad ; in the other, there are no motives acknowledged, nor to 
 be discerned, the individual being impelled by a blind, irresistible 
 impulse. It is with the latter only we are concerned, for the other 
 is clearly a form of partial intellectual mania ; but as this division 
 has not been strictly made by nature, cases often occurring that do 
 not clearly come under either category, the subject will be better 
 elucidated by noticing all the forms of this afi'ection, and seeing 
 how intimately they are connected together." 
 
 ' See supra, §§ 14G-1G2, 163-189. ibid. 107 ; Report of Trial of People v. 
 
 See an interesting treatise by Dr. Griffin, ibid. 227 ; People v. Sprague, 
 
 Woodward, 1 Am. Journ. of Ins. 322. (3 ibid. 254 ; Com. v. Furbnsli, 9 ibid. 
 
 See also People v. Kleira, reported 2 151. For an interesting though desul- 
 
 Am. Journ. of Ins. 245 ; Abner Baker's tory sketch of the law, see Mr. Warren's 
 
 Case Reviewed, 3 ibid. 2G ; Trial of Remarks on Oxford's and McNaugh- 
 
 Rabello, reported, ibid. 41 ; an Essay, ten's cases, 7 Am. Journ. of Ins. 318 ; 
 
 by Dr. Aubanel, on the same point. Black. Mag. for Nov. 1850. 
 
 478
 
 HOMICIDAL MONOMANIA, [§ 580. 
 
 § 580. The same distinguished authority suggests the foUowino- 
 tests: — 
 
 XT 1 n 1 • • 1 Tests SUo;- 
 
 i. In nearly all, the criminal act has been preceded gestedby 
 either by some well-marked disturbance of the health, '™' 
 originating in the head, digestive system, or uterus, or by an irri- 
 table, gloomy, dejected or melancholy state ; in short, by many of 
 the symptoms of the incubation of mania. The absence of particulars 
 in some of the cases we find recorded leaves us in doubt how crene- 
 ral this change really is ; but a careful examination would, no 
 doubt, often, if not always, show its existence where, apfare^itJy^ 
 it has never taken place. 
 
 II. The impulse to destroy is powerfully excited by the sight 
 of murderous weapons, by favorable opportunities of accomplishing 
 the act, by contradiction, disgust, or some other equally trivial and 
 even imaginary circumstance. 
 
 III. The victims of the homicidal monomaniac are mostly 
 either entirely unknown or indifferent to him, or they are 
 among his most loved and cherished objects ; and it is remark- 
 able how often they are children, and especially so, his own oii- 
 spring. 
 
 IV. While the greater number deplore the terrible propensity 
 by which they are controlled, and beg to be subjected to restraint, 
 a few diligently conceal it, or, if they avow it, declare their mur- 
 derous designs, and form divers schemes for putting them in execu- 
 tion, testifying no sentiment of remorse or grief. 
 
 \ . The most of them, having gratified their propensity to kill, 
 voluntarily confess the act, and quietly give themselves up to the 
 proper authorities ; a very few only — and these, to an intelligent 
 observer, show the strongest indications of insanity — tiy, and per- 
 sist in denying the act. 
 
 VI. While the criminal act itself is, in some instances, the only 
 indication of insanity — the individual appearing rational, as far as 
 can be learned, both before and after the act — in others it is 
 followed or preceded, or both, by strange behavior, if not open 
 and decided insanity. 
 
 VII. Some plead insanity in defence of their conduct, or an 
 entire ignorance of what they did ; others deny that they labor 
 under any such condition, and, at most, acknowledge only a ]»ei-tur- 
 
 bation of mind. 
 
 479
 
 § 582.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 The follo-wing are the indicia given by Taylor: — 
 
 1 . The acts of homicide have generally been preceded by other 
 striking peculiarities of conduct in the individual, often by a total 
 change of character. 
 
 2. They have in many instances, previously or subsequently, 
 
 attempted suicide — they have expressed a wish to die or 
 instancc'8 to be executed as criminals. 
 
 cidiii ina- § 581. As an illustration of the erroneous induction 
 
 "^'^' on which the doctrine of monomania rests, may be men- 
 
 tioned the case of a man tried in 1869 for a murder in Alton, 
 England. He had enticed a little girl into a garden, where he at 
 once killed her, cut her in pieces, scattering the fragments in dif- 
 ferent places ; washed his hands publicly by the roadside ; went 
 quietly home, when he wrote in his journal, " killed a little girl; it 
 was fine and hot," and then confessed to the officers who appre- 
 hended him what he had done, giving no reason, and speaking of 
 it as an indifferent event. ^ Now the very essence of homicidal 
 mania, as insanity exclusively moral, is that the reason is supposed 
 to be intact. But how was it in this case ? (1) The defendant 
 exposed himself unnecessarily, without motive, without precaution 
 as to concealment, to the most terrible punishment the law can in- 
 flict. (2) lie viewed an act which to the eye of reason would be 
 the most tragic and revolting with as much indifference as he would 
 pulling up a plant or killing a fly. (o) It was in evidence that his 
 father had labored under acute mania ; that one of his near rela- 
 tives was at the time confined as a lunatic, and that he himself had 
 been so peculiar and liable to depression that he had been from 
 time to time watched to keep him from suicide. Under such cir- 
 cumstances it is scarcely accurate for Dr. Maudsley to say that 
 " he was not insane in the legal or the ordinary sense of the term," 
 and to treat the case as supporting the theory of homicidal mania, 
 as distinguished from legal insanity. On the facts above stated, if 
 there were no countervailing evidence, neither judge nor psycho- 
 logist would pronounce the patient to have been possessed at the 
 time of the act of right reason. 
 
 § 582. To the same effect is a case which occurred in New Eng- 
 land, in 1868, which has also been claimed to prove distinctive 
 
 ' See Maudsley"s Bo<lv and Mind, j). 71. 
 
 480
 
 HOMICIDAL MONOMANIA. [§ 583. 
 
 moral insanity. A gentleman of the greatest amiability and the 
 tenderest family affections, after having labored for several days 
 under depression, arose from his bed about midnight, killed one of 
 his children with a razor, and was attacking another, when he was 
 arrested by his wife. He fled trembling and ahuost naked into the 
 road ; and was discovered early the next morning, conscious of the 
 terrible nature of liis act ; conscious that it was a crime against the 
 law as well as a terrible grief to himself; but believing it was 
 necessary to rescue from great undefined calamity the very children 
 whom he had attacked. Certainly there was here a turmoil and 
 frenzy of the reasoning powers more signal as well as more awful 
 than that of the fatuous idiocy which is incapable of determining 
 right from wrong. Nor was the moral sense destroyed or percepti- 
 bly deranged, for there was the acutest anguish exhibited, and the 
 kneenest perception of the enormity of the act. But there was 
 such a wreck of the reasoning powers that the act, fearful and hate- 
 ful as it Avas, appeared to the perpetrator necessary. It was a case 
 of acute hypochondria involving derangement of the mind} 
 
 § 583. Dr. Maudsley, while maintaining the distinctiveness of 
 
 this phase of insanity, attributes it, not to insulated moral ^ ,, ^ 
 
 '■ " ' _ ' _ Dr. Mauds- 
 
 derangement, but to neuropathic disease. " Those who ii'.v main- 
 
 , . , . „ . • o 1 11 ii L tains that 
 
 have practical experience oi insanity,^ know well tliat this mania 
 there is a most distressing form of the disease, in which tj^g'^*'"^^" 
 a desperate impulse to commit suicide or homicide over- 
 powers and takes prisoner the reason. The terrible impulse is de- 
 plored sometimes by him who suffers from it as deeply as by any 
 one who witnesses it ; it causes him unspeakable distress ; he is fully 
 conscious of its nature, and struggles in vain against it ; his reason 
 is no further affected then in having lost power to control, or having 
 become the slave of the morbid and convulsive impulse. It may be 
 that this form of derangement does sometimes occur when there is 
 no hereditary predisposition to insanity, hut there is no <htii/>t that 
 in the great nmjority of canea there {k sic-h a neurojiathic state. 
 The impulse is truly a convulsive idea, s/>rin(/in</ from a morbiti 
 
 ' See s»/;m, §§ irjf), 529 ; »;/'m,§C:5f;; tlie Gulstoni.-ui Lcrtiircs fur 1870, by 
 
 and cases in Appendix to 3d ed. of this Henry Maudsley, M.D. London, 1870, 
 
 work, §§ 838, 839, 842. ].. 73. T(. tli.' sanir dfeet is Maudsley's 
 
 . 2 Body and Mind, an Inquiry into " I{esponsibilily in Mental Disease," 
 
 their Mutual Connection, etc., being 1874. 
 
 VOL. I.— 31 481
 
 § 584.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 condition of nerve element, and it is strictli/ comparable ivith an 
 epileptic convulsion. How grossly unjust, then, the judicial crite- 
 rion of responsibility which dooms an insane person of this class to 
 death if he knew what he was doing when he committed a murder! 
 It were as reasonable to hang a man for not stopping by an act of 
 will a convulsion of which he was conscious. An interesting cir- 
 cumstance in connection with this morbid impulse is that its convul- 
 sive activity is sometimes preceded by a feeling very like the aura 
 epilcptica, a stranrje morbid sensation, beginning in some part of 
 the body, and rising gradually to the brain. The patient may ac- 
 cordingly give warning of the impending attack in some instances, 
 and in one case was calmed by having his thumbs loosely tied to- 
 gether by a ribbon when the forewarning occurred. Dr. Skae 
 records an instructive example in one of his annual reports. The 
 feeling began at the toes, rose gradually to the chest, producing a 
 sense of faintness and constriction, and then to the head, producing 
 a momentary loss of consciousness. Tlris aura was accompanied 
 by an involuntary jerking, first of the legs and then of the arms. 
 It ivas tvhen these attacks came on that the patient felt impelled to 
 commit some act of violence against himself or others. On one 
 occasion he attempted to commit suicide by throwing himself into 
 the water ; more often the impulse was to attack others. He de- 
 plored his condition, of which he spoke with great intelligence, giv- 
 ing all the details of his past history and feelings. In other cases, 
 a feeling of vertigo, a trembling, and a va«i;ue dread of something 
 fearful about to happen, resembling the vertigo and momentary 
 vague despair of one variety of the epileptic aura, precede the 
 attack." 
 
 § 584. When the cases sketched by Dr. Maudsley, however, are 
 examined, it will be seen that they present certain positive features 
 which distinguish them from insanity which is described as exclu- 
 sively " moral," and Avhich the courts have declined to recognize. 
 Dr. Maudsley tells us (1) that the patient, in such cases, is in a 
 " neuropathic state," which is a state of positive physical disease ; 
 {'!) that this state " is strictly comparable with an epileptic convul- 
 sion ;" (:]) that it is sometimes preceded by a feeling " very like 
 the aura epilcptica ; and (4) that it is often the result of heredi- 
 tary insanity." Now the act, alleged to be criminal, may be 
 viewed as without a cause, or as being caused by an intelligent 
 482
 
 HOMICIDAL MONOMANIA. [§ 585. 
 
 volition, or as being caused by material and physical compulsion.^ 
 If the latter be proved to exist, whether the compulsion was internal 
 or external, the actor is not morally responsible. Disease, espe- 
 cially convulsive disease, may be such compulsion ; but, if so, it 
 must be affirmatively proved. The tests propounded by Dr. Mauds- 
 ley go far to constitute such proof. Of course, when a man is put 
 on trial for a criminal act, the presumption is that he committed 
 such act voluntarily. But this presumption may be overcome, and 
 physical coercion shown, by proof such as that which Dr. Maudsley 
 suggests, coupled, when it can be, by evidence of the unnaturalness 
 and motivelessness of the act. 
 
 § 585. In Sir Henry Holland's " Recollections, "^ the following 
 anecdote is given: "In 1825, as I think, Avhen he 
 
 (Canning) was foreign secretary and living at Glou- ^"''^ . ,, 
 \ »/ a ^ J o "manias" 
 
 cester Lodge, I was one morning called in haste to see a uotin-e- 
 
 -P, ,, 1 ^1 1 T 11 sistible. 
 
 patient at iJrompton. bcarcely had i entered the room 
 of this gentleman (for such he was, and had filled a diplomatic 
 office of some consideration) when he eagerly besouglit me to pro- 
 tect him against himself. He told me that a propensity to kill Mr. 
 Canning had come upon him suddenly, and so strongly, that he had 
 taken these rooms at Brompton to be in the Avay of satisfying the 
 impulse. But against this insane will (^induced by soine ^^upposed 
 official iyijustice^ a smaider feelinr/ was struQglinc/ ivithin Jii)n., and 
 for the moment gained mastery enou;/h to lead him to seek for 
 mstant restraint. I, of course, lost no time in providing it ; 
 warning Mr. Canning meanwhile to return to Cloucester Lodge by 
 a diiferent road. These strange cases of Avhat may be called 
 duplicity of the Avill are not rare in the long catalogue of mental 
 infirmities. In lighter and less critiecd form such incungruities 
 enter into the most familiar moods ef character and acts of life; 
 hut even here they need to he self-recognized and resisted, to prevent 
 their gaining mastery over the mind. The consistent and firm 
 command over the will ranks amongst the higher attainment >< of 
 man.'''' 
 
 In this case we have two distinct factors which are among the 
 
 ' See S(y/)ra, §§ 14(j-l<;2. llnyal Institution of Great Ihitain, 
 
 2 Recollections of I'ast Life. By Sir I'liysieian in Ordinary to tlu' (iiieen. 
 
 Henry Holland, Bart., M.D., F.li.S., London: Longmans and Co., ]>>72. 
 
 D.C.L., etc. etc.. President of the 
 
 483
 
 § 587.J MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 most constant incidents of criminal responsibility : (1) the motive 
 oi malice, i.e., revenge for "some supposed official injustice;" 
 (2) the capacity of mastering this feeling, so as to prevent it from 
 taking effect in an overt act. Of course, if in such a case the mind 
 becomes insane and reason is dethroned, and if when in such a state 
 the homicidal impulse becomes irresistible, then, according to the 
 rules laid down in prior sections,' a legal defence is made out. But 
 all this is in subordination to the principle stated by Sir II. Holland, 
 that these " propensities" must be " self-recognized and resisted to 
 prevent their gaining mastery over the mind." To declare that 
 they constitute irresponsibility, and that they are in the eye of the 
 law irresistible, is for the law to abdicate one of its highest offices, 
 that of educating men to resist such passions before they reach such 
 a height as to be really irresistible.^ 
 
 § .580. To recur to the classification foreshadowed by Sir W. 
 M'uiia if Hamilton, and expressed by Mr. Bain,^ the mind may be 
 cxistinir ;it viewed as combining three distinct but mutually depen- 
 
 all, isi,'^enc- , . '^ . . , 
 
 rai,i)ot dent factors — teehng, wul or volition, and thought or 
 biHLui . intellect. Disease either of feeling or thought is a dis- 
 ease of the mind as an entirety. Thus if feeling be in such a 
 diseased state as to generate delusions or hallucinations, the con- 
 clusions which thought draws from such data are insane. So if 
 thought is so diseased that the patient, from want of memory or 
 want of power of comparison, is incapable of determining the actual 
 relation to himself of the instrument by which his feeling is excited, 
 then the consequent volition is insane. These points may be illus- 
 trated as follows: — 
 
 § o87. Anger,* as Aristotle points out, is an impulse, arising 
 
 ' Supra, §§ 146-1G2. fork vinlently out of the window so as 
 
 2 Sr(! snjna, vj§ 11"), 18S, 403. " Pure ti.» losti tlu,' opportunity of tho erinn." to 
 
 uncontrollable impulse is also a source which he liail a strong inijuilse — to kill 
 
 of crime anion<; the insane, especially the physician just entering his room. 
 
 of suicide, homicide, theft, and arson. This feeling may be so strong, even 
 
 In certain forms of nuMital disease, toward a tenderly loved child, tliat the 
 
 the sudden impuls(> to kill one's self or mother, if otlierwise rational enough, 
 
 another, without .nny motive or delibe- begs to be kept out of its sight." — Dr. 
 
 ration or delusion, is at times (piite Folsom, in North Am. Hev. for Jan. 
 
 beyond control ; hut it is often con- 1SS2, }>. 30. 
 
 trolled even in very insane ])ersons, as ^ See suprti., § 307 «. 
 
 in the case of a j)atient in an asylum * See sii]>ra, § 418. 
 with mania, who threw his knife and 
 
 484
 
 HOMICIDAL MONOMANIA. [§ 588. 
 
 from pain to ourselves, to put somebody else to pain. It is uni- 
 versal in the human breast ; to invest it with irresponsibility Avould 
 be to confer irresponsibility on all crime. As analyzed by Mr. 
 Bain,^ it contains these ingredients : (1) In a state of frenzied ex- 
 citement, some effect is sought to give vent to the activity ; (2) The 
 sight of bodily ajfliction and suffering seems to be a mode of sen- 
 suous and sensual pleasure ; (3) The pleasure of j^ower is pan- 
 dered to ; (4) There is a satisfaction in preventing further pain to 
 ourselves by inducing fear of us, or of consequences, in any one 
 manifesting harmful purposes. Of these (1) and (2) may be re- 
 garded as the instinctive working of anger ; the latter as the result 
 of feeling mingled with thought. 
 
 Assuming, then, the universality of anger as a human emotion, 
 its action, in insanity, is as follows : A blow is received, and the 
 sufferer tries to hurt the thing producing the hurt. x\n infant, for 
 instance, strikes in anger the floor on which he falls. The imbecile 
 dashes his medicine to the ground. The maniac strikes about him 
 in blind frenzy. Here there is no criminal responsibility, in the 
 common sense, for the outburst of anger, though it is proper that 
 one whose feelings are under such slight restraint should be kept 
 under tutelage. 
 
 § 588. On the other hand, illusions or hallucinations may exist, 
 
 which, to a patient capable of reasoning correctlv, may 
 
 ' . \ \ => ^ ' " No defence 
 
 make the indulgence m anger seem just. Such a pa- where rea- 
 
 tient, for instance, may believe himself in danger of his 
 own life, or may conceive that he is a soldier in the heat of battle, 
 or may think that the person whom he strikes is a tree or an image. 
 In this case also there is no criminal responsibility, though abund- 
 ant ground for disciplinary confinement. 
 
 But anger can never be viewed as insanity in such a way 
 as to constitute it a defence, unless the intellect be proved to 
 be disturbed in the modes above specified. Or, to state the 
 proposition in other words, anger — or destructive impulse of 
 any phase — cannot, psychologically or ctliically, be an excuse 
 for crime, as long as reason exists, by which it can be con- 
 trolled. ^ 
 
 ' Mental and Moral Science, London, ^ Sea supra, §§ 14(;-1G2, ISS, 403. 
 
 1868, p. 2tj2. 
 
 485
 
 § 590.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 589. Viewing the question of " homicidal insanity," there- 
 fore, on its psychological side, we come to the conclusion that 
 unless the mind be insane, there can be no separate insanity of 
 the moral system having this distinct type. Viewing the question 
 ethically, we must conclude that no such alleged impulse should be 
 an excuse for crime while there is reason in the offender adapted to 
 the control of the impulse. This brings psychological and ethical 
 science in this respect in accord with juridical.^ At the same time 
 it must never be forgotten that there are forms of insanity — e. ^., 
 melancholia — of wiiich the homicidal propensity, especially in the 
 killing of children and objects of particular love, is a natural out- 
 growth. How far such substratum of insanity may be occult, and 
 how far it may burst out exceptionally as mania transitoria, will 
 be considered under other heads .^ 
 
 2. '■'•Kleptomania''''^ {inorhid propcndtij to steal). 
 
 [For important medico-juridical opinio7is on cases of alleged 
 
 '-'■Kleptomatila,^^ see Appendices, §§ 843, Sl-l, to third edition 
 
 of this ivork.Y 
 
 ^ 590. A propensity to steal occurs not unfrequently as a symp- 
 \naivMsbv ^"^'^ ^^^ mania, and the mental confusion incidental to it, 
 Eiiiiiarer. j^^d in depression and delirium. In such cases the dis- 
 ease is readily detected. But where it occurs in cases of concealed 
 insanity, its discovery is not easy. From Ellinger Ave adapt the 
 following : — 
 
 1. In the earlier developments of mania this is an important 
 symptom ; it will, however, be found accompanied, more or less, 
 by other symptoms of incipient derangement, such as a general 
 alteration in the accustomed mode of feeling, thinking, occupation, 
 and life of tlie individual, a disposition to scold, dispute, and 
 quarrel, to drink, and to wander about busily doing nothing, 
 and the bodily signs of excitement (restlessness, want of sleep, 
 rapid pulse, etc.). 
 
 ' See s(//)m, §§ 14<i, 162, 1G3-1S*), des Maladies Mentales, M. Morel, tome 
 
 40:',. i. p. 311), I'aris, 1854. 
 
 2 Sec /';/'/•", §§ 706-710. "• Hee also a case rep. Am. Journ. 
 
 3 See Med. Leg., M. Orfila, tome i. Ins., No. 254. 
 ]i. 364, Paris, 1848 ; Ktiides Cliiiiciues 
 
 486
 
 KLEPTOMANIA. 
 
 [§ 591. 
 
 2. The abnormal tendency continues after the disease, to all 
 external appearance, has ceased. Tliis continuance, however, 
 shows that mental disease, though latent, still exists. (This 
 calls for a continued course of observation by the examining phy- 
 sician.) 
 
 3. There are distinct but occult hallucinations at work. These 
 are to be assumed the more readily, the more bizarre and exclu- 
 sive is the desire to steal, and the more the objects to which it is 
 confined are out of proportion to the property of the thief ; and 
 particular attention should be paid to the existence, present or past, 
 of other symptoms of insanity. 
 
 4. Automatic impulses, such as the cravings of pregnant women, 
 may actuate the perpetrators ; and the degree of mental lesion 
 may be inferred from the extent to which the moral nature revolts 
 at and abhors the deed. The same inference is deducible from the 
 slightness and grotesqueness of the peculations, and the degree in 
 which other morbid symptoms are apparent in the body and the 
 mind when the deed is committed. , 
 
 §1 591. Dr. Rush, whose speculative mind seized readily on the 
 then novel distinctions which the French alienists of his mustra- 
 day were propounding, was the first American authority *"^"^- 
 to claim insularity for this propensity. " There are persons," he 
 said, " who are moral to the highest degree as to certain duties, 
 but who, nevertheless, live under the influence of some one vice. 
 In one instance, a woman Avas exemplary in her obedience to every 
 command of the moral law, except one — she could not refrain from 
 stealing. What made this vice more remarkable was tliat she was 
 in easy circumstances, and not addicted to extravagance in any- 
 thing. Such was the propensity to this vice, that wlicn she could 
 lay her hands on nothing more valuable, she would often at the 
 table of a friend fill her pockets secretly with bread. She both 
 confessed and lamented her crime." " Cases like this," so argues 
 Dr. Kay, " are so common, that they must have come within tlie 
 personal knowledge of every reader who has seen much of the 
 world, so that it will be unnecessary to mention them more j)ar- 
 ticularly. It would be difficult to prove directly that this i)ropen- 
 sity, continuing as it does throughout a whole life and in a state of 
 apparently perfect health, is, notwithstanding, a consecpience of 
 diseased or abnormal action in the l)rain, but the presumptive evi- 
 
 487
 
 § 593.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 dence in favor of this explanation is certainly strong. First, it is 
 very often observed in abnormal conformations of the head, and 
 accompanied by an imbecile condition of the understanding. Gall 
 and Spurzhcim saw in the prison of Berne a boy, twelve years old, 
 ■who conld never refrain from stealing. He is described as ' ill- 
 organized and rickety.' At Hainan they were shown an obstinate 
 robber whom no corporal punishment could correct. He appeared 
 about sixteen years of age, though he was in fact twenty-six ; his 
 head was round, and about the size of a child's one year old. He 
 was also deaf and dumb, a common accompaniment of mental im- 
 becility. An instructive case has been lately recorded, in which 
 this propensity seemed to be the result of a rickety and scrofulous 
 constitution. Secondly, this propensity to steal is not unfrequently 
 observed in undoubted mania. Pinel says it is a matter of common 
 observation that some maniacs, who, in their lucid intervals, are 
 justly considered models of probity, cannot refrain from stealing 
 and cheating during the paroxysm. Gall mentions the case of two 
 citizens of Vienna, who, on becoming insane, were distinguished in 
 the hospital for an extraordinary propensity to steal, though pre- 
 viously they had lived irreproachable lives. They wandered over 
 the house from morning to night, picking up whatever they could 
 lay their hands upon — straw, rags, clothes, Avood, etc. — which they 
 carefully concealed in their room."' 
 
 § 592. How fretpiently the illustrations just mentioned have 
 
 done service to establish this mania will be presently 
 wiien rea- noticed.^ It is Sufficient at present to invoke for their 
 thiu^s'^' disposal the principle heretofore abundantly vindicated, 
 
 that in all cases where the mind is sane it is the duty 
 of the state, by education and penal discipline, to establish sane 
 morality .3 
 
 § 59o. Yet, Avhen we analyze the cases adduced of this alleged 
 
 " mania," we cannot fail to see how many of them are 
 
 Troof cases -i i i • ^ ^ ^• • ■ 
 
 indicate attributable to ascertained mental disease, i his is emi- 
 i^iisinny. nently the case with epileptics. Dr. Erhardt^ enume- 
 rates many cases where these unhappy sufferers have 
 been possessed witii irrepressible desires to appropriate to thenr 
 
 ' Kay on insanity, ISO, IKO, 191; ' Seii .s(/;m,, §§ 115-188, 403, 49ri. 
 see fljf^e, § KH). ■* UeberZurechungsfiihigkeit dorEpi- 
 
 2 Iiifni, note 2, p. 489. leptisclien. 
 
 488
 
 KLEPTOMANIA. [^ 593. 
 
 selves whatever they couhi secretly lay their hands on, valuable or 
 not. And generally with regard to the moral responsibility of 
 epileptics, it is important to observe, says the same judicious author, 
 that even after attacks have been for months suspended, the mind 
 is in a condition of disorganization which shoidd properly divert 
 from it the application of those severe rules which apply to minds 
 perfectly sound.' The same criticism may be applied to other 
 cases cited by Gall, of women who, when pregnant, were violently 
 impelled to steal, though perfectly upright at other times. Fried- 
 reich gives the case of a pregnant woman who, otherwise perfectly 
 honest and respectable, suddenly conceived a violent longing for 
 some apples from a particular orchard, two or three miles distant. 
 Notwithstanding the entreaties of her parents and husband not to 
 risk her character and health, and their promises to procure the 
 apples for her in the morning, she started oft" in company with her 
 husband, at nine o'clock of a cold September night, and was de- 
 tected by the owner in the act of stealing the apples. She was 
 tried and convicted of theft, but subsequently a medical commission 
 Avas appointed by the supreme court to examine and report upon 
 her case. Their inijuirics resulted in the opinion that she was not 
 morally free, and conse(|uently not legally responsible while under 
 the influence of those desires peculiar to pregnancy.^ If, however, 
 
 ' See also Boileau de Castchiau De them seem to be garnered all the affec- 
 
 I'ejiilepsie dans ses rapports avec tions of those who consider them as the 
 
 I'alienation mentale, consideres an most perfect si^ecimens of the class 
 
 point de vue medico-judicaire. An- they are made to represent. This is 
 
 nales d'Hygiene puhl. et de Medecine th<! more remarkable, since within tlu; 
 
 Leg., Avril, 1852, No. !)4. past few years tlje whole theory of 
 
 2 Ray on Insanity, pp. 192-3. Dr. moral insanity has been ably contested 
 Chipley, in an interesting article in by sncli writers as lieinricb, Leubu- 
 the American Journal of Insanity for scher, Mayo, and others, and it no 
 .luly, 18G6, remarks Avith much justice longer receives tliat uuitbini appro- 
 on the hard use to which several an- bation in tlu! land where it was tirst 
 cient cases of "monomania" are jjut, recognized as was once accordcid to it. 
 and this jieculiarly applies to the cases Curiously enough, as it is losing grouml 
 in the text, and others cited from Gall and becoming (dfete in the laud of its 
 and Hpurzheim. " It must strike onc^ bii-tli, it nuM^ts 'with an inci-cased sup- 
 as curious," he says, " how often these ])ort in our own country.' is its d<-s- 
 sanie old (jases are mad(! to do duty, tiny to he like tiiat of the ciirri'iit 
 Tlii'y ])ass down from on(! author to fasiiioiis, whic-h, as they fade away in 
 another as sacred heiilooins jiass from America, enjoy a short reign, and th(;n 
 one generation to another; and in give placid to other dis(;()veri(;s .'" 
 
 489
 
 § 595.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the full report of this case could be secured, we must conclude, 
 judging from subsequent German decisions, that it wovdd exhibit 
 some proof of mental disease. 
 
 § 594. The same remark applies more strongly to a welbknown 
 case cited by Fodera.^ " I had a female servant," he adds, " who 
 wax a very good C/irisfia)i, very ivise, and very 7Hodest, but who 
 could not prevent herself from stealing in secret, from myself and 
 others, even the most trifling things, though aware of the turpitude 
 of the action. I sent her to the hospital as mad. After a long 
 time, appearing to be reclaimed, she was restored to her place 
 among the other servants ; by little and little, in spite of herself, 
 the instinct returned ; and being distracted on the one hand by the 
 evil propensity, and on the other by the horror which she felt of it, 
 she fell into an access of mania, and suddenly died in the violence 
 of a furoxysni.^^ The " access" was no doubt the manifestation of 
 mania previously occult. 
 
 § 5!)5. A trial, involving the defence of kleptomania, was, in 
 1855, the cause of much discussion by the London press. Mrs. 
 R., the wife of a physician of rank and affluence, was detected in 
 secreting some French cambric handkerchiefs in the shop of a re- 
 spectable haberdasher. Tlie jury were unable to agree, and the 
 Times, in discussing the case, made the following statement: — 
 
 " It is an instance of that not very uncommon monomania which 
 leads persons, otherwise estimable and well conducted, to pilfer 
 articles of a trifling value, in obedience to the impulses of a diseased 
 imagination. The fact is notorious that many persons of high rank 
 and ample moans have been affected with this strange disorder. 
 Every one who is ac([uainted Avith liOndon society could at once 
 furnish a dozen names of ladies who have been notorious for ab- 
 stracting articles of trifling value from the shops where they habit- 
 ually dealt. Their modus operandi was so well known, that on their 
 return from their drives their relatives took care to ascertain the 
 nature of their paltry peculations, in(|uired from the coachman the 
 houses at which he had been ordered to stop, and, as a matter of 
 course, reimbursed the tradesmen to tlie full value of the pilfered 
 goods. In other cases a hint was given to the various shopkeepers 
 
 ' For other cases, rlilc Miiiicliiiicycr, xiv. art. Femrae, p. (j'24, and art. 
 in Ilcnke's Zeitschrift. vol. xlix. p. (Jrosst'ssc ; I'rager Vierteljahrschrift, 
 35t» ; Diet, dos i>cU'iu-i's Melicak-s, tome v. 30. ]5d. 2, p. 121. 
 
 490
 
 KLEPTOMANIA. [§ 596. 
 
 at whose houses these monomaniacs made their purchases, and they 
 were simply forewarned to notice what was taken away, and to 
 furnish the bill, which was paid as soon as furnished, and, as a 
 matter of course, by the pilferer herself, without any feeling of 
 shame, or emotion of any kind." Of Lady Cork similar anecdotes 
 are related by Mrs. Kemble.^ 
 
 With regard to the motiveless nature of some thefts and the 
 singularly incorrigible character of some thieves, Casper makes 
 some pertinent remarks : " The rare cases which Marc refers to, in 
 which the thief throws away the object stolen, or spontaneously 
 proposes to pay for it, admit of physiological explanation. We do 
 not mean that very common state of perversity and malignity which 
 may be the cause of some thefts of this kind ; what Ave mean is, 
 that so much tact, address, and courage are often needful to com- 
 mit a theft without being discovered, that it is so needful to watch 
 and to seize the right moment, to plan with care and to execute with 
 prom])titude, that one can comprehend the great pleasure which is 
 experienced in overcoming such difficulties, and how much so peril- 
 ous an enterprise, crowned with success, is flattering to the self- 
 approbation of the thief. 
 
 " I am convinced, also, that in some individuals a real attraction 
 is felt in this chase after the property of another. I say chase, for 
 I can compare it to nothing better than the passionate desire to fol- 
 low a hare or a fox at the hazard of life, or to Avatch for the prey 
 like fishermen in England, who remain Avhole days on the water, 
 patiently Avatching the least movement of their game. I am 
 thoroughly convinced that this emotion is of much force in holding 
 thieves to their mode of life, and it is in this manner only that Ave 
 can explain how it is that some of them, after a long imprisonment, 
 immediately recommence to steal, although they Avell know that a 
 second punishment more severe than the first awaits them." 
 
 § o9G, The value of the thing stolen, as has been already noticed, 
 and as is avcU illustrated by Dr. Kieser, does not ahvays 
 enter into the motive. Old bits of iron, Avood, or thread :,,.'tu'i.' 
 are stuck furtively into the pocket. ^ But it must not be ^^!['^.'^l.,'',!i\y 
 forgotten, that, Avhile a nutrkct value may amount to :uiuiciiK-nt. 
 
 ' Atl.antic Monthly, March, 1877, p. Buckiiill, Juiinial of Mental Science, 
 435. Sec also article by Dr. J. C. July, ls(;2. 
 
 2 Kleniente der I'sychiatrik, p. 11)5. 
 
 491
 
 § 598.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 zero, a conventional value may be hiij^lier. Thus, when Dr. Buch- 
 land was Dean of Westminster, he received anonymous letters, 
 containing a chip of black oak cut from the coronation chair, and a 
 fragment of the tomb of Henry VIII, , which the Avriters stated they 
 had purloined in their youths and now desii"ed to return. Here 
 were cases, it might be said, of " kleptomania," and the reason given 
 would be that the things were of no value. But a scrutiny of the 
 case will show that in this, as in all cases of the purloining of 
 "relics," the reverse is the truth. The chips were taken because 
 they were believed to have value. They were curiosities ; they 
 would give a sort of edat to the collections of their possessors. 
 But it was soon found that this would not answer. To exhibit these 
 chips would be to confess the larceny. They could not, therefore, 
 be placed in the collection. They wore stolen because they were 
 of Home value. They were returned when it was found their value 
 was lost by their theft. If in such cases "kleptomania" be estab- 
 lished as conferring irresponsibility, there would be few memorials 
 of past distinction that would not be in a short time chipped away.^ 
 k 51)". Dr. Kraift-Ebing, whose high position as a psychological 
 
 physician has already been noticed, and Avho for sagacity 
 Criticism . *^ . ^ J 
 
 of Kraiit- and experience has no superior, thus (1871) speaks, 
 
 '^^ under the title " Wahnsinn," in Iloltzendorff's Encyclo- 
 
 paedia, a work, as has been said, of very high juridical authority : 
 " In the process of maniacal excitement there is sometimes a marked 
 propensity for stealing. But this impulsive, vehement compulsion 
 (Drang) to stealing is never an isolated pathological symptom. 
 '■Kh'jtfo mania, ^ in thin sense, like the other ' monomanias,^ is im- 
 possi/>le. As part-symptoms of general psychical disease, we may 
 undoul)tedly class morbid impulses to kill, to steal, etc. These have 
 been erroneously called monomanias, and the general condition of 
 disease has been, b}^ this process, ignored. Tlie doctrine of mono- 
 mania is to-day rir/htl// abandoned.'''^ 
 
 §598. What, then, are the tests by which "kleptomania" is 
 determined ? INIatthey tolls us that it exists whenever 
 
 L II reason- . . * . • , , 
 
 ahk-ucss there IS a stealing witliout necessity, without being com- 
 j „.',', v,."i,'i. polled by the cravings of misery. But is it a re(|uisite 
 sanity. ^f criminal stealing that it should be impelled by neces- 
 
 ' See infra, § 598. 2 See supra, ^ 570. 
 
 492
 
 KLEPTOMANIA. [§ 601. 
 
 sity, and by the cravings of misery ? Are thieves exclusively 
 those Avho are impelled by " le besoin pressant de la mis^re ?" 
 Certainly the records of our criminal courts do not show this. 
 Most of those who are indicted for larceny, indeed the whole class 
 of shop-lifters, and of pickpockets, are persons of good appearance, 
 well-dressed, with intellects which would afford them adequate sup- 
 port in trade, and sometimes even luxurious lives. Thieves of this 
 class steal, not for necessaries, but to supply luxurious superfluities. 
 The number of those who steal to appease hunger, or to buy cloth- 
 ing that is simply' decent, is small. 
 
 § 599. Another mark of " kleptomania," according to Marc, is 
 tlie stealing of articles of value, small in comparison with the ex- 
 tent of the offender's estate. But is it an incident of criminal 
 larcen}^ that the article stolen should be large in comparison with 
 the offender's estate ? Have we not already seen^ that collections 
 of coins and curiosities have to be jealously guarded to preserve 
 them from the depredations of avaricious collectors ? Have we not 
 had cases of great depredators, who, with immense spoils already 
 secured, have gone on embezzling? Are there not in the criminal 
 reports frequent instances of rich but persistent thieves ? 
 
 § GOO. It is said, again, by Marc, that this supposed propensity 
 is marked by indifference to the stolen article when obtained ; it is 
 soon discarded or thrown away. But is not the man who is " alieni 
 appetens" very often, to use Tacitus's fine antithesis, " sui pro- 
 fusus ?" Is not that which is lightly got often lightly parted 
 with? Are there not numerous cases in the books in which 
 articles of jewelry are stolen for the purpose of being given 
 away ? 
 
 § 001. Then, again, we have assigned as a test of "kleptoma- 
 nia" the return by the offender of the thing stolen to the party 
 from Avhom it was taken. But have we not numerous instances of 
 "conscience money" returned to government — money of which it 
 is the distinguishing mark that it was unconscientiously taken and 
 is conscientiously returned ? And may there not be sometimes a 
 passion for pilfering like a passion for fishing or hunting, which, 
 without being " irresisti1>le," may yet spend itself in the pursuit. 
 
 ' Supra, § 5 9 (J. 
 
 493
 
 § 604.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 and, when the object is ohtained, be followed by sober reflection 
 and by amends ? 
 
 § G02. Undoubtedly insane persons do pilfer, and pilfer some- 
 times with much ingenious surreptitiousness ; and un- 
 iiia^not""' doubtedly, as Sander illustrates,^ this is often a symp- 
 
 prooi ot ^Qj^ of incipient mental paralysis. The instinct for 
 insanity. .... . 
 
 ac(|uisition is congenital ; when the mind fails and the 
 
 idea of property becomes confused, this instinct often appears in 
 
 appropriating and even secreting the property of others. But this 
 
 is a Hijmptom of a decaying or disordered intellect, not a proof of 
 
 monomania coexistent with sanity. 
 
 § GOo. In other words, " kleptomania" cannot coexist with 
 
 sanity, nor can a sane person be a " kleptomaniac."^ 
 
 3. '''■Pyromania^'' (jnorhid incemliar-i/ j^Topensiti/'). 
 
 § t!04. Although this abnormal propensity has no substantive 
 existence as a monomania, it will remain, nevcrthe- 
 
 rvroniania 
 
 usyiiipt"'"! less, worthy of much study as a symptom of insanity. 
 "' In investigating such cases, the following inquiries 
 should be made : — 
 
 a. In persons who have passed the age of jmberti/^ whether 
 there is not depression or partial insanity as a basis ; whether the 
 individual was not overcome and impelled to the deed by a name- 
 less dread which he could not dispel, or by some crazy notion be- 
 fore concealed. 
 
 //. In persons just arrived at the age of piderfi/. Here the 
 state of development in general, and in particular that of the mind, 
 of the whole body, and of the sexual organs, must be accurately 
 weighed and estimated, with special reference to age and sex, edu- 
 cation and mode of life, as experience teaches that the irregulari- 
 ties of every kind which here occur (such as accelerated and impeded 
 growtii, unusual prostration and fatigue of the limbs, with painful 
 sensations not produced by adeipiate visible causes, swellings of 
 the glands, anomalies in menstruation, cramps and other nervous 
 
 ' Vii'i-tfljalirschrift f. f^'criclit. Med. 2 See supra, §§ 14C-162. To this 
 
 LSt;3 ; see also cases in Apix-ndix to effect may l)e cited tlie testimony of 
 
 third edition of this work, §§ 843, Dr. Gray in tlie (Juiteau case, Wash- 
 
 844. iugton, .Jan. 1882. 
 
 494
 
 PYROMANIA. [§ 605. 
 
 attacks, and particularly irritation of mind), exert the most impor- 
 tant influence on the growth and increase of certain desires and 
 inclinations, and easily impair the power of self-control. These 
 transition states acquire a particular significance when accompanied 
 by home-sickness, Avhich, without necessarily attaining the height 
 of complete melancholy, becomes a powerful element in morbid de- 
 rangement. 
 
 c. Where the individual is yet in infancy. Here, in the absence 
 of reason, reflection, and religious and moral culture, a childish 
 curiosity generally furnishes the motive, more rarely a grudge, 
 anger, or revenge ; but physical and mental or moral causes may also 
 be at work independently or as auxiliaries. Tender years are suffi- 
 cient, in such cases, to exclude the idea of criminal responsil)ility. 
 
 § (305. " A morbid propensity to incendiarism or pyro)na)iia, as 
 it has been termed, Avhere the person, though otherwise Ray's 
 rational," it is stated by Dr. Ray, " is borne on by an opi"ion. 
 irresistible power to the commission of this crime, has received the 
 attention of medical jurists in Europe, by most of whom it has 
 been regarded as a distinct form of insanity, annulling responsibi- 
 lity for the acts to Avhich it leads. Numerous cases have been re- 
 lated, and their medico-legal relations amply discussed by Platner, 
 Vogel, Masius, Henke, Gall, Marc, Friedreich, and others. In a 
 few of these cases the morbid propensity is excited by the ordi- 
 nary causes of insanity ; in a larger class it is excited by that con- 
 stitutional disturbance Avhich often accompanies the menstrual pe- 
 riods ; but in the largest class of all, it occurs at the age of puberty, 
 and seems to be connected with retarded evolution of the sexual 
 organs. The case of Maria Franc, quoted by Gall from a German 
 journal, who was executed for house-burning, may bo referred to 
 the first class. She was a peasant of little education, and, in con- 
 se(iuence of an unhappy marriage, had abandoned herself to habits 
 of intemperate drinking. In this state a fire occurred in wliich 
 she had no share. From the moment she witnessed this fearful 
 siijht, she felt a desire to fire houses, which, whenever de had 
 drunk a few coppers' worth of x/drlts, was converted nito an irre- 
 sistil)le impulse. She could give no otiier reason nor sliow any 
 other motive for firing so many houses tlian tiiis impulse which drove 
 iier to it. Notwithstanding tlie fear, the terror, and the rei)entance 
 she felt in every instance, she went and did it afresh. in other 
 
 495
 
 § 606.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 respects her mind was sound. Within five years she fired twelve 
 houses, and was arrested on the thirteenth attempt." But as to 
 this statement, two qualifications must now be kept in mind. First, 
 whatever may have been the temporary reception of this doctrine 
 by alienists thirty years ago, it is now, as is shown by Dr. Liman 
 in his (1871) edition of Casper, almost entirely without high 
 psychologico-medical support. Second, a close examination of the 
 case of INIaria Franc exhibits, as subsequent observers agree, 
 mental disturbance, which, when she was inflamed by the " few 
 coppers' worth of spirits" above noticed, readily took the incen- 
 diary typc.^ 
 
 § 606. "This plea," we are told by Taylor, "has been already 
 admitted in Endish law,^ but chiefly" — it should have 
 
 Disap- '^ . .... 
 
 proved in been said onJi/ — " m those instances m which there was 
 joiojaiLcio g^j,^j^g reason to suspect intellectual aberration. In one 
 modern case,^ the prisoner was convicted on the principle that, 
 although of weak intellect, she knew right from wrong."* Among 
 several important trials in which this plea has been urged in defence, 
 the one most interesting to the medical jurist is that o? James O-ibson, 
 tried before the high court of justiciary, Edinburgh,^ of which a very 
 full report will be found in Cormack's Edinburgh Journal, February, 
 1845, p. 141. The prisoner was charged with setting fire to certain 
 premises, and the defence chiefly rested upon the allegation that he 
 was in a state of mind which rendered him irresponsible for the act. 
 The meilical evidence was generally in favor of the insanity. The 
 lord justice clerk (Hope), in a very elaborate charge to the jury, 
 laid down for their guidance most of the legal propositions which 
 have been already discussed under homicidal mania. He remarked 
 that they were "not to consider insanity according to the definitions 
 of medical men, especially such fantastic and showy definitions as are 
 found in Ray, whose work was quoted by the counsel for the panel, 
 and in many other medical works on the subject. He adopted Mr. 
 Alison's view that the consciousness of right and wrong must be 
 applied to the iiurticular act, and not to crime in the abstract. The 
 
 • As to this and other of Gall's cast's, * See Ann. d'llyg. 1833, ii. 357; 
 see supra, § r)03, note 2, p. 489. 1834, ii. 1*4. 
 
 2 See cases, Med. Gaz. xii. p. 80. 5 d^c. 23, 1844. 
 
 3 Reg. V. White, Wilts. Summer Ass. 
 1840. 
 
 496
 
 PYROMANIA. [§ 606 a. 
 
 duty of deciding on this (juestion is with the jury ; it is not to be 
 delegated to medical men, and by relying upon their own judgment 
 their decisions would be nearer the truth than that of any body of 
 medical witnesses." The jury negatived the plea, and the prisoner 
 was sentenced to transportation for fourteen years.* 
 
 An instance of insane pyromania may be found in the case of 
 Jonathan 31artin, Avho fancied himself to be deputed from God to 
 burn down the Cathedral of York, in order to do away with the 
 heresies which he supposed to exist in the church.- 
 
 As exhibiting the checks proposed by those Avho maintain the 
 independent existence of " pyromania" as a " monomania," we call 
 attention to the following, laid down by Hencke, adopted by ^Nlarc, 
 and recommended by Dr. Ray : — 
 
 § 600 a. 1. "To prove the existence of pyromania, produced by 
 the sexual evolution, the age should correspond with that ^„ , 
 
 , ^ ^ Checks 
 
 of puberty, which is between twelve and fifteen. Some- proposi-a 
 
 .,,.„, by llfiicke. 
 
 times, however, it may occur, especially in temales, as 
 
 early as the seventh or tenth year, and, therefore, if the symptoms 
 
 are well marked, we have a riglit to attribute them to this cause. 
 
 2. "There should be present symptoms of irregular development; 
 of marked critical movements, by means of which nature seeks to 
 complete the evolution. Tliese general signs are, either a rapid 
 increase of stature, or a less growth and sexual development than is 
 common for the asre of the inflividual ; an unusual lassitude and 
 sense of weight and pain in the limbs, glandular swellings, cutaneous 
 eruptions, etc. 
 
 3. " If, within a short time of the incendiary act, there are symp- 
 toms of development in the sexual organs, such as efforts of menstra- 
 ution in girls, they deserve the greatest attention. They will 
 strongly confirm the conclusions that might be drawn from the 
 other symptoms, that the work of evolution disturbed the functions 
 of the brain. Any irregularity whatever of the menstrual discharge 
 is a fact of the greatest importance in determining the mental con- 
 dition of incendiary girls. 
 
 4. " Symptoms of disturbance in the circulating system, such as 
 irregularity of the pulse, determination of blood to the head, pains 
 in the head, vertigo, stupor, a sense of ojjprcssion and distress in 
 
 ' Taylor's Mod. .lur. nOf). ^ u,;,!. p. r,i)r». 
 
 VOL. I.— 32 497
 
 § 607.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the chest, are indicative in young subjects of an arrest or disturb- 
 ance of the development of the sexual functions, and therefore 
 require attention. 
 
 5. " For the same reason symptoms of disturbance in the nervous 
 system, such as trembling, involuntary motion of the muscles, 
 spasms and convulsions of every kind, even to epilepsy, are no less 
 worthy of attention. 
 
 6. " Even in the absence of all other symptoms, derangement of 
 the intellectual or moral powers would be strong proof, in these 
 cases, of the existence of pyromania. Of the two, the latter is far 
 the more common, and is indicated by a change in the moral char- 
 acter. Tiie patient is sometimes irascible, quarrelsome, at others, 
 sad, silent, and weeping, without the slightest motive. He seems 
 to be buried in a profound revery, and suddenly starts up in a fright, 
 cries out in his sleep, etc. These symptoms may have disappeared 
 and reappeared, or degenerated at last into intellectual mania. 
 
 7. " The absence of positive symptoms of mental disorder, as well 
 as the presence of those which appear to show that the reason is 
 sound (so it is argued), is not incompatible with the loss of moral 
 liberty." As giving the old but now exploded theory on this point, 
 the following may be cited from Marc : " Even when, previously to 
 the incendiary act, they have shown no evident trace of mental 
 alienation, and been capable of attending to their customary duties ; 
 when, on their examinations, they have answered pertinently to 
 questions addressed to them ; when they have avowed that they 
 were influenced by a desire of revenge ; we cannot conclude with 
 certainty that they were in possession of all their moral liberty, 
 and that, consequently, they should incur the full [lenalty of the 
 crime. These unfortunates may be governed by a single fixed 
 idea, not discovered till after the execution of the criminal act. 
 Pyromania, resulting from a ])atliological cause, may increase in 
 severity, as tiiis cause itself is aggravated, and suddenly be con- 
 verted into an irresistible propensity, immediately followed by its 
 gratification.''^ 
 
 § ()U7. (iriesinger views the question with his usual philosophical 
 breadth: " if, from the observations which have been published upon 
 this subject, we exclude all those cases where egotistical motives 
 
 ' Ray on Insanity, 201. 
 
 408
 
 PYROMANIA. 
 
 [§ 607. 
 
 have evidently guided the hand of the incendiary, there Opiniou of 
 
 still remains a certain number in which this crime of arson «i"rpyro- 
 
 has been committed by patients laborino; under a well- ™a^"iais 
 
 11 1 1 1- / • 1 1 n impossible. 
 
 marked melanclioha (particularly of nostalgia passing 
 
 into mania), a state which is often accompanied by important 
 derangements in the general health, and frequently in the sexual 
 organs. The morbid impulse develops itself precisely in the same 
 manner as does the homicidal impulse which we have just been 
 studying. The feeling of mental anxiety and the general disturb- 
 ance which arises from the morbid condition of the faculties do not, 
 as has been said (Masius), impel the individual to seek to stifle this 
 anxiety by the sight of a great flame, but merely to relieve by an 
 outward act, however negative and destructive in character, the 
 profound discord and uneasiness which rule within, and thereby to 
 obtain peace and tranijuillity. The particular direction which this 
 morbid impulse takes, viz., incendiarism, may arise from the fact 
 tliat to those persons in whom this tendency has been most accu- 
 rately observed — namely, young people, particularly young maid- 
 servants — fire, with which they in the performance of their duties 
 have much to do, is always ready at hand, and presents itself as the , 
 readiest means by which they can satisfy the morbid craving which 
 torments them — a means which is easily employed, and which re- 
 quires neither great energy of action nor violent determination to 
 make use of. 
 
 " Avxiy, tJien, with the term pyromania, and let there he a care- 
 ful investigation in every ease into the individual psycltologieal 
 peculiarities which lie at the bottom, and give rise to this impuhe. 
 
 " The grand question inforo, in all such cases, must ever be to 
 ascertain whether there existed a state of disease which limited, or 
 could have limited, the liberty of the individual. /So^netimes the 
 symptoms of undoubted mental disease can be clearly distinguished 
 — a dominant feeling of anxiety, Judlucinations, states of hysteri- 
 cal exaltation ; in other cases, the actucd existence of a nervous 
 disease [epilepsy or chorea^ renders probable the assumption that 
 the accused has been subject to some passing mental <dierratio)i. 
 We should not forget that usually very little is wanted to interfere 
 with the liberty of action ; they are, for the most ])art, young, 
 childish or half childish, often morally and intellectually weak, 
 silly, and capricious individuals. The incendiary act often appears 
 
 499
 
 § 609.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 to be utterly without auy motive, the feeble ego having opposed no 
 resistance to the thought of the deed which suddenly sprang up. 
 
 " Of course there are also cases where the insane set fire to 
 buildings under the impulse of motives very dift'erent. Jonathan 
 Martin, who burned the Cathedral of York, was not a melancholic, 
 but was evidently laboring under chronic partial dementia, and it 
 was in consequence of his hallucinations that he sought ' to purge 
 the house of the Lord of the unworthy priests' who dwelt in it. 
 
 " To include this cane under the title of <■ jryromania' {e. //,, 
 Pinel, 'Patb. leiebr.,' p. 828) is the necesmry Imt evil result of a 
 superficial classification . " ^ 
 
 ^ 608. Dr. Krafft-Ebing, in the article on " monomanias" already 
 
 (juoted, says : '• Incendiarism through psychical disease 
 
 Kriint- is always a symptom of such disease, though variously 
 
 '"^' induced. With persons suffering from nostalgia and 
 
 melancholia, it is prompted by terror and sensual delusions ; with 
 maniacs, by insane conceptions ; with idiots, by childish pleasure 
 in fire, or diseased passion (revenge). With youthful culprits the 
 crime is more frotjuent. because it retjuires no courage, and is easily 
 committed.'' This eminent and experienced observer holds, as has 
 l)een seen, tiiat the theory of " monomania" is in itself psychologi- 
 cally absurd.^ 
 
 § 601*. The statistics that have recently (1871) been collected 
 statistics *^" ^^^'^ topic go a great way to refute the theory that 
 on subject there is a special function which, when deranged, ex- 
 the mania hibits itself as a morbid incendiary propensity, and that 
 "*""■ there is a particular age when this derangement is apt 
 
 to occur. Notwithstanding the assertion that tiiis is a well-known 
 and constant disease, there are some sections of the country in 
 which all the cases of arson that have been tried for years are those 
 in which adults were the defendants, and this without a single one of 
 the " j)yromaniac" symptoms wliich have been heretofore detailed. 
 Tlie table of I'russian criminal statistics for twelve years shows that 
 out of a thousand trials of children, of the ages which " pyromonia" 
 is said to afl'ect, but a single case of incendiary crime is to be 
 found. 
 
 ' Griesiiiger, Mi-iit. I'atli.. ^^ydeii. * Sot- .o^'ni, § TfTO. 
 ed. § 129. 
 
 500
 
 PYROMANIA. [^^ 610. 
 
 § 610. The doctrine, in fact, hcas arisen from the difficulty felt 
 by learned and philosophical experts in placing; themselves ^ 
 
 . . . „ Doctrine 
 
 in the position ot a young servant charged with arson, has arisen 
 A boy of ten years' set fire, without apparent motive, to cou'ce^ion * 
 "his father's house. Mental unsoundness either at the o^ ^^P*^"*- 
 time of or after the act was not probable ; and there were no 
 anomalies of physical development or of physical disease. He was 
 aware of the penal nature of tiie act. lie went about it cautiously, 
 removing beforehand a child that was placed under his care. The 
 only assignable cause was childish caprice. A philosophical expert 
 would with difficulty understand this, not being able to put himself 
 in the boy's place. But the court and jury are forced to do this, 
 and hence in this case the judgment was that the boy was respon- 
 sible, though in a degree lessened by his youth. Or a girl of the 
 same age, employed as a servant in a farm-house, gets up too late 
 in the morning, and is scolded or deprived of her breakfast. This 
 is a grievance the expert may think but little, but to the girl, who 
 has slight intercourse with any one out of the farm, and to whom 
 the farm is everything, the insult is as mortifying as would be the 
 withdrawal of a German savan's decoration, or the turning, by an 
 English minister, of a petitioner out of doors. The girl goes out 
 and sets fire to a haystack, previously seeing that there is little 
 danger to any one's life by the fire. This is a serious thing to the 
 expert, who looks at fires in their probable consequences ; but it is 
 a light thing for the girl, who views the burning haystack as she 
 would a large-sized country hearth-fire. The expert, therefore, 
 hearing the facts, declares that it is impossible that a sane person 
 could commit arson on so slight a provocation, and that the girl 
 must be a " pyromaniac." Yet the provocation, t)tufatis mnfandis, 
 is the same as that which led to the " Captain Rock" arsons in 
 Ireland. A peasant is aggrieved. He determines to avenge him- 
 self by burning a haystack or perhaps a house. The burning is 
 partly from revenge, partly from a wish to drive off' an incongeiiial 
 neighbor. The propensity is indulged in as long as it can be done 
 so with impunity. It is suppressed as soon as men know that it 
 will be punished. 
 
 ' See case given by Dr. Faber, in the Deutsdio Zt-itschrift I'iir Staatsarz- 
 iieikunde for 1870. 
 
 501
 
 § 615.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § Gil. "We must not, hoAVCver, forget that insane persons some- 
 times have a propensity to phiy Avith fire,^ as they have 
 mania may for othcr kinds of mischief ; nor are cases unknown in 
 torn oi'iif-' which lunatics have been possessed with the delusion that 
 sanity. they were divinely commissioned to use fire to destroy 
 
 churches, palaces, or even cities. Nor is it denied that an idiot, 
 watching a woman kindling a tire, may, in exercise of those imitative 
 faculties which in him are so strangely divorced from reason, go out 
 and set fire to a house. These are cases of insanity, in w^hich in- 
 sanity is substantively and independently shown. All that is here 
 asserted is tiiat there is no such thing as " pyromania," as a moral 
 disease, coexistent Avith mental sanity.^ 
 
 § 612. We must therefore conclude that to give legal validity to 
 Insanity pyi'omania as a defence, substantive derangement should 
 must be be showai. Tiiis results from the positions (1) that special 
 
 shown to • . . '. 1 , 
 
 make it a propensities are not regarded as ni the legal sense con- 
 stituting insanity, unless reason is disordered by disease ;^ 
 and (2), that aside from the psychological question, law is ordained 
 for the very purpose of checking such propensities, and preserving 
 the community from devastation.'' In these conclusions the highest 
 medical authorities unite.' 
 
 [§§ 61^:), 614 are omitted in this edition for the purpose of con- 
 densation.'] 
 
 k 615. " At the meeting of tlie Vienna Society for Psychiatre, 
 Analysis of "^ January, 1871, Dr. Flechner indorsed the opinion of 
 cases by Ideler, who considers pyromania an abstraction, of which 
 
 Dr. Flech- ... . . 
 
 ncrdis- the judicial physician has no need, and the views of 
 doctrine of Casper, Griesinger, Jessen, and Lien, who are of opinion 
 pyromania. ^^^^^ arson, when committed by insane persons, may be 
 explained as we explain any of their other acts. Dr. Flechner has 
 come to this conclusion, not only from an unbiassed reading of the 
 
 ' Cases of pyromania, as an incident ^ See N(nie Sammlung (lericlitsiirt- 
 
 uf insanity, are giyeu in Frie<lreicli's liclier Gutachten aus den Verhand- 
 
 BUltter for 1S70, p. .33, and lor 1S71, p. lungen der Prager Medicinischen 
 
 202. See also 19 .Journ. Med. Sci. Facultilt. 1858. 
 
 4r)(>. See also translation of Jessen's work 
 
 2 See supni, §§ I4(j-1G1. on Brandstiftung in 19 Am. Jour, of 
 
 3 Supra, §§ 14fj-l«l. Ins. 163, 28(3, 434. 
 * Supra, §§ 188-403. 
 
 502
 
 PYROMANIA. [§ 615. 
 
 believers in pyromania, but also from studying the cases that have 
 come under his observation during his thirteen years' experience as 
 judicial physician. He insists that there has never come a case 
 under his notice that seemed to justify the recognition of a form of 
 insanity that could consistently be characterized as pyromania. 
 
 " Of the eleven cases Dr. Flechner had observed, seven were 
 males and four females ; eight were between fifteen and twenty-five, 
 and three were more than thirty years of age ; eight were peasants, 
 one was a Avagon-maker, one a baker, and one a clerk. 
 
 " Case I. — A young man who was pursued by the- idea that he 
 would induce his father to comply with an absurd demand by burn- 
 ing the house down. 
 
 " Case II. — Hallucinations were present which led to arson as a 
 means of getting money. 
 
 " Case III. — An act of revenge for an imagined wrong. 
 
 " Case IV. — Originally weak-minded ; in consequence of intem- 
 perance in drinking, insane. 
 
 " Case V. — An act of revenge and maliciousness ; the perpe- 
 trator weak-minded, and not conscious that the deed was punisliable. 
 
 " Case VI. — An idiot was hired to set fire to a house for a few 
 kreutzers. 
 
 " Case VII. — An idiot was persuaded, by a malicious woman, to 
 fire a house. 
 
 " Case VIII. — Arson as a consequence of hatred and revenge. 
 Perpetrator was idiotic and insane. 
 
 " Case IX. — A sane but demoralized person. Committed arson 
 five times from malice. 
 
 "Case X. — Melancholy, with a feeling of anxiety, tired of life, 
 and increase of these conditions at the period of menstruation ; at- 
 tempt at suicide and arson in consequence of an impulse to do 
 something to get rid of the feeling of anxiety, and to change her 
 place of service. 
 
 " Case XI. — That of an idiot, wholly incapable of distinguishing 
 between right and wrong."* 
 
 The theory that this impulse (lirandstiftungstrieb) is often a con- 
 comitant of the first development of pultcrty, has led to a series of 
 very interesting essays by Landsberg.^ 
 
 ' 5 Journ. I'syc. Med. i'lO'). miuui, Vcziii (Aor/.tliclios ()l)('rfj;iit;i- 
 
 2 Ucbcr di(! Fcuorscliausuclit, Ilcr- cli«'ii iil>er den (JcnnUlisziistjind dcr 
 
 503
 
 § 616.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § GIG. In the case of William Spear, who was tried for arson, 
 
 in 1858, at Utica, before Judge Allen, of the supreme 
 
 andpsvehb- court, pvromania -was interposed as a defence. The 
 
 lofTK'aiiy weight of medical testimony, however, was against the 
 
 has no ex- defence, and the iury Avere so char2;ed by the court. In 
 istence. i) ^ r-< ^ 
 
 the course of the charge, Judge Allen said : " The ex- 
 istence of the impulsive mania could only be proved by the commis- 
 sion of the acts which it was sought to excuse, which would be no 
 evidence at all; and the jury could never know, even should it be 
 conceded that such a ' moral mania' might and did exist, whether, 
 in a particular case, the acts were the result of this impulse or the 
 fruits of a wicked and depraved mind. Courts and juries, in the 
 attempt to determine the existence of moral mania, or irresistible 
 impulse, apart from mental disturbance and derangement, as evi- 
 denced by the well-known symptoms of mental diseases, as an ex- 
 cuse for crime, would become bewildered and lost in the labyrinth 
 of scientific niceties and fanciful theories. But when called upon 
 to consider the subject of insanity, regarded as a derangement of 
 the intellect, a mental disease, or the manifestations of disease 
 affecting the mind, Avhether the moral powers were or were not im- 
 paired or perverted, they were not entirely without the means of 
 arriving at a satisfactory conclusion, with the aid of intelligent 
 and experienced medical men, and in the exercise of their good 
 judgment." 
 
 The judge then commented upon the evidence bearing upon the 
 question of the insanity of tlie prisoner in detail, and suggested 
 that " the medical witnesses, who favored the idea of the insanity 
 and consequent irresponsibility of the accused, appeared to think 
 that the particular form of the disease resembled that called 2^>/)'o- 
 ma)ua, which was evinced by a morbid propensity to incendiarism, 
 and which it was claimed existed when a person otherwise rational 
 was impelled irresistibly to the commission of this crime ; that this 
 case was open to remark in this particular, that in every instance in 
 which the prisoner had fired a building, the act was traceable to 
 
 j^ich wegen Bramlstil'tung in Unter- striebes). See an interesting case of 
 
 siicliuiig befindcnen) ; Iliifling (Die alleged pvromania in State v. Green- 
 
 Lelirc vonikrankliaften Brandstiftung- wood, reported in 5 Am. Journ. of 
 
 f^triebo) ; and Meding (Ein Nachtrag Insan. 237. 
 zu dem Gesjjenst des Brandstiftung- 
 
 504
 
 ^-^ EROTOMANIA. [^ G17. 
 
 motives of hatred, and a desire for revenge upon some individual for 
 an act, really committed by that individual, offensive to the prisoner. 
 When every act of incendiarism could be traced directly to a motive 
 which would be influential with a had man, and such as not unfre- 
 quently, if not ordinarily, influenced men in the commission of like 
 crimes, and when in no instance the torch had been applied from 
 mere love of burning, it Avould not be safe to excuse the partv, 
 simply because the motive might, to the jury, seem inadequate. 
 So long as there was no delusion, no loss of memory and judgment, 
 and the party sought the very usual method of wicked men to gratify 
 revenge, and resorted to the same means to conceal the evidences 
 of his crime, he should not be excused upon any theory of moral 
 insanity, or by reason of any sympathy, which would be entirely 
 misplaced." The judge then submitted the case to the jury, with 
 the remark that it was their peculiar province to determine whether 
 or not the " prisoner was, within the rules thus imperfectly laid 
 down, responsible for the act, and ^therefore guilty of arson. "^ 
 
 Not merely juridically, therefore, but psychologically, must we 
 conclude that " pyromania" has no existence as a specific and inde- 
 pendent form of insane irresponsibility. 
 
 4. '"'■ Erotomania'''' '''■ aidoiomanta'''' (morbid sexual propensiti/). 
 
 § 017. There are certain marked features which distinguish the 
 sexual passion from other natural instincts: — 
 
 T-i- • T • • 1 1-1 • Sexual 
 
 lirst, it diminishes, while most other appetites, e. r/., passion 
 hunger, intensify, on repression. It is, therefore, capa- iv,'"„|'"',,i„.r 
 ble, which they are not, of restraint by the avoidance of ii;»*t":i' 
 stimulating causes. 
 
 Second, it is, with sane persons, accompanied by an instinctive 
 sense of shame. The coarsest peasant, who would answer other 
 natural calls in the market place without ablush, seeks for darkness 
 and concealment in order to satisfy the sexual instinct. Where 
 this sense of shame exists, so that the passion is subjected to it, we 
 can scarcely speak of the jiassion as irresistible. On the other 
 hand, where there is no sense of shame, we can scarcely speak of 
 the condition as one of sanity. 
 
 • Sei' !<u]>ra, §§ UC-KJl. 
 
 505
 
 § 619.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 618. No doubt there are several forms of insanity in which 
 
 the sexual feclini; is disproportionately excited, and no 
 
 Irresponsi- ^\q^^i,^ undue scxual indul<2;encc is provocative of insanity. 
 
 ble sexual . . . 
 
 insanity But thcrc is no sound authority, either psychological or 
 
 iniposfeible. ,. . , . . , • • ,i , ,i i • 
 
 judicial, to maintain the position that there can be irre- 
 sponsible insanity of .the sexual feelings in a person otherwise 
 sane.^ 
 
 § 619. Marc, to whose unphilosophical enthusiasm for classifica- 
 tion we owe the existence of so many " monomanias," 
 thosi'^in gives the name of aidoiomania to the excess of the sexual 
 lavorof the i^p^|g(3, which is called satyriasis when it occurs in the 
 male, and xi/mpho mania, or uteromania, in the female. 
 This abnormal propensity occurs as a symptom of mania, lunacy, 
 and depression, as well as of imbecility with maniacal excitements, 
 but is also, he declares, found coupled with freedom of reason and 
 of self-control ; in which case, on the reasoning already given, the 
 responsibility of the agent is not suspended. How far the court, 
 in administering the punishment, is to allow for the circumstance 
 that the individual was carried away in an extraordinary manner 
 by the physical impulse and the external incitement, is a matter for 
 independent consideration. 
 
 "Morbid activity of the sexual propensity," says Dr. Ray, "is 
 unfortunately of such common occurrence, that it has been generally 
 noticed by medical writers, though its medico-legal importance has 
 never been so strongly felt as it deserves. This affection, in a state 
 of tlie most unbridled excitement, filling the mind with a crowd of 
 voluptuous images, and ever hurrying its victims to acts of the 
 grossest licentiousness, though without any lesion of the intellectual 
 powers, is now known and described by the name of aidolomaiua. 
 We cannot convey a better notion of the phenomona of this disorder, 
 than ])y (juoting a few examples from Gall, by whom it was first 
 
 ' See on this topic an interesting on Nymplioniania will be found in Diet, 
 
 artiele by Dr. R. L. Parsons, in 5 (b_^s Sci(Uiei!S Med. von Louyer, ViUer- 
 
 .b)urn. Physe. Med. 4r)(j. See also may, tome xxxvi. p. 5(jl. See a ease 
 
 SiebdliPs (iericlit. Med. § 210. An in- of puerperal mania of tliis class, Kelt, 
 
 teresting case of Uterine Furor will be Am. .Journ. Obst. for 18.S0, ir)4 ; and 
 
 found in El. v. Siebold's .Journ. vol. see a case of erotic delusion, in 22 
 
 vi. p. 043. See also a case in Henke's .Journ. Ment. Sci. 439. 
 Zeitsclir. 41, p. 303. A very able essay 
 
 506
 
 y—~ EROTOMANIA. [§ 620. 
 
 extensively observed and its true nature discovered. Its milder 
 forms and early stages, when not beyond the control of medical and 
 moral treatment, are illustrated in the following cases : — ■ 
 
 " A robust and plethoric young man came to reside in Vienna. 
 Having no liaisovs, he was unusually continent, and was soon 
 attacked with erotic mania. Gall, pursuing the treatment indicated 
 by his peculiar views of the origin of the disease, succeeded in 
 restoring him in a few days to perfect health." 
 
 " A well-educated, clever young man, who, from his infancy 
 almost, had felt strong erotic impulses, succeeded in controlling 
 them to a certain extent by means of equally strong devotional 
 feelings. After his situation permitted him to indulge without 
 constraint in the pleasures of love, he soon made the fearful dis- 
 covery, that it was often difficult for him to withdraw his mind 
 from the voluptuous images that haunted it, and fix it on the im- 
 portant and even urgent concerns of his business. His Avhole being 
 was absorbed in sensuality. He obtained relief by an assiduous 
 pursuit of scientific objects, and by finding out new occupations." 
 But, if he could obtain " relief" by study, it is hard to see why the 
 "mania" was viewed as "irresistible ;" and the case, therefore, is 
 open to the same criticism as others from the same source which 
 are invoked so constantly as proof-cases of " monomania." Gall, 
 with all his charms of style, was rather a gossippy and inconclusive 
 anecdotist, than an accurate and exhaustive narrator of facts. ^ 
 
 Pinel gives the following: "A man had creditably filled his 
 place in society till his fiftieth year. He Avas then smitten Avith an 
 immoderate passion for venereal pleasures ; he fre({uented })luces of 
 debauchery, where he gave himself up to the utmost excesses, and 
 then returned to the society of his friends, to paint the charms of 
 pure and spotless love. His disorder gradually increased ; his 
 seclusion became necessary ; and he soon became a victim of furious 
 mania." This, however, is a clear case of mental derangement. 
 
 § (J20. Uterine causes, in women, are largely concerned in pro- 
 ducing this disease, as a phase of derangement. Women 
 Avhose character has heretofore been of unsuspected purity biuiy 
 and of fastidious refinement, indulge in loose conversa- whi-n^ct is 
 tion, if they do not give way to loose desires. Some- ^^'/'j.^J^-'J^l 
 times this connects itself with a))normal aj)petites ; some- t-au8cs. 
 
 ' ScM! supra, § iJOS, note. 
 
 507
 
 § 622.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 times with unnatural sexual abhorrences, as well as with sexual 
 desires. These disorders may be periodical with menstruation ; or 
 they may accompany the change of life coincident with stoppage of 
 menstruation ; or they may flow from distinct uterine disease. But 
 however this may be, just so far as the act under investigation is 
 the result of physical causes, so far does the patient cease to be 
 morally responsible.' 
 
 § 621. Under this head may be considered those cases of morbid 
 erotic impulses which spend themselves on unnatural 
 
 Instances , . ^ „„ r. ,, ,, , . , 
 
 of morbid objccts. llic morc commou 01 these are tliose which 
 pulses""" the domestic history of classic antiquity makes familiar 
 to us, and which St. Paul adverts to in the first chapter 
 of the Epistle to the Romans. To what extent these unnatural 
 passions were carried is illustrated by the paintings in at least one 
 of the exhumed chambers of Pompeii. And recent trials have 
 shown, that if the same morbid developments are less numerous at 
 the present day, they are at least equally eccentric. 
 
 Some years since the town of Leipsic was startled by the fact 
 that a number of young girls had been assaulted in the streets, by 
 a man wrapped in a cloak, who .struck a lancet in their arms, just 
 above the elbow, and then vanished. It was a long time before the 
 perpetrator was discovered. When he was at last detected and put 
 on trial, it turned out that he had been impelled to these outrages 
 by a morbid sexual impulse — that the incision of the lancet had 
 been accom])anied with seminal emission — and that his whole exist- 
 ence had become absorbed in the alternate excitement and depres- 
 sion which preceded and succeeded the act.^ 
 
 The same state of facts was developed in the trial, in London, of 
 a man named Williams, for a similar species of assault.^ 
 
 In the same line is the case of Sprague, already cited.* 
 
 § 622. Still more startling were the exposures attending the trial 
 of a sergeant in the French army, in 1848. For some time pre- 
 vious, dead bodies had been exhumed and had been torn to pieces 
 at or near the graves. On closer inspection the horrible fact Avas 
 
 ' Soo on this subject Dr. Stort^r's ^ Wliarton's Cr. Law, § 824. Supra, 
 very valual)le treatise on " Insanity in § ^>1',\. 
 
 Women," Boston, 1871, and autliuri- ^ Lawyer's Magazine, London, 17!»2, 
 ties cited supra, note 1, p. 50U. voL ii. p. ?>i'>\. 
 
 * Sii/ini, § 573, note 2, p. 470. 
 
 508
 
 EROTOMANIA. [§ 624. 
 
 disclosed that sexual connection had been attempted with the female 
 corpses. The guilty party turned out to have been a young man 
 scarcely twenty-five, of prepossessing manner and appearance, and 
 otherwise respectable character. The psychological features were 
 the same as in the preceding cases. The act was preceded by 
 uncontrollable excitement, and followed by great exhaustion. ^ 
 
 § 02o. Fodere tells us of a young monk who, in travelling, hap- 
 pened to lodge in a house where a young woman, who was thought 
 dead, had just been laid out, and offered to pass the night in the 
 chamber where the coffin was, and to watch the dead. Durine: the 
 night, having uncovered it for the purpose of examination, and still 
 finding in her countenance some traces of beauty, he determined to 
 satisfy his lust, although the object was not in a condition for 
 exciting desire. Nevertheless he satisfied himself, and departed 
 early in the morning. The dead person came to life, however, the 
 next day, and nine months afterwards had a child, to the great 
 astonishment of herself and parents. The monk about this time 
 arrived in the same place, and avowed himself the parent of the 
 child, and married the mother after throwing off the vows, which 
 he proved he had been forced to pronounce. 
 
 § 024. The following fact, taken from Brierre de Boismont, 
 shows a more permanent perversion, and reveals a settled patho- 
 logic degradation. A man was arrested in a small town for a crime 
 which no one believed, but which, however, was proved at the trial. 
 A girl, sixteen years old, belonging to one of the best families 
 of the town, had just died. A part of the night had passed, 
 when the noise of a piece of furniture falling in the room where 
 the dead person lay was heard. The motlier, whose chamber was 
 next to it, immediately ran there, and, in entering, saw a man 
 escaping in his shirt from the bed of her daughter. Her fright 
 caused her to utter loud cries, which brought around her all the 
 persons of the household. They seized the intruder, who ap{)eared 
 almost insensible to everything passing around him, and who an- 
 swered but confusedly to the (juestions addressed him. The first 
 idea was that it was a robber ; but iiis dress and certain signs 
 directed suspicion in another direction, and it was soon j)erceived 
 that the girl had been polluted when lying dead in her bed. It 
 
 • Journal of I'syrlx.lr.t^'ir'al Med., vol. ii. p. 'i77. 
 
 501)
 
 § 626.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 was proved that the guard had been bribed ; and soon other revela- 
 tions showed that this was not tlie first time the prisoner, who had 
 received a good education, was in easy circumstances, and belonged 
 to a good family, had performed the act. The trial proved that he 
 had frequently before gained access to the bed of dead young 
 women, and there given himself up to liis detestable passion.' 
 § 625. Psychologically, it is scarcely necessary here to repeat 
 what has been demonstrated as to other pretended 
 
 But these _ '■ ^ ^ 
 
 must pro- "monomanias," that there is no such form of insanity 
 
 ceed from ,, ^ • )5 ■ .• c ■ -t. c n i 
 
 general in- as "erotomania, consisting or insanity ot the sexual 
 they'^couid impidscs, all the rest of the individual so affected re- 
 be resisted, niaiuing sane. No doubt sexual anomalies are constant 
 incidents of insanity, and for them an insane person is not penally 
 responsible. But in all cases Avhere the mind is sane, the offender 
 against laws prohibiting sexual offences is, on ethical as well as 
 psychological and juridical grounds, to be held penally responsible. 
 And this results from the position, heretofore fully sustained.^ that 
 wherever there is reason there is responsibility, and wherever there 
 is responsibility, crime should be punished in proportion to the grade 
 of guilt. 
 
 5. '■'■Pseudonomania'' Qmorhid lying propen^itu'). 
 
 § 026. By Avhat process that Avhich in its elementary stage is a 
 ^r mere neiration, /. c. the incapacity so generally notice- 
 
 Lnrcason- a ' i .; o j ^ ^ 
 
 able to ion- able ill vcry voung children of accurate narration, is 
 
 sider tllis " . . ^^ re ^ , 
 
 a distinct coHcluded to be a mania., it would be uimcult to say. 
 mama. j,^^^ ^^ .^ j^^ ^^^^ ^^ -^ ^j^-^ ^g^-^JgJ^(,y defined by Dr. 
 
 Ray.^ " An inordinate propensity to lying" " is also of no un- 
 common occurrence in society ; and most of the readers of this 
 work have probably met with instances of it in people whose morals 
 in other respects were irreproachable, and whose education had not 
 been neglected. The maxim of Jeremy Bentham, that it is easier 
 for men to speak the truth, and therefore they are more inclined 
 to do so than to utter falsehood, seems, in them, to be completely 
 reversed, for they find nothing more difficult than to tell the truth. 
 
 ' See Renaudin sur les Maladies Men- ^ Supra, §§ 115,188, 403. 
 tales, p. 7G4, Paris, 1854. ^ Ray on Insanity, p. 193. 
 
 510
 
 PSEUDONOMANIA. [§ 627. 
 
 In repeating a story which they have heard from others, they are 
 sure to embellish it with exaggerations and additions, till it can 
 scarcely be recognized, and are never known to tell the same storv 
 twice alike. Not even is the slightest groundwork of truth neces- 
 sary, in order to call forth the inventions of perverted minds, for 
 they as often flow spontaneously, in the greatest profusion, as when 
 based on some little foundation in fact. This propensity seems to 
 result from an inability to tell the truth, rather than from any other 
 cause, as it can be traced to no adequate motive, and is often in- 
 dulged when truth Avould serve the interest of the individual better. 
 Like that last mentioned, it is liable to degenerate into unequivocal 
 mania, of which it is sometimes a preliminary symptom, and is also 
 quite a common feature in this disease — a circumstance which Rush 
 considers as proof of its physical origin." 
 
 § (i^T. Dr. Rush more philosophically traces this habit, for such 
 it should be more properly called, to self-indulgence in The habit is 
 untruth. " There are many instances of persons of ^'^^iiiHtar}'. 
 sound understandings, and some of uncommon talents, who are 
 affected with this lying disease in the will. It differs from excul- 
 pative, fraudulent, and malicious lying, in being influenced by none 
 of the motives of any of them. Persons thus diseased cannot speak 
 the truth upon any subject, nor tell the same story twice in the 
 same way, nor describe anything as it has happened to other people. 
 Their falsehoods are seldom calculated to injure any body but them- 
 selves, being for the most part of a hyperbolical or boasting nature : 
 but now and then they are of a mischievous nature, and injurious 
 to the characters and property of others. That it is a corporal dis- 
 ease I infer from its sometimes appearing in mad people who are 
 remarkable for veracity in the healthy states of their minds, several 
 instances of which I have known in the Pennsylvania lIosi)ital. 
 Persons affected with this <lisease are often amiable in their temi)ers 
 and manners, and sometimes benevolent and charitable in their dis- 
 positions. Lying as a vice is said to be incurable. The same thing 
 may be said of it as a disease, when it appears in adult life. It is 
 generally the result of defective education. It is vjluntarj/ in 
 chihlhood, and becomes invnlnnfctri/, like certain muscular actions, 
 from habit. Its only remedi/ is bodily pain inflicted by the rod, or 
 confinement, or abstinence from food ; for ciiildren are incai)abli' 
 
 511
 
 § 630.] MENTAL UNSOUNDNESS CONSIDERED PSYCHULOGTCALLY. 
 
 of being permanently inHuenced by appeals to reason, natural 
 
 affection, gratitude, or even a sense of shame."' 
 
 § G28. No doubt the insane arc irresponsible for the untruths 
 
 they state, when such untruths are involuntary, e. a. the 
 Even in- , ,. , , • , , , i • , , ■, 
 
 sane are result 01 delusion ; but that they can be rightly made 
 
 for'j,^"(m- ^ responsible for voluntary untrutlis, and by correction 
 /<i;7/ un- jjj^y i^g checked in the utterance of such untruths, the 
 
 truths. ... 
 
 ordinary discipline of lunatic asylums shows. 
 ^ G29. But Avith the sane, while it is unquestionable that false- 
 hood may become a habit, yet, like all other bad habits. 
 
 Habit does ,, i • j. j. -1 i • -^i -j. 
 
 not create no matter how inveterate, it brings with it no irrespon- 
 
 i)'i'iitv^°"'''' sibility. Were it otherwise, a chief motive in preventing 
 the habit from becoming fixed would be removed ; and, 
 in fact, a powerful stimulus given in the other direction. The law 
 would then virtually say, " learn to lie — let the habit become in 
 curable — and then you can get goods by false pretences without 
 any danger of punishment ; and even to an action for restitution or 
 for damages, you can plead that you are irresponsible, and there- 
 fore protected against suit." But the law says no such thing. It 
 sternly but wisely declares that every sane man is responsible, 
 criminally and civilly, for his statements ; and, if he is habitually 
 false, this " habit," in a criminal suit, is only viewed as aggravat- 
 ing his guilt. Truthfulness among sane persons, when not actually 
 existing, must be created by tlie force of general penal laws.^ 
 
 <). '■'•Oikeiomania''^ (morhid state of doint'stle aJfectio)is). 
 
 § tt^O. At the outset it is proper to state that while this state is 
 often a sign of general insanity, it has no existence, 
 
 I'ricliard's ... , , , . • i i 
 
 docription citlicr lu souud psychology or law, as an indepcnaent 
 '• mania." " naonomania." Of this, in its general shape, Prichard 
 thus speaks : " There are many individuals living at 
 large, and not entirely separated from society, who are affected in 
 a certain degree by this modification of insanity. They are re- 
 ])uted persons of singular, wayward, and eccentric character. An 
 attentive observer may often recognize sometiiing which leads him 
 to entertain doubts of their entire sanity ; and circumstances are 
 sometimes discovered, on inquiry, which assist in determining his 
 
 ' Rush on the Mind, ji. 2ij2. * Sec supiu, §§ 11'). ISS, 403. 
 
 512
 
 OIKEIOMANIA. 
 
 [§ 631. 
 
 opinion. In many instances it is found that there is an hereditary 
 tendency to madness in the family, or that several relatives of the 
 person affected have labored under disease of the brain. The in- 
 dividual himself is discovered, in a former period of life, to have 
 sustained an attack of madness of a decided character. His temper 
 and disposition are found, on inquiry, to have undergone a change, 
 to be not what they were previously to a certain time ; he has 
 become an altered man ; and this difference has perhaps been noted 
 from the period when he sustained some reverse of fortune which 
 deeply affected him, or since the loss of some beloved relative. In 
 other instances the alteration in his character has ensued immedi- 
 ately on some severe shock which his bodily constitution has under- 
 gone. This has either been a disorder affecting the head, a sli-Tht 
 attack of paralysis, a fit of epilepsy, or some fever or inflammatory 
 disorder, which has produced a perceptible change in the habitual 
 state of the constitution. In some cases the alteration in temper 
 and habits has been gradual and imperceptible, and it seems only 
 to have consisted in an exaltation or increase of peculiarities which 
 were always more or less natural and habitual."^ 
 
 § 631. Very often this domestic perversity is associated with the 
 most complacent benignity out of doors. Zimmerman, 
 
 ,•1,1 ... , n • 1 Domestic 
 
 whilst he was inculcating and professing the most perversity 
 serene benevolence, was, by his tyranny, driving his clate/wuh 
 son into madness, and making his daughter an outcast so'^'i^ii "'"- 
 
 ' . *=> '^ bauity. 
 
 from home. Goethe — no inapt observer of human na- 
 ture — says, " Zimmerman's harshness towards his children was the 
 effect of hypochondria — a sort of madness or moral assassination to 
 which he himself fell a victim after sacrificing his offs])ring.'" - 
 
 • Cited, Ray on Insanity, pp. It!!*-!), rangement of the doniestie ad'ections. 
 
 See Feuchtersleben's views on this By the indulgence of this morbid ten- 
 point. Principles of Medical Psycho- dency to torture the object of his most 
 logy, being the outlines of a Course of cherished love, he first succeeded in 
 Lectures by Baron von Feuchtersleben, crushing under the weight of despair 
 M.D., Vienna, 1845. Translated from a woman whom he really loved, and 
 the German by the late H. Evans then, by the recoil, in subjecting him- 
 Idoyd, Esq. Revised and edited by self to that most miserable of all fates, 
 Cx. B. Babington, M.D., F.R.S., etc. that of an insane old age. Take, as a 
 London : printed for the Sydenham scene; in the first awful drama, the fol- 
 Society, 1847, p. 204. lowing narrative by Mr. Sheridan : "A 
 
 2 Dean Swift's life furnishes a strik- short time bcfon; Stella died," says 
 
 lug illustration of this species of de- he, " a scene passed between tii(,' Dean 
 
 VOL. I. — 38 513
 
 § 632.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ^ 632. Illustrations of this phase Avill be found in the following 
 sections. At present it is sufficient to call attention to one feature, 
 
 and her, an account of -which I had 
 from my father, and wliich I shall re- 
 late with reluctance, as it seems to bear 
 more hard on Swift's humanity tlian 
 any other point of his conduct in life. 
 As she found her final dissolution ap- 
 proaching, a few days before it hap- 
 pened, in the presence of Dr. Sheridan, 
 she addressed Swift in the most earnest 
 and pathetic terms to grant her dying 
 request, ' that, as the ceremony of 
 marriage had passed between them, in 
 order to put it out of the power of 
 sland(!r to be busy with her fame after 
 death, slu! adjured him, by their 
 friendship, to let her have the satis- 
 faction of dying, at least — though slie 
 had not lived — his acknowledged wife.' 
 Swift made no rc^ply, but, turning on 
 liis heel, walked silently out of the 
 room, nor ever saw her afterwards 
 during the few days she lived. This 
 behavior tlir(nv her into unspeakable 
 agonies, and for a time she sunk under 
 the weight of so cruel a disappoint- 
 ment." 
 
 No wonder was it that, when under 
 the inlluence of the remorse; which was 
 too late awakened, his jDowerful S'-n- 
 sibilities were aroused to the full con- 
 sciousness of his guilt, he would beat 
 his forehead for night after night, and 
 stride; to and fi'o in his deserted apart- 
 ment, until at last the only change 
 becanit! that from ddiiiuni to melan- 
 choly, and from melancholy to de- 
 lirium. Dr. Winslow gives us the 
 following glimpses of the closing 
 scenes : — 
 
 "The most minute account of this 
 melancholy period is given by L>r. 
 Delaney : — 
 
 '• 'In tlie beginning of tlie year 1741 
 his understamiing was so niucli im- 
 paired, and his passion so greatly in- 
 
 514 
 
 creased, that he was utterly incapable 
 of conversation. Strangers were not 
 permitted to approach him, and his 
 friends found it necessary to have 
 guardians appointed of his person and 
 estate. Early in the year 1742 his 
 reason was wholly subverted, and his 
 rago became absolute madness. The 
 last person whom he knew was Mrs. 
 Whiteaway, and the sight of her, when 
 he knew her no longer, threw him into 
 fits of rage so violent and dreadful, 
 that she was forced to leave him ; and 
 the only act of kindness that remained 
 in her power was to call once or twice 
 at the deanery to inquire after his 
 health, and see that proper care was 
 taken of him. Sometimes she would 
 steal a look at him when his back was 
 towards her, but did not venture into 
 his sight. He would neither eat nor 
 drink when the servants were in the 
 room. His meat, which was served up 
 ready cut, he would sometimes suffer 
 to stand an hour upon tlu; table beibre 
 lu; would touch it, and at last he would 
 eat it walking, for during this miser- 
 able state of mind it was his constant 
 custoni to walk ten hours a day. 
 
 " ' In Octoljer, 1742, after his frenzy 
 had continued several months, his left 
 eye svvelled to the size of an egg, and 
 tlie lid axipeared tobe somucli inflamed 
 and discolored, that tin; surgeon ex- 
 pected it would mortify ; several large 
 boils also broke out on his arms and 
 bodj^. The extreme pain of this tumor 
 kept him waking near a month ; and 
 during one week it was with dilficulty 
 tliat five persons could prevent him 
 from tearing out his eyes. .Just befort; 
 the tumor perfectly subsided and the 
 pain left him, he knew Mrs. White- 
 away, took her by tin; hand, and spoke 
 to her with his fornn'r kindness ; that
 
 OIKEIOMANIA. [§ 633. 
 
 Avhich is thus admirably sketched by Dr. ]\Iayo : " Marital un- 
 kindness is subversive of soundness of mind in the person on whom 
 it is exercised ; and exercised it is in a thousand ways in this 
 country, without violence being had recourse to. The state of the 
 law, as Mr. Dickens well observes and terrifically proves, is unpro- 
 tective of wives. But the mischief is not unavenged ; and here 
 the case of the husband retributively commences. Many men are 
 living in a state of continuous and exhausting remorse, under the 
 consciousness that this system of torture is being carried on by 
 them. For, when once the habit is formed, they can neither shake 
 it off, nor bear their self consciousness under it. 
 
 ' Culpam poena premit comes.' 
 
 I need not speak of their retrospects, if they should outlive the 
 object of their tyranny.'"' 
 
 § G33. "A very common feature of moral mania," savs Dr. 
 Winslow, " is a deep perversion of the social affections, 
 whereby the feelings of kindness and attachment that of this 
 flow from the relations of father, husband, and child, are "™'^"''^- 
 replaced hj a perpetual inclination to tease, worry, and embitter 
 the existence of others. The ordinary scene of its manifestations 
 is the patient's own domestic circle, the peace and happiness of 
 which arc eftectually destroyed by the outbreakings of his ungovern- 
 able temper, and even b}^ acts of brutal ferocity. Frederick Wil- 
 liam of Prussia, father of Frederick the Great, undoubtedly labored 
 under this form of moral mania ; and it furnishes a satisfactory ex- 
 planation of liis brutal treatment of his son, and his utter disregard 
 for the feelings or comfort of any other member of his family. 
 About a dozen years before his death, his health gave way under 
 
 day and the following lie knew his difficulty, he jirevailed on to walk 
 l^hysician and surgeon and all his across the room. In this state of liop(^- 
 family, and appeared to have so far less imljecility he is said to have re- 
 recovered his understanding and teni- niained silent a whole year. In 1744 
 per, that the surgeon was not without he .spoke once or twice to his servant, 
 hopes that he might once more enjoy after which lie remained perfe<'tly 
 society and be amused with the com- silent until tin- latter end of October, 
 pany of his old friends. Tliis hope, 174.'), when Ik; exi)ired, in tlic 7>^tli 
 however, was but of short duration; year of lii.s age.' " 
 
 for a few days afterwards he sank into • Mayo on Medical Testimony in 
 
 a state of total insensibility, slept Lunacy, pp. 1.S7, i:58. 
 mucli, and could not, witliout great 
 
 515
 
 § 633.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 his constant debauches in drunkenness ; he became hypochondriacal, 
 and redoubled his usual religious austerities. He forbade his family 
 to talk of any subject but religion, read them daily sermons, and 
 compelled them to sing, punishing with the utmost severity any in- 
 attention to these exercises. The prince and his elder sister soon 
 began to attract a proportionate share of his hostility. He obliged 
 them to eat and drink unwholesome or nauseous articles, and even 
 spit in their dishes, addressing them only in the language of invec- 
 tive, and at times endeavoring to strike them with his crutch. About 
 this time he attempted to strangle himself, and would have accom- 
 plished his design had not the queen come to his rescue. His bru- 
 tality towards the prince arrived to such a pitch, that he one morn- 
 ing seized him by the collar as he entered his bed-chamber, and 
 began to beat him with a cane in the most cruel manner, till obliged 
 to desist from pure exhaustion. On another occasion shortly after, 
 he seized his son by the hair, and threw him on the ground, beat- 
 ing him till he Avas tired, when he dragged him to a window, appa- 
 rently for the purpose of throwing him out. A servant, hearing 
 the cries of the prince, came to his assistance, and delivered him 
 from his hands. Not satisfied with treating him in the most bar- 
 barous manner, he connived at the prince's attempts to escape from 
 his tyranny, in order that he might procure from a court-martial a 
 sentence of death ; and this even he was anxious to anticipate by 
 endeavoring to run him through the body with a sword. Not suc- 
 ceeding in procuring his deatli by judicial proceedings, he kept him 
 in confinement, and turned all his thoughts towards converting him 
 to Christianity. At this time, we first find mention of any delusion 
 connected with his son, though it probably existed before. In his 
 correspondence with the chaplain to whom he had intrusted the 
 charge of converting the prince, he speaks of him as one who had 
 committed the most heinous sins against God and the king, as hav- 
 ing a hardened heart, and being in the fangs of Satan. Even after 
 he became satisfied with the repentance of the prince, he showed 
 no disposition to relax the severities of his confinement. He was 
 kept in a miserable room, deprived of all the comforts and many of 
 the necessaries of life, denied the use of pens, ink, and paper, and 
 allowed scarcely food enough to prevent starvation. His treatment 
 of the princess was no less barbarous. She was also confined, and 
 every eftbrt used to make her situation thoroughly wretched ; and 
 516
 
 OIKEIOMANIA. [§ 634. 
 
 though, after a few years, he relaxed his persecution of his children, 
 the general tenor of his conduct towards his family and others 
 evinced little improvement in his disorder till the day of his death. "^ 
 
 § Go-l. The wife of John Wesley was affected with this " mono- 
 mania ;" or, to speak more properly, was in the habit of giving way 
 to a vicious and perverse temper, which brought its retribution at 
 last in the misery it inflicted on herself. " The worst part of 
 Mrs. Wesley's conduct," says Watson, in his life of Wesley, " and 
 which only the supposition of a degree of insanity, excited by 
 jealousy, can palliate, was that she interpolated several letters, 
 which she had intercepted, so as to make them bear a bad construc- 
 tion ; and, as Mr. Wesley had always maintained a large corre- 
 spondence with all classes of persons, and among others with pious 
 females, in some of whose letters there were strong expressions of 
 Christian affection, she availed herself of this means of defaminjr 
 him. Some of these she read to different persons in private, and 
 especially to Mr. Wesley's opponents and enemies, adding ex- 
 tempore passages in the same tone of voice, but taking care not to 
 allow the letters themselves to be read by the auditors ; and in one 
 or two instances she published interpolated or forged letters in the 
 public prints. How he conducted himself amidst these vexations, 
 the following passage in a letter from Miss Wesley to a friend, 
 Avritten a little before her death, will show. They are at once 
 important, and explanatory of the kind of annoyance to which this 
 unhappy marriage subjected her uncle, and as containing an anec- 
 dote strongly illustrative of his character: — 
 
 " I think it was in the year 1775, my uncle promiseil to take rae 
 Avith him to Canterbury and Dover. About this time Mrs. Wesley 
 had obtained some letters which she used to the most injurious pur- 
 poses, misinterpreting spiritual expressions, and interpolating words. 
 These she read to some Calvinists, and they were to be sent to the 
 Morning Post. A Calvinist gentleman, who esteemed my father 
 and uncle, came to the former, and told him that, for the sake of 
 religion, the publication should be stopped, and Mr. Wesley be 
 allowed to answer for himself. As Mrs. Wesley had read but did 
 not show the letters to him, he had some doubts of tlieir authen- 
 ticity ; and though they were addressed to Mr. John Wesley, they 
 
 > Vldf- Lord Dover's Lifo of Frederick ; Winslow's Anatomy of t^uicide, pp. 
 233, 234, 235. 
 
 517
 
 § 634.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 might be forgeries ; at any rate he ought not to leave town at such 
 a juncture, but clear the matter satisfactorily. 
 
 " jNIy dear father, to whom the reputation of my uncle was far 
 dearer than his own, immediately saw the importance of refutation, 
 and set off to the Foundery to induce him to postpone his journey, 
 Avhile I, in ray own mind, was lamenting such a disappointment, 
 having anticipated it with all the impatience natural to my years. 
 Never shall I forget the manner in which my father accosted my 
 mother on his return home. ' My brother,' says he, ' is indeed an 
 extraordinary man. I placed before him the importance of the 
 character of a minister ; the evil consequences which might result 
 from his indifference to it ; the cause of religion ; stumbling-blocks 
 cast in the way of the weak ; and urged him by every relative and 
 public motive to answer for himself, and stop the publication. His 
 reply w\^s, Brother, when I devoted to God my ease, my time, my 
 life, did I except my reputation ? No. Tell Sally I will take her 
 to Canterbury to-morrow.' " 
 
 " I ought to add, that the letters in question were satisfactorily 
 proven to be mutilated, and no scandal resulted from his trust in 
 God. 
 
 " Some of these letters, mutilated, interpolated, or forged by 
 this unhappy woman, have got into different hands and are still 
 preserved. In the papers of the Wesley family, recently collected, 
 there are, however, sufficient materials for full explanation of the 
 whole case in detail ; but as JMr. Wesley himself spared it, no one 
 will, I presume, ever further disturb this unpleasant aftair, unless 
 some publication on the part of an enemy, for the sake of gain, or 
 to gratify a party feeling, should render it necessary to defend the 
 character of this holy and unsuspecting man."^ 
 
 ' The foUowiiag is the inscription on a monument erected in Horsley Down 
 chnrch, in Cumberland, England : — 
 
 Here lie the bodies of 
 
 Thomas Bond and Mary his wife. 
 
 She was temperate, chaste, and charitable, 
 
 But 
 
 She was proud, peevish, and passionate. 
 
 She was an aflectionate wife, and a tender mother, 
 
 But 
 
 Her husl)and ami cliild whom she loved, seldom saw her countenance without a 
 
 disgustiiiij frown, 
 Whilst she received visitors whom she despised, with an endearing smile. 
 
 518
 
 OIKEIOMAXIA. [§ 635. 
 
 This species of insanity, supposing mental derangement to be 
 substantively proved, -will invalidate a will made under its imme- 
 diate influence.^ 
 
 § 635. It is hardly necessary to repeat that " morbid domestic 
 feeling" is not to be viewed as a distinct " monomania," capable of 
 psychological proof as such. Frequently it is a mark of insanity. 
 
 Her behavior was discreet towards strangers, 
 
 But 
 
 Imprudent in her family. 
 
 Abroad her conduct was influenced by good breeding, 
 
 But 
 
 At home by 111 temper. 
 
 She was a professed enemy to flattery, and was seldom known to praise or commend ; 
 
 But 
 
 The talents in which she principally excelled 
 
 Were diflference of opinion, and discovering flaws and 
 
 Imperfections. 
 
 She was an admirable economist, 
 
 And without prodigality. 
 
 Dispensed plenty to every person in her family, 
 
 But 
 
 Would sacrifice their eyes to a farthing caudle. 
 
 She sometimes made her husband 
 
 Happy with her good qualities, 
 
 But 
 
 Much more frequently miserable with her 
 
 Many failings. 
 
 Insomuch that in thirty years' cohabitation, 
 
 He often lamented that 
 
 Maugre all her virtues, 
 
 He had not on the whole enjoyed two years 
 
 Of matrimonial comfort. 
 
 At length 
 
 Finding she had lost the aftVction of her husband, as well as the regard of her 
 
 neighbors, family disputes having been divulged by servants. 
 
 She died of vexation, July 20, 1768, 
 
 Aged 48 years. 
 
 Her wornout husband survived her four months and two days, and departed this life 
 
 November ~8, 17fJ8, 
 
 In the .54 year of his age. 
 
 William Bond, brother to the deceased. 
 
 Erected this stone as a 
 
 Weekly monitor to the wives of this parish. 
 
 That they may avoid tlie infamy of having 
 
 Their memories handed down to posterity 
 
 With a patchwork character. 
 
 ' See supra, §§ 34-GO. 
 
 519
 
 § 636.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Oikeio- ]]ut with sane persons its existence is the just subject 
 
 nianiii not ,. i i • i n ^ i i • t 
 
 a distinct 01 moral and social as well as or penal reprobation. It 
 
 cami'ot ""*^ ^^ ^^'^^^ *^^^^ ^^^^ ^'*''' ^^y ^^ unable to reach the par- 
 creati'. irre- ticular offences into which this form of evil temper runs. 
 
 spoiisibility ... . . 
 
 iu the sane-. It carries with it, however, as has been said, its own 
 accuser and condemner in the misery to self to which it 
 leads. And, so far as it exhibits itself in overt acts, the tendency 
 is one which it is the duty and within the jurisdiction of the state, 
 by general penal laws, to repress.^ 
 
 7. ^^Suieidal )na)ii(i'^ (inorhid lyropensity to Hclf-deatruetion'). 
 
 § (53(3. That this propensity may, in the eye of the 
 M^s'itv ]^^'^'-> coexist with sanity, has been already shown. ^ To 
 
 consistent w'hat extent suicide avoids a policy of life insurance, 
 with sanity . ... 
 
 has been also the subject of prior discussion.^ 
 
 Suicidal 
 prope 
 
 ' See supra, §§ 115, 188, 403. For 
 articles on this topic see .Tourn. Med. 
 Leg. Soc. N. Y. (N. Y. 1872) pp. 1-37, 
 13r)-143. 
 
 2 .S»y>TO, § 241. 
 
 3 Supra, §§ 228-241. 
 
 The constantly increasing occurrence 
 of suicidf! particularly attracts the i>ub- 
 lic attention at present (1882). During 
 the years lb7.'') to 1S7S statistics showed 
 an average of 2S0 suicides to every 
 million inhahitants in Berlin, 28.0 in 
 Vienna, 400 in Paris, 4.50 in Leipsic ; 
 London, on the contrary, showed a 
 smaller averagi; than any other great 
 city — only 8.') to a niillion. The increase 
 of suicide is illustrated by the fact that 
 in Berlin in 1881 it is stated not to be an 
 unusual circumstance for four persons 
 in one day to di<; by their own hands. 
 At present the problem of suicide is be- 
 ing scientifically exanuned from ditfer- 
 ent points of view. The work of Dr. 
 Masaryk, " Der Selbstmord als sociale 
 Masseiiersclieiuung, Vienna, 1881," 
 and especially the writings of the emi- 
 nent compiler of moral statistics, Alex- 
 ander von Qittingen, upon acute and 
 
 520 
 
 chronic suicide, undertake to prove 
 that the increase of suicide is a peculiar 
 result of over-development of culture. 
 Among the facts which Ilerr von 
 CEttingen cites, one is especially wor- 
 thy of notice — that suicide finds its 
 greatest number of victims in the king- 
 dom of Saxony, and in th<! city of 
 Leipsic, according to Q5ttingen, "the 
 Chimborazo of suicide." " People kill 
 themselves more in Saxony than in 
 any other part of the earth." 
 
 The numb(;rs of suicides increase as 
 we a})proach Saxony. In the plains 
 of Sarmatia the proportion is only 30 
 in every million, in the Baltic pro- 
 vinces it increases to GiJ, in Eastern 
 and Western Prussia it is almost 100, 
 in Brandenburg 200, in the Saxon 
 provinces 235, and in the kingdom of 
 Saxony it is something over 400 in a 
 million. The average of suicide in- 
 creases from the south in the same 
 proportion as it does from the north ; 
 for instance, in Southern Bavaria, the 
 average is not quite 70, while in upper 
 Franconia, which borders on Saxony, it; 
 is between 150 and KiO. The greatest
 
 SUICIDAL MANIA. [^ 637. 
 
 § 637. " The pathological and etiological history of suicide," 
 says Griesinger, " does not appertain entirely to the pro- 
 vince of mental medicine ; in fact, whatever certain sci- ahvays^a^^ 
 entific authorities may assert, we are not warranted in ofTiHanTt ' 
 coming to the conclusion that suicide is always a symptom 
 or a result of insanity. There is no insanity present where the 
 feeling of disgust with life is in exact relation to the actual circum- 
 stances ; where evident moral causes exist which sufficiently account 
 for the act ; when the resolution has been deliberately made, and 
 might have been abandoned had the circumstances changed ; and in 
 which we discover no other symptom of mental derangement. 
 
 " Wlien a man of very delicate feelings puts an end to his ex- 
 istence, that he may not survive the loss of his honor, or of some 
 other highly valued possession which forms an intimate part of his 
 intellectual being — when a man prefers death to a miserable, con- 
 temptible life, full of mental and physical ills — morality, indeed, 
 may call him to account for the deed, but there exists no ground 
 on which we can consider him insane ; the abhorrence of life and 
 the idea of self-annihilation correspond to the intensity of the pain- 
 ful impressions which bear upon the individual, and it is after de- 
 liberate reflection that the act is resolved upon and perpetrated. 
 
 " But the cases which come under this category are the rarest ; 
 more fretjuently the tendency to commit suicide depends either upon 
 fully developed melancholia, with all its usual symptoms, or (and 
 this is more frequent) on a state closely bordering upon melancholia 
 — of moderate but at the same time general painful perversion of 
 the feelings. 
 
 " The apparently deliberate and cold-blooded act of suicide can, 
 
 number of suicides occur in spring and points out tliat in the comparatively 
 summer, in May, June, and July, in- nobler causes of despair (sucli as un- 
 stead of in November and December, as liappy love, shame, and remorse) the 
 one would naturally suppose ; tlu; so-called nobler metliods are used — 
 larger proportion are committed be- firearms and poison. In most of tht; 
 tween 6 and 8 o'clock in the morning. European states there is one female 
 Suicides by hanging, wliich llerr suicide to every three or four male, 
 von ffittingen calls "the usual means," It is a w<dl-known fact that drunken- 
 are most frequent in Prussia and ness plays a j.romiueiit part in the 
 Saxony; the four cases menti<)iie<l in statistics of suicide. 
 Berlin were by this means. (I'jttingen 
 
 521
 
 § 638.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Avhen considered per se, no more prove the non-existence of insanity 
 than any other deliberate act committed in mental disease. 
 
 " The disposition to originate those states of mental suffering 
 which most generally coincide with exhaustion, coldness, and dead- 
 ening of the reaction of the feelings, is precisely the same as the 
 disposition to mental diseases. When these have once appeared, 
 they become fixed, and rule the individual the more easily accord- 
 ing as a feeble er/o offers only slight resistance to them (p. 51) ; 
 they therefore frequently appear as essential result of a previously 
 weak character. They are, however, essentially distinguished from 
 the abhorrence of life which is the result of certain explicable moral 
 causes, by their internal origin, by tlie want of sufficient moral 
 causes to account for the act ; frequently by their evident appear- 
 ance in consequence of some physical disease, by presenting periodic 
 exacerbations without any moral cause ; and, finally, by being some- 
 times undoubtedly hereditary. When the whole psychical life is 
 governed by this perversion of the feelings, there arise no limiting 
 or restricting ideas and impulses to resist the thought, be it sponta- 
 neous or suggested, of self-destruction ; or these ideas and impulses 
 soon become worn out and exhausted, owing to the existence of 
 those which constantly, and with the persevering obstinacy of all 
 other melancholic dispositions of this kind, urge themselves upon 
 the e</o. 
 
 " Indeed, the more insignificant the outward motives to the deed, 
 the more likely are we to find, in the antecedent history of the in- 
 dividual, causes, or even certain symptoms, of incipient insanity ; 
 and the more barbarous and the more extraordinary the means em- 
 ployed for the perpetration of the deed, the more are we warranted 
 in considering it to be a result of some morbid perversion of the 
 faculties."* 
 
 [§ ()o8 omitted in this edition as merely cumidative.'] 
 
 ' See (xi-icsiiigcr's Mental I'atliol., tion of the subject of suicide yet pub- 
 
 8yden. ed. (ISO?) § Vl^) ; Mende, in lished (Suicide, etc. International 
 
 llenke, Zdtschrift fiir Staatsarr/iclhiinle, Scientific Series, N. Y., ISSI). 
 1821 ; Escjuirol, Maladies Meiitalcs, i. p. The result of his researches as to the 
 
 p. !"•"'•''• average of suicides per million of Euro- 
 
 Thc recent work of Dr. llcnry Mor- i)ean populations is as follows : Ger- 
 
 selli, of the University of Turin, has mans of the south and centre, or High 
 
 immediat<dy been recognized as the Germans, 1(35; Germans of the north 
 
 most thorough and complete iiivestiga- or Low Germans, ISO; Scandinavians, 
 
 522
 
 DIPSOMANIA. 
 
 [§ 639. 
 
 8. '■^Dipsomania''' (^^norlnd propensity for drinJc^. (^Trunksucht 
 
 or jSaufsucht.) 
 
 § 639. One of the occasional consequences of an indulgence in 
 alcoholic drinks is the periodic occurrence of a violent thirst for 
 
 128 ; Celto-Romans, /. c, Frencli and 
 Belgians, 116 ; Anglo-Saxons, 70 ; Mag- 
 yars, 52 ; Flemings, 50 ; Slavs of the 
 North, 42 ; Fins, 40 ; Celts, 30 ; Slavs 
 of the South and Slavonians, 30 ; 
 Italico-Ronians and Latini, 27. Some 
 individual averages are, however, much 
 more extreme. Thus the ratio of sui- 
 cides per million is over 300 in Saxony 
 and Saxe-Altenburg ; while in Ireland 
 it is only 10. The statistics as to tlie 
 increase of suicides are also given ; and 
 from all of these the author concludes 
 that this increase and irregularity are 
 subject to definite ethnic and antliro- 
 pological laws. These race influences 
 seem, however, to be subordinate to 
 cosmo-natural influences — those of 
 climate, meteorological changes, length 
 of day and night, etc., while they are 
 complicated by social influences. Here 
 Professor Morselli discovers a propor- 
 tion between insanity and suicide. 
 He cites, moreover, Wagner (Die Gesetz- 
 indssir/keit in den scheinhar tcillkiirlichcn, 
 tneiisr/i/iclien IIandlun(/en, i. pp. 13(j, 237) 
 to show the influence of free trade, the 
 improvement in the means of communi- 
 cation, as well as of similar and more 
 apparent causes, upon suicide, conse- 
 quent on the greater distribution 
 of money, which has produced an 
 instability of riches. With these are 
 taken into consideration the influ- 
 ences arising from biological and social 
 conditions of individuals, as well as 
 the determining motives for the act ; 
 and an inquiry is also iiiadi; into the 
 laws regulating the choice of ])laces 
 and methods. The theory to wliich 
 Prof(!ssor Morselli is finally led is that 
 suicude is a phenomenon of evolution 
 
 in civilized societies ; that it is the re- 
 sult of the struggle for existence and 
 also for human selection ; and that its 
 cure is to be found in the formation of 
 character of a higher type. 
 
 It will be noticed that while Pro- 
 fessor Morselli constructs his theories 
 by synthetical methods entirely in 
 sympathy with the methods of modern 
 materialists, and his criticisms and 
 analyses are based solely upon abso- 
 lute facts, in suggesting a remedy he 
 leaves the domain of science, and re- 
 cognizes a cure which would have been 
 prescribed by the tlieologian or moral 
 philosopher on ethical principles. 
 The cure, he says, is preventivi;: it is 
 ' ' to develop in man the [loiver of vfll order- 
 ing sentiments and ideas by which to rcorh 
 a certain aim in life ; in short, to give force 
 and energy to the moral character.''^ That 
 is to say, the most careful, comprehen- 
 sive, and unbiassed efforts of scientific 
 genius only reaffirm the value of moral 
 training, teaching, and aims. Pro- 
 fessor Morselli really leaves the ])h(!- 
 nomenon of suicide unexj)laineil ; and 
 all his research cannot prove the exist- 
 ence of arbitrary laws that regulate 
 this phenomenon, if ho admits that 
 their force can bo multiplied by the 
 efforts of individual character. 
 
 The geographical tables showing the 
 distribution of suicide ; the tables 
 showing the jn-oportions as to sex, age, 
 and (Hu-upatioii ; as to learning and 
 ignorance — in which conni'dion he 
 maintains that suii-ide and education 
 advance pari jxissn ; and tlie tables 
 sliowing the infhu'iice of marriagi^ aro 
 well worthy of attention. — T. I. W. 
 
 523
 
 § 640.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 Periodic intoxic.iting liquor — a thirst which is not satisfied until 
 
 (•raviiiLf Tor • i i i • ^ r 
 
 ii(|iior Hot the patient lias drunk continuously tor one, two, or some- 
 Inontlis-"'" times three days. The passion then subsides, and he 
 ease. remains sober for weeks, until another attack of the 
 
 disease comes on. Ijinian' tells us, for instance, of an educated 
 young man who was emj)loycd by a princely family, who had great 
 confidence in him, as a general manager of their household. He 
 had charge, among other tilings, of the Avine-cellar, and this led to 
 his indulgence in wine, which gradually matured into a passion for 
 strongly alcoholized drinks. About once every three months this 
 seized him as a sort of rage. He would have baskets of wine, 
 white beer, and rum brought to his chamber, in which he would at 
 such times permit visits only from his servant and his physician, 
 and he would drink for days, under the influence of intoxication, 
 until disgust and nausea intervened, and drinking lost its zest. He 
 would then reappear, having been supposed to have been absent on 
 a sliort journey, or to have been kept at home by sickness, and 
 would then, until a new attack came on him, act with perfect so- 
 briety and self-control. Thus at the table of the prince by whom 
 he was employed he never was suspected of love for drink, and 
 died without the secret being known. " I never can forget," says 
 Dr. Liman, who attended him, "his earnest supjdications to me to 
 relieve him from his misery ; and I can say that he was at least 
 not wanting in good intentions, as well as in moral disgust at him- 
 self." Multitudes of analogous cases are familiar to those who 
 have watched social life in America. 
 
 § <)4U. But is " dipsomania," or periodical paroxysm for drink, 
 But"(ii])- a distinct form of insanity? In other words, are the 
 ^^''"•"'i'.^ ' mind's relations to alcohol such, that a person other- 
 
 liot, ;i (lis- _ _ ' i 
 
 tiiut fbiiii wise sane may be insane as to drink, and consequently 
 irresponsible tor drunkenness and its results.'' Ot course 
 these ([uestions are naturally answered in the affirmative by those 
 alienists Avho treat the mind as a bundle of independent qualities, 
 the derangement of either of which does not involve the derange- 
 ment of the others. On the other hand,^ Ideler, a German psy- 
 
 ' Lillian's Casper, 1871, p. 647. See ^ ^„,| ^qq nJ^^ ai'tiele in .30 Am. 
 essays in Proceedint^'s of N. Y. Med. .Tourii. Ins. 4.30; see Edinburgli Rev., 
 Leg. Soc. (N. Y. 1S72), pp. 38, 374. No. cxxxvi. p. 398. 
 
 524
 
 DIPSOMANIA. [^ 641. 
 
 chological physician of great distinction, treats " dipsomania" as 
 simply a bad habit of self-indulgence ; and he adds, if a man is to 
 be irresponsible for the evil consequences of one bad habit, there is 
 no reason why he should not be irresponsible for another. He de- 
 clares that love for drink, whether this love be constant, or oc- 
 curring in periodical paroxysms, is conquered by force of will ; and 
 he brings in to show this the statistics of temperance societies, 
 showing how frequently drunkards have been reformed. He points 
 to numerous individual cases in which such reforms have been 
 known. And, indeed, as the disease has been in so many cases 
 overcome, the duty of government, instead of establishing a privi- 
 leged class of drunkards, who, by their emancipation from penal 
 law, would be entitled to indulge in their passion and its conse- 
 quences without stint, is, it may well be argued, to make drunk- 
 enness in any shape a criminal offence, and at the same time pro- 
 vide asylums where habitual drunkards can be reformed. 
 
 § 641. But in addition to this objection to the recognition of 
 
 " dipsomania" as a distinct moral mania, conferring irre- 
 
 ..... , , . . . , • T 1 Aiiiilo^y 
 
 sponsibility on those subject to it, it may be noticed that with other 
 
 if we allow such a privilege to thirst for alcohol, we ''PP^"'^^^- 
 must allow it to an almost endless series of other appetites. The 
 passion for opium, taking the world through, is as extensive as that 
 for drink ; it is certainly as powerful and as pernicious. That it 
 is ca})able of being reduced by moral influences (<". //. fear of dis- 
 grace or punishment) does not distinguish it from dipsomania pro- 
 per, for in the latter moral means have often a marked effect. 
 Craving for chloroform, we have recently been told, has also become 
 a powerful mania ; and we have had detailed to us cases in which 
 this passion is declared to have become " irresistible." Among 
 less cultivated countries passions for particular forms of food I)e- 
 come in like manner despotic ; and among the Es(iuimanx this is 
 said to exist in reference to train oil. Even so clear-headed and 
 energetic a prince as Charles V. had so strong a passion for fish, 
 that he persisted in indulging in this appetite, though in so doing, 
 as he was assured by his physicians, he shortened his life, and 
 subjected himself to much bodily jjain. If, as is maintained by the 
 classifiers of '^ monomanias,'' " dipsomania" has its own cell, then 
 we must have a separate cell for the separate passion for every 
 particular article of food or drink. 
 
 525
 
 ^ 643.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § ()42. But the truth is that " dipsomania," so far as it dis- 
 . , . , tinctivcly exists, is a physical rather than a moral 
 
 A physical, '' , . . 
 
 nota'morai diseasc.^ There is a craving in these patients, for alco- 
 holic drinks, as there is in other cases a craving for 
 opium or for particular articles of food, or for tobacco, or for 
 chloroform ; or as there is in another class of cases a craving for 
 restless action, or for self-indulgent repose. But in all these cases, 
 supposing the mind to be sane, the patient's Avill follows the dictates 
 of his reason. lie balances the gratification on the one side, 
 against the evil consequences on the other. If the latter appear to 
 him remote — if he thinks he may indulge jicst this once without 
 being discovered or punished, and then make this indulgence the 
 crisis from which to date a new era of self-restraint — he is apt to 
 seize the gratification. The great point before him, at least in the 
 incipient stages, is, whether the pleasure may be enjoyed with 
 impunity. If it can, it will be enjoyed. Of course, then, in view 
 of the evils to the community of " dipsomania" as a general dis- 
 ease, the law is bound to step in and attach certain penalties to 
 such a dangerous habit. It says, " Drunkenness we make a police 
 offence," and " for crimes committed under excitement or drunken- 
 ness, Ave hold drunkenness to be no defence." It cannot say this, 
 however, with effect, unless it makes good what it says. A law 
 w^iicii is not executed ceases to deter. It must be executed if it is 
 to have any effect on the will. The man who is strongly tempted 
 to indulge a passion must feel, " I will be punished if I do this ;" 
 but in order that he should feel this, the law must be known to 
 perform what it threatens.^ 
 
 § 04o. " Dipsomania" is here viewed not only singly, but as a 
 type of other appetites for excessive food, drink, and stimulus. 
 These appetites spring from the animal nature, and, if they are 
 yielded to in excess, brutalize him who yields to them, making them 
 the sources of great domestic and sometimes cruel wrong. From 
 the very nature of such indulgences, they are to be controlled 
 chiefly, if not exclusively, by the fear of results. Hence it is that 
 
 ' S«o an articlft jji^'uig statistics of Action and Uses, by Dr. Ilicliardson, 
 
 Influence of Alcoliol on Insanity, 18 Ivondon, 1875. 
 
 Journ.Mcnt. Sci. 443. In this connec- " Sec supra, §§ 115, 146, 1G2, 188, 
 
 lion may be referred to Alcohol, Its 40;). Kee an article in 3 Quart. Journ. 
 
 Ill.-l.l-ietv. 202. 
 
 526
 
 DIPSOMANIA. [^ 643. 
 
 to such men the greatest mercy is that the haw should be firmly ex- 
 pressed. To declare them emancipated from the law on the trround 
 that " dipsomania" is a moral insanity, is cruel to them, as taking 
 away what may be the only barrier between them and ruin. And 
 it is unphilosophical on the grounds already stated. The mind is not 
 divided into a series of compartments, one of which can be insane 
 and the others sane. When there is an insanity of the part, there 
 is insanity of the whole. When there is no insanity of the whole, 
 there is no insanity of a part.^ 
 
 ' As to " dij^somania" as a legal de- 
 fence, see supra, §§ 190-199 ; and see, 
 as negativing theory, Choice r. State, 
 31 Georg. 424. 
 
 Tlie following is extracted from an 
 article W Dr T. H. Tanner, in the 
 Duhlin Medical Press of August 27, 
 1862, as reprinted in the American 
 Journal of Insanity for October, 
 18(J2 :— 
 
 " Within the last few years the word 
 dipsomania lias been coined to express 
 tliat craving for intoxicating li(|Uors 
 wliich, according to some physicians, 
 partakes of the character of insanity. 
 
 " Now, although a fit of intoxication 
 is undoubtedly an attack of temporary 
 mania, yet it seems to me a highly un- 
 philosophical view (and one, too, which 
 is fraught with the greatest danger to 
 society) to regard a dipsomaniac as an 
 irresponsilile being ; to look u]"in him, 
 in fact, as an individual aflected by 
 some recognized form of lunacy. Hard 
 drinking is a degrading vice, and, 
 like many other vices, the more freely 
 it is indulgi>d in, the more dilTicult is 
 its discontinuance. It seems absurd to 
 say that the desire for alcoholic stimu- 
 lants is a disease — that it is symptom- 
 atic of some cerebral condition, imh'ss, 
 indeed, wo say the same of every a(-t of 
 wickedness or folly. Not only is the 
 experiimce of the; dead-house against 
 such a view, but, if W(! set aside; this 
 evidence as being of little value, we 
 
 yet know that there is no difficulty in 
 curing the most inveterate sot, provided 
 that we are but able to dejirive him 
 of his poison. The fact is indisputable, 
 that many who drink to excess can 
 be persuaded to abs ain temj)orarily, if 
 only a limit to their abstinence be 
 fixed, so that they may enjoy the anti- 
 cipation of a debauch ; while a few can 
 be so inliuenced that they renounce 
 this habit entirely. 
 
 •'The drunkard is a nuisance to 
 himself and all who are brouglit into 
 contact with liim ; and it is to be re 
 gretted that there are no legal means 
 of controlling him until he is cured of 
 his folly. 
 
 " The man who attempts suicidi; by 
 some summary process is liable to im- 
 prisonment ; while he who slowly 
 poisons himself may proceed to certain 
 destruction witli impunity. He may 
 ruin himself and liis family, but so 
 that he breaks only moral laA\s aiui 
 obligations he cannot Ite stoppi'd in liis 
 downward career. The welfare of 
 society demands some |>lace of deten- 
 tion for sucli men : and, even if an 
 act of parliament cannot be obtained 
 to sanction tlie necessary interference 
 witli the liberty of these misguided 
 people, yet I believe- that there are 
 many wlio would voluntarily enter and 
 sulnriit to the rules of an institution 
 f(jr tlie cure of drunk-eiuless. 
 
 "Mr. Diekens in liis 'American 
 
 i)21
 
 ^ 646.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 9. Fanatieo-mania. 
 (a) Supernatural or pseudo-supernatural demoniacal possession. 
 
 (rt*) § 644. A priori improhahilit y of such possession. — There are 
 periods in the development of society when we may expect super- 
 natural communications. When a new economy is announced, we 
 may look to see it authenticated by miracles. When that economy 
 is inaugurated, we may look for a government by law. 
 
 [§ 645 omitted in t/iis edition as cumuJative.'] 
 
 (J)^) SolvahiJity of this evidence hy natural tests. 
 
 («2) ^ 046. Disease. — The brain, independently of its positive 
 
 functions, is the centre of nervous sympathy, and " is 
 Brain infiu- ' . ^ i ./ 
 
 enced by intimately connected with many other viscera, whose 
 functions cannot be carried on without the assistance 
 derived from this organ, and whose infinitely varied disturbances 
 are all propagated by a reflex action to this common centre." 
 Among the organs by which the brain is thus influenced, the 
 stomach may be particularly mentioned. Observe, as an illustra- 
 tion of this, the way in which tea, coff"ee, alcohol, and opium act 
 on the brain. Headaches, hypochondriasis, melancholy, here find 
 their origin. Take the ordinary case of hallucination, in which a 
 ghost is seen, or a prophecy heard. Here a morbid state of the 
 stomach, induced, perhaps, by stimulants, perhaps by indigestion, 
 is the direct cause of the phantasm of cases such as these. Dr. 
 Ferrier thus speaks : '• It is well known that in certain diseases of 
 the brain, such as delirium and insanity, spectral illusions take 
 place even during the space of many days. But it has not been 
 generally observed that a partial aftection of the brain may exist, 
 which renders the patient liable to such imaginary impressions, 
 
 Notes' mentions the case of a man wlio or surveillance ; but tliey have also 
 
 got himself locked up in the Pliiladel- said that without restraint all else 
 
 phia prison, so that he might rid him- would be useless, for they could not 
 
 self of his propensity to drink, where trust themselves." 
 
 he remained in solitary confinement See for a case of alleged dii^somania, 
 
 for two years, though he had the power 17 Mouvement Medicale, 494. See an 
 
 of obtaining his liberty at any mourent article on Oinomania in the Alienist 
 
 that he chose to ask for it. Patients and Neurologist for October, ISSl, by 
 
 have more tl»an once told me that they T. L. Wright, M.D., arguing that the 
 
 would glailly submit to any treatment only cure for dipsomania is prevention. 
 
 528
 
 FANATICO-MANIA. [§ 647. 
 
 either of sight or sound, without disordering his judgment or 
 memory. From this peculiar condition of the sensorium, I conceive 
 that the best-supported stories of apparitions may be completely 
 accounted for." 
 
 " When the brain is partially irritated, the patient fancies that 
 he sees spiders crawling over his bedclothes or person, or beholds 
 them covering the walls of his room. If the disease increases, he 
 imagines that persons who are dead or absent flit around his bed, 
 that animals crowd into his apartment, and that all of these appari- 
 tions speak to him. These impressions take place even while he is 
 convinced of their fallacy. All this occurs sometimes without any 
 degree of delirium." 
 
 This topic, in its psychological relations, is more fully considered 
 under other heads. ^ 
 
 (i^) § 647. Morbid imitative sympathy. — Emotions which would 
 not afl'ect us when alone become overpowering when j^ ,st^.^ical 
 
 striking us in connection with others. Hysterical symn- tMnotions 
 °, , . . '^ ^ often be- 
 
 toms, when not promptly repressed m times of general eome epi- 
 
 religious excitement, may in this way become epidemic. 
 Dr. Davidson, in his history of the Presbyterian Church in Ken- 
 tucky, gives us instances of this. Speaking of a period in East 
 Tennessee, in which these manifestations were very injudiciously 
 encouraged, he tells us that " the subject was instantaneously seized 
 with spasms or convulsions in every muscle, nerve, and tendon. 
 His head Avas jerked or thrown from side to side with such rapidity 
 that it was impossible to distinguish his visage, and the most lively 
 fears were entertained lest he should dislocate his nock, or dash out 
 his brains. His body partook of the same impulse, and was hurried 
 on by like jerks over every obstacle — fallen trunks of trees, or, in 
 a church, over pews and benches, apparently to the most imminent 
 danger of being bruised and mangled. It was useless to attempt 
 to hold or restrain him, and the ])aroxysm was permitted gradually 
 to exhaust itself. An additional motive for leaving him to himself 
 was the superstitious notion that all attempt at restraint was resist- 
 ing the Spirit of God. "^ 
 
 • Supra, § 529 ; infra, §§ 723-743. was rcvoalcd tlirit, tlicrc wcro six jtro- 
 
 2 An "epidemic of witchcraft" is re- f(!ssioiial ' witch masters' in tlie county, 
 
 ported as having occurred in Butler, and tliat when tlie devil j^ot possession 
 
 Pennsylvania, in 1881, " wh(;ii tin; fact of a man and was not disturbed in hiii 
 
 VOL. I.— 34 529
 
 § 648.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 648. Most of the supposed cases of supernatural possession fall 
 under this head. Take, in addition to the above, the following. 
 
 tenancy for two months, fiv(3 dollars 
 was the smallest sum for which he 
 -could be evicted. The modus ope- 
 randi is to cut a circle on a white-oak 
 tree and lure the devil to enter it, 
 wliich he does with a noise like thun- 
 ditr aaid a vehemence that sj^lits the 
 tj>e<e to splinters. The patient is then 
 ■corked up, as it were, with prayers 
 and chaj-ms. A case of bigamy at 
 Eden, New York, in March last, showed 
 that an old man named Benedict Smith 
 had convinced a woman and her three 
 daughters that they were possessed, 
 and that h« alone could cure them, tlie 
 cure involving their marriage to him. 
 
 " The cas«e of Catharine Sylvia, at 
 New Bedfoj'd, iu March, 1881, proved a 
 humbug, but was none the less inter- 
 esting because of the enthusiasm with 
 which the people accepted the theory 
 that the girl was a witch ; and it is 
 only a little while since the Davenport, 
 Iowa, papers chronicled the death of 
 Mary the Witch, and gave an appe- 
 tizing inventory of her jirofessional 
 possessions, her 'cal)inet' containing a 
 cat's skull, a chicken's heail, bats' 
 wings, toads' feet, spiders' wcl)s, va- 
 rious bones of various aniruals, dried 
 blodil, and eyes of owls and cats de- 
 posited in various places wrapped in 
 paper. Leaving out of tlie question 
 the Voudoo priestesses and the spirit- 
 ualist mediums, it is safe to say that 
 the professors of witchcraft in the 
 ITniteil States are numbered l)y liun- 
 dreds, and derive an annual revenue 
 fi'om the creilulous which would take 
 at least seven figures to (.'xpress. 
 
 " Though witchcraft is not so public 
 and j)rofitable a business in England, 
 tlu; Vielief in witches is even more gene- 
 rally held. Within the last few weeks 
 one case has b<>en reporte(l where tla^ 
 
 530 
 
 parson of the parish was appealed to 
 to cut a sod from the alleged witcli's 
 grave to stop her nightly promenades 
 for evil purposes, and two young men 
 were brought before the courts for 
 knocking down an old woman and 
 ' drawing blood' from her with a knife, 
 so as to release their sister from her 
 spells. At Sheffield, in Novemljer, 
 1880, Agnes Johnstone was sent to jail 
 for three weeks for obtaining £5 S.s. 
 from Margaret Devaney, through a 
 promise of 'ruling her planet' and 
 bringing her a fortune through the 
 agency of subterranean spirits. The 
 witch had, her dupe testified, danced 
 with the fairies and worked with the 
 devil for night after night. 
 
 " At East Dereham one William Bul- 
 wer was fined for abusing and assault- 
 ing a girl named Christiana Martins 
 because she was a partner in the witch 
 business with her motlier, his testimony 
 being as follows: 'Mrs. Martins is an 
 old witch, and she charmed me, and I 
 got no sleep for her for three nights, 
 and one night at half-past eleven 
 o'clock I got np because I could not 
 sleep, and went out and found a " walk- 
 ing toad" under a clod that had been 
 dug up with a three-pronged fork. 
 'Tliat is why I could not rest. She is a 
 bad old woman. She put this toad 
 under there to charm me, and her 
 daughter is just as bad, gentlemen. 
 Slie would bewitch any one. Slie 
 charmed me, and I got no rest day fir 
 night till I found this 'walking toad' 
 un<ler the turf. I got the toad out and 
 put it under a cloth and took it up 
 stairs and showed it to my mother, and 
 ' throwed' it into the pit iu the garden. 
 I can bring it and show it to you, gen- 
 tbnnen.' " — PhiUidcIp/iia Inquirer, Feb. 
 22, 1882.
 
 FANATICO-MANIA. 
 
 [§ 649. 
 
 which occurred in Kentucky in the movements of 1810- Most cases 
 15. A man who was undoubtedly deranged, and who had ^IturaT' 
 in early life been a bold and enthusiastic hunter in the po^f^ssion 
 
 '' _ really hys- 
 
 wilderness of which Western Kentucky was composed, tericai. 
 became deeply impressed with a religious enthusiasm which ex- 
 hibited itself in the same way that all his other impulses exhibited 
 themselves — through the mechanism of the hunting mania. He 
 became a sort of fanatical Der Freyschutz. In order to resist the 
 devil and make him flee, he contended that it was necessary to tree 
 him, and to give him chase, just as we would a wolf whom we found 
 prowling among our sheep. As the meetings he convoked were 
 held in a grove, one of the congregation would suddenly start in 
 pursuit of the devil, an exercise in which a number of others equally 
 excitable would immediately join. This was called the " riinyiing 
 exercise,'" and became the first stage in the series of movements by 
 which the meetings were afterwards made memorable. Climbing a 
 tree after the devil was the next movement, which was called the 
 " climhing exercise.'''' In the ecstasy of the moment, one indi- 
 vidual was seized with a propensity to bark, a movement to which 
 the rest were irresistibly impelled, though they used every effort to 
 check the propensity. This exercise, which was called " treeiny 
 the devil,''^ was accompanied with such a scene of barking and 
 jumping as to destroy any remaining appearance of reason. The 
 epidemic spread to other fields than that of demon-hunting. On 
 one occasion one individual was seized with an insane propensity to 
 play marbles during divine service, when others involuntarily joined 
 him. And so far did the mania extend, that a series of other 
 juvenile games were introduced and followed with the same irre- 
 sistible vehemence by the congregation. Absurd as tliis may appear, 
 the epidemic lasted for some montlis, and its history has now passed 
 into the records of our western states as part of the materials on 
 which the annals of western immigration will rest. 
 
 § G49. In connection with this, may be noticed the recognized 
 effect of a mania of the imitative |)0\vers, as exhibited 
 in the tarantula of Apulia, and the exercises of tlie of inoibid 
 Jumpers of Cornwall and the convahiontiatrcH of the 
 I'arisian miracles. 
 
 " In l")oO," says Dr. Kellogg, " a num))er of children, brought 
 up in the city of Amsterdam — girls as well as boys — to the number 
 
 531
 
 § 649.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 of sixty or seventy, were attacked with an extraordinary disease. 
 They climbed like cats on the walls and roofs. Their aspect was 
 alarming, they spoke foreign languages, said Avondcrful things, and 
 even gave an account of all that was passing in the municipal 
 council. They ran in groups of ten or twelve through the public 
 squares, went to the rector, and reproached him with his most secret 
 actions. It is also asserted that they discovered several plots 
 against the Protestants ; and the faculty of prophesying, foretel- 
 ling the future, and speaking in foreign languages, appeared really 
 to exist in this epidemic." 
 
 " With our present amount of knowledge," says Dr. Winslow, 
 speaking of imitative or epidemic suicide, " of the subtle principle 
 of contagion, it is difficult to say Avhether an effluvium may not be 
 generated in such cases, which, under certain conditions of the sys- 
 tem, may communicate disease. We cannot possibly say that such 
 is not the case," he adds, " though we are by no means willing to 
 admit that the disposition to suicide may be propagated by conta- 
 gion — using the term in its usual acceptation." 
 
 " A man once hung himself, on one of the doors of the corridor 
 at the Hotel des Invalides. For two years previous no suicide had 
 occurred, but in the succeeding fortnight five invalids hung them- 
 selves on the same cross-bar, and the passage had to be closed. In 
 one of the Berlin hospitals, some fifty years since, a young woman 
 of robust frame visited one of the patients. On entering the ward, 
 she fell down in strong convulsions. Six female patients who saw 
 her became at once convulsed in the same way, and, by degrees, 
 eifjlit others passed into the same condition for four months, during 
 which time four nurses followed their example. They were all be- 
 tween sixteen and twenty-five years of age. Some years since, in 
 one of our popular boarding-schools for young ladies, a pupil be- 
 came affected by chorea. Her contortions being perceived by the 
 school, this case was soon followed by another, and still another, 
 until the disease became regularly epidemic. A judicious physi- 
 cian being called in proposed that cauterization by a red-hot iron 
 should be applied to the next case which occurred ; this prescription 
 became generally known througli the school ; no more cases oc- 
 curred. In the olden time, the ladies of Miletus, in a fit of melan- 
 choly for the absence of their husbands and lovers, resolved to hang 
 themselves, and, as in all fashionable amusements, vied with each 
 532
 
 FANATICO-MANIA. [§ 651, 
 
 other in the alacrity with which they carried on their work of self- 
 destruction. Sydenham informs us that at Mansfield, in the month 
 of June, suicide prevailed to an alarming degree, from causes 
 Avholly unknown. The same thing happened at Rouen in 1806, at 
 Stuttgart in 1811, and at a village of St. Pierre Montjean in the 
 year 1813. One of the most marked suicidal epidemics was that 
 which prevailed at Versailles in the year 1793 : in one year the 
 number of suicides was thirteen hundred — a number entirely out 
 of proportion to the population." 
 
 § 650. A suicidal epidemic prevailed at the New York State 
 Lunatic Asylum in July, 1851, and is alluded to by Dr. Benedict 
 in his report for that year. " Out of four hundred and sixteen 
 patients, at that time in the institution, the suicidal propensity ex- 
 isted in sixty-six. The first successful attempt was made on the 
 12th of July, by a female of the most intelligent class. Iler 
 melancholy end became known to her companions, with whom she 
 was a favorite, and on the following day two others in the same 
 hall were overheard devising a plan for their own death. The 
 large number of forty-four patients were admitted during the month 
 of July, nineteen of whom were suicidal. Two patients, who had 
 long been in the house, and never manifested suicidal propensities, 
 attempted it during this month, tlumgh they had 7io hnowJedje of 
 tvhat had occurred in another part of the haildingy^ 
 
 ((^) § 651. Legerdemain and fraud. — Dr. Monsey, who was the 
 medical adviser of Garrick, was called upon to pay a 
 professional visit to that great actor. "Garrick," as inexi)iica-" 
 his biographer, Taylor, tells us, " Avas announced for |.'/.|',^!|!^''"'"" 
 King Lear on that niiiht, and when Monsey saw him in •'<'»''' '"i^"' 
 
 '^ '- ' , *^ . deception. 
 
 bed he expressed his surprise, and asked him if the play 
 was to be changed. Garrick was dressed, but had his nightcap 
 on, and the quilt was drawn over him to give him the appearance 
 of being too ill to rise. Dr. AL expressed his surprise, as it was 
 time for Garrick to be at the theatre to dress for King Lear. 
 Garrick, in a languid and whining tone, told him that he was too 
 much indisposed to perform himself, but that there was an actor 
 named Marr, so like him in figure, face, and voice, and so admir- 
 able a mimic, that he had ventured to trust the part to him, and 
 
 ' Kellogg on Reciprocal lufliienco of Miinl and Body. 
 
 533
 
 § 652.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ■was sure that the audience would not perceive the difference. 
 Pretending that he began to feel worse, he requested Monsey to 
 leave the room in order that he might get a little sleep, but desired 
 him to attend the theatre, and let him know the result. As soon 
 as the doctor quitted the room, Garrick jumped out of bed, and 
 hastened to the theatre. Monsey attended the performance. Hav- 
 ing left Garrick in bed, he was bewildered by the scene before 
 him, sometimes doubting, and sometimes being astonished at the 
 resemblance between Garrick and Marr. At length, finding that 
 the audience were convinced of Garrick's identity, Monsey began 
 to suspect a trick had been practised upon him, and instantly hur- 
 ried to Garrick's house at the end of the play ; but Garrick was 
 too (piick for him, and was found by Monsey in the same state of 
 illness." 
 
 § 652. A Avriter in the London Christian Observer, for 1812, 
 tells us that in the middle of the last century a small 
 
 So in sup- J 1^ £ convivial pei'sonages was assembled at supper in 
 posed su- r o i i 
 
 peniatu- Manchester. A chair at the bottom of the table was 
 left empty by the absence of a member who was known 
 to be at the time confined upon a dying bed. The waiters had 
 (j^uitted the room, and the members were speaking of their dying 
 friend, when on a sudden the door opened, and his apparition, as 
 was supposed, entered, shrouded in white, and pale and ghastly as 
 an inhabitant of the tomb. It stalked to the unoccupied chair, sat 
 down, looked around upon the company, rose again, and with slow 
 and solemn step quitted the room. Overcome with awe, ill-prepared 
 by their habits of life to resist tiie terrors of superstition, no one 
 followed him. When all was over, however, they sent to the house 
 of the sick man, and learned from the nurse that he had died a few 
 minutes before they had seen his apparition. Could a ghost-story 
 be more strongly authenticated ? and could it be wondered at that 
 the club should be dissolved, and that each member should thence- 
 forward remain a firm believer in spectral appearances ? Thus 
 matters continued for nearly ten years, when the nurse, on her 
 dying bed, confessed to the clergyman of the parish that her fear 
 of discredit for an act of negligence had led to this misapprehension 
 of the facts of the case. She confessed that, while the dying man 
 Avas in a paroxysm of fever, she had quitted his chamber ; that on 
 her return, a few minutes after, she found that, witli the strength 
 531
 
 FANATICO-MANIA. [§ 652. 
 
 not unusual!}' attendant upon the last moments of life, he had fled, 
 but that after a few minutes he returned with his sheet wrapped 
 around him, lay down in his bed and died. The fact seems to have 
 been that, by force of custom, he had thought of his club at the 
 appointed day and hour, had crossed the street to the club-door, 
 which joined the street, and thus terrified the society. 
 
 So also the following, given in the same journal. It was the ob- 
 ject, some fifty odd years ago, of a certain party in the kingdom of 
 Prussia to separate the successor of Frederick the Great of Prussia 
 from the interests of that wary and ambitious prince. Weary of 
 the wars in which he engaged the country, these persons Avere de- 
 sirous of robbing him not merely of his throne, but of his life. It 
 chanced, however, that the young prince was not to be seduced, ex- 
 cept by a peculiar process, to any such nefarious attempt. lie was 
 neither ambitious nor sanguinary ; and, unless when stimulated by 
 peculiar feelings, was of a cold and phlegmatic temperament. When 
 once, however, those feelings were aroused, his ardor became very 
 great. He was superstitious, credulous, and sensual. On these 
 yielding points of his nature, then, the conspirators resolved to 
 practise. Accordingly, jugglers of all sorts were set to work, and 
 among others an infamous fellow of the name of Gustfragog. The 
 "Ghost Seer" of Schiller gives an accurate picture of one of the 
 scenes exhibited to the prince, and by which even a firmer mind 
 than his might have been deeply affected. It is unnecessary to 
 state the political result of the ]}lan. It is more to our present pur- 
 pose to add, that its partial social success assisted to diffuse a taste 
 for necromancy over the nation. " Tricks," is the summary of this 
 by the writer in the Christian Observer, " were devised and exe- 
 cuted, wiiich serve to illustrate and confirm the opinion, that in all 
 ages much of what has been referred to spectral appearances has 
 far more connection with the living than the dead. Gustfragog, in 
 the presence of the narrator above mentioned, produced the shades 
 of tiie dead, invisible music, called out voices from the dead 
 walls, in short, made matter lo(juacious, music philosophical, at his 
 pleasure." 
 
 A case of this class was told by tlie late Washington Allston. A 
 student at Cambridge dressed himself up in white as a ghost to 
 frighten his companion, iiaving first drawn tlie bullets from ))ist()ls 
 which he kept at the head of his bed. As the apparition glided by 
 
 535
 
 § 654.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 his bed, the youth lauglied and cried out, " Vanish, I fear you not." 
 The ghost did not obey him, and at length he reached a pistol and 
 fired it, when, seeing the ghost immovable, and invulnerable as he 
 sui)posed, a belief in a spirit instantly came over his mind, and, 
 convulsions succeeding, his extreme terror was soon followed by 
 death. 
 
 § 053. Predictions, accompanied by ghostly horrors such as this, 
 often bring about their own fulfilment. Dr. Rush told a story of a 
 farmer, near Philadelphia, who took the yellow fever upon hearing 
 from a party of medical students, who wanted to play a practical 
 joke upon him, that he displayed the premonitory symptoms of that 
 disease. Suppose the communication had been made to him under 
 the mask of a simulated apparition, and suppose the imposition had 
 remained undetected, would we not have had a ghost story equal in 
 authentication to the strongest which modern supernaturalism can 
 present ? 
 
 (t^-) § G54. Mistake of si'usrs. — Mr. Dendy, in his Philosophy 
 
 of Mystery, tells us that a few days after the death of 
 Supposed , r 1 1 -vT 1 • I A T 11*-' 
 
 apparitions Marshal iNey, a servant, ushering the Mareschal Ame 
 
 mistake of" '^^^^ ^ Parisian miret'^ announced by mistake Mons. Le 
 
 senses. Mareschal Ney. Instantaneously, says the narrator, the 
 
 form of the Prince of Moskeva was before his eye. 
 
 Now here was an apparition produced by mental association. 
 Ko one accustomed to the examination of testimony in courts of 
 justice, but will recollect many similar cases. 
 
 Visual mistakes find their place here. Thus Lord Nelson's 
 sailors conjured up the bloated corpse of the murdered Prince Car- 
 accioli, as it floated erect towards their ship, as a ghost fraught with 
 supernatural Avarning. 
 
 A lady was some years back attending a sick husband in a little 
 town on the Hudson River. The windows of the room they occu- 
 pied looked directly down on the graveyard. Towards midnight, 
 on Saturday, the disease of the sick man approached a crisis, and 
 his wife was earnestly })raying for his recovery. Suddenly she saAv 
 in the graveyard a spectral figure in white robes, apparently waving 
 its arras to her as if with a gestui-e of assent. She called to it the 
 attention of the niise, who fainted. It seemed as if the sick man 
 at once began to recover, but the wife was too much overawed to be 
 willing to remain in a neighborhood open to such apparitions. She 
 536
 
 FANATICO-MANIA. [§ 655. 
 
 was about to remove, Avhen the difficulty was solved by the follow- 
 ing account given to her by her washerwoman : " I am obliged 
 to move also, for I have no place to dry my clothes. Tiast week 
 we were forced to hang them in the churchyard, and then I forgot 
 them, and had to run in towards midnight to catch them up in my 
 arms, so as to keep them from being seen on Sunday morning." 
 
 jNlr. Dendy tells us of a farmer of Teviotdale, who in the gloom 
 of evening saw on the wall of a cemetery a pale form throwing 
 about her arms and moving and chattering to the moon. With not 
 a little terror, he spurred his horse, but as he passed the phantom 
 it dropped from its perch, and, fixing itself on the croup, clasped 
 him tightly round the waist. He arrived at home, with a thrill of 
 horror exclaimed, " Tak aflF the ghaist I" and was carried shivering 
 to bed. And what was the phantom? A maniac Avidow on her 
 distracted pilgrimage to the grave of her husband, for whom she 
 had mistaken the ill-fated farmer. 
 
 The supernatural scenery which once surrounded Lake Superior 
 may fall under this head. Spectre ships, propelled by giant 
 sailors, were seen on its shores. Bluflfs, almost mountain high, 
 lifted their brows covered with trees of mammoth height. But the 
 ships were Indian canoes, and the bluffs low ridges of sand covered 
 with scrubby pines. The exaggerated size was produced by a 
 peculiar refractive power of the atmosphere. 
 
 § ()o5. Observe, also, the solution of the Giant of the Brocken, 
 as given by M. Haue. Or optical 
 
 " x\fter having been here for the thirtieth time, and, iIl-IusIous. 
 besides other objects of my attention, having procured information 
 respectim^ the above-mentioned atmospheric phenomenon, I was at 
 length so fortunate as to have the pleasure of seeing it ; and per- 
 haps my description may afford satisfaction to others who visit 
 Brocken tlirough curiosity. The sun rose about four o'clock, and, 
 the atmosphere being (juite serene towards the east, his rays could 
 pass without any obstruction over the Heinrichshcihe. In the 
 southwest, however, towards the Achtermannshohe, a brisk west 
 wind carried before it their transparent vapors, which were not yet 
 condensed into thick, heavy clouds. About a quarter past four I 
 went towards the inn, and looked around to see if the atmosphere 
 would permit me to have a free prospect to the southwest ; when I 
 observed, at a very great distance towards the Achtermannshohe, 
 
 537
 
 § 655.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 a hurnan figure of a monstrous size. A violent gust of wind having 
 almost carried away my hat, I clapped my hand to it by moving 
 my arm towards my head, and the colossal figure did the same. 
 The pleasure I felt on this discovery can hardly be described ; for 
 I had already walked many a weary step in the hope of seeing this 
 shadowy image, without being able to satisfy my curiosity. I im- 
 mediately made another movement by bending my body, and the 
 colossal figure before me repeated it. I was desirous of doing the 
 same thing once more, but my colossus had vanished. I remained 
 in the same position, waiting to see whether it would return, and in 
 a few minutes it again made its appearance in the Achtermannshohe. 
 I paid my respects to it a second time, and it did the same to me. 
 I then called the landlord of the Brocken ; and, having both taken 
 the same position which I had taken alone, we looked towards the 
 Achtermannshohe, but saw nothing. We had not, however, stood 
 long when two such colossal figures were formed over the above 
 eminence, which repeated our compliments by bending their bodies 
 as Ave did ; after which they vanished. We retained our position, 
 kept our eyes fixed upon the same spot, and in a little Avhile the 
 two figures again stood before us. Every movement that we made 
 by bending our bodies these figures imitated, but with this differ- 
 ence, that the phenomenon was sometimes Aveak and faint, some- 
 times strong and Avell defined. Having thus had an opportunity of 
 discovering the Avhole secret of this phenomenon, I can give the 
 following information to such of my readers as may be desirous of 
 seeing it themselves. AVhen the rising sun throws his rays over 
 the Brocken upon the body of a man standing opposite to fine light 
 clouds floating around or hovering past him, he needs only fix his 
 eye steadfastly upon them, and in all probability he Avill see the 
 singular spectacle of his own shadoAv extending to the length of five 
 or six hundred feet, at the distance of about two miles from him. 
 This is one of the most agreeable phenomena I ever had an oppor- 
 tunity of remarking on the great uplands of Germany." 
 
 A throng of persons collecting at a given spot, and gazing in 
 tently at any specific object, Avill readily be affected by a delusion 
 concerning it. Mr. Dendy tells us that some time since a very 
 large assemblage Avas watching Avith intense interest the stone lion 
 of the Percies at Northumberland House. They Avere unanimous 
 in the conviction that he Avas swinging his tail to and fro — a false 
 538
 
 FANATICO-MANIA. [§ 656. 
 
 impression, of course, which had gradually accumulated from this 
 solitary exclamation of a passenger : " By heaven, he wa'^s his 
 tail !" Of this sort of illusion \ie are given the folio wint^ addi- 
 tional instance : Beneath the western portico of St. Paul's a crowd 
 ')f gazers were some time since bending their eyes on the image of 
 a saint, who was nodding at them with a very gracious affability. 
 Curiosity had risen to the pitch of wonder, at a miracle, when sud- 
 denly a sparrow-hawk flew from the ringlets of the saint, and the 
 illusion vanished. 
 
 (fe^) § 656. Criiesswork. — First, as to dreams. Now, in the 
 millions of dreams that each night brings to pass, it is Knowiedo-e 
 much more likely that some should come true than that attributed 
 
 '' _ to (Jreams 
 
 ')i<me should. But there are independent circumstances probably 
 
 , . . p , T • 1 procured 
 
 tending to verily such predictions.^ from other 
 
 " If you do so and so, you will rue it." So speaks ^o"^*^^^. 
 superior sagacity or superior caution ; but does the fulfilment prove 
 the foreknowledge ? Columbus predicted to the Indians an eclipse. 
 In this case the prediction was the result of a higher degree of 
 knowledge on his part. An Earl of Caithness, we are told, was 
 desirous of ascertaining the distance of a vessel laden with w^ine for 
 his cellars. He went to a seer, and received the answer, " At the 
 distance of four hours' sail." The prophet, to prove the truth of 
 his statement, laid before the earl the cap of a seaman in the 
 ship. Soon the ship turned the point, and a seaman claimed the 
 cap, saying that shortly before it had been blown from his head in 
 a gale. 
 
 Sometimes, however, the prediction is one of a series of mere 
 fishing adventures. It is a conjecture, more or less sagacious, of 
 one of a number of probabilities. So it was when Napoleon, when 
 marchine: to Acre, had a Nile boat named UltaJic destroved. 
 " Italy is lost to France," he declared ; and the remark, when the 
 result was found to have taken place, was treasured up, though it 
 turned out to be only parenthetically true. So it was with the 
 warninrr given bv Lord Falkland and Archbishop Williams of the 
 fate of Charles I. So it was with the famous prophesies of 
 Cazotte, of the decapitation of himself and his friends. in 
 
 > See La SoiniiK'il et 1<"S RGves, Alfred Maury. Paris, ISIJIJ. 
 
 5;:)y
 
 § 657.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 each case the prophecy was a conjecture, and the event at the time 
 probable. 
 
 Then come the mere dodging oracles, which are framed so as to 
 read both ways. 
 
 " The power is here which Cresar will overcome," leaving the 
 question, whether it is Cncsar or the power which is to be trium- 
 phant, to be determined by the result. 
 
 Then take the following, given I'yrrhus on his way to attack 
 Rome : — 
 
 "Aio te iEacida Romanos te vincere posse," meaning either that 
 Rome was to conquer him, or he conquer Rome. 
 
 Alexander the Great, in the first gush of his youthful vigor, 
 visited the Delphic pythoness in order to obtain a favorable omen 
 for his eastern campaign. The priestess shrank from an intervicAv 
 ■with a prince at once so capricious and so powerful. Alexander, 
 however, would take no refusal, and, seizing her, forced her down 
 upon tiie tri})od from which her prophetic strains usually emanated. 
 An operation like this, when we keep in mind the age of the pro- 
 phetess, and the sharp, jutting points of the tripod on which she 
 was thus trussed, could not have been agreeable to her ; nor can 
 we be surprised that she cried out testily, " son ! who can 
 withstand thee ?" Alexander inquired no further, for this pettish 
 cry was seized by him as a divine announcement of his future in- 
 vincibility. 
 
 § t)57. To this may be added tiiose instances in which an ap- 
 parently supernatural presentiment is produced by the 
 Supornatu- . . pit h • t 
 
 rai {iri'sen- resuscitation 01 a dead recollection. Let us take the 
 
 ortc'iI'Li following from Moreton's Essay on Apparitions : "The 
 awaki'iiitii,- Rcvcrcnd Dr. Scott, of Broad Street, was sittinsr alone 
 
 of niL'inory. . , ° 
 
 ill his study. Un a sudden, the phantom of an old 
 gentleman, dressed in a black velvet gown and full-bottom wig, 
 entered and sat himself down in a chair opposite to the doctor. 
 The visitor informed him of a dilemma in which his grandson, who 
 lived in the west country, was placed by the suit of his nephew for 
 the recovery of an estate. This suit would be successful, unless a 
 deed of conveyance was found which had been hidden in an old 
 chest in the loft of the house. On his arrival at this house, he 
 learned that his grandson had dreamed of this visit, and tliat 
 his grandfather was coming to aid him in the search. The deed 
 540
 
 PANATICO MANIA. [§ 658. 
 
 Avas found in the false bottom of the old chest, as the vision had 
 promised." 
 
 Now, the solution no doubt is, that the dreamer heard of the 
 place of deposit when a boy, and the circumstance was recalled to 
 him by the fact of the pending trial. 
 
 The same explanation applies to the following cases: — 
 
 After the death of Dante, as we are told by the same author, it 
 was discovered that the thirteenth canto of the Paradise was 
 missing. Great search was made for it, but in vain ; and to the 
 regret of every body concerned, it was at length concluded that it 
 had either never been written, or had been destroyed. The quest 
 was therefore given up, and some months had elapsed, when Pietro 
 Allighieri, his son, dreamed that his father had appeared to him 
 and told him, that, if he removed a certain panel near the window 
 of the room in which he had been accustomed to write, the thir- 
 teenth canto would be found. Pietro told his dream, and was 
 laughed at, of course. However, as the canto did not turn up, it 
 Avas thought as well to examine the spot indicated in the dream. 
 The panel was removed, and there lay the missing canto behind it, 
 much mildewed, but fortunately still legible. 
 
 A gentleman in this country received a promissory note to a 
 large amount, which he placed in a book. After the note became 
 due, he was unable to recollect where he had placed it, and the 
 debt was in danger of being lost, and his character seriously 
 injured, as one who was ready to press a claim for which he had 
 no evidence. The fact caused him great anxiety, but his efforts to 
 recollect the place of deposit were fruitless. Some time afterwards 
 he was almost drowned, and became apparently insensible. When 
 in this state, all the circumstances of the deposit flashed upon his 
 mind, and the spot where he had placed the note was recalled. 
 When he was able to speak, he sent for the book, and there the 
 note was found. 
 
 § 658. Sir Evan Nepean, being at the time secretary of the 
 admiralty, found himself one night unable to sleep, and 
 
 ^ ' ^ _ MiMiiory 
 
 was urged by an indefinable feeling that he must rise, imiciHii- 
 though it was then only two o'clock, lie accordingly did pl„eui cou- 
 80, and went into the park, and from that to the Home ^'"'"""*- 
 Office, which he entered by a private door, of which he had the 
 key. He had no object in doing this ; and, to pass the time, he 
 
 541
 
 § 659.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY 
 
 took up a newspaper that was lying on the table, and there read a 
 paragraph to the effect that a rejirieve had been dispatched to 
 York for certain men condemned for coining. The question oc- 
 curred to him, Avas it indeed dispatched ? He examined the books, 
 and found it was not; and it was only by the most energetic pro- 
 ceedings that the order was forwarded and reached York in time to 
 save the men. 
 
 Mrs. CroAve, in her " Night Side of Nature," tells us of a case 
 that occurred not many years since, where, a murder having been 
 committed, a man came forward, saying that he had dreamed that 
 the pack of the murdered peddler was hidden in a certain spot, 
 where, on a search being made, it was actually found. The police 
 at first concluded that he was himself the assassin, but the real 
 criminal was afterwards discovered ; and, it being asserted that the 
 two men had passed some time together since the murder, in a 
 state of intoxication, the conclusion was generally reached that the 
 crime and the place of concealment had been communicated to the 
 pretended dreamer in such a way, in consequence of his then 
 drunkenness, as to leave a vague impression on his mind, without 
 enabling him to understand how that impression came. 
 
 Now, here we have in each case a solution perfectly in accord- 
 ance with well-known psychological laws. The soul, of which 
 memory is an attribute, is independent of corporeal conditions, and 
 is unsliackled by those bonds which confine even the will. It is this, 
 we may remark incidentally, which invests the memory Avith such 
 tremendous future retributive powers. 
 
 U^) § 'J'">!^*' Natural pJn'nomcyia at pre W7it inexplicable. — Under 
 this head we may place sucli remarkable occurrences as 
 
 Such are . . 
 
 "t'cstaKies" the " ccstasies" of Louise Lateau and of Alexandrine 
 netic pVu-- Lanoix, as reported by Dr. Meredith Clymer, in his 
 noiiieua. valuable " Notes on Ecstasy and other Dramatic Dis- 
 orders of the Nervous System."^ 
 
 '' 4 Journ. Psyc. Med. C59. General Pathology and Therapeutics 
 
 "The i)erusal of Dr. Meredith Cly- in the Catholic University of Louvain, 
 
 mer's inten-sting paper, ' On the Dra- to ask for further and later details 
 
 matic Diseases of the Nervous Sys- regarding the case of Louise Lateau. 
 teni,' " writes George E. Day in the " In reply to my letter, he forwarded 
 
 same journal for 1871, p. 288, led " me me a complete work, which he has 
 
 to writ(; Dr. Lefebvre, Professor of recently published, entitled ' Louise 
 
 542
 
 FANATICO-MANIA. [§ 659. 
 
 With this may be classed the so-called " Odyllic Force of Mag- 
 netism." It is true that some of these phenomena may be explained 
 in accordance with well-known natural analogies. They differ in 
 no respect from a series of other phenomena equally inexplicable, 
 but for which it has never been thought necessary to suppose direct 
 Satanic or spiritual coercion. The strongest Avay of stating the 
 magnetic theory is, that one human being is able, under certain 
 circumstances, to so impress his idiosyncrasies upon another as to 
 produce in that other their counterparts. Suppose, instead of this, 
 it should be stated that a dog is able to so act upon a human being 
 as after a certain period of time to impress liis idiosyncrasies upon 
 the man, to cause him to bark like a dog, to believe himself a dog, 
 in fact, to respond to the dog's nature. Xothing in animal magnet- 
 ism is stranger than this, and yet this horrible and mysterious trans- 
 formation Ave witness in the phenomenon of hydrophobia, and what 
 is more, we rest satisfied with the fact without attempting to explain 
 it supernaturally, though the process by which this extraordinary 
 infusion of one nature into another is effected is utterly inexplicable. 
 And again, we see that the sun, itself an unintelligent agent, is able 
 so to act upon a silver plate as to stamp in a flash the portrait of an 
 immediate object — say a human face — upon the inanimate metal. 
 Is this more strange than that the passionate and flexible spirit of 
 man, impregnated as it is with so many wonderful energies which we 
 have never been able to test, should project on the soul of its fellow 
 at least some sort of portrait of itself? Do we not see this con- 
 stantly in social life, at least to some modified extent ? Have we 
 
 Latcau de Bois d'lliane: sa vie — ses devoted to the medical study of the 
 
 extases — ses stigmates. Etude Medi- facts. 
 
 cale, par le Dr. F. Lefebvre, pp. 3(iO : "He devotes eighty pages to tlie 
 
 Louvain, 1870.' The mode of arrange- subject of stigmatization, and a huii- 
 
 ment of the volume is as follows : In dred to that of ecstasy. The author of 
 
 the first part he gives a short biogra- tliis curious volume is deserving of the 
 
 phy of the young woman ; in the second, highest praise for tlie conscientious 
 
 he enters into the details of her case ; care with which he has investigated 
 
 in the third, he discusses the liypothesis this almost incredible case. I may 
 
 of there being any fraud or imposition conclude by stating that he informs 
 
 practised; while the fourth and con- me that he last saw his patient on the 
 
 eluding part, which occupies more than 13tli of .January, 1871, and that she 
 
 three-quarters of the whole book, is continued in precisely the same state 
 
 (loiij'iuis le tiu'me)/^ 
 
 513
 
 § 660.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 been able as yet to systematize and define the transforming influ- 
 ences of human affection or fear ? 
 
 The most cautious psychologists maintain that phenomena such as 
 these, or similar to these, are explicable on natural grounds. Thus, 
 in Sir William Hamilton's edition of Reid, we find the following 
 passage : — 
 
 " No man can show it to be impossible to the Supreme Being to 
 have given us the power of perceiving external objects without any 
 such organs ;" that is, our organs of sense. " We have reason to 
 believe that when we put off these bodies, and all the organs be- 
 longing to them, our perceptive powers shall rather be improved 
 than destroyed or impaired. We have reason to believe that 
 the Supreme Being perceives everything in a more perfect manner 
 than we do, without bodily organs. We have reason to believe 
 that there are other created beings endowed with powers of percep- 
 tion more perfect and more extensive than ours, without any such 
 organs as we find necessary." 
 
 To this Sir William Hamilton adds the following note : — 
 
 " However astonishing, it is now proved beyond all rational doubt, 
 that, in certain abnormal states of the nervous organism, perceptions 
 are possible through other than the ordinary channels of the 
 sense. "^ 
 
 (c^) § 660. Historical evidence of such possession. — We come 
 
 next to the question whether we have evidence from his- 
 Beliefin ^ . . 
 
 iiemoiioi- tory that there has ever been such a systematic dcvia- 
 
 hy^am-ient tion from the Divine policy as is implied by the entrance 
 '!h'>r"^"' of specific evil spirits into specific human bodies, fol- 
 lowed by a supernatural subjection of the will if not by 
 a merging of the individuality of the latter in the former. There 
 is little doubt that this was taught by the ancient philosophers. 
 Plato unites in expressly asserting the existence of demons, who, on 
 his theory, are the sole supernatural agencies by which the Divine 
 will operates on the human heart, ndv r6 baiixoviov fiitu^v kati. Oiov t« 
 
 xoi 6vr]T0v. And again F^i^firjvsvov xai biartopOfiivov Otoii ta rtap' dj/^pwrtuv, 
 xai di'Oj'oiHoti ta rtapa Ofuiv, rutv jxiftdi 8f>;itti xai ^vaiof, tu>v 6i ta^ frtiralfij 
 
 ' See I'hysics and Physiology of Spiritualism and Animal Magnetism, 
 Spiritualism, by W. A. Hammond, by G. G. Zerffi, London, 1871,- 
 M.D. : New York, D. Appleton k Co., 
 1871. 
 
 544
 
 FANATICO-MANIA. [§ 661. 
 
 ■ft xai ajxoiSdi rwf OvatCjv.'^ He tells US that demoniacs do not use their 
 own dialect or tongue, but that of the demons who have entered 
 into them.2 Lucian declares " the patient is silent: the demon re- 
 turns the answer to the question asked " And yet at the same 
 time it would seem that the possibility of the cure of the demoniacs 
 by medicine Avas recognized, which w^ould scarcely be the case if 
 the malady was regarded as exclusively supernatural. Thus we are 
 told, " Hellebore quoque purgatur Ii/mphaticus error. '"^ And 
 Josephus and the Jewish physicians speak of medicines composed 
 of stones, roots, and herbs, being useful to demoniacs.^ 
 
 § Gi)l. With regard to the New Testament history, two views 
 have been taken, each of which has the sanction of au- co^flj^.^ f 
 
 thorities distinguished both for learnino; and for loyalty <'piuio» as 
 r, . . /-. , . . *^ "^ to autho- 
 
 to the Christian cause. On the one hand, it is urged ntyofNew 
 
 that the language of the Gospel writers is express to the on\he sub- 
 very point ; on the other, it is maintained that the ac- ^^^^' 
 counts given by them may all be understood as exhibiting no more 
 than the phenomena of certain diseases, particularly hypochondria, 
 mania, and epilepsy ; that the popular terms were used to describe 
 these diseases, just in the same way that " Possession" (Besessen- 
 heit) is now used by some of the most technical German psycholo- 
 gists to describe the same thing ; and that the sacred penmen meant 
 to convey no more than that the patients were aftected with the 
 complaints which those phrases described.^ 
 
 ' Plato, Sympos., pp. 202, 203. Lip- Lectures on GocKi and Evil Angels; 
 
 sise, 1829, p. 252. See also Plutarch, to Winer's Biblisclies Real Wiirten- 
 
 De Defect. Orac. Farmer's Essay on buch, art. " Besessene ;" to Moses 
 
 the Demoniacs. Stuart's sketches of Angelogy, in Bib- 
 
 2 Plato, upud Clem. Alex. Strom. L liotheca Sacra, 1843 ; to Bishop Bur- 
 
 405, Oxon. gess' sermon on Demonology, in the 
 
 * Seren. Sammon, c. 27, v. 507. Pliil. course of Lectures on Evidences, 
 
 < Gittei, f. 67. Phil. 1854; to President's Appleton's 
 
 5 The student is referred to a very discourse on the same ; and to a very 
 
 comprehensive article on this point, by brilliant though eccentric treatise, pub- 
 
 tlie Rev. J. F. Denham, of St. John's lished under the title of "The Apoca- 
 
 College, Cambridge, in Kitto's Bib. tastasis, or Progress Backwards," Bur- 
 
 Cyc, tit. Demoniacs, in which the argu- lii)gton,Vt., 1854. Seealso " Physiology 
 
 ments on both sides are very fairly ex- of Soul and Instinct," by Dr. Martyn 
 
 hibited ; to Farmer's Essay on the De- Paine, Now York, 1872. See an article 
 
 moniacs ; to Jahn's Biblisches Archii- l>y R. W. Emerson, North American 
 
 ologie ; to Archbishtjp Whateley's Rev., No. 124, p. 179. 
 
 VOL. I. — 35 545
 
 § 662.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § G61 a. But without any further attempt to determine the question 
 
 ■whether demoniac possession is taught as a fact by his- 
 Demoniac ... 
 
 possession tory, Cither sacred or proiane, we revert to the inquiry 
 
 now "xist. ^s ^0 whether it exists at the present day. And the 
 analysis we have just given of the phenomena on which 
 such possession now rests, justifies us in saying, that in a lego- 
 psychological view, we have no evidence of any such present exist- 
 ence. All modern phenomena can be satisfied by the recognition 
 of the independent existence of that species of mania which causes 
 an insane belief in the patient that he is possessed with a demon. ^ 
 
 Where insanity is sul)stantivcly proved, then supposed super- 
 natural direction to commit an offence is a defence to an indictment. 
 It is otherwise, however, where the defendant is sane, for the sane 
 are responsible for the rightfulness of their conclusions, so far as 
 these conclusions exliibit themselves in overt acts.^ 
 
 (h^ Religious iyimnity. 
 
 (a') § ^)Q2,. Chrisfianitij^ takcH in its jmicfieal sc7isi', has no 
 tendency to iwoduce inm)nty. — " To tell a man he cannot save 
 himself, but that if he trust in God, <Tod Avill save him" — we 
 paraphrase a passage from Coleridge — " is the lamb in wolf's 
 
 ' SchiU-Tiiayer, Gericht. Med, § 550. 
 And s('<i Essays on Derangement in con- 
 nection witli Religion, by John Clieyne, 
 M.D., F.R.S.E., M.R.I. A., Diysician- 
 General to His Maj(!sty's Forces in Ire- 
 land : Dublin, 1843, p. 68, etc. On the 
 subject of demoniacs generally, Whate- 
 ley's Good and Evil Angels, Lecture 
 VI. For a case of supposed Demoni- 
 acal Possession, see .Tournal of Psycho- 
 logical Medicine, vol. iii. p. 2(;2 ; Metz- 
 ger's verm. Schrift. 15d. 3, s. 217 ; Ci'S. 
 Ruggieri's history of the self-crucifixion 
 of M. Lovati, at Venice, translated by 
 Schlegel, Rudolst, 1807. (In the lat- 
 ter cas(!, the patient first cut off his 
 own ])rivate members, and tlnai cruci- 
 fied himself.) llenke's Zeitsch. E.-IL, 
 11 s. 291. (Two Swiss girls, who immo- 
 lated themselves.) Ilrnke's Zeitschr. 
 Rd. 47, p. 447. (Pyl's essay, U Samml. 
 
 546 
 
 p. 214. (Infanticide by a demoniac.) 
 llenke's Zeitschr. 27 Bd. p. 330 (Peri- 
 odical Demonio-mania). Demoniacal 
 possession, as Siebold (Gericht. Med. § 
 210) very justly remarks, was much 
 more common in former days than the 
 present, and of this, to say nothing of 
 the New Testament period, illustrations 
 may be found in tlie many cases of 
 witchi's, seers, and soothsayers of the 
 mid<lle ages. The Convulsions, etc., 
 of St. Medard fall under this head. 
 See Decker on the Dancing Mania, 
 Perl. 1832. Published also by the 
 Sydenham Society. And also a series 
 of very curious and valuable articles 
 on Pythonic and Demoniac Possession, 
 in Dublin Univ. Mag. for Sept. and 
 Oct. 1848, for March and Dec. 1849, 
 and fill- .lanuary, 1850. 
 2 Snpni, §§ 14(J-1(J2.
 
 RELIGIOUS INSANITY. [§ 663. 
 
 clothing ; to tell him that he can save himself without help is the 
 wolf in lamh's clothing." The first is mercy in a dress of severity ; 
 the second cruelty in a dress of mercy. " Only try," says the 
 philosopher, " trust in yourself, and you will conquer this evil 
 habit." " But I have tried — I have trusted in myself — I have 
 failed, and I know that if I am to be judged by my works, I will 
 be condemned." " Only try," says Christianity ; " throw your- 
 self for mercy on Christ — He will supply all your wants, will 
 make up all your deficiencies, and will save you in the end, if you 
 but give a childlike faith to Hira." Now, which of these two doc- 
 trines is the least likely to agitate the mind — that which thus offers 
 immediate pardon and future peace on the sole condition of present 
 repentance and trust, or that which makes salvation dependent on a 
 calculation of the sins and the good deeds of the past — which makes 
 it necessary, before a sure conclusion be reached, that the most 
 secret recesses of memory be searched — and which after all leaves 
 the inquirer with a crushing consciousness of an evil nature which 
 infuses sin into his very thoughts, and for which there is neither 
 atonement nor cure ? 
 
 The moral bearing of this question is thus stated by Sir James 
 Macintosh : " The enormities of Tetzel found Luther busied in the 
 contemplation of the principle which is the basis of all ethical judg- 
 ment, and by the power of which he struck a mortal blow at supei'- 
 stition. Men are not made righteous by performing certain actions 
 which are externally good ; but men must have righteous principles 
 in the first place, and then they will not fail to perform virtuous 
 actions." " The general terms he used, enunciate a proposition 
 equally certain and sublime, the basis of all pure ethics, the cement 
 of the eternal alliance between morality and religion, and the badge 
 of the independence of both of the low notions and dim insight of 
 human laws." 
 
 § 663. " But predestination ?" There is no doubt, that, if the 
 doctrine of predestination be unduly dwelt upon, it may injuriously 
 affect the brain ; but this is not a rvliyvms difficulty, rrcdestina- 
 tion operates as effectively on things temporal as on things sjuritual. 
 The loss of a friend, tlie purchase of a house, my going on a journey 
 to-morrow, my taking a book this next moment from the library by 
 my side, are as much the matters of foreordination as are the great 
 
 547
 
 § 665.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 conditions of the future. If religion be abandoned because it in- 
 volves such speculations, so must all human thought whatever. ^ 
 ^ 6(j4:. Reducing the controversy within its proper limits, the 
 contending; views may be thus stated: Philosophical 
 
 Philosophi- '^ "^ . . . . 
 
 cai neccs- necessity consists of the divine sovereignty, incorporat- 
 
 liberterian- ing within itself, and recognizing as an independent 
 ism, nei-^ powcr, free agency; libertarianism, of free agency, 
 sistentwith capable, Avithin its own range of action, of voluntary 
 choice, but dependent for self-renovation on divine grace. 
 In other words, each system consists of the same two great truths 
 apparently hostile, yet ever consistent in human consciousness. 
 Laav IS SOVEREIGN ; WILL IS FREE. If, in rcspect to the question of 
 the primacy of these truths, there should be great diversity of opinion 
 — if by one class of thinkers the one is placed first, and gazed at 
 with peculiar reverence, if by another the other — this is no more than 
 we find in civil society, where the two parallel elements of indi- 
 vidual liberty and governmental authority are subject to the same 
 treatment. The question is one of temperament. In sociology we 
 find, on the one side, those who look up with peculiar reverence to 
 the conservative power of government, who distrust the capacity of 
 bodies of men for self-government, who turn fondly to the past and 
 sadly to the future ; on the other side, those who, holding that true 
 conservatism requires constant change in order to withstand the 
 dilapidations of time, have an d priori tendency to reforms, and 
 look upon the past mainly as a platform on which to raise the 
 achievements of the future. To the struggles of these two classes of 
 opinion- — the conservative and the reforming — we owe a great part 
 of the healthy action of society. No man would now affirm that 
 either class possesses the right solely, or that the apparently hostile 
 truths of human independence and of human subordination are not 
 concurrently recognized in political economy. Among those engaged 
 in marshalling the two cardinal propositions of metaphysical theology 
 we may call for the same charit^^^ 
 
 § 605. As is remarked by Dr. Rush, in Christian countries de- 
 „ „ . partures from the Cliristian faith (e. q. infidelity and 
 
 conducive atheism) are "frequent causes" of insanity. And the 
 
 lo sanity. . ,, -, .,,.. « 
 
 same is equally true oi departures m the direction ot 
 
 » See suina, § 147. " Wharton on Theism, § 128. See 
 
 also supra, § 147. 
 
 548
 
 RELIGIOUS INSANITY. [§ Q6Q. 
 
 ignorant and fanatical superstition. The/t>n?ier position is readily 
 explained. The soul, as well as the body, to enable it to stand 
 steadily, requires that the eye shall be fixed upon some distant and 
 external point. No man, for instance, can stand for any time on 
 one foot if he fixes his eye on his own person ; and he succeeds in 
 maintaining his upright position precisely to the extent he is able 
 to fix his eye firmly on a point in the distance. And in a psycho- 
 logical view this is readily explicable. It is only by the recognition 
 of a future state that the soul can be effectually steadied in this. 
 And it is precisely such a system as the Christian religion describes 
 — one which affords a positive assurance of immortal peace to those 
 who seize upon it for their portion — which, while it recognizes that 
 innate depravity which the heart is but too ready to testify to from 
 its own experience, promises divine aid in the struggle — which 
 announces the pardon of past sin, while it affords the aid and succor 
 of divine grace. 
 
 " I envy no quality of the mind or intellect in others, nor genius, 
 nor power, nor fancy," says Sir H. Davy : " but if I could choose 
 what would be most delightful, and, I believe, most useful to me, I 
 should prefer a Jinn religious belief to every other blessing : for it 
 makes life a discipline of goodness ; creates new hopes when all 
 earthly hopes vanish ; and throws over the decay, the destruction 
 of existence, the most gorgeous of all lights ; awakens life in death, 
 and calls out from corruption and decay, beauty and everlasting 
 glory." 
 
 The habitual practical recognition and adoption of such a system 
 as this must necessarily generate a sobriety of temper, which will 
 of all others be the most distant from derangement. That the re- 
 ception of Christianity, whether real or nominal, should cure in- 
 sanity, is no more to be expected than that it should cure the smallpox. 
 If it did — if a special miracle was wrought for the purpose of de- 
 stroying the original characteristics of each individual — it Avould 
 not only destroy moral agency and hence break up probation, but 
 would produce an almost entire derangement of human affairs by 
 obliterating the marks of individuality, to say nothing of identity. 
 
 ^ 006. To the same effect are the following observations of 
 Dr. Copland : " It must not be supposed, from what I have ad- 
 vanced, that the Christian religion is truly chargeable with causing 
 insanity ; it actually has an opposite tendency. Mistaken views, 
 
 549
 
 § 667.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 excessive fervor, unfounded fears, and various feelings arising from 
 these sources, are the only causes of insanity in connection with 
 religion. Among those -who entertain just and sober opinions on 
 religious topics — who make Christian doctrines the basis of their 
 morals, the governors of their passions, the soothers of their cares, 
 and their hopes of futurity — insanity rarely occurs. The moral 
 causes of derangement which would not fail of producing injurious 
 effects on others prove innocuous in them, for these causes would be 
 met by controlling and calming considerations and sentiments, such 
 as would deprive them of intensity or neutralize their effects. 
 Truly religious sentiments and obligations soothe the more turbu- 
 lent emotions, furnish consolations in affliction, heal tlie wounded 
 feelings, administer hopes to the desponding, and arrest hands of 
 violence and despair."* 
 
 § GOT. And the testimony of Dr. Cheyne, who stood for many 
 years at the head of the medical profession in Ireland, occupying 
 the responsible post in that kingdom of physician-general to the 
 forces, is equally emphatic : " Our experience of, and inquiries into 
 the nature of insanity, during a period of forty years," he says, 
 " enable us to say that such cases as that which Ave have just re- 
 lated" (those of insanity from morbidity of the religious affections) 
 " are not in the proportion of one in a thousand to the instances of 
 insanity which arise from wounded pride or disappointed ambition."^ 
 "True religion," he tells us in anotlier place,^ "is a preservative, 
 although not a complete preservative, against derangement of the 
 mitid. We have no intention of concealing that we have known in- 
 stances of insanity among believers, but it was not caused by their 
 creed. We have also known instances in wliicli all sense of religion 
 has been permanently destroyed by insanity. Of such cases we 
 would remark, that the believer has no right to expect for his 
 believing friend exemption from evils arising from the state of 
 the body on which insanity always depends. Let him moreover 
 recollect, that as total insanity puts an end to moral accountability, 
 nothing wliich may take jdace during a paroxysm of the disorder 
 can affect the future happiness of his friend." 
 
 ' Copland, Med. Die., art. "In- ^ Clieyne on Derangement in ("on- 
 sanity." nection with Religion, pp. ITS, 179. 
 
 3 Ibid. p. I4G. 
 
 550
 
 RELIGIOUS INSANITY. [§ 669. 
 
 § 668. These views are not uncorroborated bj practical observa- 
 tion. It is not necessary to record the cases where mania, parti- 
 cularly that of the suicidal cast, has been generated by an undue 
 estimate of the importance of this life's incidents as compared with 
 those of the next.^ On the other hand, we may find a pregnant 
 illustration of the converse process in the fact mentioned in the 
 thirteenth report of the Hartford Retreat, that two hundred and 
 eight farmers, fifty-eight merchants, and thirty-four day-laborers 
 have been admitted into that institution to four clergymen. So a 
 report of the New York State Lunatic Asylum, transmitted to the 
 legislature on February 7, 1860, and which therefore covers a 
 period of uncommon religious interest, out of 812 cases gives only 
 six which are attributed to " religious excitement." The cases 
 attributable to causes which religion could have corrected are ten 
 times that number. Dr. Ray, in a report of the Butler Hospital for 
 the Insane, says : " I believe — and it is in some measure the result 
 of considerable observation of various psychological states — that in 
 this age of fast living nothing can be relied upon more surely 
 for preserving the healthy balance of the mental faculties than 
 an earnest practical conviction of the great truths of Christianity." 
 
 (li^) § 600. What is caUcd relif/ions insanity is produced: («^) 
 By a departure from pirietieal Christianity.^ — John Newton was 
 the religious adviser of Cowper, and has been charged by Hayley, 
 if not by Southey, with having aggravated, by his emotional theo- 
 logy, Cowper's insanity. Yet how unjust this is, Newton's ear- 
 nest and repeated appeals show. " He who wants to tell expe- 
 
 1 Dr. P.asli, after noticing the fact . * Sliakspeare thus says :— 
 
 that 150 suicides took place in Paris in "Because you hick tlie faith tliatothers 
 
 the year 1782, and hut 32 in London, have, 
 
 says, " It is prohable the greater por- You judge it straight a thing impos- 
 
 tion of infidels in the former than in '''''''' 
 
 ,, 1 ,, •, X ii i i- 1 To compass wonders sav(! with lu'li) of 
 
 the latter city, at that time, may have '■ ' 
 
 , ,.^ ■ .I I devils." 
 
 occasioned a difference m the number 
 
 of deaths in the two places, for suicide Of alleged homicidal insanity pro- 
 will naturally follow small degrees of diiced by " fanatico-atheisiu," a case 
 insanity, where there are no habits of of much interest, that of Ihelaud, wlio, 
 moral order from religion, and nob.!- in ISO!), shot a Berlin clergyman while 
 lief in a future state." — Hush <m the engaged in performing divin<- service, 
 Mind, \). Gt*. will be found in the Appendix to :3d 
 
 edition of this work, § 833. 
 
 551
 
 § 670.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 riences," said he at one time, " will soon be creating experiences 
 to tell." '' A humble, dependent frame of spirit, perseverance in 
 the appointed means, care to avoid all occasions of sin, a sincere 
 endeavor to i^lorify God, an eye to Jesus Christ as our all in all, 
 are sure indications that the soul is thriving, whether sensible con- 
 solation abound or not. Neither high nor low frames will do for a 
 standard of faith ; self m^j be strong in both."^ Could there be 
 wiser advice than this for the purpose of steadying the mind ? And 
 is not the certain faith on an intrinsic Providence far more likely 
 to conduce to mental peace and rest than that flurried and fluctuat- 
 ing introspection which makes salvation depend upon one's present 
 impression of self ? 
 
 § 070. Two cases of alleged fanatico-mania occurred in 1858, 
 one in Germany and one in New Haven, which, from 
 unsci'iij- their striking similarity, as well as from the peculiar 
 turai super- i-elirrious psvchological phenomena by which they were 
 attended, should receive the thoughtful attention of all 
 in any wise concerned in the care of the mind. In both instances 
 the scene was the bosom of a religious society, whose leaders pre- 
 tended to have received special internal revelations from God. In 
 each case, the " prophets," as those who claimed such revelations 
 called themselves, asserted the right to suspend human laws and 
 even divine precepts in obedience to the mandates which they main- 
 tained were revealed in the chambers of their own souls. It is 
 difficult to deny that they were in one sense sincere. However 
 much the delirium in which these visions were heard was originally 
 of tlieir own creation, it had become, as delirium tremens is to the 
 man who at first made himself voluntarily drunk, so wrought into 
 the system as to be convulsive, if not irresistible. In the New 
 Haven case, though the investigation was not conducted by men of 
 the highest skill or most mature experience, this opinion was sanc- 
 tioned by the verdict of a jury. In the (jrerman case the most ex- 
 perienced psychological physicians united in the position that the 
 delusion, whatever might have been its origin, had finally become 
 involuntary. In the latter case, the parties had joined a sect 
 called the "Apostolic Baptismal Community," which is a sort of 
 com[»osition between the German Anabaptists (Wiedertaufen) and 
 
 ' ('ited in " Man, Moral and I'liysi- great interest in reference to religiou*^ 
 cal," by Uev. J. II. .Jones, a work of insanity and melancholy. 
 
 552
 
 RELIGIOUS INSANITY. [§ 671. 
 
 the Irvingites, Their ministry is divided into apostles, prophets, 
 evangelists, shepherds (Hirten), and deacons, all distinguished by a 
 special costume. They pretend to special and miraculous commu- 
 nications of the divine will, Avhich communications are attended on 
 the part of the recipient by convulsions, which, however they may 
 have been originally feigned, have in many cases assumed the in- 
 disputable type of cataleptic ecstasies. In these the patients speak 
 with what are called unknown tongues, and prophesy. It so hap- 
 pened that at one of their meetings two of the ministers received, 
 as they declared, a direct supernatural command to kill one of their 
 associates, and then to bring him to life again. The first injunction 
 they executed, but failed in the second. The question of their re- 
 sponsibility being submitted to medical examination, Dr. Franz, a 
 very distinguished psychologist, came to the conclusion that their 
 moral sense had become so utterly corroded as to make perpetual 
 confinement in a madhouse the only discipline to which they could 
 properly be subjected. 
 
 § 671. Now, to what are these phenomena to be traced? To 
 Christianity, as one class of thinkers is but too ready to say ? We 
 apprehend not, for Christianity is emphatically a religion with a 
 written and positive, as distinguished from an emotio7ial and mystic, 
 creed. Is it not rather in the departure from the Scriptural rule 
 we may find the origin of these melancholy excesses ? Let us trace 
 them, for instance, to their source by those stepping-stones which 
 so often enable us to follow the progress of an error from its incep- 
 tion to its close. Take, for instance, such a case as that of the 
 Rev. David iVusten, whose sad history is so touchingly told by Dr. 
 Sprague in his history of the American pulpit. Mr. Austen began 
 as a Presbyterian clergyman, and was marked, not only by his 
 purity of life and his talents, but by his great efficiency as a pastor 
 and influence as a preacher. Gradually, however, the objective 
 side of revelation began to sink in his estimation, and the subjective 
 to become exa";<]i;erated. He had visions which overrode the written 
 Avord. The Lord had been pleased, he said, to deposit in his breast 
 the secret of His coming. This and other revelations Mr. Austen 
 began soon to proclaim with serene confidence and Avith startling 
 effect. He fixed an actual day, in Avhich he said the event was to 
 take place. Crowds attended, and an excitement followed, wliicli, 
 if it did not cost others their reason, at least cost him his. The 
 
 553
 
 § 671.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 fact that the sun set calmly on the predicted day did not shake his 
 confidence. " The hour on the dial-plate," he said, " may have 
 been mistaken ;" but it was none the less true that the sun of the 
 Divine Omniscience poured infallible light on the disk of his soul, 
 opening to it those mysteries which the sublime imagery of the 
 Apocalypse conceals. The Jews were to form an important element 
 in the approaching catastrophe. They Avere to collect, he was as- 
 sured, at New Haven preparatory to their migration to the Holy 
 Land. He proceeded there to buy wharves as a depot for their 
 embarkation. Being a man of considerable property, he obtained 
 credit and bought four times as much land as he could pay for. 
 Then came a crash which ended with his arrest and imprison- 
 ment. When he at last emerged, it was only as a broken-hearted 
 as well as a deranged man, whose melancholy office it was to hover, 
 during the remainder of his sad and long life, as a ghost over the 
 grave of his dead usefulness. 
 
 Now, is it saying too much for us to attribute these and similar 
 cases of supposed supernatural inspiration to that introversion of 
 the spiritual and intellectual powers which makes personal emotions 
 and experience the subject first of tender nursing and then of fatu- 
 ous idolatry ? " Come, let us look at this sensibility of mine !" 
 cries the enthusiast, as he lifts it up in the air and ponders over it 
 admiringly. The consequence is, that his perception of his emotions, 
 as all introverted perceptions are, becomes exaggerated and con- 
 fused. We all have familiar illustrations of this in the way in 
 which when Ave turn the perceptive powers inward on a lost memory, 
 e. //., the spelling of a forgotten word — the more we think about it, 
 the further off we get. The very act of introversion seems to par- 
 alyze our powers. So, also, if the public speaker, while in the flow 
 of earnest thought, finds his consciousness suddenly turned in upon 
 himself, the moment he thinks of Jiimsrif, he loses his balance. 
 This is thus forcibly illustrated by the Rev. C. 11. Townsend, late 
 of Trinity Hall, Cambridge, in his very curious work on Mes- 
 merism : — ^ 
 
 " Any admixture of the introspective consciousness detracts from 
 the perfection of one's acquired and habitual motions as much as it 
 spoils the freedom and bold expansion of our thoughts. Of this Ave 
 
 ' London, 1844, p. 20. 
 
 554
 
 RELIGIOUS INSANITY. [§ 673. 
 
 may soon convince ourselves. Though generally insensible of the 
 act of breathing, we may, by attention, become aware of the pro- 
 cess. What follows ? An immediate sense of uneasiness and in- 
 terruption of that regular motion which seems to go on so well of 
 itself. Again, that winking of the eye, whereby the organ is 
 healthily preserved, becomes a torment if we think about it. Again, 
 too, every musician must have felt that when he has learned to play 
 a piece of music by heart, if he thinks upon the direction of his 
 fingers, he plays false. Let him trust to the simple memorial con- 
 sciousness of his physical being, and he does not err." 
 
 § 072. The true test, we apprehend, is to be found in the nature 
 of the consciousness on which the claim to a Divine influence rests. 
 If this consciousness be of the action of God's spirit in producing 
 specific graces, it is in harmony with God's word. If, on the other 
 hand, it amount merely to a vague but arbitrary idea of the pres- 
 ence of God's Spirit without such signs, it is open to grave ques- 
 tion. Coleridge strikes at this when he tells us that one of the 
 phenomena attending the possessors of fanatical delusions is, " that 
 it is not enough that you grant them a consciousness of the gifts 
 and graces infused, or an assurance of the spiritual origin of the 
 same, grounded on their correspondence with the Scripture promises, 
 and their conformity with the idea of the Divine Giver. No ! they 
 all alike, it will be found, lay claim, or at least look forward to, an 
 inward perception of the Spirit itself and of its operating." 
 
 § 673. Let us reduce this test to practice. Take, for instance, 
 the inspiration of Brigham Young, " It is the Spirit working with- 
 in me" to do, not this or that specific work of grace, but whatever 
 work, no matter what may be its nature, in which I may ha})pen to 
 be engaged. So it was with the Anabaptist fanatics at Muuster. 
 The human will is not subjected to the Divine Spirit, but the Divine 
 Spirit to the human will. The man is not judged by his conformity 
 to the Spirit, but the Spirit by its utterance through the man. 
 What Brigham Young claimed was not simply to act in the Si)irit, 
 for, if so, his claims could have been tested by the written word, 
 and by the law of conscience. But he claimed to be the Spirit's 
 organ, and tlius to clothe with divine power his human utterances. 
 So it is with the maniac who murders his wife and children under 
 an alleged religious impulse. He bases his claims to the inspiration 
 of the Spirit, not on the gracious afl'ections wrought in his soul, but 
 
 555
 
 § 674.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in the arbitrary pretence of a divine presence incorporating itself 
 in, and manifesting itself through, his own will.^ 
 
 § 674. The history of religious insanity in this country goes a 
 great way to fortify the position that it is to a departure from the 
 gospel system that most cases of what may be called dyemonio- 
 mania may be traced. On this point a thoughtful writer, whose 
 attention has been particularly given to this topic, thus speaks: — ^ 
 
 " Passing over the many instances of such erratic and fanatical 
 extravagances which history records, and to some of which the 
 review before us alludes, we will glance at two recent and notable 
 ones occurring among ourselves, that we may the better judge 
 whether religion makes men insane, or whether it merely fails, in 
 many cases, to bring them to their right mind ; so that it may be 
 said that they continue insane in spite of all that religion can do 
 for them. 
 
 " A clergyman, in infirm health, sought to amuse his listless 
 hours by framing a puerile romance, after the manner of eastern 
 fabulists, with names, dates, and localities bearing no relation to 
 sober history. These writings, in some way, without the author's 
 privity, came into the hands of strangers. In 1826, one Joseph 
 Smith professed to have found, in the town of Palmyra, N. Y., 
 some brass plates inclosed in a box, such as is used for packing 
 window-glass. Of these plates he pretended to be the interpreter. 
 With a stone in his hat, and his hat over his eyes, he dictated what 
 a man, named Harris, wrote. In consequence of some dispute, 
 Harris departed before the interpretation was ended, and one 
 Cowdrey took his place, and completed the ' Book of Mormon.' 
 Smith then avowed himself a prophet, and the founder of a new 
 dispensation, and gathered many disciples, who accompanied him to 
 the State of Missouri, where they established a city and built a 
 temple. We need not pursue their adventures. 
 
 " The contents of the Book of Mormon, or the Mormon Bible, 
 were neither more nor less than the selfsame tales of romance 
 
 ' See on this topic the remarkable reader is referred for a very effective 
 
 voliiTiie, whicli has heeii already no- exhibition of the absurdity of the 
 
 ticed, under the title, "The Apocatas- whole spirit-rapping system, 
 
 tasis, or Progress Backwards, a new ^ Relations of Religion to Diseases of 
 
 tract for the times, Burlington, Chaun- the Mind. Phila. : J. W. Moore, 1850. 
 cey Goodrich, 1854," to wliich the 
 
 556
 
 RELIGIOUS INSANITY. [§ 674. 
 
 which the invalid clergyman amused himself with writing. A large 
 number of persons, however, embraced the delusion ; many aban- 
 doned a profitable business, some sacrificed large property, and not 
 a few were ruined in soul, body, and estate, by putting trust in 
 this barefaced imposture. 
 
 " It is perfectly obvious, we think, that a mind well informed 
 and established in the received doctrines of the Christian faith, and 
 endued with but very ordinary discernment, would be proof against 
 so bold an imposture. If any intelligent and respectable persons 
 joined the Mormon ranks, that, of itself, shows either a predisposi- 
 tion to insanity, which this fanciful revelation was fitted to develop, 
 but with which religion has no connection whatever ; or that there 
 is a deficiency of discernment, or a neglect or abuse of the reason- 
 ing powers, or a morbid love of distinction and notoriety, to gratify 
 which they are willing to sacrifice all other interests. If a judi- 
 cious faithful, parent or Sunday-school teacher had given direction 
 to their inquiries, and furnished their minds Avith just and system- 
 atic, though exceedingly simple, views of the doctrines of revela- 
 tion, they would have had balances wherewith to weigh the pre- 
 tensions of the new prophet, and by means of these vanity and 
 falsehood would have been made manifest. 
 
 "At a somewhat later period, a man named Miller (a Baptist 
 minister, as it is said) professed to have had a revelation of the 
 precise day on which the second advent of Christ would occur, and 
 when his people would be calleil to rise and meet hira in the air ! 
 He and his deluded apostles, or agents, Avent from town to town 
 and from house to house, ' leading captive silly women,' and im- 
 posing upon the credulity of the ignorant. So settled was the 
 conviction of many minds of the truth of his predictions, that they 
 arranged their worldly aff"airs in reference to it, as an ascertained 
 event, and made no contracts extending beyond the designated day. 
 Prosperous citizens sold their estates, and declined the ordinary 
 avocations of life, that they might give themselves wholly to the 
 business of preparation ; and, as the eventful period drew nigh, 
 many evinced the sincerity of their convictions by providing what 
 they regarded as suitable apparel for an aerial flight, and some 
 actually assembled in groups uj»on summits which miglit be sup- 
 posed most favorable to an early and easy ascension ! The dupes 
 of the false prophet were counted by thousands. Scores were com- 
 
 557
 
 § 675.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 mitted to insane asylums, who were crazed Avith excitement, (fv with 
 disappointment ; and many within and without the charmed circle 
 were doubtless left to believe that all revelations are as idle and 
 delusive as Millerism.^ 
 
 " We need not say how the plainest Scriptures must have been 
 wrested from their true intent and meaning, nor how deaf an ear 
 must have been turned to the voice of reason and common sense, 
 before the mind could have surrendered itself to such a fancy. 
 There is not a trace of insanity, however, in any stage of the pro- 
 cess. It is a simple, voluntary subjection of reason to the influence 
 of imagination or superstition, instead of a childlike submission of 
 all the powers and faculties of body and mind to the revealed will 
 of God. And although we may admit that such delusions have in 
 many instances been the ostensible cause of insanity, as our hospital 
 returns allege, ' revealed religion' is no more responsible for them 
 than for paroxysms o^ mania-d-potn. It is because the plain truths 
 of revealed religion were misapprehended, perverted, or rejected, 
 that the imposture succeeded, and the mind was led captive by 
 Satan at his will. It is not strange that a vessel left to itself on a 
 stormy sea should, sooner or later, go to the bottom, or fall into the 
 hands of wreckers.'*^ 
 
 § 675. The topic of the appeal to the selfish element has already 
 
 been collaterallv noticed. ^ In all periods of mental ex- 
 Dcsire for . "^ . -^ . 
 
 syinpatiiy citement, there is a tendency to claim sympathy from 
 
 comes ' outside. A person is struck down by real grief. When 
 hvst*erk.-ai'*^ in this state the sympathy of friends is attracted by pecu- 
 liar demonstrations of broken-heartedness. These de- 
 monstrations are at first real, but, in consequence of the commisera- 
 tion they receive, are permitted to continue without restraint, and 
 then become at least partially aftected. " The pleasure of receiv- 
 ing unwonted sympathy," to recur to a passage from Dr. Carter, 
 already cited, " once tasted, excites a desire for it which knows no 
 bounds ; and, when the fits have become familiar occurrences, and 
 cease to excite attention, their eftect is heightened by the designed 
 imitation of some other disease." There is a strange union in such 
 cases of the voluntary with the involuntary, which partly subjects 
 
 ' See an essay on this point, in 1 called Diseases of the Mind. Phila- 
 
 Am. Journ. of Insanity, 24i). delphia : J. W. Moore, 1850. 
 
 2 Relations of Keligion to what are ^ g^y ^uiira, § 517. 
 558
 
 RELIGIOUS INSANITY. [§ 676. 
 
 craft to convulsion, and partly convulsion to craft. But after a 
 while, particularly if the 'petting system on the part of friends con- 
 tinues, the disease becomes chronic, and degenerates into hysteria. 
 Even then there is cunning employed in the resort to new devices 
 by which fresh sympathy can be collected when the old stock is 
 exhausted. 
 
 § 676. The same influences exist in periods of popular excitement, 
 either on religion or any other prominent topic. Let the 
 love of attention be appealed to — let public interest be a ,i,^iTui of 
 drawn to persons exhibiting certain symptoms — and these >'*'t<-'na. 
 symptoms will be assumed, until at last hypochondriasis or hysteria 
 follows. Intense self-consciousness, the power of imitation, and the 
 desire to excite interest, generate this form of disease, which, in its 
 turn, generates a refined and elegant but misanthropic selfishness. 
 
 " There is one perversion of moral feeling," says Archdeacon 
 Stopford, in a pamphlet published at the time of a revival in Ulster 
 in 1858-9, " which always exists in hysteria, and more than any- 
 thing else may make us doubt whether hysteria be chosen of God 
 as a means of conversion, and that is selfishness. Now, I protest 
 against being thought to imply that all persons who are hysterical 
 are constitutionally selfish. I have known the contrary in several 
 instances, and I know the eflect in such cases of appealing to un- 
 selfish feelini:!; ; but it will be easily understood from the fore^'oino- 
 account, that the predominance of the idea of ' self as the object of 
 the mind is of the very essence of the disease, and it is the neces- 
 sary consequence of this, If allowed to proceed, to engender selfish- 
 ness ; the woman who hidntuaUy iiididges hysterical feeling, becomes 
 the most selfish and unsympathetic being in the world, except one 
 — the man who indulges and cherishes hypochondriacal feeling. 
 
 " I must suggest caution in coming to an opposite conclusion on 
 apparent evidence to the contrary in mild forms of hysteria in its 
 iiic'qnent stages. I struggled long against admitting that the pre- 
 dominance of the idea of ' self in hysteria always contains the germ 
 of selfishness ; but I had to admit the conviction, that this is true. 
 As hysteria grows by habit or indulgence, all its evils become appa- 
 rent ; but a trained observer detects the germs in its origin."^ 
 
 ' In connection with the ahove, it is remarks of a sagacious and fxpciii'nced 
 well to call attention to the following i)hjsician, Dr. Francis : '• In at least 
 
 559
 
 § 678."! MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 (l?^ § GT7. By constitutional idiosyncrasies. — This topic has 
 been previously noticed.' 
 
 §678. 
 
 Cannot per 
 se confer 
 irrespon- 
 sibility. 
 
 (c) Fanatico-mania as a defence. 
 Crimes committed under the influence of fanatical im- 
 pulses, such as those which have been just mentioned, 
 may be considered in the same light as crimes committed 
 in a state of drunkenness. In the latter case, an indi- 
 
 three cases out of four, I have found 
 hysteria associated with uterine de- 
 rangement, and the restoration of the 
 menstrual function to its healthy state 
 has proved the precursor of the re- 
 moval of the hysterical annoyance." 
 Hysteria, again, may manifest itself 
 chiefly by disorder of the mental facul- 
 ties, and the moral feelings and 
 emotions. "The mental afi"ections," 
 observes Dr. Copeland, "connected 
 with hysteria may be referred, 1st, 
 to certain states of monomania, among 
 which excited desire, amounting in 
 some cases to nymphomania, may be 
 enumerated ; 2d, to ecstasies and men- 
 tal excitement, in some cases of a 
 religious nature, in others of different 
 descriptions ; 3d, to a state of somnam- 
 bulism ; 4th, to a form of delirium, 
 generally of a lively character, with 
 which various hysterical symjitoms are 
 often conjoined. Hysterical f(>males 
 are not merely capricious or whimsical, 
 but they often become enthusiastic for 
 a time in the pursuit of an object, or 
 in cherishing an emotion by which 
 they have been excited. In many such 
 cases the nervous excitement and vas- 
 cular turgescence of the uterine organs 
 determine the character of the mental 
 disorder ; elevating certain of the moral 
 sentiments, or of the intellectual mani- 
 festations, to a state of extravagance, 
 passing in some instances into delu- 
 sion or monomania. Many cases of 
 puerperal mania are merely extremes 
 of the hysterical disorder of the moral 
 and intellectual jxjwers or states of the 
 
 560 
 
 mind. All these more extreme forms 
 of mental affection are observed only 
 where, in connection with much local 
 or uterine irritation, there is a great 
 deficiency of nervous energy generally, 
 and of mental power in particular ; or 
 where, with such deficiency, there has 
 been much injudicious culture, or per- 
 version or improper excitement of the 
 imagination. Females sometimes be- 
 come passionately attached to an object, 
 and this passion may advance even to 
 nymphomania or monomania." A dis- 
 eased state of feeling (viewing feeling 
 and thought as constituting the two 
 factors of the mind) is the main in- 
 gredient of religious insanity in which 
 the sexual sympathies are involved. 
 " No physiologist," says Dr. Maudsley, 
 in his lectures published in 1870 (Body 
 and Mind, London, 1870, p. Sfi), "can 
 well doulit tliat the mystical union 
 of the sexes lies very close to a union 
 that is in no wise mystical, when it 
 does not le.ad to madness." He cites 
 to this efl'ect the trances of St. Theresa 
 and St. Catharine de Sienne ; and he 
 mentions as more extreme examples 
 the cases of those insane women wlio 
 believe themselves to be visited by 
 lovers or ravished by persecutors dur- 
 ing the night. And lu^ adds that 
 "sexual hallucinations, betraying an 
 ovarian or uterine excitement, might 
 almost be described as the character- 
 istic feature of the insanity of old 
 maids." See supra, §§ 322, 517. 
 > Supra, §§ 34.5-378.
 
 POLITICO-MANIA. [§ 681. 
 
 vitlual who knowingly takes intoxicating liquor cannot defend 
 himself on the fact of guilt by proof of his intoxication. It is 
 otherwise, however, when the guilty act is the immediate result 
 o( 7naniad-potu, in which case the malady has assumed the shape 
 of a substantive and permanent type, and, like any other delirium, 
 is to be treated as destroying responsibility.^ In like manner, the 
 voluntary adoption of a belief which includes among its incidents a 
 known violation of law, does not relieve the party, who commits 
 such violation of law under such influences, from responsibility .^ 
 If, however, he sink into consequential delirium, and then commit 
 the crime, he is irresponsible. 
 
 Fanatical enthusiasm, whether religious or irreligious, does not, 
 therefore, lu/ itself confer irresponsibility, however much it may 
 mitigate the sentence imposed.^ 
 
 10. PoVdieo-mania^ 
 
 §§ (')70-681. "Politico-mania," as a specific defence, is unknown 
 in the courts. No doubt persons unquestionably insane have been tried 
 
 ' See supra, §§ 140-162. tcndpiiey to seditious violence is f^one- 
 
 * Ibid. See 3 Am. Jourii. Ins. l(j(J ; rated by an opjjressive govern nient 
 
 and for report of Thours case, ibid, bearing on tenn^eraments tainted with 
 
 170. See also 4 Haniiiiond's Journal just such an infection. 
 Psyc. Gf)?. See 102 Bost. Med. and "Certain forms of government," 
 
 Surg. Journ. 2(J5. says Dr. Rush, "predispose to mad- 
 
 3 Ibid. See for a curious case of in- iiess. Tliey are those in which the 
 
 fidel fanaticism, Appendix to 3d ed. of people ]K>ssess a just and exquisite 
 
 this work, § ^33. sense of liberty, and of the evils of 
 
 ■• See on this point Influence des arbitrary powei- against which com- 
 
 Eveneniens et des Coniniotions Poli- plaints are stifled by a military force, 
 
 tiques sur le Developpement de la The conflicting tide-s of th(> i)ublic ])as- 
 
 Folie, par le Docteur Bellionime, Paris, sions, by their operations iijxtn the 
 
 l.'^4r) ; and a review of the same in understanding, become in these cases a 
 
 •Journ. Psyc. Med., vol. iii. p. 31. cause of derangement. The assassina- 
 
 " Psychical infection," to use the tion of tyrants and their instruments 
 
 expressive term of Ellinger, is ]n'euli- of o])pression is gtmerally tbe efl'ect of 
 
 arl\- f>]>crative in political relations, this disrasc 'I'bat madness is llius 
 
 Attem])ts at insurrections, acts of law- induced, I infer from its occurring so 
 
 lessness against government, mur(l(M-- i-arely fi-oin a ](o!itical caus<! in tlie 
 
 ous assaults upon public officers, W- Uniti'd States. I have known but one 
 
 come at times epidemic. Marc illus- instance ol' it, ami that was of a geii- 
 
 trates this by th(! cases in which public tieman who li.ad been deranged souk; 
 
 conspicuous crimes have become (-on- yeais before, from d(d)t contract(vl by 
 
 tagious ; ^^ 7., arson and murder. Tbe extravagant living. (In a goveriuaeiit 
 
 VOL. I. — 3t) 5GI
 
 § G81.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Politico- for political offences ; and in some such cases the defence 
 defence. of insanity has been successfully interposed. But at no 
 time has the defence been offered that the defendant, 
 sane in all other respects, was insane on the subject of government, 
 and therefore irresponsible for any attacks on government which he 
 might institute. liOgically and psychologically this defence is as 
 good as that of any other " monomania." But practically the 
 position is so absurd that no defence has heretofore been bold 
 enough to offer it.' For no state couhl, without /t^/o di' se, recog- 
 
 whorn all tlie power of a country is 
 representative and elective, days of 
 general suffrage and free presses serve, 
 like chimneys in a house, to conduct 
 from the individual and ijublic mind 
 all the discontent, vexation, and re- 
 sentment which have heen g(merated 
 in the passions hy real or supposed 
 evils, and thus to jirevent the under- 
 standing being injured by them.) In 
 despotic countries, where the public 
 passions are torpid, and where life and 
 ])r(i]i<'rty are secured only by the ex- 
 tinction of the domestic affections, mad- 
 ness is a rare disease. Of the trutli of 
 this remark, I have been satisfied by 
 Mr. Stewart, thi^ pedestrian ti-avdler, 
 who spent some time in Turkey, also 
 by Dr. Scott, who accomi)anied Lord 
 M'Cartney in his embassy to Cliina, 
 and by Mr. Joseph Rexas, a native of 
 Mexico, who passed nearly forty years 
 of his life among the civilized Imt de- 
 pressed natives of tliat country. Dr. 
 Scott inforuKvl me that he lieardof Imt 
 a singb' instance of niailncss in (.'liina, 
 and that was in a merchant who had 
 suddenly lost £100,000 sterling by an 
 unsuccessful sp(^culatinn in gold dnst."^ 
 With regard to Mexico ami China, 
 liovvever, recent obsei'vat ions show that 
 thes(^ remarks sliould b(^ greafly (quali- 
 fied. 
 
 ' " The British government, even in 
 
 our day, sentenced to death the Ob(?ah 
 men of the West Indies, who pretended 
 to supernatural power in order to fo- 
 ment rebellion." Sir Bartle Frere, 
 Niiietrrnth Century, D('c. 1881, Am. Re- 
 print, 11, citing Edwards' Hist. Brit- 
 ish Colonies in the West Indies, vol. ii. 
 ]). KMi). Tlie same defence was un- 
 availingly set up Ijy the assassin of 
 Lord Mayo. 
 
 The Atlantic Monthly for December, 
 1881, gives an interesting article on 
 British state assassins and the dt^feiice 
 of insanity. The first case mentioned 
 is that of lladfield in 1800. In this 
 case " Major Ryan testified that the 
 prisoner, in a paroxysm of madness, 
 came near stal>bing him with a bayonet 
 at the Croydon barracks in 17!)6. .John 
 Laine, a private, deposed that Had- 
 field, in the hospital at Brussels, 
 imagined himself to be King George, 
 and, calling for a looking-glass, felt 
 about his heail for his crown of gold. 
 Three doctors testified to the fearful 
 nature of his wounds, and tliat the 
 resulting injuries had, in their opin- 
 ion, affected his brain. Several of 
 Hadfield's relatives deposed that he 
 had, at diffej-ent times, fancied him- 
 self to be Jesus Christ and (lod. On 
 the morning of the day on which he 
 attempted the king's life, as they tes- 
 tified, he said he had seen (iod in the 
 
 2 Rush on the Mind, p. GO. 
 
 502
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 nize the irresponsibility of such a " mania.^' To do so would be 
 to give liberty to political fanaticism to execute without restraint 
 any crimes by which its purposes could be subserved. 
 
 night, <and that lie (Hadfield) had been 
 dining with the king. 
 
 " The jury, without- leaving the box, 
 found a verdict of ' Not guilty, on the 
 ground of insanity,' and he was there- 
 upon committed to Bedlam ' during 
 his majesty's pleasure.' This escape 
 of Hadfield through the loop-hole of 
 insanity was strongly resented by the 
 public opinion of the day, and the re- 
 sent found voice in parliament. Some 
 changes in the law followed, of which 
 more liereafter." 
 
 Bellingliam, in ISll, was j^rosecuted 
 for shooting Mr. Perceval. Bellingliam 
 had been a long and persistent claim- 
 ant for compensation for services lie 
 claimed to have rendered the govern- 
 ment. On being asked on trial what 
 he could say in his defence, he began 
 " by complaining that the papers 
 necessary to his defence were taken 
 out of his pocket when he was arrested, 
 and had not been returned to him. He 
 then expressed his ' great obligation 
 to the attorney-general for the objec- 
 tion which he has made to the plea of 
 insanity,' and made a rambling speech, 
 of which tlie following extract is a fair 
 specimen : — 
 
 " ' I think it is far more fortunate 
 that such a jilea as that should have 
 been unfounded than it should have 
 existed in act. That I am or have 
 been insane is a circumstance of winch 
 I have not been apprised, except in 
 the single instance of my having been 
 confined iu Russia ; bow far that may 
 be considered as uflVcting my present 
 situation it is not for nu; to detcirminc. 
 I beg to assure you tliat the ciiine 
 which I have committed has arisen 
 from compulsion rather than from any 
 hatred of the man whom it has be(ui 
 
 my fate to destroy. Considering the 
 amiable character and the univers- 
 ally-admitted virtues of Mr. Perceval, 
 I feel if I could murder him in a cool 
 and unjustifiable manner I should not 
 deserve to live another moment in 
 this world. Conscious, however, that 
 I shall be able to justify everything 
 which I have done, I feel some degree 
 of confidence in meeting the storm 
 which assails me, and shall now pro- 
 ceed to unfold a catalogue of circum- 
 stances which, while they harrow up 
 my own soul, will, 1 am sure, tend to 
 the extenuation of my conduct in this 
 honorable court.' 
 
 " He then proceeded to read a long 
 lietition about his visit to Russia ; 
 what he had done there for the govern- 
 ment ; how he had left his wife there 
 in great distress; and how, since his 
 return, he had applied to the depart- 
 ments in vain for relief. At no point 
 in his statement did he connect Mr. 
 Perceval with his grievances, or ap- 
 pear to recognize any logical necessity 
 for so doing. He sat down at last, and 
 his (loom was speedily fixed." 
 
 Edward Oxford was tried in 1840 for 
 shooting at Queen Victoria. lie was 
 put on trial at the Old Bailey on July 
 9tli in that year. 
 
 " The trial lasted three days ; Lord 
 Denman, Baron Alderson, and Justice 
 Maule on the bench, and the array of 
 counsel including the attorney-general 
 and solicitor-gencn-al (Sir John Caiiip- 
 bi'U and Sir Tlionias Wilde), Sir 
 FriMliM-ick Pollock, Mr. Wiglitnian, Mr. 
 Adolphus, and Mr. Gurney for tlie 
 (Jrown, and Mr. Sydney Taylor and 
 Mr. Bodkin for the prisoner. Again, 
 as in the case of Hadfield, tin; defence 
 set up'was that of insanity. OxfonPs 
 
 503
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 counsel called witnesses to prove that 
 his grandfather and father had hoth 
 been insane. His mother was a ])rin- 
 cipal witness, and testified that she 
 had married the would-be regicide's 
 father because he had threatened self- 
 destruction if she should refuse ; that 
 while she was enceinte her husband 
 was in the habit of terrifying her with 
 hideous grimaces and horrible gesticu- 
 lations, so that one of her children 
 was born, and after threes years died, 
 an idiot. As to tlie prisoner, she de- 
 posed that he had always been an 
 erratic, vicious youth, extravagantly 
 vain and ambitious, begging as a boy 
 to be sent to sea, where he believed he 
 would have nothing to do but strut 
 along the deck, give oi'ders, and be- 
 come Admiral Sir Edward Oxford. A 
 short time previous to her confinement 
 with the prisoner, as she furtlirr made 
 oath, her husband liad pointed a gun 
 at lier head. This was the main sub- 
 stance of the evidence in support of 
 the theory of insanity. 
 
 " On the other hand, the Crown 
 established the facts that the prisoner 
 had purchascfl the pistols some days 
 befdi-i' tlie sliddting, and had jiractiscd 
 with tliem upon a target ; that he had 
 never at any time, by any one, been 
 treated as insane, and that the attempt 
 was made with all possible method and 
 deliberation. Five doctors, liowever, 
 who had examined Oxford in his cell, 
 testified their belief that he was insane. 
 The beneli instructt'd the jury with a 
 heavy leaning against this medieal 
 testimony, but, after an liour's de- 
 liberation, they, following the exami>le 
 of tlieir predecessors who tried Ilad- 
 field, l)ronght in a verdiet of aeijuittal 
 on tlie ground of insanity. Oxford 
 was tbeicupon connnitted to Bedlam 
 for lite. 
 
 '• 'J"be next attemjit on tli<' life of 
 Ciueeii Victoria was made nn the :50th 
 of May, 1^42, by .lohn Franeis, aged 
 
 5G4 
 
 twenty. Fran(;is discharged at the 
 queen a pistol loaded M'ith powder 
 and to quote the language of the in- 
 dictment, 'certain other destructive 
 materials and substances unknown.' 
 He was convicted, and sentence of 
 death was passed upon him in the an- 
 cient form i^rescribed for prisoners con- 
 demned for high treason. This form 
 is curious in its antique barbarity, and 
 runs as follows : ' The court now de- 
 clares the last sentence of the law, 
 which is that you, John Franeis, be 
 taken hence to the place whence you 
 came, and be thence drawn on a hurdle 
 to the place of execution ; and that 
 you be there hanged by the neck until 
 you be dead ; and that afterwards your 
 liead shall be severed from your body, 
 and your body, divided into four quar- 
 ters, shall be disposed of as her ma- 
 jesty shall think fit. And may God 
 Almighty have mercy on your soul.' 
 It is perhaps needles to say that no 
 such revolting outrage was enacted 
 upon the body of Francis. In defe- 
 rence to the humane wish of the 
 queen herself, his sentence was, in 
 fact, commuted to transiiortation for 
 life. 
 
 "Within five weeks from the date of 
 this act of royal clemency, the queen 
 was f)nce more assailed by one John 
 William Bean, a deformed stripling, 
 aged seventeen. On Sunday, the 3d 
 of July, 1842, as her majesty was going 
 to the chapel royal. Bean presented a 
 pistol at her, and snapped the trigger, 
 but failed to discharge the weai)on. 
 He was promptly seized, an<l on the 
 pistol being examined, it was found to 
 be loaded only with powiier, wadding, 
 and minute fragments of a clay pipe. 
 Bean was tried for sinqiU^ misde- 
 meanor ; the defence of insanity was 
 not offered ; and he was sentenced to 
 eigliteen months' imprisonment, with 
 hard lalior. In spite of the burlesque 
 character of this assault, the national
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 feeling Wcas by this time excited to a 
 high i)itc]i of indignation by these re- 
 peated outrages, and the result was 
 the passing of the act of parliament 
 (5 and 6 Vict., chap. 51) entitled ' An 
 act for providing for the further secu- 
 rity and protection of her majesty's 
 person.' This is the statute to which 
 the late British minister at Washing- 
 ton, Sir Edward Thornton, referred in 
 his comments upon Guiteau's crime, 
 intimating his opinion that a like pro- 
 vision of law would have a salutary 
 effect in this country. It provides 
 that whoever 'shall discharge or at- 
 tempt to discharge, or point, aim, or 
 present, at or near to the person of the 
 queen,' any fire-arm, whether the 
 same shall be loaded or not, or shall 
 ' strike or attempt to strike, or strike at 
 the queen's person with any offensive 
 weapon' shall be guilty of a high mis- 
 demeanor, and be ' liable, at the dis- 
 cretion of the court, to be transported 
 for seven years, or imprisoned, with or 
 without hard labor, for any period not 
 exceeding three years, and during 
 such imprisonment to be publicly or 
 privately whijiped as often and in such 
 manner and form as the court shall 
 direct, not exceeding thrice.' 
 
 " It was the whijipiug clause upon 
 which Sir Edward Tliornton laid stress. 
 It seems to have had a deterrent in- 
 fluence upon British Guiteaus, as for 
 seven years after its enactment the 
 queen was not again molested." 
 
 McNaughten's case, which followed, 
 has been abundantly discussed : Mr. 
 Drummond was shot by McNaughten 
 in mistal-ce for Sir Robert Peel ; tli(^ 
 motive of tlu; assault being political 
 disapjiointment. McNaughten was ac- 
 quitted on the ground of insanity, the 
 prosecution offering no expert testi- 
 mony to rebut that of the defence. Of 
 this case Dr. Taylor, in his work on 
 medieval jurisprudence, thus speaks : — 
 
 "When we find a man, not showing 
 
 any previous intellectual disturbance, 
 lurking for many days in a particular 
 locality; having about him a loaded 
 weapon ; watching a particular person 
 who frequents that locality ; not facing 
 the individual and shooting him, but 
 coolly waiting until he has an oppor- 
 tunity of discharging the weapon un- 
 observed by his victim or others, the 
 circumstances appear to show such a 
 perfect adaptation of means to (!uds, 
 and such a power of controlling actions, 
 that it is difficult to understand on 
 what princijile an acquittal on the 
 ground of insanity could have ]>een 
 allowed. I rffer here to the case of Mc- 
 NdtKjhtcn, tried for the murder of Mr. 
 Drummond, January, 1843. • The ac- 
 quittal in this case was the more re- 
 markable because there was no proof 
 of general insanity, and the crime was 
 committed for a supposed injury. Ac- 
 cording to the- rules laid down by the 
 fifteen judges, from ([Uestions sub- 
 mitted to them in connection with this 
 case, this man should certainly have been 
 conricfed.'" 
 
 The last English case in whicli politico- 
 mania was offered as a defence was that 
 of Pate, who struck Queen Victoria, 
 in .June, ISfjO, on the face with a whip. 
 The queen was uninjured ; Pate was 
 tried in July of the same year. , 
 
 " Insanity was again tlu^ plea relied 
 upon. It was jiroved that as an officer 
 in the army, his behavior had been 
 eccentric ; that on one occasion he had 
 deserted, Init had been allowed to re- 
 join the service without i)unishment, 
 because his superior officers r(^garded 
 him as in an uubalauced state of mind ; 
 that in lS4li, the loss of three fine 
 horses and a favorite Newfoundland 
 dog had thrown him iutoa uiorbid and 
 hysti'rical conditioii, and th;it ever 
 since he had acted strangely. A cab- 
 driver was called to the witness-stand, 
 who deposed that every day, at exactly 
 a quarter i>ast tiiree o'clock in the 
 
 5G5
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 afternoon, for many years, he had been 
 hired by the prisoner to drive him 
 over Putney Bridge to Putney Heath ; 
 always taking the same route, and 
 stopping at the same spot. This and 
 a few other strange habits were shown, 
 and upon them Mr. Cockburn built 
 the theory of ' uncontrollable impulse.' 
 In summing up tlie case to the jury, 
 Baron Alderson, addressing himself to 
 this i)U'a of uncontrollable imjmlse, 
 said : ' Tlie law does not recognize 
 such an impulse. If a person was 
 aware that it was a wrong act he was 
 about to commit, he was answerable 
 for the consequences. A man might 
 say that he picked a pocket from some 
 imcontrollable impulse ; and in tliat 
 case tlie law would have an uncon- 
 trollable impulse to punish him for it ' 
 Patt^ was convicted, and sentenced to 
 a tei-iu of seven years' penal servi- 
 tude." 
 
 In U. S. V. Guiteau, Sup. Court, 
 Dist. of Columbia, December, 1881, 
 and .January, 1882, the defendant be- 
 ing on trial for the murder of Presi- 
 dent Garfield, the defence was in part 
 an alli>ged belief of tlie defendant that 
 lie was divinely commissioned to kill 
 the i)resident, and in part an alleged 
 conviction tluit tlie death (jf tlie jiresi- 
 deiit was necessary to establisli a 
 riulitful i>(ilitical inliuencein the coun- 
 try. ()n tilt! legal questions of respon- 
 sibility involved, .Judge Cox answered 
 the points submitted to him as follows : 
 
 No. 1. 
 
 " Tlie legal test of responsibility, 
 wlu're insanity is set up as a defence 
 for alleged- crime, is whether the ac- 
 cused, at the time of (■ommitting tln^ 
 act charged, knew the ditfei-ence be- 
 tween right and wrong, in respect of 
 such act. 
 
 " Hence, in the present case, if the 
 jury find that the accused committed 
 the act charged iu the indictment, and, 
 
 566 
 
 at the time of its commission, he knew 
 what he was doing, and that what he 
 was doing was contrary to the law of 
 the land, he is responsible. 
 
 "Unless, in consequence of insane 
 mental delusions, or other form of 
 mental disorder, he was laboring 
 under such a defect of reason as to be 
 incapable of understanding the obliga- 
 tion of the law of- the land, and the 
 duty and necessity of obedience to it, 
 and of understanding that his act was 
 wrong because it was in violation of 
 the law of the land. 
 
 " I have examined the other instruc- 
 tions, and find that portions of them, 
 as they are drawn, conflict with the 
 views I have already expressed, and 
 other portions require to be stated with 
 more fulness. 
 
 "And I shall now give an instruction 
 which is marked No. 2, which em- 
 bodies all I think is correct in the re- 
 maining instruction asked on the part 
 of the government, and in the first four 
 instructions asked on the part of tiie 
 defence, and that is : — 
 
 No. 2. 
 
 " If the jury find that the defendant 
 committed the act charged, and, at the 
 time there(.if, knew what he was doing, 
 and that what he was doing was con- 
 trary to the law of the land, it consti- 
 tutes no excuse, even if it were tiuie 
 that when he committed the act he 
 really believed that he was producing 
 a great pulilic benefit and that the 
 death of the president was required for 
 the good of the American peox>le. 
 
 " Nor would such excuse be afforded 
 by the fact that in the commission of 
 the act he was controlled by a de- 
 praved moral sense, whether innate or 
 acquired, or by evil passions, or in- 
 diUerence to moral obligations. 
 
 "And even if the jury fiiul that the 
 defendant, as a result of his own rea- 
 soning and rellection, arrived at the
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 determination to kill the president, 
 and as a furtlier result of liis own rea- 
 soning and reflection, Ijelieved that his 
 said purpose was approved or suggested 
 or inspired by the Deity, such belief 
 would afford no excuse. 
 
 "But it would he dilferent and he 
 would not he responsible, criminally, 
 if till! act was done under the influence 
 and as the product of an insane mental 
 delusion that the Deity had commanded 
 him to do the act, which had taken 
 possession of his mind, not as the re- 
 sult of his own reflections, but inde- 
 pendently of his will and reason, and 
 with such force as to deprive him of 
 the degree of reason necessary to dis- 
 tinguish between right and wrong, as 
 to the particular act. 
 
 " In, such case, even if he knew that 
 the act was a violation of the law of 
 the land, he would not be responsible, 
 if his reason was so perverted by the 
 insanity that he was incapable of un- 
 derstanding the obligation of the law 
 of the land, and that the act was wrong 
 as a violation of that law, and wromj in 
 itsc!/. 
 
 "In this connection I add words 
 ' wrong in itself because I can con- 
 ceive a case in which one might believe 
 insanely that the law of the land pro- 
 vided no punisliment fur murder, and 
 3'et might be perfectly aware of the 
 moral enormity of the crime. I would 
 be unwilling to pronounce him irre- 
 sponsible. 
 
 " I have omitted from this instruction 
 one imjjortant feature of those asked 
 for on the part of the defence. It is 
 expressed in the last paragraph of the 
 first instruction, in the words, ' or was 
 it committed under an inflm-nce or 
 power which the accused could not r<'- 
 sist, by reason of his unsoundness of 
 mind.' 
 
 "This, I presume, seeks to leave to 
 the jury the question of irresistible im- 
 jiiilse as tlie cause of the liomicide. 
 
 " Now, it cannot be denied that some 
 of the most respectable courts in the 
 country recognize it as possible that a 
 man may be driven against his own 
 will to the commission of an act which 
 he knows to be wrong, by an insane, 
 irresistible impulse within him, over- 
 riding his will and conscience ; and 
 they maintain that as, under such cir- 
 cumstances, the %vill to do wrong, the 
 very essence of criminality, is wanting, 
 he ought not to be held criminally re- 
 sponsible. 
 
 " They accordingly hold that the test 
 of knowledge of right and wrong, which 
 I have stated to be the general rule, 
 ought to be qualified by the further 
 condition that the party must have the 
 power to choose between doing, and not 
 doing the act. 
 
 "Other courts, on the contrary, re- 
 pudiate this view as unsound and 
 dangerous. 
 
 "The c[uestion is a dangerous one 
 alike for court and jury to handle ; 
 and I do not intend to exjiress an 
 opinion upon it, farther than the facts 
 of the case require ; and they seem to 
 me to relieve me from the necessity and 
 responsibility- of discussing it gene- 
 rally. 
 
 " If we strike out of this case all the 
 declarations and testimony of the de- 
 fendant himself, we have no light 
 whatever on this subject ; there are 
 circumstances, such as his actions and 
 conduct, which his counsel may argue, 
 of tliemselves, indicated some aberra- 
 tion, and are corroborative; of, and ex- 
 plained l)y his testimony ; but, of tlunn- 
 selvcs, they would liave allbrded no- 
 indication of the ])arlicular motivi' or 
 sjn'cial fiirm of delusion tliat actuated 
 him. Of tliis we have no indication, 
 except in the declarations, oral or 
 written, of the defendant himself. But, 
 he has nevei' clainunl tliat ht; was irre- 
 sistibly impelled to do an act which ho 
 knew to be Ai'i-ong. On tlie contraiy, 
 
 5G7
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 he has ahvays claimed that it was of itself is irresponsible insanity, and 
 right. Ho justified it at tho time and there is no need to consider the sub- 
 afterwards, in his papers, as a political ject of impulses resulting from the de- 
 necessity and an act of ])atri()tism. lusion. 
 
 And whether he claimed insjjiratiou " On tlH> other hand, if there was no 
 
 early or late, he has claimed that it insanity, but a mere fanatical opinion 
 
 was inspired, and therefore right. He or belief, such as before described, the 
 
 has used the words p?-es,s(»-c ami insjiira- only impulse that could have actuated 
 
 tion interchangeably, as it were, to ex- the defendant must have been a sane 
 
 press the idea. This has no meaning, one, such as, in the most favorable 
 
 unless it be that he was under an in- view of it, a mistaken and fanatical 
 
 sane delusion that the Deity had in- sense of duty, which the law requires 
 
 spired or commanded the act. He has him to resist and control, 
 
 certainly not separated the idea of " In connection with the medical tcsti- 
 
 pressure or impulse from the convic- mony tending to show that these im- 
 
 tion of insjjiration and right and duty, pulses are always or generally asso- 
 
 He has not asserted any form of insan- ciated with some insane delusion, if 
 
 ity which did not involve a conviction there are facts tending directly to show 
 
 of right to do the act. the presence or absence of an irresisti- 
 
 "And I feel sure that I am not trans- ble impulse, they may perhaps furnish 
 
 cending the province of the court, wlien some evidence of the existence or ab- 
 
 I say that there is no evidence in the sence of insane delusion, 
 
 case tending to prove any irresistible "But I think, in vi(;w of the undis- 
 
 impulse as a thing by itself, and sep^a- puted features of the case, it would 
 
 rate from this alleged delusion. only cor.fuse and perhaps mislead tlie 
 
 " TheretV)re the case does not seem to jury to give them any instruction di- 
 me to i)resent, or call for any ruling rectly upon the subject of irresistible 
 on, the hyj)othesis of an irresistible im- impulse, and that this ])articular case 
 pulse to do what the accused knew to lie does not call for any qualification of 
 wronrj, and what was against his will. the general rule adopted, as 1 have 
 
 " Wluither tlieri! is such a thing as mentioned, as the test of responsi- 
 
 irresistible insane impulse to commit bility. 
 
 crime, and M-hether it has existi.'d in " 1 have already stated that t]i(; fifth 
 
 any jiarticular casi^, are questions of and sixth and eighth prayers ar(; (ib- 
 
 fact an<l not nf law. noxious to the suspicion tliat tliey em- 
 
 " In tiiis cas(», 1 think there is no tes- bodied the doctrine of the New llamp- 
 
 timony slujwing that it can exist by shire court, and that is if the jury find 
 
 itself, as an independent form of in- insanity in general terms, and find that 
 
 sanity, but rather the contrary. Tliere the act was the result of that insanity, 
 
 is, however, testimony tending to show tliey ought to acquit. For tliat reason 
 
 that siicli im])ulses result from and are I decline to grant them, 
 
 associated with insane delusions and " The seventli instruction is — 
 
 especially with such an insane delu- " The punishments of the law an; in- 
 
 sion as that tin' jiarty has received a tended for rational persons, and no one 
 
 comm.and from tlie Deity to do an act. ^^'i^ a rational person can connnit tlie 
 
 E, •,. , . 11- ■ I crime of murder, 
 ut it such an insane delusion (exists, 
 
 so as to destroy the perceptions of right " That is somewhat objectionable be- 
 am! wrong as to tlie act, which is sub- cause it is vague, and for another 
 stantially the defeiulaiit's claim, this reason, and that it is simply the an- 
 
 568
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 nouiicenient of an abstract proposi- 
 tion, although, in ordinary parlance, 
 the statement is correct. 
 
 " We now come to the ninth. 
 
 " If tlie jury have a reasonal)le doubt 
 as to the sanity oT the accused, at the 
 time of committing the act charged 
 against him as a crime, they should 
 give him the benefit of that doubt, and 
 should find him ' not guilty by reason 
 of insanity.' 
 
 " There is perhaps a formal objection 
 to this prayer, because it virtually 
 requires the jury to find the fact of in- 
 sanity upon a mere doubt of sanity. 
 
 " In reference to the (juestion on whom 
 rests the burden of proof when insanity 
 is relied on as a defence, three ditferent 
 and conflicting vicnvs have been held 
 by different courts. According to one 
 view it is incumbent on the accused to 
 establish the fact of his insanity at the 
 time of the commission of tlu' alh^ged 
 crime, by evidence so conclusive as to, 
 exclude all reasonable doubt of it. But 
 this view derives so little support 
 from authority that it may be passed 
 over without comment, as inadmissible. 
 
 "Another view is that the defence of 
 insanity is an affirmative one, which 
 the j)arty asserting it must establish 
 to the satisfaction of the jury by, at 
 least, a preponderance of evidence. 
 That is to say, the evidence in favor of 
 it need not be so conclusive as to leave 
 no room for reasonable doubt, but it 
 must liave more weight with the jury 
 than the evidence against it, so that 
 they would feel justified in finding tlu; 
 fact as they would find any fact in a 
 civil suit, in wliicli all questions of fact 
 are decided according to the weiglit of 
 the evidence. 
 
 "Still another view is that the sanity 
 of the, accused is just as much a i)art 
 of the case of the prosecution as the 
 liomicide itself, and just as much an 
 element in the crime of murder, tlie 
 only difference being that, as the law 
 
 presumes every one to be sane, it is not 
 necessary for the government to pro- 
 duce affirmative proof of the sanity ; 
 but tliat if the jury have a reasonable 
 doubt of the sanity, they are just as 
 much bound to acquit as if they enter- 
 tain a reasonable doubt of the com- 
 mission of the homicide by the ac- 
 cused. 
 
 " The only question is as between the 
 second and third of these rules. I 
 have examined all the authorities on 
 the subject with great care, and over 
 and over again, and with a painful 
 anxiety to be right. The cases which 
 are referred to in sujiport of the second 
 rule are undoubtedly more numerous 
 than the others. Some of those, how- 
 ever, turn upon statutory definitions of 
 the crime of murder. For example, 
 the statute of Massachusetts, in its de- 
 finition of murder, omits the element of 
 ' sound memory and discretion' in the 
 perp(;trator, so that the defence of in- 
 sanity there is essentially a defence by 
 way of confession and avoidance, and 
 therefore it is held by tliat court that 
 the defendant must establish it l>y pre- 
 jionderance of proof. A great many of 
 the cases referred to are mere dicta, 
 and some of them involve plain contra- 
 diction, and there is not one which I 
 have examined which has tln' least 
 show of argument. The opinions 
 which support the last view are de- 
 cidiMlly (Mititled, in my judgment, to 
 flu; most confidence. Tliry nvi\ rea- 
 soni^d out from first princii)les, .■mil the 
 reasoning has been unanswered, and, 
 in myjudgment, is unansw(ir;ible. The 
 practice in this court has always been 
 t(j give an instruction somewhat in the 
 tei-ms her(! claimed. Besides those 
 already referred to, tliei'(^ is the case 
 of StoiK', tlu; most recent one, in which 
 the instruction given was as folluws: — 
 
 ^'Si.ri/i. Ill a capital case the defence 
 of insanity is reqiiiriMl to be made out 
 
 509
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 by strong, clear, and convincing proof, 
 and in this case tlie jury must judge of 
 the evidence offered to sustain this de- 
 fence, and of its effect iipon the main 
 issue of guilty or not guilty ; and if, 
 uj>on consideration of all the evidence 
 in connc^ction with the presiim])tion 
 that wliat a man does is sanely don(>, 
 they entertain a reasonable doubt ivhether 
 the prisoner committed the homicide, as 
 charged in the indictment, or ivhether at 
 the time of its commission he loas in a sane 
 state of mind, they should acquit him, 
 otherwise they should convict. 
 
 " I shall, however, adopt the sugges- 
 tion which I find in some of the latest 
 authorities, and that is not to instruct 
 the jury to acquit if they feel a reason- 
 able doubt about any one fact involved 
 in the issue, but I shall instruct them 
 as to the nature of this crime, and all 
 the elements composing it, including a 
 responsible sane mind in the perpetra- 
 tor. I shall instruct them as to the 
 presumptions of innocence and sanity, 
 and finally, that, upon the considera- 
 tion of both these presumptions, if they 
 then fi'(_'l a reasonable doubt as to the 
 guilt of the accused of the crime as so 
 explaiiii'd, the prisoner is entitli-d to 
 an acquittal. 
 
 " The tenth and eleventh instructions 
 do not involve any serious questions. 
 The eleventh instruction asks me to 
 say that — 
 
 " If tlie jury lielieve from the evidc^nce 
 that tlic prosecution liave wilfully sup- 
 ]U'essed evidence of the mental condi- 
 tion of the accused during two weeks 
 next following the shooting of Presi- 
 dent Garlicld, whicli it was in their 
 power to have produced on the trial, 
 the jury have a right to take that tact 
 into consideration as raising a pre- 
 sum])tioii that such evidence, if pro- 
 dured, would have Ijeen uufavoralde 
 for the i>rosecution. 
 
 "Now, every instruction ought to be 
 based upon some evidence in the case, 
 and in giving this I should have to 
 assume that there is souu' evidence of 
 
 ;-i70 
 
 this wilful supi^ression, which I am 
 unwilling to do. 
 
 "It is always open to either side to 
 argue that evidence which has not 
 been produced, but could have been 
 produced, would have been injurious 
 to the party who had possession of it ; 
 that is fair matter of argument to the 
 jury in every case on both sides. In 
 like manner, it is fair argument to the 
 jury that the witnesses were interested 
 or influenced by hope of compensation, 
 and the ordinary motivt^s that would 
 induce men to swear falscdy or to pre- 
 varicate. But I do not think the court 
 ought to give formal instruction in the 
 shape of either the tenth or eleventh 
 of these prayers. I refuse them, how- 
 ever, after the explanation that I have 
 already given, that it is open to coun- 
 sel to comment upon tlie testimony of 
 the witnesst^s and upon the conduct of 
 the prosecution. 
 
 "The twelfth instruction is drawn 
 with reference to section 5241, United 
 States revised statutes. 1 do not under- 
 stand that statute to create any new 
 species of manslaughter. It uses the 
 common law definitions of both murder 
 and manslaughter, and, perhaps, in 
 view of the doubts that I have already 
 spoken of, applies them to cases where 
 the mortal wound was inflicted in one 
 jurisdiction and the death occurred in 
 another. 
 
 " The terms malice and maliciuudij used 
 in the statute would have no meaning 
 except by reference to the common law. 
 Now we know that the terui 'malice,' 
 in the definition of murder, does not 
 require that proof shall be given of 
 any sjx'cial hatred or ill will to the 
 deceased, but the deliberate intent to 
 kill, from whatever motive, constitutes 
 all the malice that the law requires to 
 be shown ; and that the terms ' with- 
 out malice,' in the definition of man-
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 slaughter, mean simply without pre- 
 meditated intent, as where the killing 
 occurs in the heat of passion or on 
 sudden quarrel. 
 
 "All this I will explain to the jury- 
 when it becomes necessary to charge 
 them ; but the instruction which is 
 asked, in its use of the terms ' with- 
 out malice in fact,' might convey the 
 idea to the jury that if the killing was 
 done from the motives declared by the 
 prisoner, and he had, as he says, no 
 personal ill will towards the president, 
 it was not murder. It is objectionable 
 on this ground, and every object that 
 could be properly sought under this 
 head will be attained by the explana- 
 tions which I have indicated to be made 
 to the jury. 
 
 "This disi^oses of all tlie instruc- 
 tions." 
 
 From the charge, as sul)sequeiitly 
 delivered, the following extracts are 
 tak.-n :— 
 
 " The cases I have referred to fur- 
 nish an introduction to the subject of 
 insane delusions, which plays an im- 
 portant part in this case and demands 
 careful consideration. We find it 
 treated, to a limited extent, in judicial 
 decisions, but learn more about it from 
 works on medical jurisprudence and 
 e.xpert testimony. Sane people are 
 said sometimes to have delusions, pro- 
 ceeding from temporary disorder and 
 deception of the senses, and they enter- 
 tain extreme opinions which are 
 founded upon insufficient evidence or 
 result from ignorance, or they are 
 speculations on matters beyond the 
 scopes of human knowledge ; but they 
 arc always susceptible of being cor- 
 recti-d and removed by evidence and 
 argunu'iit. 
 
 " Hut the insane delusion, according 
 to all testimony, seems to be an un- 
 reasoning and incorrigible belief in tlie 
 existence of facts M'hich are eitlier im- 
 possible absolutely, or, at least, im- 
 
 possible under the circumstances of the 
 individual. A man, with no reason 
 for it, believes that another is attempt- 
 ing his life, or that he himself is the 
 owner of untold wealth, or that he has 
 invented something which will revo- 
 lutionize the world, or that he is pres- 
 ident of the United States, or that he 
 is God or Christ, or that he is dead, or 
 that he is immortal, or that he has a 
 glass arm. or that he is pursued by 
 enemies, or that he is inspired by God 
 to do something. 
 
 " In most cases, as I understand it, 
 the fact believed is something affecting 
 the senses. It may also concern the 
 relations of the party with otliers. But 
 generally the delusion centres around 
 himself, his cares, sufferings, rights, 
 and wrongs. It comes and goes inde- 
 pendently of the exercise of will and 
 reason, like the p)hantasms of dreams. 
 It is, in fact, the waking dream of the 
 insane, in which facts present them- 
 selves to the mind as real, just as ob- 
 jects do to the distempered vision in 
 delirium tremens. 
 
 " The important thing is tliat an in- 
 sane delusion is never the result of 
 reasoning and reflection. It is not 
 generated by them, and it cannot be 
 dispelled by them. 
 
 "A man may reason himself, and l)e 
 reasoned by others, into absurd opin- 
 ions, and may be persuaded into im- 
 l)racticable schemt^s and vicious rt^solu- 
 tions, but he cannot be reasoned or 
 persuaded into insanity or insane de- 
 lusions. 
 
 "Whenever convictions ar<( founded 
 on evi<l('nce, on conq)arison of facts 
 and opinions and arguments, tiiey are 
 not insane delusions. 
 
 " The insane delusion does not relate 
 to mere sentiments or theories or ab- 
 stract questions in law, politics, or re- 
 ligion. All these are the suljects of 
 opinions, which are Indiefs founded on 
 reasoning and rellcction. Tliese opiu- 
 
 571
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCIIOLOGICALI.Y. 
 
 ions are often absurd in the extreme. 
 Men believe in animal magnetism, 
 spiritualism, and otlu^r like matters, 
 to a degree that seems unreason itself, 
 to most other people And there is no 
 absurdity in relation to religious, jwlit- 
 ical, and social ([uestions that has not 
 its sincere supporters. 
 
 "These opinions result from natu- 
 rally weak or ill-trained reasoning 
 powers, hasty conclusions from insufTi- 
 cient data, ignorance of men and things, 
 credulous dispositions, fraudulent im- 
 posture?, and ot'Um from perverted moral 
 sentiments, l^iit still they are opinions, 
 founded upon some kind of evidence, 
 and liable to Iw changed by better ex- 
 ternal (evidence or sounder reasoning. 
 But they are not insane delusions. 
 
 " Let me illustrate further : — 
 
 "A man talks to you so strongly 
 about his intercourse with departed 
 spirits that you suspect insanity. You 
 find, however, that he has witnessed 
 singular manifestations, that liis senses 
 have been addrc^ssed by sights and 
 sounds, wliicli he has investigated, 
 refl<H;te(l on, and been unaljb.' to ac- 
 count for, exc(3pt as supernatural. 
 You see at once that there is no in- 
 sanity here ; that his reason has drawn 
 a conclusion fi-om evicb-nce. 
 
 "The same ni;ui, on further investi- 
 gation of the phenomena tliat staggered 
 him, discovers tliat it is all an impos- 
 tures, and suri-enders his belief. 
 
 "Anotliei- man, whom you know to 
 bo an afl'ectionate father, insists that 
 the Almighty has appeared to him and 
 commanded him to sacrifice his child. 
 No reasoning has convinced him of his 
 duty to lb) it, but the command is as 
 real to him as my voice is now to you. 
 jN'o reasoning f>r remonstrance can 
 shake bis conviction or deter him from 
 bis purposi'. Tliis is an insane delu- 
 sion, tlie (;oinage of a diseased Ijrain, 
 as seems to be generally supposed, 
 
 572 
 
 which defies reason and ridicub?, which 
 palsies the reason, blindfolds the con- 
 science, and throws into disorder all 
 the springs of human action. 
 
 "Before asking you to apply these 
 considerations to tin; facts of this case 
 let me premise one or two things. 
 
 " The question for you to determine 
 is, What was the condition of the 
 prisoner's mind at the tinus when this 
 tragedy was enacted ? If he was suffi- 
 ciently sane then to be responsible, it 
 matters not what may have been his 
 condition before or after. Still evi- 
 dence is properly admitted as to his 
 previous and subsequent conditions, 
 because it throws light, prospectively 
 and retrospectively, upon his condition 
 at the timl^ Inasmtxch as tbesi> dis- 
 orders are of gradual growth and in- 
 definite continuance, if he is shewn 
 insane shortly before or after the com- 
 mission of the crime, it is natui'al to 
 cdnjecturc, at least, that he was so at 
 the time. But all the evidence must 
 centre around the time when the de(!d 
 was done. 
 
 " You have heard a good deal of evi- 
 dence respecting the peculiarities of 
 the prisoner through a long period of 
 time befere this occurrence, and it is 
 claimed that he was, during all that 
 time, suliject to delusions calculatt^d 
 to disturb his reason and throw it 
 from its balance. I only desii'e to say 
 liert! that the only materiality of that 
 evidence is in the proliability it may 
 atfiird of the defendant's liability to 
 sucli disorder of the mind, and the cor- 
 roboration it may yield to other evi- 
 dence which may tend directly to sliow 
 such disorder at the time of tlie com- 
 mission of the crime. 
 
 " A few words may assist you in ap- 
 jilying to the evidence wliat I liave 
 thus stated. 
 
 " ^'ou are to determine whether, at 
 the time when the homicide was com-
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 mitterl, the defendant was laboring 
 iinder any insane delusion prompting 
 and impelling him to the deed. 
 
 "Very naturally you look, first, for 
 any explanation of the act, which may 
 have been made by the defendant him- 
 self at the time or immediately before 
 and after. 
 
 " You have had laid before you, es- 
 pecially, several papers which were in 
 his possession, and which purport to 
 assign the motives for his deed. 
 
 "In the address to the American 
 people, of June ](!, whicli seems most 
 fully to set forth his views, he says, 
 ' I conceived the iilea of removing the 
 president four weeks ago. IVot a soul 
 knew of my purpose. / conceived the 
 idea myself, and kept it to myself. I 
 read the newspajjers care/idly, for and 
 ayainst the Administration, and grad- 
 ualli/ the conviction duicncd on me that the 
 president'' s remonil was a political neces- 
 sity, because lie proved a traitor to tlie 
 men that made him, and thereby im- 
 periled the life of the repiiblic' Again, 
 ' Ingratitude is the basest of crimes. 
 That the president, under the manipu- 
 lation of his secretary of state, has 
 been guilty of the basest ingratitude to 
 the Stalwarts, admits of no denial. Tlie 
 expressed purpose of the president has 
 been to crush General Grant and Sena- 
 tor Conkling, and thereby open the way 
 for his renomination in 18S4. In the 
 president's madness he has wrecked 
 the once grand old Republican party, 
 and for this he c//es.' . . Again, 
 ' This is not murder. It is a political 
 necessity. It will make my friend 
 Arthur president, and save tlie repub- 
 lic,' etc. The other papers are of simi- 
 lar tenor, as I tliink you will lind. 
 
 " Tliert^ is evidence that, when ar- 
 rested, the prisoner refused to talk, 
 but said that the papers wouhl explain 
 all. 
 
 " On the night of the assassination, 
 
 according to the witness James J. 
 Brooks, the prisoner said to him, that 
 he had thought over it and prayed over 
 it for weeks, and the more he thought 
 and praj'ed over it the more satisfied 
 he was that he had to do this thing. 
 He had made up his mind that he had done 
 it as a matter of duty, . . he made up 
 his mind that they (the president and 
 Mr. Blaine) were conspiring against 
 the liberties of the people, and that the 
 jjresident must die. 
 
 " This is all that the evidence shows 
 as to the prisoner's utterances about 
 the time of the shooting. 
 
 " In addition to this, you have the 
 vei-y important testimony of the wit- 
 ness Joseph S. Reynolds, as to the 
 prisoner's statements, oral and written, 
 made about a fortnight after the shoot- 
 ing. If you credit this testimony, you 
 find him reiterating the statements 
 contained in the otlier papers, but per- 
 haps with more emjihasis and clearness. 
 He is represented as saying that the situ- 
 ation at Albany sziggested the removal of the 
 president, and as the factional fight be- 
 came more bitter, he became more de- 
 cided. He knew that Arthur would 
 become president, and that would help 
 Conkling, etc. // he had not seen that 
 the president icas doing a great wrong to 
 the Stalwarts, he would not have assassi- 
 nated him. 
 
 " In the address to tlie American 
 people, then written, he says, ' / now 
 ?rish to state distinctly why I attempted to 
 remove the president. I had read the 
 newspapers /"<>?■ and against the Admin- 
 istration, very carefully, for two 
 months, before I conceived the idea of 
 ri'moving him. dradually as the result 
 of ria(lin<i the neivsjiajirrs, Uir idea set- 
 tled on nu', that if tlie prcsi<leiit was 
 removed, it would unite tlif two fac- 
 tions of theUepulilicaii party an<l there- 
 by save the government from going into 
 the hands of the ex-rebels and their 
 
 573
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 nortliern allies.' ' It was my cw7i con- 
 ception, and rvhethcr right or irront/, I take 
 the entire responsibility.^ 
 
 " A second paper, dated July 19th, 
 addressed to the puhlic, reiterates this 
 and concludes, ' Whether he lives or 
 dies, I have got the inspiration worked 
 out of me.' 
 
 " We have now before us everything 
 emanating from the prisoner about the 
 time of the shooting and within a little 
 over a fortnight afterwards. We have 
 nothing farther from him until over 
 three months afterwards. Let us pause 
 here to consid(>r the import of all this. 
 
 " You are to consider, first, whether 
 this (ividence fairly represents the true 
 feelings and ideas which governed the 
 prisoner at the time of the shooting. 
 If it does, it represents a state of things 
 which I have not seen characterized in 
 any judicial utterance or authoritative 
 work as an insane delusion. 
 
 "You are to consider whether it is 
 so described in the evidence, or does 
 not, on the contrary, show a deliberate 
 l^rocehS of reasoning and reflection, 
 u^ton argument and evidence for and 
 against, resulting in an op(»('oH thatthe 
 president had betrayed his party, and 
 that if he were out of the way it would 
 be a benefit to his party and save the 
 country from the jjredominance of th^ir 
 political ojjpiincnts. t50 far there was 
 nothing insane in th<^ conclusion. It 
 was doubtless sliared by a great many 
 others. But the ditference was that 
 the prisoner, according to his revela- 
 tions, went a step farther, and reached 
 the conciction that to put the j^resident 
 out of the way by assassination M-as a 
 political necessity. 
 
 " When men I'eason tlie law reijuii-es 
 them to r<>ason correctly, as far as tlieir 
 practical duties are concerncii. When 
 they have tlie cd/iiicitij to distinguish 
 betwecMi right and wrong, they are 
 liound to do it. ()j)inions, properly so 
 called — i.e., belii'fs I'esulting fium i-ea- 
 
 574 
 
 soning, reflection, or examination ot 
 evidence — aflbrd no protection against 
 the penal consequences of crime. A 
 man may believe a course of action to 
 be riglit, and the law, which forbids it, 
 to be wrong. Nevertheless he must 
 obey the law, notwithstanding his con- 
 victions. And nothing can save him 
 from the consequences of its violation 
 except the fact that he is so crazed by 
 disease as to be unable to comi^rehend 
 the necessity of obedience to it. 
 
 "The Mormon prophets profess to 
 be inspired, and to believe in the duty 
 of plural marriages, although it was 
 forbidden by a law of the United States. 
 On(; of the sect violated the law, asid 
 was indicted for it. Tin; judge who 
 tried him instructed the jury — 
 
 "That if the defcmdant, under the 
 influence of a religious belief that it 
 was right — under an inspiration, if 
 you please, that it was right — deliber- 
 ately married the second time, having 
 a first wife living, the want of con- 
 sciousni'ss of evil intent, the want of 
 understanding that he was counuitting 
 a crime, did not excuse him. 
 
 "And the siipreme court of the 
 United States, to which the case went, 
 under the title of ' Reynolds r. United 
 States' (98 U. S. 14:1;, in approving 
 this ruling, said : — 
 
 " Laws are made for the government 
 of actions, and while they cannot in- 
 terfere with mere religious belief and 
 opinions, they may with practices. 
 Sujipose one believed that liuman sac- 
 riliri's were a necessary part of religious 
 worsliip, would it be seriously con- 
 tended that the civil government under 
 which he lived could not interfere to 
 prevent a sacrifice ? Or if a wife re- 
 ligiously believed it was her duty to 
 burn herself upon the funeral pile of 
 lier dead husband, would it he beyond 
 tlie |iower of the civil government to 
 pri'viMit her carrying her liclief into 
 practice ? 
 
 "So here, as a law of the organiza- 
 tion of society, under the exclusive 
 dominion of the United States, it is 
 ])rovided that plural marriages shall 
 not be allowed, can a man excuse his
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 practice to the contrary because of his 
 religious belief? To permit this M'ould 
 be to make the professed doctrines of 
 religious belief superior to the law of 
 the land, and, in effect, to permit every 
 citizen to become a law nnto himself. 
 Government could exist only in name, 
 under such circumstances. 
 
 "And so, in like manner I say, a 
 man may reason himself into a convic- 
 tion of the expediency and patriotic 
 character of political assassination, but 
 to allow him to find shelter from punish- 
 ment behind that belief, as an insane 
 delusion, would be simply monstrous. 
 
 "Between one and two centuries 
 ago, there arose a school of moralists 
 who were accused of maintaining the 
 doctrine that whenever an end to be 
 attainc^d is right, any means neces- 
 sary to attain it would be justifiable. 
 They were accused of practising sucli a 
 process of reasoning as would justify 
 every sin in the decalogue when occa- 
 sion required it. They incurred the 
 odium of nearly all Christendom in 
 consequence. But the mode of reason- 
 ing attributed to them would seem to 
 be impliedly, if not exjircssly, rejjro- 
 duced in the papers written by the de- 
 fendant and shown in evidence : — 
 
 " It would be a right aud patriotic 
 thing to unite the Republican party 
 and save the republic. Whatever 
 means may be necessary for that ob- 
 ject would be justifiable. The death 
 of tlie president by violence is tlie only 
 and therefore the necessary means (jf 
 accomplishing it, and therefore it is 
 justifiable. Being justifiable as a jjo- 
 litical necessity, it is not mui'der. 
 
 "Such seems to be the substance of 
 the ideas wliich he puts forth to the 
 world as his justification in tliese jia- 
 pers. If tliis is till- whole of bis posi- 
 tion, it presents one of those; vagaries of 
 o])inion for which the law has no toler- 
 ation and which furnish<>s no excuse 
 what(!ver for crime. 
 
 "This, however, is not all tliat tlie 
 defendant now claims. 
 
 "There is, undoubtedly, a form of 
 insane delusion, consisting of a belief by 
 a person that he is inspired by the 
 Almighty to do something ; to kill 
 another, for example, and this delii- 
 sion may be so strong as to impel him 
 to the commission of a crime. 
 
 " The defendant, in this case, claims 
 that he labored under such a delusion 
 and impulse, or pressure, as he calls 
 it, at the time of the assassination. 
 
 "The prisoner's unsworn declara- 
 tions, since the assassination, on this 
 subject, in liis own favor, are, of 
 course, not evidence, and are not to he 
 considered by you. A man's language, 
 when sincere, may be evidemce of the 
 condition of his mind when it is uttered, 
 but it is not evidence in his favor of 
 the facts declared by him, or as to his 
 previous acts or condition. lie can 
 never manufacture evidence in this 
 way in his own exoneration. 
 
 "It is true that the law allows a 
 prisoner to tcsti/ij in his own behalf, 
 and thereby makes his sworn testimony 
 on the witness-stand legal evidence, 
 to be received and considered by you, 
 Init it leaves the weight of that evi- 
 dence to be determined by you also. 
 
 "I need hardly say to you tliat no 
 verdict could safely be rendered upon 
 tlu:' evidence of the accused party only, 
 under such circumstances. If it were 
 recognized, liy such a verdict, that a 
 man on trial foi- his life couhl si.'cure 
 an ac(|uittal by simply testityiug, him- 
 self, tliat lie had committed llie crime 
 charged under a delusion, an inspira- 
 tion, an irresistible impulse, this would 
 111- to proclaim an universal amnesty 
 to criminals in the past, and an un- 
 liounded lici'iise Uw the futui'e, and the 
 cmirts of JListiri; might as \m41 be 
 closed. 
 
 " It must b(! perfectly apiiamit to 
 you tiiat tiie existence of sindi a delu- 
 sion can l)e liest tested by the language 
 
 575
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 and comluet of tho party imiiicdiately for notoriety ; that he cah;ulated de- 
 before and at tlie time of the act. liberately upon being jirotected by 
 
 *' And whih^ the accused party can- those who were politically benefited by 
 not make evidence for himself by his the death of the president and upon 
 subsequent declarations, on the other some ulterior benefit to himself; that 
 hand, he may make evidence aijainst he made no pretence to inspirdtion at 
 himself, and, when those declarations the time of the assassination, nor until 
 amount to admissions against himself, he discovered that his expectations of 
 they are evidence to be considered by help from the so-called Stalwart wing 
 a jury. of the Republican party were delu- 
 
 " Let me here say a word about the sive, and that these men were de- 
 characteristics of this form of delusion, nouncing his deed, and that then for 
 
 " It is easy to understand that the the first time, Avhen he saw the nc^ces- 
 conceit of btnng inspired to do an act, sity of making out some defence, he 
 
 may be either a sane belief or an in- broached tliis theory of inspiration 
 
 sane delusion. A great many Chris- and irresistilile jiressure forcing him 
 
 tians believe, not only that events to the commission of tln^ act. 
 generally are providentially ordered, "If this be true, you would have 
 
 but that they themselves receive spe- nothing to indicate the real motives 
 
 cial providential guidance and illuml- of the act except what I have already 
 
 nation in reference to both their inward considered. Whether it is true or not, 
 
 thoughts and outward actions, and, in you must dctt'rujine from all the evi- 
 
 an undefined sense, are inspired to dence. 
 
 pursue a certain course of action ; l)ut " It is true that the term ' inspira- 
 this is a mere sane belief, whether well tion' docs not aj)i)ear in the 2)ap(^rs 
 or ill founded. On the other hand, if first written by the defendant, nor in 
 you were satisfied that a man sincerely, those delivered to General Reynolds, 
 though insanely, believed, that, like except at the close of the one dated 
 Saul of Tarsus, on his way to Damas- July 19, in which he says tliat the 
 cus, lie had been smitten to the earth, inspiration is worked (Hit of him ; 
 had seen a great light shining around though, what that means is not clear, 
 him, had heard a voice from Heaven, It is true, also, that this was after, 
 warning and conunaiiding him, and according to (Jeneral Reynolds, he had 
 that thenceforth, in reversal of liis been informed how he was lieing de- 
 whole previous moral bent an<l mental nounced by the Stalwart Rcpulilicans. 
 convictions, he bad acted upon this " In one of the first pap<'rs I have 
 supi)osed revelation, you would have referred to, the president's removal 
 before you a case of an imaginary in- was called an act of God, as were his 
 spiration amounting to an insane delu- nomination and election, but whether 
 sion. tlijy meant anything more than that 
 "The (luestion for you to consider it was an act of God' in the sense in 
 is, whether the case of the defendant wliich all great events are said to be 
 presents anything analogous to this. ordered hy Providence, is not clear. 
 
 " Tlie theory of the governuKMit is, "Dr. Noble Young testifies that a 
 
 that the defenilant committed the few days after defendant's entrance 
 
 homicide in tlie full possession of liis into the ])rison — a time not definitely 
 
 faculties and from perfectly sane mo- fixed — he told him he was inspired to 
 
 fives ; that he did the act from re- do the act, but ((ualified it by saying 
 
 venge, or perhaps from a morbiil desire that if the president should die, he 
 
 576
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 would be confirmed in his belief tliat 
 it was an inspiration ; but if not, per- 
 haps not. 
 
 " The emphatic manner in which, in 
 both the papers delivered to General 
 Reynolds, the defendant declared that 
 the assassination was his own concep- 
 tion and execution, and whether right or 
 ivrong he took the entire responsibility, 
 his detailed description of the manner 
 in which the idea occurred to him, and 
 how it was strengthened by his read- 
 ing, etc., and his omission to state 
 anything about a direct inspiration 
 from the Deity, at that time, are all 
 circumstances to be considered by you 
 on the question whether he then held 
 that idea. 
 
 " On the other hand, you have the 
 prisoner's testimony, in wiiich he now 
 asserts that he conceived himself to be 
 under an inspiration at the time. He 
 also advanced this claim in his inter- 
 views with the expert witnesses shortly 
 before the trial. 
 
 " It becomes necessary then to 
 examine the case on the assumption 
 that the prisoner's testimony may be 
 true, and to ascertain from his de- 
 claration and testimony what kind 
 of inspiration it is which he thus as- 
 serts. 
 
 "According to the testimony of Dr. 
 Strong, he inquired of the defendant 
 if he claimed to have had any direct 
 revelation from heaven, and the an- 
 swer was that he did not belicre in unij 
 such nonsense. 
 
 "According to Dr. Macddnald, who 
 interviewed the prisoner on the loth 
 of November, he did not then, in 
 terms, speak of his idea of removing 
 the j)resident as an inspiration, Imt as 
 a conception of his own, ami said tliat 
 after conceiving the idea, he trii-d to 
 put it aside; that it was nq)iilHive to 
 hiiri at first ; that he waited a werk or 
 two, lliiuking over it, and waiting tor 
 VOL. I. — 37 
 
 the Almighty to interfere. He had 
 conceived the idea himself, but he 
 wished the Almighty to have the op- 
 portunity of interfering to prevent its 
 execution ; and at the end of two 
 weeks, no interference coming from 
 the Almighty, he formed the delibe- 
 rate purpose of executing the act, etc. 
 
 " According to the testimony of Dr. 
 Gray, the prisoner said that he had 
 received no instructions, heard no 
 voice of God, saw no vision in the 
 night, or at any time ; that the idea 
 came into his own mind first, and after 
 thinking over it and reading the papers 
 when he arrived at the conclusion to 
 do the act, he heliered then it was a 
 right act, and was justified by the po- 
 litical situation. 
 
 " When asked how he could apply 
 this as an instruction from the Deity, 
 he said it was a pressure of the Deity ; 
 that this duty of doing it, as he claimed, 
 had pressed him to do it. 
 
 " Again, he said, he had not connected 
 the Deity with the inception and development 
 of the act; that was his own. He did 
 not get the inspiration until the time 
 came for it, and that the inspiration 
 came when he had reached the con- 
 clusion and determination to do the 
 act. 
 
 " Perhajjs the most remarkable of 
 the prisoner's statements to Dr. Gray 
 was, that at the very time when he 
 was planning the assassination, he 
 was also devising a theory of insanity 
 which should be his defence, which 
 theory was to be, that he believed the 
 act of killing was an inspired act. 
 
 " Perhaps equally remarkabU; was 
 tlie prisoner's theory propounded in 
 this conversation, viz., that In- was 
 not medically insane, but legally so, /. e., 
 irres/ioiisihle, b(>cause the act was d(»ne 
 trillion/ malice. 
 
 " Finally, on this subject you have 
 the defendant's own testimony. 
 
 577
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 " He does not profess to have had 
 any visions or direct revelation or dis- 
 torted conception of facts. 
 
 " But he says that while pondering 
 over the political situation the idea 
 suddenly occurred to him that if the 
 president were out of the way, the 
 dissentions of his party would be 
 healed ; that he read the papers with 
 an eye on the possibility of the presi- 
 dent's removal, and the idea kept 
 pressing on liim ; that he was horri- 
 fied ; kept throwing it oif ; did not 
 want to give it attention ; tried to 
 shake it off, but it kept growing upon 
 him, so that at the end of two weeks 
 his mind was thoroughly fixed as to 
 the necessity for the president's re- 
 moval and the divinity of the inspira- 
 tion. He never had the slightest doubt 
 of the divinity of the inspiration from 
 the 1st of June. He kept jjraying 
 about it, and that if it was not the 
 Lord's will that he should remove the 
 president, there would be some way 
 by which His providence would inter- 
 cept the act. He kept reading the 
 newspapers, and his inspiration was 
 beinc/ covjirmed every day, and since the 
 1st day of June he has never had a 
 doubt about the divinity of the act. 
 
 "In the cross-examination he said: 
 If the political necessity had not ex- 
 isted, the president would not have 
 been removed — there would have been 
 no necessity for the inspiration. About 
 the 1st of June he made up his mind 
 as to the inspiration of the act and 
 the necessity for it ; from the 16th of 
 June to the 2d of July he prayed that 
 ifheicus wrong, the Deity would stop 
 him by His providence. In May it was 
 an embryo inspiration — a mere impres- 
 sion that possibly it might have to be 
 done. He was doubting whether it 
 was the Deity that was inspiring him, 
 and was praying that the Deity would 
 not let liim make a mistake about it, 
 
 578 
 
 and that at last it was the Deity, and 
 not lie, who killed the president. 
 
 "Again, the confirmation that it 
 was the Deity, and not the devil, who 
 inspired the idea of removing the pre- 
 sident came to him in the fact that the 
 newspapers were all denouncing the 
 president. He saw that the political 
 situation required the removal of the 
 president, and that is the way he knew 
 that his intended act was inspired by 
 the Deity ; but for the political situa- 
 tion, he would have thought that it 
 came from the devil. 
 
 "This is the substance of all that 
 appears in the case on the subject of 
 inspiration. 
 
 " It is proper to call your attention 
 to some variations in the prisoner's 
 statements at difierent times. 
 
 "In two of the pajiers of July he 
 says it urns Ids own conception, and he 
 took the entire responsibility. 
 
 " In the conversations reported by 
 Dr. Gray in November, he did not 
 connect the Deity with the inception 
 of the act. The conception was his 
 own, and the inspiration came after he 
 made up his mind ; but he does not 
 explain what he meant by the inspi- 
 ration, unless it was that it was a 
 pressure upon him, or, as he expresses 
 it, the duty of doing it was pressing 
 upon him. 
 
 " In his testimony he disclaims all re- 
 sponsibility while he still sj^eaks of the 
 idea of removing the president as an 
 impression which arose in his own 
 mind first. He says that in his reflec- 
 tions about it, he debated with him- 
 self whether it came from the Deity or 
 the devil ; prayed that God would pre- 
 vent it if it was not His will ; and 
 finally made x\\y his mind, from a con- 
 sideration of the political stuation, 
 that it was inspired by Him. 
 
 "On all this, the question for you 
 is, whether, on the one hand, the idea
 
 POLITICO-MANIA. 
 
 [§ 681. 
 
 of killing the president first presented 
 itself to the defendant in the shape of 
 a command or inspiration of the Deity, 
 in the manner in which insane delu- 
 sions of that kind arise, of which you 
 have heard much in the testimony ; 
 or, on the other hand, it was a concep- 
 tion of his own, followed out to a reso- 
 lution to act, and, if he thought at all 
 ahout inspiration, it was simply a spec- 
 ulation or theory, or theoretical conclu- 
 sion of his own mind, drawn from the 
 expediency or necessity of the act, that 
 his previously conceived ideas were in- 
 spired. 
 
 " If the latter is a correct representa- 
 tion of his state of mind, it would show 
 nothing more than one of the same vaga- 
 ries of reasoning that I have already 
 characterized as furnishing no excuse 
 for crime. 
 
 " Unquestionahly, a man may he in- 
 sanely convinced that he is insi:iired by 
 the Almighty to do an act, to a degree 
 that will destroy his responsibility for 
 the act. 
 
 " But, on the other hand, he cannot 
 escape responsibility by bai^tizing his 
 own si^ontaneous conceptions and re- 
 flections and deliberate resolves with 
 the name of inspiration. 
 
 " On the direct question whether the 
 prisoner knew that he was doing wrong 
 at the time of the killing, the only 
 direct testimony is his own, to the con- 
 trary effect. 
 
 "One or two circumstances may \m 
 suggested as throwing some light on 
 the question. 
 
 *' Tlie declaration that, riglit or irront/, 
 he took the responsibility, made shortly 
 afterward, may afford some indication 
 whether the question of wrong had 
 suggested itself. And his testimony 
 that he was horrified when the idea of 
 assassination first occurred to him, and 
 he tried to put it away, is still m()r(; 
 pertinent. 
 
 "His statement, testified to by Dr. 
 
 Gray, that he was thinking of the de- 
 fence of inspiration while the assassina- 
 tion was being planned, tends to show 
 a knowledge'of the legal consequences 
 of the killing. His present statement 
 that no punishment would be too 
 quick or severe for him if he killed the 
 president otherwise than as agent of 
 the Deity, shows a present knowledge 
 of the wrongfulness of the act in itself, 
 but this declaration is of value on this 
 question of knowledge, only in case 
 you should believe that he had the 
 same appreciation of the act at the time 
 of its commission, and disbelieve his 
 story about the inspiration. 
 
 " I have said nearly all that I need 
 say on the subject of insane delusion. 
 
 "The answer of the English judges, 
 that I have referred to, has not been 
 deemed entirely satisfactory, and the 
 courts have settled down upon the 
 question of knowledge of right and 
 wrong as to the particular act, or rather 
 the capacity to know it, as the test of 
 responsibility. And the question of 
 insane delusion is only important, as 
 it throws light upon the question of 
 knowledge of, or capacity to know, the 
 right and wrong. 
 
 " If a man is under an insane delu- 
 sion that another is attempting his 
 life, and kills him in self-defence, he 
 does not know that he is committing 
 an unnecessary homicide. If a man 
 insanely believes that he has a com- 
 mand from the Almighty to kill, it is 
 difficult to understand how such a man 
 can know that it is wrong for him to do 
 it. A man may have some other insane 
 delusion which would be quite con- 
 sistent with a knowledge tliat such an 
 act is wrong ; such as, that he had re- 
 ceived an injury ; and he might kill in 
 r(!venge for it, knowing that it would 
 be wrong. 
 
 "And 1 have dwelt upon the ques- 
 tion iif insane delusion, simply because 
 evidence relating to that, is evidence 
 
 579
 
 § 681.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 touching the defendant's power, or 
 want of power, from mental disease, to 
 distinguish between right and wrong, 
 as to the act done by him, wliich is the 
 broad question for you to determine, 
 and because that is the kind of evi- 
 dence on this question which is relied 
 on by the defence. 
 
 " It has been argued with great force, 
 on the part of the defendant, that tliere 
 are a great many things in his conduct 
 which could never be expected of a 
 sane man, and which are only explain- 
 able on the theory of insanity. The 
 very extravagance of his expectations 
 in connection with this deed — that he 
 would be protected by the men he was 
 to benefit, would be applauded by the 
 whole country when his motives were 
 made known — has been dwelt upon as 
 the strongest evidence of unsoundness. 
 ''Whether this and other strange 
 things in his career are really indi- 
 cative of partial insanity, or can l)e 
 accounted for by ignorance of men, ex- 
 aggerated egotism, or perverted moral 
 sense, might by a question of difficulty. 
 And difficulties of this kind you might 
 find very perplexing if you were com- 
 pelled to determine the question of 
 insanity generally, without any rule 
 for your guidance. 
 
 *' But the only safe rule for you is to 
 dir(^et your reflections to the one ques- 
 tion which is the test of criminal re- 
 sponsibility, and which has been so 
 often repeated to you, viz., whether, 
 whatever may have been the prisoner's 
 singularities and eccentricities, he pos- 
 sessed the mental capacity, at th(^ time 
 the act was committed, to know that it 
 was wrong, or was deprived of that 
 capacity l)y mental disease. 
 
 " In all this matter, there is one im- 
 portant distinction that you must not 
 lose sight of, and you are to decide how 
 far it is applicable to this case. It is 
 
 580 
 
 the distinction between mental and 
 moral obliquity ; between a mental in- 
 cajjacity to understand the distinctions 
 between right and wrong, and a moral 
 indifference and insensibility to those 
 distinctions. The latter results from a 
 blunted conscience, a torpid moral 
 sense or depravity of heart ; and some- 
 times we are not inapt to mistake it for 
 evidence of something wrong in the 
 mental constitution. We have pro- 
 bably all known men of more than the 
 average of mental endowments, whose 
 whole lives have been marked by a 
 kind of moral obliquity and apparent 
 absence of the moral sense. We have 
 known others who have first yielded to 
 temptation with pangs of remorse, but 
 each transgression became easier, until 
 dishonesty became a confirmed habit, 
 and at length all sensitiveness of con- 
 science disappeared. 
 
 " When we see men of seeming intel- 
 ligence and of better antecedents re- 
 duced to this condition, we are prone to 
 wonder whether the balance wheels of 
 the intellect are not thrown out of gear. 
 But indifference to what is right is not 
 ignorance of it, and depravity is not 
 insanity, and we must be careful not 
 to mistake moral perversion for mental 
 diseas(\ 
 
 " Whether it is true or not that in- 
 sanity is a disease of tlie physical 
 organ, the brain, it is clearly in one 
 sense a disease, when it attacks a man 
 in his maturity. It involves a depart- 
 ure from his normal and natural con- 
 dition. And this is the reason why an 
 inquiry into the man's previous con- 
 dition is so pertinent, because it tends 
 to show wheth(»r what is called an act 
 of insanity is the natural outgrowth of 
 his disposition or is utterly at war with 
 it, and, therefore, indicates an ixn- 
 natural chauEre."
 
 IDIOCY. 
 
 [§ 682. 
 
 CHAPTER VI. 
 
 IDIOCY, IMBECILITY, AND DEMENTIA. 
 
 I. Idiocy. 
 
 Mental and moral faculties nndevel- 
 oped in idiocj, § 682. 
 
 Variations in this respect, § 683. 
 
 Connection of idiocy with consanguin- 
 eous marriages, § 684. 
 
 Classification by Howe, § 685. 
 
 Cranial measurements by Esquirol, § 
 686. 
 
 Non-congenital idiocy may exist with- 
 out disease, § 687. 
 
 Occasional features, § 688. 
 
 Idiocy easily recognizable, § 689. 
 
 II. Imbecility. 
 
 May be accompanied by insanity, § 692. 
 May be without insanity, § 694. 
 Distinguished from idiocy, § 695. 
 Illustration of this distinction, § 696. 
 
 III. Dementia. 
 Dementia originates in mental depres- 
 sion, § 698. 
 
 Analogy between idiocy and dementia, 
 § 699. 
 
 Falret's position tliat dementia is a 
 period, not a form of mental un- 
 soundness, § 700. 
 
 Description of dementia by Ray, § 701. 
 
 I. IDIOCY. 
 
 § G82. Idiocy, when complete, is marked by an entire absence 
 of reason.^ Tlie moral as well as the mental faculties Tyj^,„^;,i .^„,| 
 are undeveloped. There is o;enerally great imperfect- '""''-^^ 
 
 >■ fs ^ J i-> I ^ faculties 
 
 ness in speech, dependent sometimes on malformation, undevei- 
 sometimes on a deficiency in or want of the powers of 
 imitation, so that even when the hearing and speech are both 
 entirely mature, the patient remains unable to do more than in the 
 one case to show his knowledge of the existence of sound, and in 
 the other to give utterance to noises not above, if e(|ual to, those 
 of the brute creation. Taste and smell arc equally imperfect. In 
 many cases there is an inability to perceive odors, and in most 
 nothing but the coarsest discrimination in the selection of articles 
 of food. Wallowing in personal filth, devouring even excrement 
 
 > Supruy^l; Siebold, § 200 ; Feucli- 742; Ks(iuirol, 466; 19 Jouru. Ment. 
 tersl(;b(!n, London ed. p. 354; Mor(d, Sci. 169. 
 i. p. 52; Taylor, Med. .fur. (1W73), 
 
 581
 
 § 684.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 with apparent avidity, indisposition to eat at all unless food be 
 placed directly before the eye, drinking virine with as little appear- 
 ance of distaste as water, are incidents one or more of which are to 
 be found in almost every case of idiocy. And the same low grade 
 of sensibility and of flexibility is found in the purely physical sys- 
 tem. The nerves are almost torpid. Limbs sometimes have been 
 amputated without apparent pain, and Esquirol even tells us of labor 
 having been undergone without the patient being conscious of the 
 fact or its meaning. The arms are frequently of unequal length, 
 and misshapen ; and the limbs generally are crooked and feeble. 
 A careless and broken gait distinguishes them in most cases. Even 
 the eyes are defectively hung, and seem incapable of poising them- 
 selves at a right level. And in the lower class of cases there is 
 sometimes so gi'eat a defectiveness of vision as to prevent the patient 
 from perceiving the most obvious objects. And, even when the 
 powers of vision and of motion exist, the intellectual powers are 
 sometimes so attenuated as to make attempts to reach a desired 
 point entirely abortive, though there be entire muscular power for 
 such a purpose. 
 
 § 1)8^3. While, however, the reasoning powers are almost entirely 
 
 defective, there is sometimes a perceptible, though un- 
 iu this re- equal, development of the moral sentiments. Selt-esteem, 
 
 love of approbation, religious awe, sometimes assume a 
 supremacy over the system, which is the more marked because it is 
 checked by no countervailing qualities. Dr. Hush tells us of an 
 idiot who spent his life in little acts of benevolence to others, though, 
 in the dispensation of them, as Avell as all other points in his life, 
 he showed no reasoning powers Avhatever. Religious veneration is 
 sometimes developed to an exaggerated degree, and expended upon 
 the most vmnatural objects. Vanity — such as that which distin- 
 guishes some branches of the brute creation — finds in idiots a preg- 
 nant place. And Esquirol gives us numerous instances in which 
 the talent for thieving, and that to a very remarkable extent, was 
 found associated with entire vacuity of mind in all other relations. 
 The same observation applies, though in a much less marked extent, 
 to the sexual propensities. 
 
 §084. "Idiocy," says Dr. Maudsley,^ " is indeed a manufac- 
 
 ' Body and Mind, London, 1870, p. 44. 
 
 582
 
 IDIOCY. [§ 685. 
 
 tured article ; and, although we are not always able to conuection 
 
 tell how it is manufactured, still its important causes are ^^'*^ ^P^' 
 
 ' ^ sanguiue- 
 
 kuown and are within control. Many cases are distinctly ous'mar- 
 
 11 1 • 1 /-^ riages. 
 
 traceable to parental intemperance and excess. Out of 
 
 300 idiots in Massachusetts, Dr. Howe found as many as 145 to be 
 the oftspring of intemperate parents ; and there are numerous scat- 
 tered observations which prove that chronic alcoholism in the parent 
 may directly occasion idiocy in the child. I think, too, there is no 
 reasoyiable question of the ill effects of marriages of consanguinity ; 
 that their tendency is to produce degeneracy of the race, and idiocy 
 is the extr erne st form of siich degeneracy. ''^^ 
 
 § 685. The following classification is from Dr. Howe: — 
 
 " Idiots of the lowest class are mere organisms, masses ciassifica- 
 of flesh and bone in human shape, in which the brain and '°'^" 
 nervous system have no command over the system of voluntary 
 muscles ; and which, conse([uently, are without power of locomo- 
 tion, without speech, without any manifestations of intellectual or 
 affective faculties. 
 
 " Fools are a higher class of idiots, in whom the brain and ner- 
 vous system are so far developed as to give partial command of the 
 voluntary muscles ; who have, consequently, considerable power of 
 locomotion and animal action, partial development of the intellectual 
 and affective faculties, but only the faintest glimmer of reason, and 
 very imperfect speech. 
 
 " Simpletons are the highest class of idiots, in whom the har- 
 mony between the nervous and muscular systems is nearly perfect ; 
 who, consequently, have normal powers of locomotion and animal 
 action, considerable activity of the perceptive and affective faculties, 
 and reason enough for their simple individual guidance, but not 
 enough for their social relations."^ 
 
 " It does not take the case out of the definition of idiocy that 
 some particular faculty has been saved from the general wreck. 
 
 ' See statistics as to the efl'cct of oou- of Massachusetts, h_y tlie Connnissioncrs 
 
 sanguineous marriages, Journ. Stat, appointed to inquire into tiie condition 
 
 Soc, Juno, 1875. As to tlie effects of of idiots within the Conuiionwealth, hy 
 
 restraint on the liherty of marriage, S. G. Howe, pp. 147. IJoston, 1848. 
 
 Contemporary Rev., Aug. 1873. See S(;nate Doc. See a cL-issification by 
 
 also 21 Journ. Ment. Sci. 023. Dr. Ireland, J 8 Journ. Meiit. Sci. 333. 
 
 2 Second Report of tlie Legislature 
 
 )88
 
 § 686.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 This is often the case, particularly with mv;sic. Thus there is at 
 present in the Salp^tri^re a girl idiotic to an extreme degree, who 
 does not speak, and cannot even dress herself. However, her 
 keeper has recently discovered in her a decided taste for music. 
 She often can repeat faithfully a whole passage of music played or 
 sung to her only once ; even if the passage is left incomplete, in 
 repeating it she will terminate it in the right key and tone. A 
 first-rate performer on the piano was brought to play with her, and 
 her transports amounted almost to frenzy. At certain passages of 
 rapid transition from flats to sharps, she uttered cries of trans- 
 port, and commenced biting her fingers to calm her emotions. She 
 is an immense eater, and greedily snatches at fruit ; but the 
 moment she hears the instrument, she stops until the music has 
 ceased." 
 
 Dr. Howe mentions an idiot who had an astonishing power of 
 reckoning. " Tell him your age, and he will in a very short time 
 give you the number of minutes." 
 
 § 686. The following statement by Esquirol will throw much 
 light on this phase of mental vmsoundness : " With each 
 case of idiocy which I have published in this chapter I 
 have also given the admeasurements of the head taken 
 during life. By bringing them together, we may compare the 
 means with the results obtained by my young confreres ; time will 
 not permit me to do it. For those who are fond of this kind of 
 investigation, I subjoin a table of the mean results of admeasure- 
 ment of the head taken from a woman in the enjoyment of good 
 health, and from plaster casts, taken after their death, in the case 
 of thirty-six insane Avomen, seventeen imbeciles, and seventeen 
 idiots. In the case of three idiots, whose heads were very small, 
 the admeasurements were taken from the crania. 
 
 Cranial 
 measure 
 
 ments. 
 
 TABLE OF CRANIAL ADMEASUREMENTS. 
 
 
 Circum- 
 ference. 
 
 Antero- 
 posterior 
 curvature. 
 
 Antero- 
 posterior 
 diameter. 
 
 Trans- 
 verse 
 diameter. 
 
 TotaL 
 
 Women in a state of health . 
 
 21.S7in. 
 
 13.30 in. 
 
 6.98 in. 
 
 5.29 in. 
 
 47.44 in. 
 
 Insane .... 
 
 20.82 
 
 11.. 50 
 
 6.96 
 
 5.67 
 
 44.95 
 
 Imbeciles 
 
 20.19 
 
 11.49 
 
 6.69 
 
 5.63 
 
 44. 
 
 Idiots .... 
 
 l!t.lt2 
 
 11. 2() 
 
 6.85 
 
 5.39 
 
 43.42 
 
 Idiots — Microeephalmis . 
 
 la. 07 
 
 7.51 
 
 4.88 
 
 4.17 
 
 31.63 
 
 584
 
 IDIOCY. [§ 687. 
 
 " From this table we learn : 1st. That the circumference of the 
 head, according to admeasurements taken among women enjoying 
 the use of their reason, from insane women, imbeciles, and idiots, 
 diminishes in an almost equal proportion from the women in the 
 enjoyment of usual health to the idiot, deprived even of instinct. 
 2d. That the fronto-occipital curvature diminishes in a remarkable 
 degree from the women in sound mind to the insane female, whilst 
 no variation is noticed in the insane person to the imbecile, and a 
 diiference of but six millimetres between the latter and idiocy. 3d. 
 That the fronto-occipital diameter is the same in the case of the 
 women enjoying the use of their reason and the insane women, and 
 that there is a diminution of but six millimetres between the insane 
 person and the idiot, while the difference is enormous on passing to 
 the lowest degree of idiocy. 4th. That the bitemporal diameter is 
 more considerable in the case of the insane women, and even the 
 imbecile and idiot, than in that of a woman possessing the ordinary 
 degree of intelligence. 5th. That, if we suppose that the sum of 
 those four admeasurements expresses the volume of the brain, it 
 follows, that, the volume of this organ diminishing in the same pro- 
 portion with the intellectual capacity, that of the cranium would be 
 the expression of this capacity."^ 
 
 § 687. "In that remarkable obliteration of the mental facul- 
 ties," says Abercrombie, " which we call idiocy, fatuity, ^^^^^ ^^^^ 
 or dementia, there is none of the distortion of insanity. UL-nitai 
 
 T • • 1 . ^ 1 • • 1 1 • 1 1 itlioc-y may 
 
 It IS a simple torpor of the iaculties in the higher de- exist with- 
 grees, amounting to total insensibility to every impres- 
 sion ; and some remarkable facts are connected with the manner in 
 which it arises without bodily disease. A man mentioned by Dr. 
 Rush was so violently affected by some losses in trade that he was 
 deprived almost instantly of all his mental faculties, lie did not 
 take notice of anything, not even expressing a desire for food, but 
 merely taking it when it was put into his mouth. A servant dressed 
 him in the morning, and conducted him to a seat in the parlor, 
 where he remained the whole day, with his body bent forward and 
 his eyes fixed on the jfloor. In this state he continued nearly five 
 years, and then recovered completely and rather suddenly. The 
 account which he afterwards gave of his condition during that 
 
 1 Esquirol on Insanity. Lea k Blancliard, l'liil;ul<'lphin, 1845, p. 473. 
 
 585
 
 § 688.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 period was, that his mind was entirely lost, and that it was only 
 about two months before his final recovery that he began to have 
 sensations and thoughts of any kind. These at first served only to 
 convey fears and apprehensions, especially in the night-time. Of 
 perfect idiocy produced in the same manner by a moral cause, an 
 aftecting example is given by Pinel. Two young men, brothers, 
 were carried off by the conscription, and in the first action in which 
 they were engaged, one of them was shot dead by the side of the 
 other. The survivor was instantly struck with perfect idiocy. He 
 was taken home, where another brother was so affected by the sight 
 of him that he was seized in the same manner; and in this state 
 of perfect idiocy they Avere both received into the Bicetre. I have 
 formerly referred to various examples of this condition supervening 
 on bodily disease. In some of them the affection was permanent, 
 in others it was entirely recovered from."^ 
 
 § 088. " Of these half-witted persons," remarks Dr. Mayo, " the 
 Occasional former indulges a love of grapes, the latter a love of 
 features. bloodshed : the process of thought in each case is that 
 of a defieient understanding, which could neither prevent the one 
 from stealing grapes, nor the other from committing violence under 
 the influence of opportunity, but rather forwarded the crime by 
 suggesting excuses." " An idiot," says Dr. Hainsdroff, " in the 
 Hospital of Salzburg, appearing to be singularly insusceptible of 
 fear, an experiment of an appalling character, and of appalling 
 consequences, was made upon him, as a means of putting his sus- 
 ce])tibility to the test. It was proposed to make the impression 
 upon him that he saw a dead man come to life. A person accord- 
 ingly laid himself out as a corpse, enveloped in a shroud ; and the 
 idiot was ordered to watch over the dead body. The idiot, per- 
 ceiving some motion in the corpse, desired it to lie still ; but, the 
 pretended corpse raising itself in spite of this admonition, the idiot 
 seized a hatchet, which unluckily was within his re ich, and cut ofi 
 first one of the feet of the unfortunate counterfeit, and then, un- 
 moved by his cries, cut off" his head. He then calmly resumed his 
 station by the real corpse ; a strong illustration of the dangerous 
 hypothesis of harmlessness, as connected with this state of mind."^ 
 
 • Abercombie on the Intellectual * Mayo on Med. Test, in Lunacy, pp. 
 Powers, pp. 273, 274. See for a case of 93, 94. 
 ac([uire(l idiocy, 21 Journ. Ment. Sci. 82. 
 
 586
 
 IDIOCY. [§ 689. 
 
 § 689. As the different races of men, says M. Renaudin, have a 
 
 characteristic physiognomy, and as individuals reflect in j^jj^,,, 
 
 their features the most salient points of their moral idio- easily re- 
 
 ,.,..,. ,. cognizable. 
 
 syncrasy, so the idiot in this respect presents a peculiar 
 stamp which the least discerning can recognize. It is a type which 
 can be distinguished in all its varieties, even when the external 
 conformation of the head does not differ much from the normal pro- 
 portions. But that which strikes us most in this class is the want 
 of symmetry, not only in the encephalic organ, but also in the other 
 parts of the body ; and if sometimes the physiognomy is deceitful 
 in this respect, the other parts of the organism soon reveal to us the 
 Avant of co-operation indispensable to the complete development of 
 man. It is rather by an observation of the whole constitution than 
 of its separate parts that the essential characters of this infirmity 
 are to be detected. Idiots generally deceive in their age, which 
 always offers at the difterent periods of their existence a ridiculous 
 admixture of decrepitude and puerility. The hypertrophy of cer- 
 tain glands, the flaccidity of the tissues, malformation of external 
 essential organs, absence of all proportion in the length of their 
 limbs, difficulty and uncertainty in their movements, which are 
 almost convulsive, the retraction of certain tendons, an arrest of 
 development in the figure and in muscular contractility — such are 
 the general appearances that characterize the idiot in his external 
 conformation. His mode of living is in keeping with this degrada- 
 tion of form, and furnishes us with the means of perceiving some of 
 the relations existing between the physical and the moral. His 
 language is scarcely rudimentary. He does not think, has nothing 
 to say, and nothing in him calls for the vocal motion. When, how- 
 ever, this mntisin is not idiopathic, he can be made to articulate 
 certain words, and his movements can be placed under some moral 
 control ; but in undergoing this external influence he still rests 
 faitliful to that automatism which is his principal characteristic. It 
 is always a material and instinctive impulse that controls. The 
 idiot shows, in the satisfying of his wants, a brutality in close con- 
 nection with the irregularity of all his actions, and the want of 
 balance of his functions, which all coincide with personal instinct. 
 He yields himself to onanism Avitli a revolting cynicism ; he cats 
 with a voracity that defies everything, and which proves how obtuse 
 his sensibility is, although he in fact suffers more than any other 
 
 587
 
 J 
 
 § 689.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the unhappy effects of climacteric changes. Finally, in spite of the 
 violence of certain appetites, the functions are so incompletely per- 
 formed, that we must not be surprised to see these unfortunates 
 very short-lived. If, on the one hand, nothing has wasted life, 
 nothing, on the other hand, has vivified it, and one can easily con- 
 ceive that it is extinguished, since it is without essential nourish- 
 ment and without object. 
 
 The psychical element plays no part in such an organization. 
 External influence is unable to develop it, since the somatic element 
 is not in a condition to receive it ; and as to spontaneousness, one 
 can with but difficulty perceive the germ. So, when these degraded 
 beings, impelled by a brutal instinct, or obeying another's will 
 whose instrument they are, commit a culpable act, all the world 
 agree in not imputing to them any moral responsibility.* 
 
 Idiocy, says M. Falret, cannot, strictly speaking, figure amongst 
 the forms of insanity. In this degraded state man is fallen below 
 the brute ; he does not even possess the instinct of self-preserva- 
 tion. It is necessary for charity not only to bring him the food 
 required for his nourishment, but to place it in his mouth, and to 
 protect him against the mischievous influences which surround him, 
 and against all destructive causes. Instead of language, the ex- 
 clusive appendage of man, since it is the expression of thought in 
 all its development, the complete idiot only utters certain harsh, 
 savage inarticulate sounds. Instead of that firm, assured step 
 which executes the exact command of the will, the rough, dis- 
 orderly movements of idiots seem only phenomena of irritability. 
 Besides, they are often immovable, bent down towards the ground, 
 and only execute a kind of rocking movement, balancing forward 
 and backward, to the right and to the left. Without doubt this is 
 the extreme degree of idiocy, for there are idiots less degraded in 
 their organization and consequently in their manifestations ; but, 
 unfortunately, to this feeble development of the intelligence is too 
 often joined either an absolute want of character or low tastes, in- 
 citations to a brutal lasciviousness, to robbery, pyromania, and 
 ferocity, which they turn against themselves and against inanimate 
 objects. - 
 
 I See Etudes Psychologiques sur 2 gp^ Lo(>ons Cliniques, de M. Falret, 
 I'Alienation Mentale, iiar L. F. E. Re- p. 243, Paris, 1854. 
 naudiii, p. 170, Paris, 1854. 
 
 588
 
 IMBECILITY. 
 
 [§ 692. 
 
 § G90. Cretinism finds no place in the United States, and cannot, 
 therefore, claim here extended consideration.^ 
 
 II. IMBECILITY. 
 
 § 691. Imbecility having almost as many degrees as it has vic- 
 tims, it becomes the task of psycho-forensic medicine to assign a 
 line of demarcation within which the judge is to declare the respon- 
 sibility of the agent to cease to exist. But this problem is only so 
 far capable of solution as we are enabled to detect and recognize 
 the existence of imbecility in general, and to estimate its relation 
 to a given action ; the personal discretion of the tribunal must 
 always have considerable scope in all cases near the boundary line. 
 In order to obtain as firm a common ground as possible, it becomes 
 advisable to subdivide and classify imbecility, particularly where it 
 depends upon particular diseased conditions capable of ascertain- 
 ment and distinction. In this respect we distinguish, in the first 
 place, imbecility with, and imbeeiliti/ witliout concomitant i)isaniti/. 
 The subject of aphasia has been already distinctively discussed.^ 
 § 692. Imbecility with concomitant insanity presents the follow- 
 ing subdivisions : — 
 
 ' The student, however, wlio seeks 
 for jtarticular information as to its 
 character, is referred to the following 
 treatises : Eltudes des Maladies Men- 
 tales, de M. Morel, tome i. p. 64, Paris, 
 1854. Gedanken iiber Kropf nnd Cre- 
 tinismus als Beitrag zur Homatologie 
 und Ilomonymie. Von Joh. Mich. 
 Holier, Gerichtswundarzt zu Ried in 
 Tyrol. Mit einer ALbildung. (Me- 
 decin. .lahr. des k. k. osterr. Staats, 
 Mai.) Ueber den Cretinismus in Can- 
 ton Waadt. in der Schweiz. von Dr. H. 
 Lebert, prakt. Arzt zu Paris. (Archiv 
 fiir physiologisehe Heilkunde, VII. B. 
 6 Heft.) Notice of a very remarkable 
 disease analogous to Cretinism. By 
 HughNorris; Med. Times, , Ian. 1848. 
 Les goittuix ct les cretins de la Savoic ; 
 Annalesd(!Thurapeuti(|ue, 1848. Mais, 
 Ueber den Cretinismus in grossen 
 Stiidten und dessen Aenlichkeit mit 
 di'ia in den Alpen. Von I)r. I'cliii-nd. 
 
 (Gaz. des Hopitaux, 1848. Nos. G and 
 7.) Cretinismus als genetisch — con- 
 tagiiise Endemie in Neudenau, etc. 
 Bad. Annalen d. Staats-Arzneikunde, 
 184(1. Esquirol, Mental Maladies, etc., 
 481—2. Sonsburg, iiber den Cretinis- 
 mus. Wurzb., 1825. Haiiflser, iiber 
 die Beziehung des Sexualsystcms zur 
 Psyche ueberhaupt und ziun Cri^tinis- 
 mus ins besondere. Wiirzb., 182(5. 
 See also a very valuable re2)ort on this 
 point, by Samuel Kneeland, Jun., 
 M.D., read before the Boston Soc. for 
 Med. Improvement, Jan. 13, 1851. Am. 
 .Tourn. of Science, 1851, and a review 
 of same in .loiirnal of Pliyschological 
 Mrd., vol. iv. p. ;')(;(). Sc(; also "A 
 Physician's Holiday, or a Month in 
 SwitzfM'laiid in tlic Summer of 1848, 
 by ,h)hn Forbes, M.D., P. U.S.," Lon- 
 don, 1848, in whicli the man/igenuuit 
 of th(! Cretins is fully described. 
 2 Supra, §§ 324-:527. 
 589
 
 § 693.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 When ac- 1. The Original imbecility which has lapsed into un- 
 
 with hi" soundness of mind. The nature of the latter will deter- 
 sanity. mine, in the first instance, in how far the patient is 
 
 amenable to the penal laws in a given case ; but the fact of imbe- 
 cility will always favor the psychological arguments in favor of 
 irresponsibility. 
 
 2. Imbecility supervenes upon the course of a mental disorder, 
 and manifests itself particularly in the form of a failure of memory. 
 The question of responsibility will depend, in this case, upon the 
 same principles as stated in the last preceding head. 
 
 3. Specious imheciUty, as in the case of melancJioUa attonita, 
 and as such, Avill receive but little attention at the hands of the 
 forensic physician. 
 
 4. Imhecilitij with confusion of mind. This is found side by 
 side with a failure of memory, and a more or less conspicuous in- 
 coherence and inconsistency of the perceptions, and a certain agility 
 and activity of the super-physical life. It is either a primary or 
 secondary form, and in the former case it may be consequent upon 
 severe diseases of the brain, epilepsy, intemperance, sexual ex- 
 cesses, and senility ;^ in the latter case it may arise from the vari- 
 ous forms of mental unsoundness, and may be considered as always 
 excluding the idea of moral responsibility. 
 
 § 093. 5. Imbecility remaining after the patient has recovered 
 from an attack of insanity. This, when sanity is restored, is not a 
 sufficient reason for suspending the responsibility of the agent, but 
 may often deserve the attentive consideration of the judge in the 
 moulding of the sentence. It should be remembered, however, that 
 
 ' In sonility its eflfects are toucliingly invariable habit to call tilings by- 
 illustrated in the following passage, names the reverse of what was right, 
 from the life of the late Wm. Jay : — and of what she herself intended. 
 
 "At length, however, this prop fails " She spoke of a drop of bread, and 
 him. After thirty years of uninter- a thin bit of water ; she called the 
 riipted domestic happiness, this excel- black white, and the white black ; the 
 lent and amiable woman was stricken cold heat, and the heat cold ; preaching 
 with an extraordinary malady, result- was hearing, and hearing was preach- 
 ing in such a prostration of mental and ing ; in the morning she wished you 
 physical powers, as rendered her, from good evening, and in the evening good 
 that time forwai"d, no longer the sup- morning," A similar peculiarity mark- 
 port of her husband in his trials, but ed the last few months of Lord Den- 
 the object of his deep solicitude and man's life. See siq)ra, § 324. 
 teiuhir carc!. It had become her almost 
 
 590
 
 IMBECILITY. [§ 695 
 
 insanity, once proved, is presumed to continue, so far as concerns 
 responsibility, until restoration to reason is positively shown. 
 
 § 694. Imheeility ivithout insaniti/ has several gradations, all 
 being separate denominations ; the highest degree is ^r. 
 called idiocy. Next to this is imheeility proper ; did- without 
 ness^ feebleriess, stupidity, are inferior grades of a 
 stunted growth of mind. The causes which, in the higher stages, 
 exclude understanding and self-control are the more potent, as no 
 education has been imparted here, or, if imparted, has produced no 
 effect. The lower stages do not justify the physician in casting a 
 doubt upon the existence of legal responsibility. They are for the 
 consideration of the judge alone, and are interesting in this point 
 of view, because simpletons and fools often have a touch of malice, 
 brutality, ill-will, and mischief in their dispositions, and may be led, 
 by teasing and ill-treatment, to vindictive hatred, revenge, and vio- 
 lent outbursts of anger. 
 
 § 695. " In some circumstances," says M. Renaudin, " the 
 idiotic germ is less prominent, nothing tends to reveal it 
 in infancy, and the early years lead us to expect a .Tuisiiyd 
 normal ulterior development. But it may happen that a Jq/,'"^. 
 severe disease, deeply affecting the organism, super- 
 venes, or the subject may have been submitted to an intellectual 
 labor above his powers, and at a given moment an arrest of de- 
 velopment, as much in the physical as in the moral system, shows 
 itself. This condition sometimes supervenes even without the 
 action of any apparent cause, and then we can only attribute it to 
 the influence of this idiotic principle. Instead of pursuing the 
 course marked out by the laws of nature, it is arrested at a point of 
 development, rarely transitory but most generally permanent, Avhich 
 is known everywhere under the name of imbecility. The physical 
 organization in imbeciles offers less abnormities than that of idiots ; 
 the body is straighter, and, if the physiognomy is less repulsive 
 and shows a little more regularity in its features, it exhibits but 
 little animation. The feelings are seen in their rudimentary state 
 in this class of beings ; they are susceptible of a more advanced 
 education, and, when they l)elong to a family of easy circumstuuces, 
 they can be made to submit themselves to tiie habits of a regular 
 life. The impressions they receive arc sufficiently durable, pro- 
 viding they do not overstep a sufficiently restricted limit. They 
 
 591
 
 § 697.] MEXTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 are susceptible of a certain amount of memory, which in some cases 
 reaches a very remarkable height. Sometimes the ideas they 
 acquire are very limited, and their intellectual spontaneousness is 
 on a footing witli the small development of their physical spon- 
 taneousness. Although less stupid than the idiot, automatism is 
 the characteristic trait of the imbecile. He never gives the impulse, 
 he receives it; and it is amongst the imbeciles that an asylum espe- 
 cially finds valuable aids in its internal service. If the effective 
 sentiments are but feeble, the instinct of the feeling of personality 
 shows itself perhaps in an absurd vanity, or in a savage egotism in 
 the satisfaction of wants whose stimulus is ordinarily very ener- 
 getic. Hence an excessive irritability that readily degenerates into 
 mania, or a malicious cunning, in order to obtain the thing coveted. 
 The imbecile has but few ideas ; and as he knows but little aban- 
 dons himself to his impulses when fear does not control him. But 
 little capable of distinguishing between good and evil, he may be 
 a dangerous instrument in criminal hands. The imbecile commits 
 a murder with coolness, shows often a great depravity of tastes, and 
 it is only an exception if you can perceive in him any rudimentary 
 traces of the moral sense. It is at this point that his intellectual 
 aptitude ceases, and we can easily understand how a like condition 
 necessarily excludes all responsibility."^ 
 
 § 61)0. The Emperor Napoleon hit upon a very happy illustra- 
 T,, . tion of the distinction between two of the above-men- 
 
 111 list ra- 
 tion of tiiis tioned phases. In one of his conversations Avith Las 
 
 distinction. i • t i i i • > ?• 
 
 Casas, he said that there was such a thing as '•\fohe 
 innncciite.,''' and '-'• folie terrihW'' — a fatuous state which is safe, 
 and one which is dangerous. A fatuous person, " loifoii^ of the 
 first kind, the emperor describes as reasoning, with the proprietor 
 of a vineyard in which he was trespassing, thus : " Why, here are 
 we two : the sun sees us Ijoth ; therefore, I have a right to eat 
 grapes." The "./'oh ^err/.Vc," he proceeds, " is he who cuts oft" 
 the head of a man whom he found sleeping under a hedge ; then 
 hides himself behind it, in order to witness the surprise — enibatTas 
 — of the bodv wlien wakini:;." 
 
 § 6l>7. " Dr. Rush says," we quote from Dr. Ray, " that in the 
 course of his life he has been consulted in three cases of moral im- 
 
 ' Rcnandin snr rAlienuiion ^Meiitale, p. 173. Paris, 1854. 
 
 592
 
 DEMENTIA. [^ 699. 
 
 becility ; and nothing can better express the true character of their 
 physiology, than his remark respecting them. ' In all these cases,' 
 lie observes, ' there is probably an original defective organization in 
 those parts of the body which are occupied by the moral faculties 
 of the mind' — an explanation which will receive but little counte- 
 nance in any age that derives its ideas of the mental phenomena 
 from the exclusive observation of mind in a state of acknowledfi-ed 
 health and vigor. To understand these cases properly, requires a 
 knowledge of our moral and intellectual constitution, to be obtained 
 only by a practical acquaintance with the innumerable phases of the 
 mind, as presented in its various degrees of strength and weakness, 
 of health and disease, amid all its transitions from brutish idiocy 
 to the most commanding intellect."^ 
 
 III. DEMENTIA. 
 
 ^ 698. Dementia is to be distinguished from general Dementia 
 
 . „ , p . . ori<,nn;ites 
 
 mania in the fact that the former originates from depres- in meutai 
 Slow, the other from exaltation of the natural powers. 
 
 § 699. In the course of clinical lessons delivered at Bicetre, M. 
 Ferrus gives an account of the different intellectual de- 
 
 .... . AnaloffV 
 
 bilities in a way that throws a strong light upon these betweeu 
 
 -,-ccL 1, ■• idiocy and 
 
 dltnCUlt questions. dementia. 
 
 Between idiocy and dementia, he says, there is a most 
 striking analogy. In both cases, human intelligence is abolished ; 
 it no longer possesses the means of perfectibility. But the analogy 
 ceases in examining the producing causes. With the idiot, depri- 
 vation of reason is congenital ; the demented, on the contrary, 
 arrives progressively at the total loss of his faculties. Dementia is 
 the destruction of the intellectual faculties, supervening after the 
 period of puberty : it is a kind of debility which appears either 
 in an insensible manner or with the rapidity of lightning — breaking, 
 more or less, all the connections which unite the man with the rest 
 of the world. 
 
 The characters of dementia are sufficiently decided, so as not to 
 be confounded with those of other mental affections. In idiocy, 
 the faculties of the mind have never existed, or have been destroyed 
 before their complete development. In dementia, you may still 
 
 ' Ray on Insanity, p. DO. 
 
 VOL. I.— 38 " . 593
 
 § 699.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 possibly see some traces of an intelligent past ; but it betrays in 
 vain its past perfection : it is stamped forever with the seal of fee- 
 bleness and nullity, and destined to be extinguished by a kind of 
 exhaustion of nervous influence. 
 
 Paralytic stupidity consists in an accidental, sudden, complete 
 suspension of the intellectual, moral, and instinctive faculties, as 
 well as of the corresponding sensibilities. It has for its cause a 
 sudden and violent physical or moral shock ; it is distinguished from 
 dementia by tlie rapidity of its appearance, the intensity of its 
 symptoms, their frequent remission and exacerbation, and espe- 
 cially by the possibility of a comparative cure.^ 
 
 Dementia, says Esquirol, is characterized by the enfeeblement of 
 the sensibility, intelligence, and will. Incoherence of ideas, want 
 of intellectual and moral spontaneousness, are the signs of this 
 aifection. The man suffering from dementia has not the facvdty of 
 properly receiving objects, of noticing their relations and compar- 
 ing them, of preserving a complete remembrance of them ; whence 
 results an impossibility of reasoning correctly. In dementia, he 
 adds, the impressions are too feeble ; it may be because the sensi- 
 bility of the organs, or of the sensations, is weakened ; or it may 
 be because the brain itself has not sufficient power to perceive and 
 retain the impression that is transmitted to it. From this it neces- 
 sarily results that the sensations are languid, obscure, and incom- 
 plete. Individuals in dementia are not susceptible of a sufficiently 
 strong attention — objects only strike them in an obscure and false 
 manner ; they can neither compare nor associate ideas, nor abstract 
 them ; the organ of thought has not sufficient energy — it is deprived 
 of the tonic force necessary to the integrity of its functions. Then 
 the most incongruous ideas succeed each other, following each other 
 without connection and without motive : the matter is incoherent : 
 the patient repeats words and entire phrases without attaching to 
 them distinct sense ; he speaks, as he reasons, Avithout any con- 
 sciousness of what he is saying.- The demented, in spite of the 
 general decrepitude of his organic functions, is not freed from the 
 laws of action and reaction. There are periods in his existence 
 when the old phenomena of possession appear to be renewed. 
 
 ' Ferrus, lei-ons cliniqiies faites a 2 Esquirol de la demence, p. 221. 
 Bic.tre. 
 
 594
 
 DEMENTIA. [§ 700. 
 
 When he is agitated, he cries and tears his clothes, and may, per- 
 haps, perform some dangerous actions. The hallucinations are 
 often sufficiently intense to provoke veritable attacks of fury ; hut 
 this rage lasts but a little while ; it is appeased like the anger of a 
 child. 
 
 The demented from this excited state falls back into his ordinary 
 automatonism. He has no more any wishes, hate, or tenderness ; 
 he holds the objects formerly so dear to him in the greatest indiife- 
 rence ; he sees his relations and friends without pleasure, and 
 leaves them without regret. He is not disquieted by any privations 
 imposed on him ; and pleasures obtained for him gratify him but 
 little. What goes on around him does not aifect him. The events 
 of life are as nothing to him, since he is unable to attach any re- 
 membrance, any hope to them : indifferent to everything, nothing 
 gratifies him. He laughs and plays whilst other men are afflicted, 
 and weeps Avhen all the world are satisfied. If his position discon- 
 tents him, he does nothing to change it. His determinations are 
 vague and uncertain : he is a perfect automaton, that has not suffi- 
 cient energy to be ungovernable : his isolation is the more neces- 
 sary, as he yields himself to acts which are the result of the aboli- 
 tion of conscience, and as he becomes but too often the sport and 
 the victim of those who wish to take advantage of his condition.^ 
 
 § 700. Dementia, according to Falret, is a period, and not a 
 true fox-m of mental unsoundness. Amongst the de- .^ , ^, 
 
 '^_ Falret s 
 
 mented, who are only the chronic insane arrived at an position 
 
 , tliat (If- 
 
 advanced stage ot the disease, there are some who are im-utiaisa 
 almost like maniacs, and some Avho remain motionless, a^dnn'ot'^ 
 like hypomaniacs. There are others in whom are seen ""^'ntai uu- 
 some predominant ideas — resembling, in this respect, 
 monomaniacs ; but it is difficult to classify them. If they speak, 
 their unconnected words have no relation, and convey no sense ; 
 often even this is not due to incoherence alone, but to the absence 
 of ideas ; it is a flow of words without thoughts. 
 
 If they remain quiet and silent, their countenances express 
 neither concentration nor passion, but dulness and stu[)idity ; they 
 seem, at least in extreme cases, to be ciphers both in understanding 
 and character. The observer, in fact, sees in them only ruins : he 
 
 > See Morel sur les Maladies Meiitales, torno i. [<, 40l2. Paris, ISfj'i. 
 
 595
 
 § 701.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 sees before him all the moral and intellectual elements in an almost 
 complete state of isolation from one another. This separation is a 
 kind of dissolution which betrays the radical blow that has been in- 
 flicted upon the psychical forces, and destroys all hope of ever 
 seeing these elements united and co-ordinate. If sometimes a 
 gleam of intelligence sparkles in this chaos, and in the midst of 
 these ruins — far from consoling, it adds to the gloom, so manifest 
 is it that the patient himself is neither its author nor its witness. 
 Everything, in fact, in dementia, betrays an inability to form ideas, 
 to experience sentiments, to possess a will. It is the tomb of rea- 
 son, with the exception of some flashes that mark it, and which are, 
 as it were, the reflections of the ancient brilliancy of the mind.^ 
 § 701. " Dementia," says Dr. Ray, " is distinguished from 
 
 general mania, the only other affection with which it is 
 Description ,. , , 
 of demen- liable to DC contoundcd, by characters that cannot mis- 
 
 tia by Ray. ^^^^ ^^^^ least practised observer. The latter arises from 
 an exaltation of vital power, from a morbid excess of activity, by 
 which the cerebral functions are not only changed from their 
 healthy condition, but are performed with unusual force and rapid- 
 ity. The maniac is irrational from an inability to discern the 
 ordinary characters and relations of things, amid the mass of ideas 
 that crowd upon his mind in mingled confusion ; while in dementia 
 the reasoning faculty is impaired by a loss of its ordinary strength, 
 whereby it not only mistakes the nature of things, but is unable, 
 from want of power, to rise to the contemplation of general truths. 
 Tlie reasoning of the maniac does not so much fail in the force and 
 logic of its arguments, as in the incorrectness of its assumptions ; 
 but in dementia the attempt to reason is prevented by the paucity 
 of ideas, and that feebleness of the perceptive powers, in conse- 
 (luence of which they do not faithfully represent the impressions 
 received from without. 
 
 "In mania, when the memor}^ fails, it is because new ideas have 
 crowded into the mind, and are mingled up and confounded with the 
 ])ast ; in dementia the same effect is produced by an obliteration of 
 past impressions as soon as they are made, from a want of sufficient 
 power to retain them. In the former the mental operations are 
 
 • See Etudes cliniques sur rAlienation Mentale, par M. Falret, p. 541. Paris, 
 18r)4. 
 
 50G
 
 DEMENTIA. [§ 701. 
 
 characterized by hurry and confusion ; in the latter by extreme 
 slowness and frequent apparent suspension of the thinking process. 
 In the former, the habits and affections undergo a great change, 
 becoming strange and inconsistent from the beginning, and the per- 
 sons and things that once pleased and interested being viewed with 
 indifference or aversion. In the latter, the moral habits and 
 natural feelings, so far as they are manifested at all, lose none of 
 their ordinary character. The temper may be more irritable, but 
 the moral disposition evinces none of that perversity which charac- 
 terizes mania. 
 
 " In dementia, the mind is susceptible of only feeble and transi- 
 tory impressions, and manifests little reflection even upon these. 
 They come and go without leaving any trace of their presence 
 behind them. The intention is incapable of more than a momen- 
 tary effort, one idea succeeding another with but little connection 
 or coherence."' 
 
 1 Ray on Insanity, pp. 292, 293. 
 
 597
 
 § 702.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 CHAPTER VII 
 
 DELIRIUM. 
 
 I. General Delirium. 
 
 Characteristics of, § 702. 
 
 Systetnatization of frenzied concep- 
 tions a peculiar featui-e of delirium, 
 § 703. 
 
 Puerperal mania, § 704. 
 
 Explanation of delirium l)y Griesinger, 
 § 705. 
 
 II. Partial Delirium. 
 
 1. j\faiiia or (uncntia orriiltd. 
 
 The term first used I)y Platner, § 70(3. 
 
 Authorities countenancing the theory, 
 § 707. 
 
 Mania occulta not a defence unless in- 
 sanity he proved aUumle, § 708. 
 
 Mania occulta distinct from mania trans- 
 itoria, § 709. 
 
 2. Mania tranfiitoria. 
 Mania transitoria is a sudden insane 
 
 fury, § 710. 
 Observations on the suhject hy Dc- 
 
 vergie, § 711. 
 Dangers attending recognition of this 
 
 mania, § 718. 
 
 I. GENEr.AL DELIRIUM. 
 
 § 702. What distinguishes delirium from the dehisions of the 
 (Tiarac- sousos is that in the latter the sensational faculties are 
 teri.-tie- of. i-pjiiiy acted upon, subjectively, though in an eccentric 
 manner, while in the former the interior reproductive activity of 
 the brain predominates in the generation of phantoms.^ Con- 
 sciousness is disturbed at the same time, and there is incoherent 
 speaking and action, as if it -were a waking dream. External ob- 
 jects are perceived indistinctly, or not at all, and on the whole there 
 is the less delirium, the more activity there is in the peripheric 
 nerves, for which reason hydrocephalic children generally relapse 
 into delirium when they cease vomiting. The external senses may, 
 however, be at the same time open to perceptions, and may convey 
 them ; but tiie patient is so controlled by his internal dreams as to 
 act as if they did not exist. Hence there is, accordingly, a pre- 
 dominance of dreams, wliich deprives the individual of the possi- 
 bility of the power of maintaining a corresponding relation with 
 
 ' Haygen, vol. ii. p. 707 ; Schurmayer, etc., § 555. 
 
 598
 
 GENERAL DELIRIUM. [§ 703. 
 
 the external world. Delirium may, therefore, be defined as a state 
 of dreams brought on, not by sleep, but by disease. Like a dream, 
 a delirium may become active, the beginning of which is the speak- 
 ing delirium. Where a crime or misdemeanor proceeds from a 
 delirium, there is no freedom of agency, i. e., the action is to be 
 regarded as the product of insanity. 
 
 § 703. The most remarkable phenomenon of mental unsound- 
 ness (we translate from Morel) is unquestionably deli- 
 rium, whether it shows itself in words or deeds. De- t^fon of 
 liriura, considered as an essential symptom of insanity, conlfep^ 
 possesses a type of continuity, connects itself with lesions *'°°^ '^ P^" 
 
 '■ . culiar fea- 
 
 of a special nature, and presents altogether the elements ture of de- 
 of a certain systemization of the frenzied conceptions. 
 This systemization alone gives to the delirium which produced it a 
 particular stamp. It shows what has been called the fixing of 
 ideas, and that logic peculiar to the insane, that leads them to the 
 justification of the falsest conceptions and the most deplorable acts. 
 If it were otherwise, who could have flattered himself that he had 
 escaped insanity ? for we have all suffered in a more or less degree 
 the phenomena of delirium. We are delirious during fever, under 
 the influence of spirituous liquors, as also of some narcotics. Febrile 
 delirium is a generic term comprising the universality of abnormal 
 phenomena which can in a moi-e or less permanent manner, in a 
 given disease, hinder the association of our ideas, or which may 
 prevent that association in the way of producing illusions and hal- 
 lucinations of all kinds. 
 
 The Avord insanity is likewise a generic expression for pointing 
 out the universality of the al:)normal phenomena which, under the 
 united influence of physical and psychical causes, can, in a more or 
 less permanent manner, pervert our manner of feeling and seeing, 
 or, in other words, bewilder our understanding. 
 
 In this point of view, febrile delirium and the delirium of mad- 
 ness are the same, inasmuch as deliriums arc identical ; but it is 
 excessively important not to confound the symptoms with the dis- 
 eases that produced them. 
 
 An invalid suffering from an acute disease approaches the 
 period of convalescence. At the approach of night, or whenever 
 he shuts his eyes, fantastical apparitions besiege him. He himself 
 recognizes that these painful imjiressions are the results of his fever, 
 
 599
 
 § 703.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 or, if he docs not recognize it at the first ghmce, he receives the 
 explanations of those surronnding him. He raves before sleeping, 
 and it is not strange if he still raves under the influence of the de- 
 pression as well as of exaltations of the organs of the senses. Upon 
 awaking, he makes known to his relations and friends the fatiguing 
 sensations that his dreams have produced, and seems to search Avith 
 eagerness for explanations to reassure him. As he returns to con- 
 sciousness, the motives of his judgment become more certain, the 
 tumult of his bewildered senses is appeased, the nights are quieter, 
 and, when convalescence follows an ascending course, there only 
 remains a vague and confused remembrance of the stormy scene 
 through wdiich ho has passed. 
 
 Things, unfortunately, do not so proceed wlien the delirium has a 
 tendency to the permanent or chronic form ; and it is this which 
 makes the essential difference between properly called febrile de- 
 lirium and maniacal delirium. There may be a period when these 
 two deliriums possess the same external characteristics on account 
 of the similitude of the perverted sensorial phenomena ; but, when 
 the phenomenon of delirium is produced by a maniacal state, it is 
 then a situation which often passes unnoticed in the beginning, but 
 which, as a diagnostic element, it is of the highest importance to 
 describe. 
 
 This situation, so painful for the friends, first betrays itself in a 
 perversion of the feelings, and in a complete change in the charac- 
 ter and habits of the patient. He becomes impatient and fretful ; 
 speaks passionately, and in an lumccustomed tone. He often loses 
 the feeling of modesty, whatever may be his age or education. 
 His friends and relations attribute these distressing phenomena to 
 the effect of the primitive disease which shows itself with all the 
 characteristics of an ordinary febrile delirium. But soon another 
 more trying ])henou^cnon shows itself, greatly aggravating the 
 case. The care bestowed upon the sick person, the marks of 
 the liveliest affection which arc shown to him, are repulsed, some- 
 times with irony and disdain, and sometimes with passion and fury. 
 In ordinary diseases the sick person attaches himself with happiness 
 to everything that tends to recall him to existence. He hears with 
 emotion of the different stages of his disease, and of the delirium 
 which was its consecjuence ; he speaks often of its causes, deplores 
 its effects, and makes innumerable excuses for any malignant or 
 600
 
 GENERAL DELIRIUM. [§ 703. 
 
 obscene words which may have escaped him during the delirium. 
 The patient, on the contrary, in whom the insanity is confirmed, 
 will not admit that he was delirious. He sustains the errors of his 
 imagination, and takes them for realities. The hallucinations and 
 delusions of all sorts which he has felt, and which still beset him, 
 fortify him in his madness. Still more, in this he systematizes his 
 delirium, and whatever intellectual energy is left is employed by 
 him in establishing, upon the basis of a desperate logic, motives for 
 the new existence which he is just commencing. Several authors, 
 basing themselves on the fact that the delirium of insanity is often 
 found unaccompanied by fever (^delirium sinefehre^, have thought 
 that the train of psychological phenomena that accompanies tlie deli- 
 rium of acute diseases is sufficient to mark out the difference between 
 these primitive conditions. This appreciation, though very true on 
 one side, may nevertheless lead us into error. We willingl}- admit 
 that the delirium of acute diseases is accompanied with redness of 
 the cheeks and turgidity of the face. The expression is troubled, 
 and there are marked changes in the circulation. The eyes are 
 brilliant, respiration often painful, and the excretions involuntary ; 
 the language takes an unaccustomed accentuation. The sick per- 
 son expresses himself sometimes with vivacity, sometimes with great 
 slowness ; his sentences and his words are badl}^ articulated ; he 
 speaks sometimes to himself, and at other times deep drawn sighs 
 are the only manifestations of intellect. But these phenomena are 
 also to be met with in the delirium of insanity, and especially in the 
 first stages of this disease.^ 
 
 Privation of stimulants, says Morel, and the employment of 
 opiates, generally suffice to restore reason to those persons who are 
 generally not considered as insane unless afflicted with a special 
 chronic subjection to delirium treinens ; even Avhen the fatal con- 
 sequences resulting from the abuse of spirits impress uj)on the 
 delirium, which is its consequence, a form of continuity which has 
 by some authors been pointed out under the name of drunken 
 mcdness. Errors made in this respect may be productive of grave 
 consc(iucnces for those avIio are the victims of them. The follow- 
 ing is an example : — 
 
 • S(iO Etudes Cliniques des Maladies Mentales, i;tc. M. Morel, toniu i. p. 124. 
 Paris, 1852. 
 
 GOl
 
 § 704.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 In the month of iNIay, 1850, there was brought to the asylum of 
 Moreville a sick person, whom a physician's certificate represented 
 as a dangerous madman. We observed at first in him a very great 
 disorder of ideas, and a peculiar difficulty of expressing himself. 
 The face was pale, and the lips agitated with convulsive movements, 
 and there was a general trembling of the limbs. The employment 
 of opiates and a bath soon removed these appearances, and the 
 next day we had a man in the perfect possession of his faculties 
 before us. The error in this case had arisen from the fact that the 
 physician's certificate had been given without a proper examination 
 of all the causes necessary to a correct judgment. If he had, in- 
 deed, gone back to the appreciation of the causes, he would have 
 found out that very grave dissentions existed between two brothers, 
 of whom one Avas this supposed madman, who, endowed with a vio- 
 lent but feeble character, after having yielded in the strife of dis- 
 cussion, ordinarily sought to console himself in alcoholic libations. 
 It was after having swallowed a too abundant ration that a family 
 quarrel brought its contingent of trouble to the natural excitement 
 that controlled him, and resulted in delirium tremens, which, if it 
 had been better appreciated in its origin and effects, would not have 
 brought this person to an insane asylum, and compromised in a cer- 
 tain degree his social position.^ 
 
 ^ 704. Puerperal mania deserves a distinct notice, not inerely 
 Pueriic-rai fi'om its distinctive physical origin, but from its distinc- 
 maiiia. ^j^.^ features, which sometimes are erotic ravings, some- 
 
 times even homicidal violence.^ A " homicidal propensity," as we 
 are told by Dr. Taylor, " tOAvards their oftspring, sometimes mani- 
 fests itself in women soon after parturition. It seldom appears 
 before the third day, often not for a fortnight, and in some instances 
 not until several weeks after delivery. The most fre(|uent period 
 is at or about the commencement of lactation, and between that and 
 the cessation of the lochia." According to Esquirol, it is generally 
 attended by a suppression of the lochia and milk. The symptoms 
 do not differ from those of mania generally, but it may assume any 
 of the other forms of insanity ; and in one-half the cases it may be 
 traced to hereditary tendency. According to Dr. Burroughs, there 
 
 ' Morel, sur les Maladies Moiitales, 2 s,,^ siqmi, § 155. 
 tome i. ]). 14G. Paii-^, 1852. 
 
 602
 
 GENERAL DELIRIUM. [§ 705. 
 
 is delirium, -with a childish disposition for harmless mischief. The 
 woman is gay and joyous, laughing, singing, loquacious, inclined to 
 talk obscenely, and careless of everything around. She imagines 
 that her food is poisoned. She may conceal the suspicion, and 
 merely avoid taking what is offered to her. She can recognize 
 persons and things, and can, though perhaps "will not, answer direct 
 questions. Occasionally there is great depression of spirits, with 
 melancholy. These facts are of some importance in cases of al- 
 leged child-murder. This state may last a few hours, or for some 
 days or weeks, and we are told by Dr. Hartshorne, the accom- 
 plished American editor, sometimes for months and years : but it 
 generally goes off within a few months, if not earlier. " The mur- 
 der of the child is generally either the result of a sudden fit of de- 
 lirium, or of an uncontrollable impulse, with a full knowledge of 
 the wickedness and illegality of the act, so that the legal test of 
 responsibility from a knowledge of right and wrong cannot be 
 applied to such cases. Mothers have been known, before the per- 
 petration of the murder, to request their attendants to remove the 
 child. Such cases are commonly distinguished from deliberate 
 infanticide by there being no attempt at concealment, nor any de- 
 nial of the crime on detection. Several trials involving a question 
 of puerperal mania have been decided generally in favor of the 
 plea within the last few years. Dr. Ashwell has remarked that 
 undue lactation may give rise to an attack of mania, under which 
 the murder of the offspring may also be perpetrated.^ Females 
 in the pregnant state have been known to perpetrate the crime 
 apparently from some sudden perversion of their moral feelings. 
 I am not aware that a plea of exculpation on the ground of 
 insanity has been admitted in this country under these circum- 
 stances."^ 
 
 ^ 705. " The fundamental affection in tlie maniacal Exi'hnui- 
 states," writes Griesinger, " consists chiefly in a de- (iriirinm. 
 rangement of the motory side of the soul-life, the effort, 
 
 ' Diseases of Women, 732. j)]). iJ04, 595. See as to the legal ro- 
 
 2 See case Ami. d'Hyg., 1S31, i. 374. si)oiiriiljility in such eases, su/ua, §§ 
 
 For an able analysis of the subject 14(J-1(;2. See also Dr. Storer's excel- 
 
 of puerperal insanity, by Dr. Keid, lent treatise on Insanity in Women, 
 
 see Joui-n. Psychol. Med., 1834, pp. Boston, 1871. 
 
 12S. 284. Taylor's Med. Jurisprudence, 
 
 603
 
 § 705.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 and of such a nature, that the latter having become free, unre- 
 strained, and considerably increased, the individual consequently 
 feels impelled to give some outward manifestation of his powers, 
 
 " From this tendency to an exaggerated psychical movement 
 from -within outwards, from this augmented energy and more ex- 
 tended range of the efforts, from this extravagance of the will, 
 which constitute the centre-point of maniacal derangement, spring, 
 as from a common source, those two forms which in their nature 
 and mode of manifestation are sometimes so essentially distinct. 
 On the one hand, this necessity for the manifestation of the in- 
 creased mental activity may manifest itself directly, being propa- 
 gated by a continuous impulse to the organs of motion, and there 
 exploding, as it were ; whence there ensues a state of great physi- 
 cal restlessness, the patient keeping his muscles in constant play 
 (speech, gestures, movements of the body generally), and perpetu- 
 ally speaking, shouting, weeping, dancing, leaping, storming, etc. ; 
 and thus is constituted the form generally called mania. 
 
 " Or, on the other hand, the direct result of this more free de- 
 velopment of volition may be the development of inordinate vanity, 
 increased self-sensation, and consequently a constant over-estimation 
 of self; and, as attempts at explanations of this disposition, delirious 
 conceptions arise, which now become dominant over the mind, and 
 take the increased activity of the will into their service. 
 
 " The patient has now no longer to do with mere general mani- 
 festation of energy ; but this excitation of the motory side of the 
 soul-life is transformed into extravagant volition in the form of 
 jmrtieiilar delirious conceptions, for the most part Avith much 
 greater outward calm. As soon as such a condition, accompanied 
 by delirious conceptions arising from inordinate self-conceit, has in 
 any degree become fixed, there is founded a state of mental de- 
 rangement infinitely more serious than that of simple mania. In 
 short, while in the latter form the patient is freed from his exagge- 
 rated impulses by their outward manifestation, and again, as we 
 shall soon show, in the pure form of mania, the whole disease is 
 confined to a relatively external sphere of the mental life without 
 profoundly involving the individuality, it is the essential character- 
 istic of this second form of mania, which we designate monomania, 
 that delirious conceptions, false ideas, which arise from over-esti- 
 mation of self, and therefore relate only to the special self of the 
 604
 
 PARTIAL DELIRIUM. [§ 707. 
 
 patient, appear, which immediately involve the ego itself, and, 
 therefore, the innermost part of the individuality becomes alienated 
 and falsified."! 
 
 II. PARTIAL DELIRIUM. 
 
 1. 3Iama or amentia occulta. 
 
 § 706. This leads to the discussion of the so-called amentia 
 occulta, or concealed insanity ; a phase of disease which 
 has been the cause of much perplexity to the courts, as first used 
 well as of much animated controversy among psycholo- ^^ i^i^t»er. 
 gists. Is there such a thing as latent insanity, Avhich is undistin 
 guishable by any of the usual psychological tests until the period 
 of the commission of the controverted act ? This was affirmed by 
 Platner, by Avhom the term was first used. " Est igitur amentia 
 occulta nisus et conatus animi oppressi ad actionem violentam, banc 
 actionem secreto appetentis et raolientis, tanquam suse oppressionus 
 levamen et liberationem." Two cases are cited by him as illustra- 
 tions. The first is that of a man who was good-natured, but super- 
 stitious, hypochondriac, and of weak intellectual powers. He 
 conceived the idea that he was the object of persecution, and of 
 various attempts to bewitch and to poison by deadly perfumes ; 
 and he killed the supposed oftender, declaring that he would 
 rather be executed than to live as the victim of such enmity. Here, 
 as Liman well remarks, there was no amentia occulta, but a case of 
 insanity, exhibiting itself antecedently with great plainness in the 
 common phase of insane delusion as to persecution. The other 
 proof-case given by Platner is that of an alleged pyromaniac girl of 
 seven years, whose irresponsibility on other grounds was abundantly 
 shown. 
 
 § 707. Undoubtedly some comitenance is given to this theory 
 by Dr. Maudsley,^ by Dr. Castelnau,^ and by Dr. 
 
 -" -^ . , ,• Anthorities 
 
 Jarvis,'* in their assumption that there is such a tlung as (•(.iinicn- 
 mania which is " instantaneous, temporary, neeting, a yi,.,„.p_ 
 mental disorder, which breaks out suddenly, like the 
 sudden loss of sense in some ])liysical diseases, and the subject 
 
 ' Griesinger'sM.'iitcairathoL, Sydcn. xlv. j). 2i;», cited by Dr. Jar vis, in a, 
 
 ed. (]S71), § 130. learned ai)pendix to Andrews' Trial, 
 
 2 Jour. Ment. Se. ix. :\?>'>. p. ^OG. 
 
 3 Annales d'llygiene I'ulili.iue, etc., » Andrews' Trial, p. 2(](J. 
 
 (i05
 
 § 708.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 is urged in a moment to automatic acts, which could not have 
 been foreseen." This pliase, however, belongs distinctively to the 
 next head.^ 
 
 § T08. We certainly can conceive of insanity that is latent ex- 
 Mania oc- c^pt ^^ some parenthetical period when it bursts out into 
 
 cuita not a niania, and then retires again from observation ; but as 
 defence uu- ' '~ ' 
 
 less in- to this, two remarks are to be made. 
 
 sanity be ^. -^-^ , , ,, , 
 
 proved .tirst. Human law, whether moral or positive, can 
 
 a mnce. ^^^^ draAV its Conclusions from overt acts. We can con- 
 ceive of an emigrant, for instance, who in intention is a citizen ; 
 but until he declares his intention, and is naturalized, he is not 
 legally to be treated as a citizen. We can conceive of a person in- 
 tending to give money to a charitable object, but until he evidences 
 his intention by will or deed, the act is not the subject of legal 
 cognition. We can conceive of a person signing a paper under 
 duress ; but to make the defence good, duress must be proved. So 
 we can conceiv'e of a person irresponsible through insanity, but, if 
 so, the insanity must be proved. It is true that it may be inferred 
 from an act that in itself is motiveless and passionless, especially 
 when there is evidence of superinducing causes of insanity. But, 
 Avhen the act has motive, whether that motive be passion or interest, 
 and when the act is intelligent, then there can be no defence of 
 mania or dementia occulta. Insanity must be proved aliunde as a 
 prior state, involving derangement of mind. 
 
 Secondly. To admit such a disease as a defence would be to 
 make criminal justice powerless. Not only is the disease (if the 
 title be correct) incapable of diagnosis, but there is no case of crime 
 to which the defence, if good, may not be applied. The insensi- 
 bility of the act by itself cannot prove the disease, for there is no 
 crime, no matter how astute the perpetrator, but betrays, as will 
 hereafter be seen, some incoherence in its preparation ; and no 
 maxim is more trite than that crime is in itself folly. Folly, inco- 
 herence of some kind, if not barbarous ferocity, are incident to all 
 crimes ; and if to these it is permitted to tack amentia occulta — an 
 insanity of which the only proof is the nature of the act — then there 
 is no prosecution of crime to which such insanity cannot be suc- 
 cessfully pleaded. 
 
 » Infra, § 710. 
 
 606
 
 MANIA TRANSITORIA. [§ 710. 
 
 TMrJh/. The assumption rests, in practice, on upetitio jyrincipH. 
 There is no case of occult insanity mentioned in the books in which 
 patent proof of prior insanity is not offered to show occult disease. 
 The illustrations of this in the cases cited by Platner have already 
 been given. A scrutiny of other cases cited by the advocates of 
 this theoi'y will produce a similar result. In one case the " oc- 
 cult" disease burst out in the state of sleep-drunkenness, a condi- 
 tion in which, as has been shown, the mind is substantively disor- 
 dered. In another, hereditary insanity was proved ; in another, 
 epilepsy ; in another, a chronic lesion of the brain ; in another, 
 hypochondria. The fallacy of the position may be seen by the 
 following statement : occult insanity is shown by inductive proof 
 of a prior insane state, but, when there is inductive proof of a prior 
 insane state, insanity ceases to be occult. 
 
 § 709. Amentia occidta has sometimes, as has been noticed, 
 been blended with mania tmnsitoria, or acute transitory j/,,;,;,, oe- 
 raania. This special mania, however, does not neces- '^"^'" "J'^- 
 
 i _ _ _ tnift from 
 
 sarily implv, and indeed by its definition excludes, a mania 
 
 " „ , . . " -I I • •••11 transltoria. 
 
 prior state oi occult nisanity. Mama transitoria will 
 be, therefore, independently considered. 
 
 2. Mania transitoria. 
 
 § 710. Mania transitoria, or furor transitorins, assumes a sud- 
 den, parenthetical, transient, motiveless outburst of in- 
 sane fury in a person previously and subsequently sane. }/,/),.^iforia 
 It is, therefore, to be distinguished from occult insanity jf,^'.','^" j-jf,!^" 
 (amentia occulta), which has just been noticed, in which 
 there is prior insanity which is latent and concealed ; from " moral" 
 insanity, as it is called, which assumes a permanent derangement 
 of the moral as distinguished from the intellectual faculties ; and 
 from the so-called special manias, such as the homicidal mania, 
 kleptomania, and pyromania, which involve permanent constitutional 
 impulses to particular abnormal acts. Mania trayisitoria not only 
 does not involve, but from its term excludes all chronic insane 
 frames, or states, or impulses. It is from its very nature sudden, 
 causeless, exceptional, parenthetic, and vehemently antagonistic to 
 the patient's usual line of character and type of mind. 
 
 607
 
 § 711.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 711. Upon the question in its general relations we have some 
 excellent observations read bj M. Devergie before the 
 tion on the Imperial Academy in 1859. 
 
 De a'r<'ie^ " ^^^ incentives to the deed, either in passions not suffi- 
 
 ciently repressed, or in an acquired fixed idea ; antece- 
 dents and manners irreproachable ; absence of hallucinations ; out- 
 break of insanity manifested by a criminal act, and instantaneous 
 return to reason as soon as the deed was accomplished — these are, 
 according to us, the characters of transitory insanity. Neverthe- 
 less, the word transitory^ perfectly just for tlie world in general, 
 in the sense that the madness is but transient, though the deed 
 done be of the most criminal description, does not appear to me 
 sufficiently exact for the physician. Individuals of the character 
 described ought not to be considered of sound mind when an idea 
 of crime has suddenly risen within them, when this idea has con- 
 stituted with them a dominant and irresistible thought, stronger 
 than the Me, stronger than the will. 
 
 " Antecedents of family, eccentric acts of social life, propensities, 
 tastes more or less perverted, tendencies to moodiness, ideas of 
 suicide, are often manifested many years before the explosion of 
 the irresistible criminal idea. So tliat to say that flie pm^uige from 
 reason to inmnity can be hasty or instantaneous, in the opinion of 
 the physician is to commit an error. This state has prodromata, as 
 every malady has ; and, according to us, [f tliese prodromata do 
 not e.riM, it would be impossible to see in the reported criminal act 
 an act of insanity. 
 
 " Moreover, M. Lelut^ has said, with much truth, in regard to 
 this species of insanity, that, at its commencement, and in the men- 
 tal tendencies which are the predisposing or constitutional cause of 
 it, insanity is still reason, as reason is already insanity (la folie est 
 encore de la raison, comme la raison est deja de la folie). This 
 constitutes, for the physician, one of the first elements towar<ls the 
 solution of the question. 
 
 " A second datum of great interest, in a medical and moral point 
 of view, is the disproportion which exists between the enormity of 
 the offence and the motive or interest which has led to its com- 
 mittal. 
 
 ' I\ei-licrcli(>s des Aiialogit'S de la Folie et de la Raison, a la suite de sou 
 ouvragc Le Duuion de Socrate, p. 318. 
 
 608
 
 MANIA TRANSITORIA. [§ 711. 
 
 " If we examine all the criminal processes which have been in- 
 stituted on the occasion of similar offences, and which have, more- 
 over, been diversely adjudicated upon, but which, for the physician, 
 have been acts of madness, it will be seen that the motive which led 
 to the committal of the deed was not, so far as its consequences 
 were concerned, in relation with the action itself. In other words, 
 the accused, in committing the crime, had in prospect the scaffold; 
 and, even in the case of impunity from it, he derived frequently no 
 advantage, material or moral, from the act which he had committed. 
 
 " Now, every important act of a man of sound mind has one end. 
 That end is the attainment of an advantage proportionate to the 
 consequences of tlie act. When an individual stakes his life upon 
 it, he hopes to obtain in exchange material or moral advantages, 
 more or less considerable, and by which he expects to profit largely. 
 
 " If it be asked what are the conditions under which the reputed 
 criminal act is performed, we are at once struck with the want of 
 foresight which has preceded and accompanied its fulfilment. Nei- 
 tlier the moment of the deed nor the mode by which it has been 
 effected has been the object of any premeditation. Moreover, the 
 deed has probably been committed at the most unfavorable moment, 
 although the accused had had a thousand opportunities of effecting 
 it in secret. 
 
 " Far from avoiding justice, the insane individual, in other re- 
 spects an upright man, comprehending quickly the enormity of the 
 crime that he has involuntarily committed, occasionally, nay, most 
 commonly, gives himself up to justice. In effect, the dominant 
 notion" has hastily ceased to exist ; moral freedom has resumed its 
 empire, and the so-called criminal has ceased to be mad. 
 
 " If investigation is extended to the mental state of the paternal 
 or maternal ancestors of the accused, it is common to find that one 
 or more members of the family have committed suicide, or have had 
 a more or less prolonged attack of insanity. 
 
 " Lastly (and this is a criterion of great value), if we investi- 
 gate the offence from two different points of view, the hypothesis of 
 a criminal act, and the hypothesis of an act of folly, in order that 
 either view should be established, it is necessary that it siiould ex- 
 pose all the facts without effort, while the opposite view should 
 present a series of improbabilities which at once strike the judg- 
 VOL. I.— 39 60'J
 
 § 711.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ment and are inconsistent with experience. The last method leads 
 the physician with the greatest certainty to a right apprehension of 
 the facts ; by it doubt is dissipated, conviction arrived at, and the 
 conscience relieved."^ 
 
 Mania transitoria was set up as a defence in Guiteau's case, 
 which has already been fully discussed, and it was there held that 
 a defence of this kind cannot be accepted without independent proof 
 of insanity.^ 
 
 1 Extract from a paper read before 
 the Imperial Academy of Medicine, 
 Paris, and translated for Winslow's 
 Journal of Psychological Medicine. 
 
 2 From the Pliiladelphia Evening 
 Telegraph of Dec. 31, 1881, the follow- 
 ing is extracted : — 
 
 " Tlie guests in the Astor House, 
 New York, according to the reports 
 published in the morning papers, yes- 
 terday were startled to see what was 
 apparently an enormous woman walk- 
 ing about Ihi! parlors and hallways. 
 She wore a handsome black silk dress, 
 cut decolette, and terminating in a long 
 train. Fine lace niching around the 
 throat concealed the neck. Around 
 her liead and neck in graceful folds 
 was wound a white zepliyr ' cloud.' 
 This person did not disdain occasion- 
 ally to reveal a pair of sliapely feet in- 
 cased in morocco slippers and pink 
 stockings. Tliere was only one thing 
 about her which savored of mystery. 
 No one knew where she came from nor 
 when she arrived. During the even- 
 ing she sailed into the dining-room and 
 took a seat at one of tlie tables. De- 
 tective KiTwin (if tlie Church Str<'et 
 Station happened to Vie in the dining- 
 room at the time, and he regarded tlie 
 individual with curiosity. The head- 
 waiter, Jauie.s T. Smith, told the de- 
 tective that she was an object of mys- 
 tery, and he kept watch on the i>erson. 
 About 11.30 o'clock last night, the suji- 
 posed woman accidentally disari'anged 
 lier cUuul, disclosing iron-gray whis- 
 
 610 
 
 kers. The detective tlien arrested the 
 curiosity. Giving a lair imitation of a 
 feminine shriek, the masquerader at- 
 tempted to run. The detective quickly 
 drew away the zephyr cloud, and the 
 prisoner subsided. He begged to be 
 allowed to change his clothes for his 
 own apparel, and the officer accompa- 
 nied him to liis room. While changing 
 his clothes he gave his reasons for wear- 
 ing female apparel. Ht; said that he 
 lately lost his wife, and the only way 
 he could feel that she was near him 
 was by putting on his wife's clothing. 
 He arrived at the Astor House yester- 
 day morning, and registered as A. A., 
 of Philadelijhia. He said he was a 
 m.erchant in this city. The clerk as- 
 signed him to room No. 135, and saw 
 no more of him. He is five feet nine 
 inclies in height. The police had never 
 seen him before." 
 
 It was further stated that "Mr. A. 
 left Philadelphia yesterday moi-ning for 
 the purpose of visiting his sister-in-law 
 who resides in N. C, Conn. Sometliing 
 over a year ago Mr. A. lost his wife, 
 and since tliat time lias suifered from 
 melancholia, althougli never to such a 
 degree as to incapacitate him tVom liusi- 
 ness. This morning Mr. S., his partner, 
 received a letter from him concerning 
 liusiness matters, which he says bore 
 no evidence of anything being wrong 
 witli him. The announcement, how- 
 ever, in the morning papers sutficiently 
 aroused the fears of Mr. S. to induce 
 him to telegraph to Ne\v York for more
 
 MANIA TRANSITORIA. [§ 713. 
 
 § 712. 3Iania transitoria (^furor transitorius) was advanced as 
 a defence in the trial of Andrews, before the supreme Andrews' 
 court of Massachusetts, in December, 1868.^ The de- '^^^*^- 
 ceased, Holmes, was found dead in a wood, a short distance from 
 Andrews's house, and from a street in the village of Kingston ; his 
 head mangled and his skull crushed. A considerable sum of money 
 was found in his pocket. Suspicions were attracted to Andrews, 
 who had been an intimate friend of the deceased, and who had in 
 his possession a will of the deceased leaving him a considerable sum 
 of money. Andrews denied all knowledge of the homicide ; but, 
 when it was shown that he had previously written to Holmes invit- 
 ing him to come over about the time in question, that he was the 
 last person in Holmes's company, that his accounts of his conduct 
 were contradictory and prevaricating, that his own clothes, worn by 
 him at the time of the homicide, had been cast by him, in a bloody 
 state, in a neighboring well — then he confessed his guilt. This 
 confession, in the shape that it took when he was examined on his 
 trial, was, that Holmes whom he had met at the wood by the appoint- 
 ment just mentioned, had attempted to commit on him an unnatural 
 crime, and that he had killed Holmes, partly in self-defence, and 
 partly in an ungovernable transport of fury. 
 
 § 718. Dr. Edward Jarvis, a physician of Dorchester, Massa- 
 chusetts, called for the defence, opened his testimony by stating, 
 that "it is thirty-three years since I commenced attendnig to 
 mental diseases more particularly ;" and that " since l8o5, I have 
 
 specific information concerning the man New York, received this afternoon, 
 
 who had been arrested. It is cunjec- gives tlie conclusion to Mr. E.'s strange 
 
 tured that Mr. A. may have taken a adventure : ' The man who registered 
 
 portion of the former wardrobe belong- at the Astor House as A. A., a mer- 
 
 to his deceased wife with him for the chant of I'liiladelpliia, and who was 
 
 purpose of transferring the same to liis arrested yesterday for acting thert; in a 
 
 sister-in-law ; that he was led to look disorderly manner, by parading the 
 
 at tlie articles, and while brooding over corridors dressed in woman's attire, 
 
 his loss, received a sudden and uncon- was taken to the Tombs Police Court 
 
 trollable impulse to act as he did. Mr. to-day.' " The defence of insanity was 
 
 A. is a gentleman about fifty years sustaintHl on independent proof of men- 
 
 of age, and enjoys a most enviable tal disturban('e. 
 
 reputation among those who know him ' Hee stipni, § lH'i, and also, for simi- 
 
 best, and wlio will deplor(! tlu; sad mis- lar cases, § Itltj, ami llojipin's case, ."54 
 
 fortune that has befalh^n liim. TIk' fol- Am. Journ. ins. 4i)2. 
 lowing Associated Press despatch from 
 
 611
 
 § 713.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 had private patients under my charge, but am now mostly employed 
 as consulting physician." He strongly maintained the existence 
 0^ furor transitorius, or sudden mania, as an independent form of 
 insanity. His views, as subsequently expanded in an article in 
 the Medical Journal,^ as given in Mr. Davis's report of the trial, 
 are as follows : — 
 
 " This is not exclusively a new or an old doctrine, but it has 
 been taught in France and Germany for many years, by the mana- 
 gers of the insane, and by writers on these topics. It is recognized 
 by psychological authorities in Great Britain. It is admitted and 
 established by jurists and courts in Europe, in their management of 
 persons who have committed acts which would otherwise have been 
 considered as crimes, and for which they would have otherwise been 
 doomed to death on the scaifold. 
 
 " The case of Andrews, who was tried at Plymouth in December 
 last, for homicide, has brought this subject prominently before the 
 public here. As there is a difference of opinion in regard to this 
 doctrine, especially in its application to the case of Andrews, it 
 may be well to present the views of those who have written upon it, 
 in connection with an account of xVndrews's agency in the homicide, 
 and of his trial. 
 
 " Dr. Henry Maudsley, manager of a lunatic asylum at Han- 
 well, near London, and one of the editors of the Journal of Men- 
 tal Science, says, ' Cases of insanity are occasionally observed in 
 which an attack of mania suddenly comes on, and soon passes away, 
 so that although there is no epileptic fit, one can scarce avoid 
 looking upon the attack as a sort of epilepsy. Now this mania 
 transitoria may take on the homicidal form.'' 
 
 " 1. He quotes from the Journal de Mdd. et Chir. Pratiq., 1833, 
 the case of a shoemaker, who was of industrious, sober habits. He 
 arose early one morning to go to work. In a short time his wife 
 Avas struck with his wild look and incoherent talk. He suddenly 
 {tout a coup) seized a knife and rushed upon his wife to kill her. 
 She had hardly time to escape with her child. Dr. Lowenthal 
 was called. He bled and gave other remedies to the maniac. In 
 the afternoon he was quiet. In the evening he regained the use 
 
 » See also 2t) Am. Jouni. Iiis. 3G9. ' Journ. Ment. Science, ix. 335. See 
 
 also id., xviii. 122, 212. 
 
 612
 
 MANIA TRANSITORIA. [§ 713. 
 
 of his faculties, but he had no recollection afterwards of the events 
 of that morning. 
 
 " Castelnau calls this la folie i7istantanee, temporaire, passa- 
 (/h-e, ' mania instantaneous, transitory, temporary, fleeting, a 
 mental disorder, which breaks out suddenly, like the sudden loss of 
 sense in some physical disease, and the subject is urged in a mo- 
 ment to automatic acts, which could not have been foreseen.'^ 
 
 " ' The first act of the mania may be homicide, and the disease 
 may pursue its course under the continued or intermittent form, 
 but, when the act of violence or homicide is the only maniacal 
 manifestation, it is instantaneous, temporary, fleeting, transitory 
 insanity, according to Henke, Marc, Cazauvielh, etc' 
 
 " 2. Ho quotes in illustration from Hiem of Berlin the case of 
 a counsellor of state who had ever enjoyed good health. He 
 suddenly awoke one night, breathing stertorously. His wife 
 endeavored to aid him. He assailed her with the most violent 
 fury, and tried to throw her out of the window. After a struggle 
 for half an hour, he was exhausted. An emetic put an end to the 
 paroxysm, and for fourteen years he had had no other attack. ^ 
 
 " 3. A laboring man of Garde, returning from his work, met 
 his wife, and asked her if supper was ready. She immediately 
 seized a knife, and struck him a fatal blow. She had not been in- 
 sane, though excitable, and helonyed to an insane family.^ 
 
 " Castelnau, referring to this form of mental disorder, says, ' I 
 could show by facts, already so numerous, recorded in the works 
 of physicians devoted to the study of insanity and the observation 
 of the insane, the existence of a mental malady which society has 
 the greatest interest to know, in order to prevent consequences 
 dangerous to the community and to the person aftected.'* 
 
 "Again Castelnau says, ' We could cite a great number of facts, 
 but these are sufficient to show that the various kinds of insanity, 
 as of all the diseases of the organism, can establish themselves in 
 a manner either progressive or sudden, and have a progress slow or 
 rapid, continued, intermittent, or temporary.'^ 
 
 ' Dr. Ph. Boileau de Castelnau in s Ihid., 993. 
 Annales d'llygiene I'ublique et de * Ibid., 21G. 
 Melecine Legale, xiv. 217. s ll)id., 438. 
 
 2 Castelnau, Ann. Ilyg. et Med. 
 Leg., xlv. 
 
 613
 
 § 713.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 " After a great variety of facts and arguments, Castelnau, 
 at the end of his essay, says in conclusion : ' There exist these in- 
 stantaneous changes in the mental faculties, that is, instantaneous 
 insanity. 
 
 " ' These changes have their first and only manifestation in a 
 single act of qualified crime. '^ 
 
 " Castlenau's essay was published in 1851 ; seven years later, 
 December 14, 1858, M. le Dr. A. Devergie read, before the Im- 
 perial Academy of France, an essay on the questions, ' Where does 
 reason end? Where does iyisayiily hcginf This was printed in 
 the Annales d'llygi^ne Publique et de Medecine Legale, in 1859, 
 vol. xi., second series. He confirms the opinions of Castelnau, in 
 regard to instantaneous and transient insanity, except that he 
 qualifies them with the certainty or probability that all or nearly 
 all these cases had been preceded by hereditary taint or some men- 
 tal disease or irregularity in greater or less degree. 
 
 " ' Besides those cases of insanity produced under all these 
 causes, is another mode of alienation, to which they gave the name 
 of Transitory Insanity (^folie transitoire^ , that is to say, without 
 preceding apparent symptoms, without cause, near or remote, appre- 
 ciable to the world, bursting out as suddenly (hrusqueynent') as a 
 clap of thunder, and ceasing completely with a criminal act.'^ 
 
 " ' No motive for the act, either in nngoverned passions, or in 
 acquired ideas ; previous character and manner without reproach ; 
 absence of hallucinations ; the explosion of the mania manifesting 
 itself in one act of violence or crime, and the immediate return of 
 reason after this act is accomplished ; these, in my opinion, are the 
 characters of tram^itory inmytity.''^ 
 
 '' Devergie qualifies this description as above indicated: 'Never- 
 theless the word transitory, perfectly just for the world, in the 
 sense that the mania was fleeting (passayh'e^, although the act was 
 of the most criminal nature, does not seem sufiiciently exact for the 
 physician. The persons of this description should not be considered 
 as sound in mind when the idea of crime suddenly rises within them, 
 and becomes the ruling tliought, irresistible, stronger than them- 
 
 ' Ami. Ilyg. et Med. Leg. xi. 2d ser. 3 Ibid., 408. 
 998. 
 
 2 Ibid., 407. 
 
 614
 
 MANIA TRANSITORIA. [§ 713. 
 
 selves, stronger than their own will. The antecedents of their 
 families, hereditary taint, divers acts of social life, propensities and 
 tastes perverted, tendencies to silence and abstraction, thoughts of 
 suicide, for years existing in many, have been the forerunners of 
 the sudden outburst of irresistible criminal mania.'' 
 
 " 4. Devergie quotes the case of a young man of nineteen, son 
 of a merchant of Bordeaux. He had been most regular and exem- 
 plary in all his previous life, an affectionate brother, dutiful son, 
 faithful to his employer, a banker, and the heir of an immense for- 
 tune, but he was the child of insane parentage, and had a mother- 
 in-law for whom he had a deep aversion. There was a dinner party 
 at his father's house, which passed without unusual incident. 'At 
 the time of the dessert, Julius, the youth, left the table, and went 
 to the hall to warm himself; the fire Avas not burning; he then 
 went to his chamber, took his gun and straw hat to walk in the 
 fields as he was accustomed to do. Then the thought of suicide, 
 which had ti'oubled him for a month, suddenly presented itself, and 
 as suddenly changed to the thought of killing his mother-in-law. 
 He threw down the gun, went to his brother's chamber, took two 
 pistols, which had been loaded three months, leaving his own pistols 
 that he had loaded the evening before. He went to the dining- 
 room, where his mother-in-law was sitting at the table with his 
 father, and discharged one of the pistols into her temple.'- He was 
 rational immediately afterward, and, so far as is known, remained 
 sane. 
 
 " Upon this case Devergie remarks : ' If the act which young 
 Julius committed was one of mania, it was in him a passage sudden 
 and rapid from reason to insanity, and a return as sudden from in- 
 sanity to reason. This then is a very exact example of that species 
 of mania which is called transitory.'' This case was submitted to 
 MM. Gintrac and Delafosse of Bordeaux, Calmiel, Tardieu, and 
 Devergie, who gave their opinion, ' that Julius, at the moment of 
 this action, had not the possession of his freedom of will,' and the 
 court and jury acquitted him fully of the charge of crime.^ 
 
 " These doctrines are sustained by French lawyers, and ])ut in 
 practice by French courts and juries, in the trials of cases of this 
 
 ' Ann. Ilyg. ot Med. L6-. xi. 2(1 ser. « Il.id., :^i»8. 
 
 408. ' Ibitl-, 4U1). 
 
 615
 
 & 713 ] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 nature. ' Billard, a jurist (jvrisconsulte') of high character, whom 
 no one suspects of being indulgent, recognizes the reality of instan- 
 taneous insanity.' He says: 'There are some madmen whom 
 nature condemns to eternal loss of reason, and others who only lose 
 it for a moment {instantavement) by the effect of some great grief, 
 surprise, or other cause of this kind. There is no other difference 
 between these two forms of mania than that of duration, and one 
 whose head is turned for some hours or for some days is as com- 
 pletely insane, during this ephemeral action, as the one who is mad 
 for many years.' Les alienes devant les cours cV Assizes.^ 
 
 " To this Devergie adds : ' So in the short period of thirty years 
 or more, we have passed from incredulity, I may say, from igno- 
 rance the most profound of the nice distinctions of insanity, Avith such 
 immense advance, that now our judges and juries accept as founded 
 on evidence not only delusions on a single point, monomania, but 
 even those transitory aberrations of reason which, in the judgment- 
 of the world, transform a man of previously honorable character 
 into a criminal, and one so much the more wicked because he has 
 covered his perversion of heart so completely as to conceal, through 
 a long period of years, the baseness of his act under the garb of 
 the most irreproachable life.'^ 
 
 " Esquirol says : ' These deplorable homicidal impulses are spon- 
 taneous and fleeting, and without habitual delusion.'' Referring 
 to murder by one in this condition, he says : ' This presupposes 
 the suppression of all intelligence, all sensibility, and all volition. 
 The following fact will best explain my meaning. 
 
 " 5. 'A man thirty-two years old, tall, thin in flesh, of a nervous 
 temperament, amiable disposition, was educated with great care, 
 and accomplished in the fine arts. He had had a cerebral affec- 
 tion from which he had recovered many months previous to his 
 arrival in Paris, two months ago. There he conducted himself with 
 great propriety, until one day, when he entered the palace of justice, 
 and there threw himself upon a lawyer and seized him by the throat. 
 He was arrested and taken to prison, and put under my care on the 
 
 • Castelnaii in Ann. tlyg. et Med. ^ Malad. Mentalf^s, sous les Rapports 
 LSg. xlv. 217. Medico-Legal, ii. 104. 
 
 * Ann. Hyg. et Med. Leg. xi. 2d ser. 
 402. 
 
 61G
 
 MANIA TRANSITORIA. [§ 714. 
 
 same day. At my first visit, on the next day, lie was calm, with- 
 out anger or resentment, and had slept all night, and had sketched 
 a landscape. He spoke of his going to the court-room the evening 
 previous, coolly, but had no recollection of his conduct there or 
 of his motives. Nor did he manifest any regret. He answered my 
 questions courteously, and with an air of sincerity. " I went to 
 the palace of justice, as I would to any other place without any 
 special purpose, merely as a sight-seer. I not only had no ill will 
 against the advocate, but did not even know him. I cannot under- 
 stand how I could have committed such an outrage." When I said, 
 that it could be explained only by the sudden attack of some dis- 
 ease, he said, " You may explain it as you please ; I am not con- 
 scious of having been ill, and I cannot tell how this could have 
 happened." During the three months that he remained under my 
 observation, he manifested not for an instant any disorder of the 
 mind.'' 
 
 " Castelnau says : ' there is no want of authorities to establish 
 the doctrine of instantaneous insanity.' The observations made by 
 writers on medical jurisprudence (jnedicins legists') of the present 
 day leave no doubt of the existence of this mania of a few instants, 
 during which men who have never manifested insanity all at once 
 (^tout d coup') are completely deprived of their reason and give 
 themselves up to the most deplorable excesses. The learned chief 
 editor of the Journal du Medecine et de Chirurgie Pratique offers 
 five examples of this kind of mania. In four of these, accidental 
 circumstances only prevented persons, whose previous life had been 
 irreproachable, from committing crimes. The fifth case was that 
 of a woman who killed her mother and three others, and wounded 
 a fourth person. "^ 
 
 § 714. With this may be classed tlie argument of Dr. Hammond, 
 in his review of McFarland's case : — ^ 
 
 " I have stated incidentally, that there is a form of insanity 
 which, in its culminating act, is extremely temporary in its char- 
 acter, and which, in all its manifestations, from beginning to end, 
 is of short duration : 1st. 'J'his species of mental al)crration is well 
 known to all ])hysicians and nuidical jurists who have studied the 
 
 • M.'ilad. Mentales sous les Rapports " Aim. llyg. <'t MM. Leg. xlv. 221. 
 Medical et M(-dico Legal, ii. 102. » .Jouni. I'sy ^''■'•- 4r>!). 
 
 G17
 
 § 715.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 subject of insanity. («) By authors it has been variously desig- 
 nated as transitory mania, ephemeral mania, temporary insanity, 
 and morbid impulse, (li) It may be exhibited in the perceptional, 
 intellectual, emotional, or volitional form, or as general mania. 
 
 " 2d. The exciting causes of temporary insanity are numerous, 
 (a) It may be induced by bad hygienic influences, such as impro- 
 per food, exposure to intense heat, cold, or dampness, or to a noxious 
 atmosphere ; by excessive physical exercise, by disease of the heart, 
 by blows upon the head or other parts of the body, by certain 
 general and local diseases, by the abuse of alcoholic liquors, by the 
 ingestion of certain drugs, such as opium, belladonna, and hashish, 
 by excessive intellectual occupation, by loss of sleep, and, above 
 all, by great emotional disturbances, (ft) Among these latter are 
 religious excitement, grief, disappointed affection, and especially 
 anxiety, by which the mind is kept continually on the stretch, tor- 
 tured by apprehensions, doubts, and uncertainties, and by which it 
 is worn away more surely than by the most terrible realities. 
 
 " 3d. The predisposing causes are to be found in the individual, 
 as an inherent part of his organization, (a) They consist in an 
 hereditary tendency to insanity, or to some other profound affec- 
 tion of the nervous system ; (ft) or the possession of an excitable, 
 nervous temperament, which is incapable of resisting those morbid 
 influences which persons of phlegmatic disposition would easily 
 withstand, (t') Thus, all men are not affected alike by disturbing 
 causes, because all men are not cast in the same physical or mental 
 mould ; a circumstance which will produce insanity in one person 
 will scarcely rufl[le the eiiuaniraity of another. 
 
 " 4th. The immediate cause of temporary insanity is the disease 
 itself, of which the mental aberration is simply the manifestation. 
 It may consist of — (r«) A condition of cerebral exhaustion in which, 
 owing to excessive wear and tear of the brain, new substance is not 
 formed with sufficient rapidity to take the place of that used ; (ft) 
 The circulation through the brain of blood which is not normal in 
 quality ; {c) Cerebral congestion." 
 
 § 715. A qualified assent to the same hypothesis may be found 
 in a late (1871) publication of Dr. Krafft-Ebing. {Bie LeJire von 
 tier mdtiia trauHitur'ta.) This experienced and acute observer re- 
 cords 18 cases which he declares exhibit the symptoms of this dis- 
 ease. Of these, 15 were men and 8 women. The attack in 11 
 618
 
 MANIA TRANSITORIA. [§ 716. 
 
 out of 18 of these cases was sudden, without the premonitory signs 
 of ordinary mania. In most of the reported cases, terror was 
 strongly marked. The patient suddenly was overcome with anguish; 
 with fear of approaching death ; with belief that he was assailed 
 by a vindictive and desperate enemy. In some instances the 
 " mania" took the form of violent rage. But it is an essential 
 retpiisite of mania traiisitoria, according to Dr. KrafFt-Ebing, that 
 the patient's power of memory should be lost during the preva- 
 lency of the attack. He is unconscious afterwards of anything 
 that he did while the attack continued. This, it is maintained, is 
 an infallible test, and one which is readily applied. Dr. Krafft- 
 Ebing on this point, however, advances positions which open his 
 whole exposition to unfavorable criticism. He declares that a 
 simulant, who feigns this disease, will not know where his oblivion 
 is to commence, and where it is to end. But a simulant who is 
 intelligent enough to select this peculiar type of disease as that 
 Avhich he is to feign would be intelligent enough to follow Dr. 
 Krafft-Ebing's prescription how to do so successfully. And the 
 prescription is simple enough : " Forget everything that you did 
 when you lapsed into this transitory rage — remember everything 
 else." Dr. Krafft-Ebing declares that the simulant would betray 
 himself by his consciousness. But an intelligent simulant would 
 do no such thing ; whereas, an innocent person, hurried uncon- 
 sciously into crime by such a mania, would, on being subsequently 
 informed of it, be overcome, when the subject was afterwards re- 
 ferred to, with emotions which it would be difficult to distinguish 
 from remorse.' 
 
 § 710. On the other hand, Dr. Choate, superintendent of the 
 Taunton Lunatic Asylum, who has held that " position for the last 
 fifteen years," and has had " about three thousand six hundred 
 patients" under his charge, in addition to extensive collateral ob- 
 servation, testified in Andrews's case that " there arc no cases of 
 instantaneous insanity, instantaneously maniacal," declared that he 
 had never known such a case, and testified that " the fact that a 
 man was under constant observation and appeared sane down to an 
 hour at least before the homicide, and then half an hour afterwards, 
 
 ' OI(s<!rvatioiis somewliat similar to in tlic Kdiiiburgli .Journal for Novem- 
 thoso of Dr. KrafTt-Ehiiig are recorded ber, ISGr^. 
 
 619
 
 § 719.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 is to my mind conclusive that the homicidal act was not in con- 
 sequence of disease, and did not spring from insanity." To 
 the same effect is the testimony of Dr. Bell, on the trial of 
 Rogers,' who stated that he had had a thousand patients under 
 his care. 
 
 § 717. With regard to the argument of Dr. Jarvis, which has 
 been given above, the following observations are to be made : — 
 
 § 718. First. However it may have been at the time Dr. 
 
 Jarvis wrote, it cannot now be affirmed that furor 
 Danjjcrs . , , , . ,. .' . 
 
 attciuiiiiij transitorius, or mama transitoria, as a distmctive 
 
 of this '""'^ disease, is recognized generally by the German and 
 mania. French writers on psychological medicine. Friedreich^ 
 
 and Schiirmayer, as will presently be seen,^ positively decline to 
 award it such a status. Dr. Liman, who may be regarded of high 
 authority, not merely as the editor of Casper, but as a high govern- 
 ment officer charged with the judicial examination of questions of 
 insanity, says, with much emphasis, that there may undoubtedly be 
 transient attacks of insanity, but " there is no distinctive species of 
 mania of this class, no so-called mania ttrmsitoria.^^ " This un- 
 scientific and perilous designation," he continues, " cannot be 
 applied to practice ; and is entirely superfluous in the elucidation 
 of each individual case by the general diagnostic tests." And Dr. 
 Bucknill^ says that " the existence of this class admits of grave 
 doubt," and adds, very justly, that " it is probable that the cases 
 of insanity which have been placed under this head were less recent 
 and sudden than they were supposed to be. The earlier stage of 
 diseased feeling had been unobserved by others., and unacknowl- 
 edged by the patient.''^ 
 
 § 719. Secondly. The alleged cases are either imperfectly re- 
 ported, or exhibit proofs of permanent mental lesion. Of imperfect 
 reporting may be mentioned No. 1 in Dr. Jarvis's statement as 
 given above. To prove a negative we must set out by showing 
 that there has been a due application of the requisite tests. But 
 as to the history of the patient whose case is here noticed, we have 
 no information, and no evidence given that any attempt was made 
 to search for it. Whether he had had prior attacks — whether there 
 
 > Pamp. p. 149. s Infra, § 722. 
 
 " Handbuch, etc., p. 591 < Essay on Criminal Lunacy, p. 38. 
 
 620
 
 MANIA TRAXSITORIA. [§ 719. 
 
 was insanity in his family — whether he was epileptic — we are not 
 informed. 
 
 Case No. 2, that of Stadsrath Lemke, was reported as far back 
 as 1817, and has since been repeatedly canvassed. It was clearly 
 a case of sleep-drunkenness,^ to which it appeared that Lemke was 
 subject, and during which, at a prior period, he had made a homi- 
 cidal attack on his secretary. In the case cited above, it appears 
 he had been previously on a hunting party, and his sleep was prob- 
 ably deepened by his exposure, if not by conviviality. No doubt 
 he was startled by some noise, and thereupon attacked his wife in 
 words that showed that he thought her a thief. It was under a 
 similar delusion, when suddenly startled in his sleep, that he had 
 previously attacked his secretary. The case was not mania tr an st- 
 toria. It was simply the momentary terror and violence of sleep- 
 drunkenness ; a state capable of easy ascertainment, and of positive 
 judicial recognition. 
 
 Case No. 3 is that of a person who is spoken of as " excitable," 
 and as belonging " to an insane family." Nothing is said which 
 excludes the supposition of subsequent insanity, of which the out- 
 burst referred to was the first open sign ; and there is no statement 
 as to the symptoms of " excitability" which in this woman of in- 
 sane family preceded this outburst. But, unless these symptoms 
 indicated insanity, and unless subsequent insanity occurred, it is 
 hard to make out of the facts above stated a case on which a court 
 of law could rest a verdict of irresponsibility. The "excitable" 
 wife of a laboring man, when he asks her, it may be in some way to 
 irritate her, if supper is ready, strikes at him with a knife, and the 
 blow proves fatal. Such cases are frequent in criminal courts ; but 
 in no case would an acquittal on ground of insanity ensue, unless 
 insanity Avas proved aliunde. If mania trandtoria is supposed to 
 be sufficiently shown by such a violent act, taken by itself, then 
 there is no violence yielded to sudden rage that is not mania tramti- 
 foria. The case, therefore, rests as follows : If there was no 
 proof of insanity aliunde^ then there was no mania — nothing but a 
 burst of ill-temper and irritation, common to all acts of sudden vio- 
 lence. If there was proof of insanity a/Zio/iZc, then the case was 
 not mania transitoria, for the very idea of the transitory and 
 
 • See supra, § 484. 
 
 621
 
 § 722.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 parenthetical character of this mania excludes the idea of its being 
 the manifestation of a continuous state. 
 
 The same observation a])plies to No. 4, though in this case the 
 question is embarrassed by the fact that the defendant is admitted 
 to have had a " deep aversion" to the mother-in-law ^Yhom he 
 killed. 
 
 No. 5 would exhibit the same features as " homicide from gene- 
 ral malice," well known in the law books, were it not that the 
 defendant is stated to have had a prior " cerebral affection," and 
 subsequent to the deed to have lost all recollection of the event. 
 Here then, again, mania transitoria can only be sustained by evi- 
 dence of cerebral disease before and after the act. If, however, 
 there be such prior and subsequent cerebral disease, the case is not 
 mania transitoria. 
 
 § 720. TJtirdhj. To admit that such an hypothesis of irresponsi- 
 bility is applicable to acts of sudden abnormal violence, without 
 proof of insanity before or after Ihe act, is to emancipate violence 
 and barbarism from penal restraint. The more atrocious the act — 
 the more complete the proof of the defendant's prior and subsequent 
 sanity — the more distinctively is the defence of mania transitoria 
 made out. ^ 
 
 § 721. FourtliJy. The principle of the law, that a person sane 
 before and after a particular act, is to be presumed to be sane 
 during such act, is a principle of common sense. ^ Without it, none 
 of the business and social intercourse of life could be sustained. 
 
 § 722. Not differing widely from these results are the views of 
 Friedreich^ and Schiirmayer.^ Tlie latter defines this phase of 
 mania to involve an attack of frenzy, fury, and raving madness, 
 accompanied with more or less confusion of the senses, and of the 
 thinking faculties, and peripheric consciousness which arises without 
 any perceptible or from a very slight external provocation, generally 
 lasts but a short time, hardly a few hours, and, after sometimes 
 leading to the most serious conse(|uences, leaves but an indistinct 
 trace in the memory. It is either the opening symptom of a dis- 
 turbance of the super-physical faculties which has hitherto remained 
 
 1 Sec supra, § 24(5. ' 3 Gericht. Med. § 522. 
 
 2 Friedreich, Haiidbuch der geiielit- 
 lichcii Psychologie, p. .591. 
 
 622
 
 MANIA TRANSITORIA. [^ 722. 
 
 occult, and now first manifests itself, or it appears in persons hith- 
 erto entirely sane, or in individuals who have already suiFered from 
 pronounced insanity, particularly from melancholy, depressed de- 
 lirium, lunacy, and imbecility. In the latter class of cases, the 
 question of responsibility presents no difficulties ; far more in the 
 former, in view of the possibility that the guilty act may have been 
 the result of the outbreak of violent passion. It will then be often 
 impossible to do more than to set forth the possibility or probability 
 of a furor transitorhis, which is effected by establishing the -ex- 
 istence of facts which may have caused it. Such are epilepsy, 
 irregular development, gastric irritations, disturbances of the men- 
 strual or hnemorrhoidal courses, or the secretion of milk, the sudden 
 dispersion of eruptions of the skin, sunstroke, drunkenness, poison, 
 violent agitation, anger, dread, fright, deep shame, over-exertion of 
 the mind. But where no such probable causes are to be discovered, 
 the examination is necessarily confined to the statements of the 
 party, and the immediate investigation of his intellectual and moral 
 condition, the principal point of attention being the search and 
 scrutiny of the motives of the acts, and the inquiry whether or not 
 they were mingled with hallucinations or illusions, and whether the 
 act was not preceded immediately, or for some length of time, by 
 bodily disturbances, sleeplessness, restlessness, moodiness, etc. 
 Very great difficulties are involved in those cases in Avhich an ad- 
 ditional doubt arises whether the ravings were not occasioned by the 
 criminal act itself, the probability of which, with a certain class of 
 temperaments, has been already noticed. 
 
 The non-recognition by the courts of this form of defence has 
 been already stated.^ 
 
 ' Supra, §§ 162, 166. 
 
 623
 
 § 723.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 CHAPTER VIII. 
 
 DELUSIONS AND HALLUCINATIONS. 
 
 Marked by general derangement of the 
 perceptive faculties, § 723. 
 
 Various phases of delusions, § 724. 
 
 Tests of Ellinger, § 72(i. 
 
 Errors of insanity distinguishable from 
 those of sanity, § 727. 
 
 Distinction between illusions and hal- 
 lucinations, § 728. 
 
 Hammond's test of the distinction, § 
 730. 
 
 Delusions no defence in matters not 
 their product, § 731. 
 
 Question determined on circumstances 
 of each case, § 735. 
 
 Observations of Griesinger on distinc- 
 tion between illusions and hallucina- 
 tions, § 736. 
 
 Example of general insanity produced 
 by delusion, § 738. 
 
 Epidemic character of hallucination as 
 to loss of identity, § 739. 
 
 Observations of Griesinger on this 
 topic, § 740. 
 
 Hagen's theory of cause of delusions, 
 § 741. 
 
 Illustration of partial delirium by Mayo, 
 § 742. 
 
 Classification of partial hallucinations 
 by Abercrombie, § 743. 
 
 Marked by 
 general de- 
 rangement 
 of tlie per- 
 ceptive 
 faculties. 
 
 § 728. Under this head will be treated that species of mental 
 unsoundness which is marked by the continued and con- 
 trolling existence of insane ideas, without being either 
 accompanied Avith delirium or with moral maniacal pro- 
 pensities to specific crimes. It may be considered as 
 covering the same phase as the partial lunacy (partielle 
 Veriiicktheit) of Schtirmayer, who declares it to consist in crazy 
 notions, with only a secondary participation of the affective facul- 
 ties, without damage to the peripheric consciousness, and without a 
 decided weakness of the intellectual powers. The subjects of it 
 have resolved their individuality into their delusion, it is in their 
 eyes an absolute truth, and all demonstration and argument in 
 opposition to it are idle. Persons of this kind often suifer no ex- 
 ternal mark to betray their inward disorder, frequently speak and 
 act quite rationally about and in matters outside of the circle of 
 their hallucinations, and only suffer the point of derangement to 
 trans])ire when it is adverted to in conversation or when they have 
 624
 
 DELUSIONS AND HALLUCINATIONS, [§ 724. 
 
 occasion to write. The malady may easily lead to the gravest vio- 
 lations of law, for which reason it is of the greatest judicial interest. 
 Where the act is clearly the result of this morbid condition of the 
 mind, no legal responsibility can attach to it.* 
 
 This species of mental unsoundness appears less frequently as a 
 primary disease, than as a secondary result, developed out of prior 
 disease, in the form of melancholy or otherwise. When the general 
 expansive and depressive affection of the sentiments recedes, the 
 confusion of the peripheric consciousness is dispelled, the bodily 
 health regains its equilibrium, the patient finds himself endowed 
 with a system of affections and perceptions to which he was before 
 a stranger, but which revolve round one or more manifestly insane 
 stand-points. 
 
 § 7 24. These various fancies are reducible to certain grou2:»s, 
 which take their point of departure (1) in the relations 
 
 \ arious 
 
 of the individual to the external world, to the super- phases of 
 
 L ^ 1x1- ^• L /.IN • !.• delusions. 
 
 natural, and to his own personality, or (J) m perceptive 
 anomalies of depression and mania. 
 
 T.\\Q former view admits the following classification: cracldrram- 
 edness,^ where the erroneous notions relate to the objects and rela- 
 tions of the external world, and of the body of the individual ; 
 frenzij, where they concern things beyond the reach of the senses, 
 religious mysteries and divine inspirations ;/o/?y [Narrheit), where 
 the identity of the person has undergone a change. In the latter 
 view, the subject-matter of the delusion generally depends upon the 
 kind of erroneous notion which accompanied the preceding stages 
 of depression and mania. The delusion itself is of a depre-ssinij or 
 elevating description. The depressive form subdivides as follows:' — 
 
 a. Hypoelirondriacal delusions, where anomalous bodily sensa- 
 tions — delusions of the sense of touch — suggest the idea, that par- 
 ticular parts of the body have been transformed, tliat there are 
 parasitic animals in them, or injurious substances, which must be 
 removed, etc. 
 
 b. Demoniacal delusions. The patients declare and maintain, 
 with perfect self-possession and entire calmness, that demoniac 
 
 ' Schiirmayer, Oericht. Mi'd. § SfiG ; at tlie sam(! time tflln us is cxprcssocl 
 
 supra, §§ 125-145. hy tht; Scotch by the phrase "having 
 
 2 "A little cracked," to use Dr. a bee in liis bonnet." 
 Rush's popular synonyme, for what he 
 
 VOL. I.— 40 t;25
 
 § 725.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 beings or other persons, living or dead, have their seat in their 
 bodies.^ 
 
 c. Such delusions,'' called by Ellinger " concentric," as consist 
 in the delusion that the personal reputation of the sufferer has been 
 injured by a real or imaginary misfortune, that the infamy incurred 
 has reached the ears of the higliest circles — impressions still further 
 confirmed by delusions of the sense of hearing — and that no re- 
 source is left but either seclusion from all intercourse with mankind, 
 or restitution of good fame by some bold exploit. 
 
 d. Peripheric delusions, in which the patients regard themselves 
 as the objects of a plot on the part of the autliorities or of their 
 relatives, or of some secret society, surrounded by spies and func- 
 tionaries of the secret police, watched and dogged at every step, 
 injured bodily and mentally in action and repose ; persecuted and 
 endangered in life and property, or that they are beleaguered by 
 thieves, robbers, and murderers, or that spirits hover in the air to 
 torment and disquiet them, etc. 
 
 § 725. The elevating or ecstatic phase of this species of mental 
 unsoundness subdivides itself, according to Schlirmayer :^ — 
 
 a. JRelif/ious delusioyis, which may be considered in connection 
 with dfemonio-mania, already noticed,* in which the patient pretends 
 to stand in a particular position, as regards degree and distinction, 
 in the eye of (lod, to have been appointed censor, prophet, re- 
 former, and Messiah, etc. ; these are generally accompanied with 
 hallucinations of sight and sound, and often lead to the most dread- 
 ful crimes. 
 
 b. Delunons of pride. The patients suppose themselves called, 
 \>J tlieir (lualifications of person and mind, to the most important 
 missions. 
 
 c. I>('hii<ions of vanifii. The delusion here is a supposed descent 
 from a princely lineage, elevation to a higher social position, etc., 
 the enjoyment of which, however, is destroyed by the machinations 
 of the envious and malevolent. 
 
 d. Sexual delusion, which is sometimes of a more intellectual, 
 sometimes of a more carnal nature, is a state of mind in which the 
 patients suppose that, in consec^uence of their personal charms or 
 
 " Hw ante, §§ 644-6')0. ' Mf-d. Jouni. § Sftfi. 
 
 2 Kllinger, p. 132. * Supra, §§ 644-677. 
 
 626
 
 DELUSIONS AND HALLUCINATIONS. [§ 726. 
 
 other ^advantages, either all people of the opposite sex, or even 
 persons occupying a higher rank, such as princes, are in love with 
 or betrothed to them in spirit. This is attended Avith many hallu- 
 cinations, particularly of the sexual kind.^ 
 
 § 726. It is not to be denied that the proper consideration of 
 this species of mental unsoundness presents great diiB- xests of 
 culties, and the practical suggestions of Ellinger^ ai'e Eihuger. 
 indeed worthy of peculiar attention. He notices the following 
 phases : — 
 
 "l. An impression of having sustained wrongs at the hands of 
 certain persons, against whom revenge is meditated and executed. 
 Here the diseased individual often acts on mature reflection, and in 
 the full knowledge that he has no right to take revenge, and of the 
 consequences which ordinarily ensue ; and then it may occur either 
 that he prefers undergoing the extremity of the law, and perishing 
 together with the supposed wrongdoer, to remaining longer exposed 
 to his assaults, or that he proceeds on the ground of his known and 
 established insanity, calculating to escape responsibility and punish- 
 ment on the strength of the indulgence accorded to his case. Here 
 there appears in general ground to assume a moral responsibility.^ 
 
 " 2. An impression that the patient is acting at the instigation 
 or under the constraint of demons. In this case it might become 
 necessary to inquire whether, and in how far, the patient under- 
 stood that the demands of the demons were wrongful, and that he 
 was at liberty to withstand them, and whether, and in how far, it 
 was actually in his power to withstand them. 
 
 "3. The patient imagines himself beset by thieves, etc., and 
 neither sure of his property nor of his life. This may perhaps be 
 treated as a case of self-defence, and all responsibility excluded.^ 
 
 " 4. The self-consciousness of the patient is perverted, and he 
 acts with tliat plenitude of power with which he is invested in view 
 of his position and his destiny, in religion, politics, etc. In this 
 case, as under the third position, responsibility is out of the ques- 
 tion. 
 
 " But as a fixed idea never occurs in such isolation as is erro- 
 
 1 Supra, § 617. ^ Seo supm, §§ 12r.-145. 
 
 2 l\ 137. * Supra, §§ 12.-.-] 4r., 442. 
 
 627
 
 § 727.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 neously supposed, there being always a series of phantoms con- 
 nected in a system, the outlines of which it may be periiaps 
 impossible to define with accuracy ; and as the entire affective 
 life has become altered and irregular, the general views of men and 
 things have become distorted, and illusions of the senses often 
 brought to light by a rigid scrutiny, which entirely escaped the 
 eye of the superficial observer — as the action, reaction, and intro- 
 action of the psychical faculties is no longer measurable by the 
 ordinary standard — opinions must be given with the greatest cir- 
 cumspection, mid every possible reservation, whenever the connec- 
 tion or tvant of co7inectio7i between the illusion and the deed is not 
 perfectly evident T 
 
 § 727. It is not easy to mistake the error of a lunatic for the 
 
 error of a sane man. The decisive point of diff'erence 
 
 insanity between them is, that in the latter case the action of the 
 
 distinguish- thinking faculties, from whatever cause this be, ter- 
 able from & ' ' 
 
 those of minates too soon, and before the entire subject has been 
 sanity. . . . 
 
 thoroughly sifted, and that such an error, after having 
 
 been properly refuted, can only be maintained by dint of obstinacy 
 or indolence. In insanity, on the contrary, the error of tlie under- 
 standing is occasioned by the abnormal function of the perceptive 
 faculty. One or two prevailing schemes of perception' are applied 
 to almost all other perceptions to which they can be adjusted in any 
 way, and thus one and the same tout ensemhle of perceptions is 
 continually reproducing itself on the slightest provocation. Hence 
 the chain of association loses, in the eye of the individual, its 
 accidental, personal, and contingent character, and by its constant 
 recurrence, deludes the understanding with the idea that the same 
 connection subsists between the objects in reality as in the imagi- 
 nation of the individual, until at last reason herself is misled into 
 seeing a necessary relation of cause and eflfect in the perceptions 
 with which it finds itself invariably associated. The individual is 
 therefore compelled to think accordingly ; and even if he is some- 
 times brought by instruction to acknowledge his error, it is only to 
 relapse into it, not so much from obstinacy as because of this com- 
 pulsory synthesis of the perceptive faculties. A sane man in error 
 retains the power of doubting, not the madman. This condition of 
 
 ' Compare Ilagen, vol. ii. p. 707. 
 
 628
 
 DELUSIONS AXD HALLUCINATIONS. [§ 729. 
 
 the perceptive faculties is also the cause of the great indifference 
 manifested towards surrounding things, of the dreamy manner and 
 the illusions growing out of it. It is also a matter of course that 
 the perceptions, by their constant recurrence, cease to be mere per- 
 ceptions, but ultimately take rank as thoughts and ideas, in conse- 
 quence of their constant action upon the understanding, and their 
 assumption of the form of propositions.^ 
 
 § T28. A distinction is very properly drawn by Schiirmayer, 
 
 following in this respect the general current of modern , 
 
 . . . ^. " . Distinction 
 
 opinion, between illusions and hallucinations, the former between 
 
 comprising mistakes in the conception and interpreta- and^lallu- 
 tion of the perception of objects actually present, while ^"^'^^i^^^- 
 in the latter the perception Avhich. originates in a diseased action 
 of the senses appears to the patient as if the sensation were pro- 
 duced by a real external object acting upon the senses.^ 
 
 The distinction is thus stated by Dr. Taylor : " Hallucina- 
 tioiis are those sensations which are supposed by the patient to 
 be produced by external impressions, although no material objects 
 may act upon the senses at the time.^ Illusions are the sensations 
 produced by the false perceptions of objects."* "When a hallu- 
 cination," he proceeds to say, " or an illusion is believed to have a 
 real and positive existence, and this belief is not removed either 
 by reflection or an appeal to the senses, the individual is said to 
 labor under a delusion ; but when the false sensation is immedi- 
 ately detected and is not acted upon as if it were real, then the 
 person is sane." 
 
 § 729. " As a morbid condition of the brain," says Sir Ben- 
 jamin Brodie, " may produce the impression of visible objects, or 
 of voices, which have no real existence, so it may also produce 
 notions of a more complex and abstract character, and these may 
 "be constantly obtruded on the mind, so that the individual is unable 
 to withdraw his attention from them, being, as it would seem, as 
 much beyond the influence of volition as the muscles of a paralytic 
 limb. Thus, one person believes himself to be ruined as to his 
 
 ' Ellinrer, p. 818. •• Taylor's Medical Jurisprudence, p. 
 
 2 Schiirmayer, Gericht. Med. §§ 554. 552. See a remarkal.le case, combin- 
 
 3 See, on this subject, remarks by ing the characteristics of delusions and 
 Dr. Sigmond, Jour, of Psychol. Med., illusions, 21 Journ. Ment. Sci. 22G. 
 
 p. 585, 1848. 
 
 629
 
 § 731.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 worldly affairs, and that he and his family, though really in 
 affluence, are reduced to extreme poverty ; while another is per- 
 suaded that he is in possession of unbounded wealth, the conse- 
 quence being tliat he is in danger of being ruined by extravagance ; 
 and a third is under the apprehension of his being accused of some 
 dreadful crime, and perhaps seeks refuge from his fears in self- 
 destruction. It is more difficult to escape from the latter than from 
 the former class of illusions, as the appeal lies not from one sense 
 to another, but to a more refined process of thought and reflection 
 and the examination of evidence."' 
 
 § 730. A writer of much acuteness. Dr. Hammond, of New 
 York, has, as has already been noticed,^ distinguished 
 
 Dr. Ham- illusions and hallucinations on the one side, from dclu- 
 mond s test ' 
 
 of the dis- sions on the other, by declaring that of the falsity of the 
 
 tinction. ,.,, . ^ ^ ^■\ • • \ 1 
 
 first (illusions and hallucinations), the patient may or 
 may not be conscious, but that of the falsity of the latter he is 
 unconscious. The difficulty as to this distinction is that illusions 
 and delusions are often used convertibly ; and that, in addition, the 
 distinction amounts to no more than saying that as to illusions and 
 hallucinations the patient is open to reason, and is therefore sane ; 
 but that as to delusions he is not open to reason, and therefore is 
 insane. But this is in conflict with the almost universal practice of 
 medical psychologists, which is to speak of illusions and hallucina- 
 tions as among the symptoms of insanity. 
 
 & 731. A question of much medico-legal importance has arisen in 
 ,^ , . this connection as to whether insane illusions or halluci- 
 
 Delusions 
 
 uo defence nations ("delusions" as they would be called if the 
 
 in matters , , • i i i i\ 
 
 not their nomenclature above mentioned be adopteu) can coexist 
 
 j)iotuct. T,,f[i\i general mental soundness. If the observations 
 above mentioned be correct, the question is to be answered promptly 
 in the negative. He who conceives a tree to be a man, or a 
 friendly neighbor to be a robber, and who cannot be reasoned out 
 of such conceptions, is insane. The degree of his insanity, how- 
 ever, and the extent to which it divests him of responsibility, is a 
 question for distinct consideration. He may be insane, and yet, as 
 to acts not the product of insanity, he may, as has been shown, be 
 responsible.^ 
 
 ' Psychological Inquiries, etc., p. 79. * See .iiipra, § 312. 
 London, 1854. » Supra, §§ 34-(j0 ; 145. 
 
 630
 
 DELUSIONS AND HALLUCINATIONS. [§ 733. 
 
 § 732. The difficulty here, so far as it does not rest on a con- 
 fusion of terms, arises from the erroneous assumption that percep- 
 tion is an independent factor, capable of independent disease, some- 
 what in the same way that a mirror in a chamber may be broken, 
 without the chamber being in any other way disturbed. But the 
 perceptive powers are not a mere mirror. " All perception or 
 knowledge," says Mr. Bain,U'ery accurately, " implies mind. To 
 perceive is an act of mind ; whatever we may suppose the thine to 
 be, we cannot divorce it from the percipient mind." In sight, for 
 instance, we have the action of light on the retina, accompanied by 
 a series of nerve currents and other influences ; but the " mental 
 phenomenon is the feeling, or subject state accompanying these," 
 and " the word (sight) is properly applicable, and should be con- 
 fined in its application, to the strictly mental act." A child, for 
 instance, sees the moon, and conceives it to be within its reach. 
 Here the hallucination rests exclusively on defect of reason ; in 
 other words, there is no memory to recall the fact of failures to 
 grasp the moon in particular or objects in general which present 
 themselves to the eye as distant. The same illusion might occur 
 in the fatuous imbecility of old age. Now where this illusion can- 
 not be reasoned away — when it would be in vain for us to say, 
 " try to seize the moon, and you will find it escapes your grasp," 
 or " objects having the appearance of distance, as you will learn 
 through memory and association, are proportionally removed from 
 your reach" — if the person whom we address is incapable of thus 
 reasoning, then he is mentally unsound. But it is absurd to speak 
 of this unsoundness being confined to this particular illusion. It is 
 a general mental unsoundness — /. e., it springs from the weakness 
 of the functions of memory and of association, which are among the 
 prime factors of reason.^ And yet, at the same time, the unsound- 
 ness may not reach so far as to require the sequestratiou of the 
 party, and the declaration of his irresponsibility.^ 
 
 § 733. So, also, with regard to the sense of sound.. A person of 
 weak nervous system is wounded by a gunshot, and ever afterwards 
 associates a noise like that of the report of a gun with severe per- 
 
 ' Bain's Mental and Moral Science, may In; supported I'j the lii>;li author- 
 p. 19tj. London, 18(J8. ity of (iriesinger, Ment. Path. § 47. 
 
 2 See su/^m, §§49-(JU. Tliis argument ^ Supra, §§ 4(j-(i<', H'j. 
 
 6bl
 
 § 735.] MENTAL UNSOUNDNESS CONSIDERED P3YCH0L0GHCALLY. 
 
 sonal pain. If you cannot reason this away by experiment or 
 explanation, then the patient's mind is unsound. He is not, it is 
 true, " insane" in the sense of being subject to a single insane illu- 
 sion. Ilis mind is unsound because his powers of memory and 
 association are so perverted and disordered that he treats a single 
 instance of association as a general law. The derangement arises 
 from the debility of an organ essential to all complete mental judg- 
 ments. On the same reasoning maybe explained the cases of sleep- 
 drunkenness which have been already noticed. A hunter in his 
 sleep hears a noise like a shot ; he springs up and shoots the sup- 
 posed assailant. He is judged irresponsible, not because he is the 
 victim of a particular insane illusion, but because, in the condition 
 of trance-like dream in which he was at the time of the event, 
 his reason was suspended, and his mind, as such, not only in this, 
 but as to all other processes involving memory, association, and 
 discrimination, was deranged. 
 
 § 784. So, also, Avith the common monomaniac delusion of perse- 
 cution. A man believes himself to be persecuted by all mankind ; 
 that he is the victim of a conspiracy to poison ; that he is beset by 
 evil spirits in the shape of men. There is, however, no distinctive, 
 collateral, independent mania about this, capable of existing when 
 the mind itself is sound. The mind, in such a case, is unsound. 
 The unsoundness, it is true, may only exhibit itself in this particular 
 method in the same way that an irritable temper discharges itself 
 on some particular object. The cause, in the first case, is in the 
 mental derangement which, when one illusion is dispelled, seizes on 
 another, just as the irritable temper pounces on object after object 
 on which it may successively vent itself while the ill-humor lasts. 
 
 Here, then, arises the interesting question, when do the powers 
 of memory,^ of association, of discrimination, become so enfeebled 
 or perverted as to constitute incompetency and irresponsibility ? 
 
 § 735. Psychologists have failed in supplying any such uniform 
 Question ^^'^^^ ^^^^^ question must be determined concretely as to 
 
 detenuiiied each casc bv the history, conduct, examination of the 
 on firc-um- , . "^ "^ n • i i 
 
 stances of patient huuself. It may, however, be generally said that 
 
 when a delusion is transient ; when it is capable of be- 
 ing repressed ; when the patient takes steps which show that he 
 
 > See 23 Journ. Ment. Sci. G09. 
 
 632
 
 DELUSIONS AND HALLUCINATIONS. 
 
 [§ 737. 
 
 is conscious of its unreality ; -^-hen it can be dispelled by the force 
 of countervailing considerations ; then mental unsoundness is not 
 to be assumed. It is otherwise when the delusion, however it may 
 be concealed, is, on the one side, in itself palpably absurd, and yet, 
 on the other side, it is cherished by the patient as a radical belief.^ 
 
 § 786. If such be the case, then, as to acts which are the pro- 
 ducts of such delusion, the patient is to be regarded as incompetent 
 and irresponsible.^ And as to acts not the result of such delusions, 
 his mind may be regarded as so enfeebled or confused as to subject 
 him only to a diminished criminal responsibility.^ 
 
 § 737. "The most general and most important sensitive ano- 
 malies in states of mental disease," says Griesinger, " are ^^ 
 the hallucinations and illusions. By hallucinations we tious of 
 
 . . • ■ CTricsiii*^cr 
 
 understand subjective sensorial images, which, however, on distTnc- 
 are projected outwards, and thereby become apparently j^veeu^iiu- 
 objects and realities 
 interpretation of an external object 
 
 By an illusion is meant the false ^^^o^* ^"^^ 
 
 *^ hallucina- 
 
 It is an hallucina- tions. 
 
 • An Esop, to adopt an illustration 
 of Dr. Liman, fancies himself an 
 Adonis, or a Xantippe thinks proper 
 to regard herself as a woman of soft 
 and tender beaiity. Now such assump- 
 tions tlatly contradict the trvith, as it 
 is regarded by the great body of man- 
 kind. People such as these are called 
 " fools," though no one thinks of lock- 
 ing them up in a mad-house. For 
 "Esop"' is not a real believer in the 
 delusion. If he is, why does he dye 
 his hair ? And why does Xantippe paint 
 her cheeks, and resort to so many 
 devices to cover the reality of old age ? 
 Yet at the same time, as is further 
 illustrated by this acute observer, it is 
 not always easy to mark in them the 
 point at which sane folly jtasses into 
 insane folly. Thus a wise parsimony, 
 by scarcely perceptible steps, may be- 
 come avarice ; and avarice may over- 
 step the limits of sanity, and, under 
 the influence of insane illusions, r(!fuse 
 to eat, for fear of starvation. The only 
 question in each case is, is there witii 
 
 the patient a delusion really insane, 
 and if so, did the delusion produce the 
 litigated act ? And this is to be deter- 
 mined according to general psycholo- 
 gical and psychopathical tests. And 
 it has been well said by an eminent 
 writer on this topic, Dr. Sander (cited, 
 Liman's Casj)er, p. 5,54), that in con- 
 ducting the inquiry we are not to be 
 so much governed by the specific fancy 
 in question, or by tliis or that illusion, 
 as by the patient's original psycholo- 
 gical state, by the cause and course of 
 the disease, in short, by its develop- 
 ment as a whole. "For in sucli cases 
 we must fall back on the development 
 — history of the concrete case." 
 
 See Les Le(;ons Cliniques de M. Fal- 
 ret, Le(;ons 3, 4, 5, 6, pp. 95, 185, Paris, 
 1854; also Etudes Psychologiques, par 
 L. F. fJ. Renaudin, diap. viii. p. 388, 
 Paris, 1854 ; and also Dr. Hammond's 
 Essay on McFarland's Case, 4 Ham- 
 mond's Journ. Psyc. Med. 440. 
 
 2 Sui»a, §§ 4G-(iO, 145. 
 
 3 Sui>ra, § 200. 
 
 t>33
 
 § 737.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 tion when I see human forms while in reality no man is near, or 
 hear a voice which has not spoken. It is an illusion when I take a 
 bright cloud in the heavens for a fiery chariot, or when I believe 
 that I see an old friend when a stranger walks into the room. In 
 hallucination there is no external object, it is a false sensation ; an 
 illusion is a false construction, a transformation of a peripheral 
 sensation. 
 
 " The motive of this sensation does not necessarily require to 
 exist in the external world ; it may also be within the special 
 organism ; therefore the false interpretations to which peripheral 
 pains (neuralgic, rheumatic) are subject, are considered illusions, 
 as the idea of being pregnant, which proceeds from unusual ab- 
 dominal sensations, or that case mentioned by Esquirol, in which a 
 patient had pain in the knee, and kept striking it with the fist, call- 
 ing out, ' Wait, you rascal, you shall not escape me !' "^ 
 
 " The distinction between hallucinations and illusions was made 
 by Esquirol. It ought to be maintained, although it cannot be 
 adhered to with perfect exactness. 
 
 " In the senses of taste and cutaneous sensation especially the 
 distinction is often impossible. In the other senses, too, the view 
 of illusions as false judgments is, in many cases, too limited. They 
 are, in the majority of cases, actual transformations of impressions 
 transmitted by the organs of sense, Avhen, for example, a portrait 
 on the wall appears to roll its eyes and walk out of the frame, or 
 when the visage of an old woman appears to be young and beau- 
 tiful. 
 
 " Here internal images are substituted for real perceptions ; it is 
 a mixture of hallucination and real sensorial perception ; the latter 
 becomes there])y transformed in the sense of the dominant ideas 
 and frames of mind. We can also express the relation between 
 them so ; the hallucinations are either quite complete when they 
 provide the entire object, or they are incomplete (illusions) when to 
 a real external object other (|ualities which it does not possess are 
 attributed. "2 
 
 ' Griesinger's Mental Pathol., Sydf'ii. Esquirol, several articles in Diction- 
 
 ed. (1S67). § 52. nairedes Sciences Medicales, and Traite 
 
 2 (iratiolet. d(> 1' Alienation. Bayle, Mem. sur les 
 
 Tlie following is given by Griesinger Hallucinations, Revue Medic, Jan. 
 
 as the literature of sensorial delirium : 1825. Midler, Ueber phantastische 
 
 634
 
 DELUSIONS AND HALLUCINATIONS. [§ 738. 
 
 " Hallucinations," continues Griesinger, " may occur in all the 
 senses — in the senses of sight, hearing, smell, taste, and cutaneous 
 sensibility. In individuals sometimes this, sometimes that, fre- 
 quently several, occasionally all, these various sensorial functions 
 are affected at the same time ; the hallucinations are real sensa- 
 tions, not mere fancy. The patient really, and not merely fanci- 
 fully, thinks that he hears, sees, and smells ; and should we meet 
 the sensorial delirium with arguments of reason, we generally 
 receive answers such as Leuret did from one of his patients:^ 'I 
 hear voices because I hear them — how they originate I know not, 
 but to me they are as distinct as your own voice ; if I admit the 
 reality of your words, you must also allow me to believe in the 
 reality of those voices, as to me both are equally appreciable.' " 
 
 § 738. Delusion may spread in such a way as to cover the whole 
 surface of the mind, leaving no sound perception un- „ , . 
 
 ' _ ° _ i ^ Example of 
 
 touched. Dr. Rush, in the following report given by jrenerai in- 
 
 1 • f ,1 • r' • 11- 11- sanity pro- 
 
 him 01 the conversation ot a patient laboring under this duced by 
 phase, very happily illustrates this incoherence, and at '^'^'^^'O"^- 
 the same time the occasional point by which its intellectual opera- 
 tions are distinguished: "No man can serve two masters. I am 
 Philip, King of Macedonia, lawful son of Mary Queen of Scots, 
 born in Philadelphia. I have been happy enough ever since I 
 have seen General Washinjrton with a silk handkerchief in ITinh 
 Street. Money commands sublunary things, and makes the mare 
 go ; it will buy salt mackerel made of ten-penny nails. Enjoy- 
 ment is the happiness of virtue. Yesterday cannot be recalled. I 
 
 Gesiclitserscheinuiigeii, Col)lenz, 1S2G. wisn tlui writings of Arnold, Rcil, Jlas- 
 
 Lelut, De la Foli« St^nsoriale, Gazette lam, lloff bauor, Ncnnnann, Friedrich, 
 
 Med., 1833. Bold, Thatsachliche Be- .lessen, Archambault in Ellis's Traite, 
 
 inerkungen iiber Siniiestanscliungen, p. 180, segg., etc. Sinogowitz, Die 
 
 Friedrich's Magazin, Sept. 17, 1831. (ieistesstiirungen, Berlin, 1843. Mi- 
 
 Dietz, Ueber die Quelle <ler Sinnes- eliea, Du Delire des Sensations, I'aris, 
 
 tiinscliungen, ibid., Ileft 111, ]S3:i. ]84(!. Baillarger, Des llalkieinations, 
 
 Leuret, Fragmens psychologiijues, Mein. d(! I'Acad. de Med., tonio 12e, 
 
 Paris, 18.34. Bottex sur les Ilalluei- I'aris, 184(j. Brierre, Des llallucina- 
 
 nations, Lyon, 183(). Marc, (Jeistcs- tions, I'aris, 1847 (2d edition, 18.'j3). 
 
 krankheiten translated by Idider, i. Leubuseher, Ueber die Hnsteliung der 
 
 1843. Ilagen, die Sinnestansehung(;n, Sinnestilnschungen, Berlin, 18.')2. See, 
 
 Liepzig, 1837. Baillarger, in Arehiv also, 24 .Journ. Ment. Sci. !t7 ; 22 //>/</. 
 
 (Jener. 1842-3. Patterson, Annal. 47'). 
 MC'd. Psycliolog., Mars, 1844. Like- ' Fragments, p. 203. 
 
 635
 
 § 740.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 can only walk in the night-time when I can eat pudding enough. I 
 shall be eight years old to-morrow. They say R. W. is in partner- 
 ship with J. W. I believe they are about as good as people in 
 common — not better, only on certain occasions, when, for instance, 
 a man wants to buy chincopins, and to import salt to feed pigs. 
 Taimcd leather was imported first by lawyers. Morality with vir- 
 tue is like vice not corrected. L. B. came to your house and stole 
 a coffee-pot, in the twenty-fourth year of his majesty's reign. 
 Plum-pudding and Irish potatoes make a very good dinner. No- 
 thing in man is comprehensible in it. Born in Philadelphia. Our 
 forefathers were better to us than our children, because thev were 
 chosen for their honesty, truth, virtue, and innocence. The 
 Queen's broad R originated from a British forty-two pounder, 
 which makes too loud a report for me. I have no more to say. I 
 am thankful I am no worse this season, and that I am sound in 
 mind and memorj^, and could steer a ship at sea, but am afraid of 
 
 the tiller Son of Mary Queen of Scots. Born in 
 
 Philadelphia. Born in Philadelphia. King of Macedonia."^ 
 § 730. Hallucinations involving a belief that the patient has 
 
 been transformed into various species of animals have 
 Epklcmic . • i • » i i • 
 
 character been at times almost epidemic. Analogous to these is 
 uations^is' the belief that worms, frogs, or snakes have taken up 
 
 to loss oi their abode in the head or stomach, which consume the 
 identity. _ _ / 
 
 brain or entrails. Men have fancied themselves preg- 
 nant, and imagined themselves shadows or corpses, or to be con- 
 structed of glass, .butter, or wax. At one time the belief in a 
 transformation into wolves or other wild animals became so preva- 
 lent as to acquire a title to itself (Lycanthropia). In cases of this 
 last phase the disease became so uncontrollable as to impel its 
 victim to a close imitation of the wild animal itself, falling upon 
 other men and animals, and snapping at and biting them. Andral 
 relates a case of a child of fourteen years who tore wildly about 
 the field, biting other children that came in its way, and producing 
 an epidemic consternation in the neighborhood. ^ 
 
 § 740. Griesinger thus speaks of hallucinations of loss of 
 
 ' Rush on the Mind, pp. 242, 243. will find a very interesting discjuisi- 
 ^ C'nurs de Patholog. Interne, tome tion on this point in Wierns's work, De 
 iii., Paris, 1836, p. 176. The carious Prrestigiis Dajmonum, lib. iv. c. 23.. 
 
 636
 
 DELUSIONS AND HALLUCINATIONS. [§ 740. 
 
 identity: "The patients renounce their former perso- Observa- 
 nality, and consider themselves sometimes animals Grilsin^o-er 
 (wolves, oxen, etc.), sometimes historic individuals ?" .*'"^ 
 
 . ^ topic. 
 
 (Napoleon). Sometimes the whole body is considered 
 dead, or as not really theirs, or as composed entirely of inanimate 
 substances, as wood, glass, wax, butter, etc. At other times the 
 body is merely felt to be extraordinarily heavy, or to have acquired 
 a very great circumference, etc. 
 
 " On the other hand, these anomalies of the general sensation 
 are sometimes local, confined to certain parts of the organism. The 
 patient supposes that certain of his members are wanting, or that 
 they are not connected to his body in the way they used to be. 
 For example, he thinks that he no longer has a head, that one of 
 his arms or legs is petrified or made of glass, or he feels as if a 
 certain part were uncommonly large, and the nose in particular is, 
 in many cases, the object of this illusion. 
 
 " There are, besides, observed in the insane, as more transient 
 states, sensations familiar to many healthy persons in dreaming, of 
 flying high in the air, of being precipitated from a height, or of 
 general giddiness. Sometimes a veritable aura is felt before an 
 attack, as it is before an epileptic seizure. 
 
 " The seat and the more immediate causes of these anomalies of 
 the general sensation are difficult to understand. In several cases, 
 indeed, they depend — for example, the feeling of absence of a part 
 of the body — on evident anaesthesia, or more frequently an analge- 
 sia of the organ. At other times, however, the peripheral sensi- 
 bility of the cutaneous surface, and perhaps even the sensibility to 
 pain, is fully maintained, and obscure modifications of the muscular 
 sensibility, which likewise appear to play an important part in 
 ordinary dreaming, may be the original disorder Avhich the ex- 
 planatory reflection lays hold of to form delirious conceptions. The 
 transformation into animals appears to be much more related to the 
 mind in its origin, and the basis of this false idea may depend on 
 the appearance and influence of certain instincts peculiar to certain 
 species of animals, as the cruelty and ferocity of the wolf. Hut here 
 also a marked deviation from the normal gen(;ral sensation is always 
 necessary to the full development of the ideal metaniori)liosis.' 
 
 ' Griesingor's Mental rathol. Sydcii. Lcurct (Fragm. Psychol, siir laKolii'-, 
 
 ed. (18G7) § 49. I'ari.s, 1834, p. 101) has inado an in- 
 
 G37
 
 § 741.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 " Examples of insane persons considering themselves dead, and 
 not recognizing their body as their own, are numerous. Esquirol 
 mentions that, in a Avoraan who believed that the devil had carried 
 away her body, the surface of the skin was completely insensible. 
 
 " To such states there are also analogues in acute diseases. A 
 medical friend has frequently told me that he, in even slight febrile 
 affections, has always the sensation of remarkable enlargement of 
 the limbs. 
 
 " A convalescent from fever believed that he was really two per- 
 sons, one of whom lay in bed while the other walked about. Al- 
 though he had little or no appetite, yet he ate a great deal, because 
 he had to nourish two bodies.^ 
 
 " Patients with paralysis of sensation of one-half of the body 
 have sometimes the idea that another person, or even a corpse, lies 
 beside them in bed.^ Such false opinions belong to the so-called 
 illusions, soon to be considered. 
 
 " The sensation of flying in dreams appears to be due to accele- 
 ration of the inspiratory movements, and that of being drawn from 
 a height to their becoming slower (Gratiolet) ; corresponding images 
 are associated with these. 
 
 " All considerable alterations of the common sensation are always 
 amongst the most important elements of mental disease. When this 
 general basis of the bodily sensations is falsified, corresponding 
 false ideas are formed with extreme facility. These anomalies are 
 always to be specially investigated, as they occasionally furnish in- 
 dications for therapeutical treatment."^ 
 
 § 741. According to liagen,^ the cause of the delusions of the 
 
 terosting collection of several old ex- the reason wliy my skin is not liairy 
 
 amples of the so-called Lycanthropia, like that of a wolf is that it is reversed 
 
 and several cases of more recent date and the hairs are inside." To convince 
 
 of insane persons wandering in tlie himself of this he made incisions in his 
 
 woods and carrying off and even kill- body and cut his legs and arms, so that 
 
 ing children, from a fierce instinct to he died of the wounds. 
 
 murder. Wier narrates an example of ' Lenret, loc. cit., p. 95. 
 
 a man from Padna who, in the year ^ Bouilland, Traite de I'Encephalite, 
 
 1541, believed himself transformed into Paris, 1825, p. G4. 
 
 a wolf, and, on the open plain, attacked ^ Ihid. 
 
 and slaughtered those whom he met. * Compare Wagner's Ilandworter- 
 
 " I am really a wolf," said he, "and hucli der Physiologic, vol. ii. p. 811. 
 
 638
 
 DELUSIONS AND HALLUCINATIONS. [§ 742. 
 
 senses is either a mere physical stimulus, which, acting upon the 
 fountain-heads of the sensational nerves in the brain, pro- 
 duces eccentric sensations, and induces the individual to theory of 
 incorporate his sensations into an imaore, in which case f 'lu.se oi de- 
 
 _ * . lusions. 
 
 it will depend upon the particular circumstances of the 
 case, especially on the mental and moral condition of the individual, 
 whether or not such apparitions are believed to be genuine. And 
 upon another hypothesis, suggested by the same author, the disease 
 is only a strong morbid susceptibility of the brain to eccentric sen- 
 sations, with which some fancy or other comes into such a collision 
 as to act as the stimulating cause of a paroxysm, bringing, at the 
 same time, a complete phantom before the external sense, just as, 
 in cases of convulsive diseases, St. Vitus's dance, etc., an intended 
 slight motion may bring a convulsion into that particular system of 
 muscles. Great care must be taken, however, not to include under 
 this head what is not really a delusion of the senses. If, for in- 
 stance, a madman takes a person or a black cat for the devil, there 
 is no delusion of the senses. On the contrary, in supposing the 
 devil to have assumed such a shape, the maniac only directs his 
 madness to an object of which, in itself, he has a correct perception. 
 Delusions, also, we are admonished by Schiirmayer, must not be 
 mistaken for coiifuslon of the se'nses, wdiich consists in an entire 
 obstruction of the conceptions, an incapacity to obtain adequate 
 apperceptions, and sometimes in an entire want of o])jectivc con- 
 sciousness and recollection. 
 
 § 742. The following interesting illustration of partial delusion 
 is given by Dr. Mayo : " In a case to which I was called 
 
 , T\ -» T r- -L • I- 1 Illustration 
 
 in by Dr. Monro, a tew years ago, it was our pauitul „i i)ariiai 
 duty to resist the liberation of a patient, an old lady, 5J[.|' q""' '^^ 
 whose confinement under certificates had continued for 
 sixteen years. For six years she was described as having been in 
 a state, first of acute, and then chronic mania. For many years, 
 we learned, that she had regained the power of conversing consecu- 
 tively and sensibly, indeed without the smallest evidence of inco- 
 herent or irrational remark, and such aj)peare(l to us her present 
 state. The o])jcctions which existed to her being then considered 
 sane, if she had been insane up to tlie time we saw her, on the 
 grourul of her advanced age, weighed ou our minds, but seemed in- 
 sufficient. The evidence of her attendants, who considered her still 
 
 639
 
 § 748.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 insane, on the ground of occasional outbreaks of temper, was that 
 of interested witnesses. She was a patient in chancery, and the 
 visiting physicians had become favorably disposed to her etdarge- 
 ment, as a sound-minded person. Now, the question was in this in- 
 stance determined in our minds by a discovery of a very remarka- 
 ble notional delusion which held its ground in her mind. In a set 
 of draAvers in this lady's bedroom, and in certain trunks there, to 
 which we were conducted without her knowledge, we witnessed a 
 large and very heterogeneous and dirty collection (dirtiness had 
 been a symptom of her insane state), consisting of old bottles, 
 broken cups and saucers, brass knobs, bits of old string, shreds of 
 linen and cloth, small bundles of wood, such as light fires, pieces 
 having been apparently picked up and tied together, a cup con- 
 taining dirty food of the most disgusting appearance, which had 
 evidently been long there, bits of valueless stones, coals, nails, etc. 
 This accumulation, which could not have been extemporized by the 
 attendants to make out a case, and of which accordingly the patient 
 must have been long aware, would have occasioned strong doubts as 
 to her sanity, even if no prior grounds of suspicion had existed ; but 
 carefully preserved by one who up to a recent date had been so far 
 suspected of insanity that she had not been set free by the visiting 
 commissioners, who was in her seventy-first year, and therefore the 
 less likely to have obtained a cure, it became, in the opinion of Dr. 
 Monro and myself, a conclusive ground for resisting this lady's 
 immediate enlargement."^ 
 
 § T4o. I'articular hallucinations are classed by Abercrombie 
 
 under the following heads: — 
 Classifica- . . 
 
 tion of "1. Propensities of character, which had been kept 
 
 lucin'atiuu ' under restraint by reason or by external circumstances ; 
 by Aber- ^^ q|(| Jiabitg which had been subdued or restrained, de- 
 veloping themselves without control, and leading the 
 mind into trains of fancies arising out of them. Thus, a man of an 
 aspiring, ambitious character may imagine himself a king or great 
 personage; wiiile in a man of a timid, sus])icious disposition the 
 mind may fix upon some supposed injury, or loss either of property 
 or of reputation. 
 
 ' Mayo on Medical Testimony in Dr. Storer's remarks in his " Insanity 
 Lunacy, pp. 33, 34. See, liowever, in Women," p. 120. 
 
 640
 
 DELUSIONS AND HALLUCINATIONS. [§ 743. 
 
 " 2. Old associations recalled into the mind, and mixed up perhaps 
 with more recent occurrences, in the same manner as we often see 
 in dreaming. A lady, mentioned by Dr. Gooch, who became in- 
 sane in consequence of an alarm from a house on fire in her neigh- 
 borhood, imagined that she was the Virgin Mary, and had a 
 luminous halo around her head. 
 
 " 3. Visions of the imagination which have formerly been in- 
 dulged in, of that kind which we call waking dreams, or castle- 
 building, recurring to the mind in this condition, and now believed 
 to have a real existence, I have been able to trace to this source of 
 the hallucination. In one case, for example, it turned upon an 
 office to which the individual imagined he had been appointed ; and 
 it was impossible to persuade him to the contrary, or even that the 
 office was not vacant. He afterwards acknowledged that his fancy 
 had, at various times, been fixed upon that appointment, though 
 there were no circumstances that Avarranted him in entertaining anv 
 expectation of it. In a man, mentioned by Dr. Morison, the hallu- 
 cination turned upon circumstances which had been mentioned when 
 his fortune was told by a gypsy. 
 
 " 4. Bodily feelings giving rise to trains of associations, in the 
 same extravagant manner as in dreaming. A man, mentioned by 
 Dr. Rush, imagined that he had a Caftre in his stomach, who had 
 got in at the Cape of Good Hope, and had occasioned him a con- 
 stant uneasiness ever since. In such a case, it is probable, that 
 there had been some fixed or freipient uneasy feeling at the stomach, 
 and that, about the commencement of his complaint, he had been 
 strongly impressed by some transaction in which a Caftre was con- 
 cerned. 
 
 " 5. There seems reason to believe that the hallucinations of the 
 insane are often intluenced by a certain sense of the new and 
 singular state in which their mental powers really are, and a cer- 
 tain feeling, though confused and ill-defined, of the loss of that 
 power over their mental processes which they possessed when in 
 liealtli."! 
 
 The law with regard to delusions and hallucinations has been 
 discussed in prior sections.- 
 
 ' Intellect. Pow. 255, 25t;. In this public journal from an insaii.- paliont, 
 connection see a remarkable lotl.-r to a quoted 22 Journ. M(?nt. Sci. 454. 
 
 2 Sui>rn, §§ ;34-(;0 ; 125-14(J. 
 
 VOL. I.— 41 ^^1
 
 § 745.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 CHAPTER IX. 
 
 LUCID INTERVALS. 
 
 Law recognizes possibility of lucid in- 
 tervals when proved, § 744. 
 
 Nature of lucid intervals ; Renaudin, 
 § 745. 
 
 Suggestions of EUinger and Scliiir- 
 mayer, § 746. 
 
 Fluctuations of disease, § 747. 
 
 Restoration of responsibility corre- 
 sponds with progress of recovery, 
 § 748. 
 
 Remarks of Dr. Rush on this toj^ic, § 
 749. 
 
 Mania frequently periodical, § 750. 
 
 Instance given by Morel, § 751. 
 
 Law recog- 
 nizes possi- 
 bility of 
 lucid inter- 
 vals when 
 proved. 
 
 § 744. So far as concerns the legal relations of this topic, it has 
 been shown^ that the law recognizes the possibility of 
 lucid intervals in insanity (always, however, to be posi- 
 tively and affirmatively shown), during which the patient 
 is to be viewed as capable, when acting independently, 
 of certain business and testamentary acts, and of assum- 
 ing at least a modified penal responsibility. It must be kept in 
 mind, however, that by many eminent psychological physicians the 
 possibility of truly lucid intervals is denied. 
 
 § 745. As a leading authority of this school may be mentioned 
 Renaudin, from whose argument the following is condensed : — 
 
 Lucid interval is the name ordinarily given to the condition in 
 Nature of which the insane person is placed at the end of a strong 
 vals • Re-'^ delirious excitement, or when he awakes from a profound 
 
 namiin. gtupor. 
 
 Tlie prevalent tendency is to assert the existence of a lucid inter- 
 val when delirious ideas no longer manifest themselves, and when 
 the insane person shows himself accessible to other pre-occupations, 
 and thus appears to enjoy the full amount of moral liberty allowed 
 to him. 
 
 It has been already said that the approach of insanity is rarely 
 sudden, and that, being based in some respect upon a natural or 
 
 ' Supra, §§ 61-64. 
 
 642
 
 LUCID INTERVALS. [§ 745. 
 
 acquired predisposition, it is preceded by a period of incubation, 
 that paves the way for a manifestation of the disorder often lone 
 before its actual appearance. When a retrospective examination 
 of the antecedents of the disease is made, a proof is found of the 
 latent advances which insanity makes. 
 
 But under this apparent reason is concealed a disorder which 
 makes a sensible progression every day. Irritability is developed ; 
 the regimen is irregular ; the affective sentiments are changed or 
 perverted ; everything has become an object of resistance ; deli- 
 rious convictions are organized upon perceptive errors every day 
 more numerous ; and finally insanity shows itself in a critical ex- 
 citement, the more decided as the lesion of sensibility has become 
 more complete, and as the incubation is marked by a more or less 
 concentrated struggle. The patient is then isolated; irritating 
 causes are removed, and immediately the over-excitement dimi- 
 nishes ; a calmness succeeds. This transient remission, however, 
 ceases as soon as the unhealthy influence regains its empire, and 
 we then see that that which was called a lucid interval was, in fact, 
 but a transient remission. 
 
 Continuity is essentially the characteristic of monomania and 
 lypomania. Either the insane person, by a convalescence, advances 
 to a complete cure, or he still remains afi"ected with the original 
 type. Every intermediate situation is inadmissible, except when 
 an accidental afi"ection, causing a kind of metastasis, for the moment 
 suspends or masks the madness. Whenever it is not a true crisis, 
 it only causes a fleeting remission of the symptoms rather than of 
 the pathological condition ; and the physician assumes a serious 
 responsibility when, simply on the face of this apparent calm, he 
 conceives the possibility of the patient's return to his family, 
 where but too soon the causes will be found reunited tiiat restore 
 to insanity all its intensity. It is in not sufficiently resisting the 
 desires of friends, that the physician paves the way for these re- 
 turns, which are less relapses than the recrudescence of an uncured 
 pathological state. 
 
 But though, in an absolute diagnostic point of view, we reject 
 the lucid interval — though, when the existence of mental unsound- 
 ness has been once shown, we do not admit that the remissions 
 diminish irresponsibility, — we still think that the deranged can 
 perform certain acts with comparative intelligence, and can even 
 
 643
 
 § 745.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 exercise discretion, provided that he is placed under the influence 
 of certain protecting conditions. The regulating discipline of an 
 asylum tends greatly to this result, and therefore it is not astonish- 
 ing if insane patients can perform certain civil acts of a simple char- 
 acter, and may consent to a division of property, or even authorize 
 a marriage. The legality of the act is essentially subordinate to a 
 previous appreciation of the extent of the delirium at the time, and 
 the relations existing between the action and the delirious concep- 
 tion. So, though not admitting the existence of a lucid interval, 
 we still believe that the madman may be placed in a situation that 
 permits him to appreciate the action demanded of him. In a 
 criminal point of view, this distinction cannot be established, since 
 the action is a logical consequence of the madness ; and daily ob- 
 servation teaches us that it is during these moments of apparent 
 sanity that the maniac meditates and prepares the most dangerous 
 projects, as much against himself as against others. The ingenious 
 combination of means that the lypomaniac uses in order to obtain 
 his object is urged in vain as proof of lucidity, since the delirious 
 conceptions, whilst rendering the premises false, are far from 
 always deranging the logical chain of the other intellectual ope- 
 rations. According to his own conceptions, the lypomaniac is an 
 oppressed person who conspires against his enemies, and as he is the 
 most feeble, he calls cunning to the aid of his legitimate means of 
 defence. 
 
 In the maniac, especially in the paroxysm, we observe a dis- 
 ordered agitation, accompanied with such an amount of incoherence 
 that the aff'ected person appears to be rather the sport of some 
 strange motive power than the originator of this extreme mobility. 
 There are times when even this storm is dissipated as if by enchant- 
 ment. Dissimulation becomes possible for a certain time ; the 
 delirium is in some degree suspended, and we may be led to sup- 
 pose a spontaneous return to reason. How often have we seen 
 maniacs cease to rave during the (questioning of a judge, and im- 
 mediately afterwards recommence their course of wanderings. 
 
 The more vivid the excitement is, the more considerable is the 
 expenditure of the vital forces ; so that when it has lasted a certain 
 time, a period of prostration arrives ; but, allowing a remission of 
 some somatic symptoms, still the incoherence of ideas is persistent 
 with other symptoms. Sometimes the transition is rapid ; and 
 644
 
 LUCID INTERVALS. [^ 745. 
 
 then, above all, is it necessary to attribute the situation to its true 
 causes, in order not to expose the examiner to an error of diagnosis. 
 
 Periodicity is generally observed in mania ; and it is then that 
 insanity of actions must be distinguished from insanity of ideas. 
 Though often united, still they are sometimes isolated from each 
 other, or follow one another. It is on this account that the most 
 extravagant acts sometimes correspond with a certain intellectual 
 lucidity, which at the first glance may impose upon us ; and it is 
 then that we observe persons thus insane justify their actions by 
 the most specious reasonings. We must not, however, take this 
 intellectual waking for a lucid interval ; for, although masked, the 
 delirium still continues. 
 
 In other cases, the madness is less intense. All excitement has 
 disappeared, and the insane person answers all our questions so 
 reasonably as to lead us to infer the existence of a lucid interval ; 
 but the illusion is soon destroyed when, in pushing our examina- 
 tion, we weary him with questions : he becomes agitated ; loses the 
 thread of his ideas ; becomes more and more incoherent, and so 
 proves to us that he has had what scarcely might be called a transi- 
 tory remission. 
 
 There are cases where the periodicity appears more determined, 
 and where the conduct of the patient betrays no sign of the insanity 
 which he formerly manifested. The lucid interval can perhaps be 
 sometimes admitted under these circumstances ; but it is still neces- 
 sary to exercise some caution in regard to the value of these ap- 
 pearances. If the patient denies his situation ; if he refuses to 
 acknowledge the principal acts which have characterized his par- 
 oxysm ; if he seeks to attribute them to some foreign cause, it is a 
 proof that the reason is not sound, and that a paroxysm is always 
 imminent ; and lucidity cannot be admitted, since errors of percep- 
 tion and judgment still exist. This observation especially applies 
 to that kind of mania in which excessive irritability plays the prin- 
 cipal part ; where the remissions are irregular, and tlie paroxysms 
 are shown under the influence of the slightest cause. We cannot, 
 then, consider this momentary repose of a permanent eftect whicii 
 is always ready to break out, as a lucid interval. We might say 
 as much of the period of prostration following a period of strong 
 excitement. 
 
 When periodicity is complete, it is recogni/ed at first by the 
 
 t)45
 
 § 745.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 appearance of the paroxysm, which has, in some measure, a critical 
 termination. The lucid interval can then be admitted, if there is a 
 complete contrast betAveen the two situations, if the patient appre- 
 ciates them, and if the manifestation of each fit is shown by an 
 approach which is always regular, and which is always produced 
 under the influence of the same causes. It is, if we can thus ex- 
 press ourselves, a momentary cure, which is prolonged for a longer 
 or shorter period of time, and which often finishes by becoming a 
 complete one. 
 
 Finally, Avhen the aifection passes to the chronic state, the patient 
 raves less, because excitement fails him, and also because his will 
 is in want of a re<2;ulating force. We cannot consider this as a 
 lucid interval where the patient is unable to act except when 
 directed by another's mind. "When mania passes into dementia, 
 the transition is sometimes shown by an apparent reawakening of 
 reason, which is, as it were, its last glimmer. Generally it is the 
 mobility of maniacs which is most favorable to the inferences which 
 impose upon the superficial observer so as to cause him to admit 
 the existence of a lucid interval. 
 
 The stimulated attention of these patients fixes, for a moment, 
 this mobility, directs cunning towards the accomplishment of a 
 project, where a personality is in play, and we are often surprised 
 with the address shown in organizing a plan of escape. But, in 
 spite of this incidental derivation, the maniacal temperament still 
 remains the same, unless, indeed, this transitory action of the mind 
 should become a crisis. 
 
 Dementia, where the psychico-somatic existence is gradually 
 extinguished, is a ruin in which a trace of a better period is some- 
 times found. If, occasionally, remembrances of the past show 
 themselves, this apparent lucid interval is no more than a retro- 
 spective reasoning without actual application. When, instead of 
 being the termination of the other forms, dementia is primitive or 
 idiopathic, the lucid intervals can be sufficiently clearly drawn, and 
 the diagnosis does not present as many difficulties As in the other 
 forms. In fact, the demented cannot dissimulate ; since, to do this, 
 a reactive power would be necessary, which in him is entirely 
 wanting. He cannot conceal his incapacity under the mask of an 
 energy whose absence is the principal feature of his disease. ^Nlore 
 submissive than others to somatic influences, he is sometimes a 
 646
 
 LUCID INTERVALS. [§ 746. 
 
 prey to an almost maniacal excitement ; but if this is not critical, it 
 forms an expenditure of power resulting in pure loss, and making 
 one more step in this period of prostration. In a word, if the man 
 lives for a moment in the past, he is as nothing in the present ; and 
 it is under privilege of this restriction that a lucid interval, pro- 
 voked by some foreign stimulant, but without root in an exhausted 
 moral system, can be admitted. 
 
 Hence we see that the lucid interval is of much rarer occurrence 
 in mental unsoundness than is generally thought. It is in mania 
 that the periodicity of regular paroxysms permits us to admit it ; 
 but then, also, it is still necessary to guard against being imposed 
 upon by a remission of excitement which is not that of the frenzied 
 condition.^ 
 
 § 746. The following suggestions are given by Ellinger, and 
 
 repeated by Schiirmayer. x\s a general thing, there is g^^^-pg. 
 
 no recovery from mental unsoundness which has been tio"s of 
 , , • , , , , , • • , Elliiifjer 
 
 attended with permanent and general delusion : in the ami SchUr- 
 
 other forms such recovery sometimes, though very rarely, °^'^y^'"- 
 takes place suddenly, the consequence of strong excitement, as a 
 sudden outburst of rage, or even in sleep, without any preceding 
 physical or moral change. Its general development, however, is 
 slow, being marked with a gradual lessening of the effective irrita- 
 tions, with an increased coherency and consequentiality of thought, 
 Avith the return of the natural inclinations and appetites, of sleep 
 and nourishment, and with a disappearance of the physical anoma- 
 lies. Sometimes, however, it advances with a more fluctuating 
 step, agitated as it were with mental tides, the flood of each of 
 which, however, falls below the high-water mark of its predecessor, 
 while each ebb more and more nearly approaches tlie line of sanity. 
 To constitute a recovery, the patient must at least have regained 
 the reason which he enjoyed before the appearance of the disease : 
 he must have reacquired a taste for his former occupation, must 
 again display his former inclinations and points of interest, must 
 understand what he remembers of his disease when assisted by 
 explanations, must speak of it as of something to which he is now 
 superior, must clearly see the erroneous nature of tlie delusions 
 
 > See Etudes Physio-Somatiques sur I'Alieiiatiou Mcntale, par L. l']. F. Ro- 
 iiaudin, chap. ix. p. 522. Taiis, 1854. 
 
 647
 
 § 747.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 under ^vhich he labored, and must be really contented and internally 
 at peace. But if, on the other hand, the former character of the 
 disease has only disappeared in part ; if the old insane grudge 
 against one person or another is manifested ; if there is a smothered 
 rage, or aversion to persons or things formerly cherished ; if the 
 alleged convalescent refuses to acknowledge his disease in general 
 or in regard to particular points ; if his conduct is marked by un- 
 natural irritability, suspicion, or boisterous and immoderate joy, or 
 by other anomalous features, a perfect recovery has not taken 
 place, although, in point of intelligence, formal and substantial, not 
 the slightest anomaly is perceptible.^ 
 
 § 747. Where the patient's recovery from a mental disorder is 
 
 not clearly established, it may be doubted whether an 
 Fluc-tua- t . . 
 
 tion of alleged criminal act was committed under circumstances 
 
 involving the full responsibility of the agent. Whether 
 
 the malady was of long or short duration, whether it was more or 
 
 less intense, is here of no decisive import, and of equally little 
 
 moment is the apparent reflection and preparation with which the 
 
 act may have been committed. 
 
 The difterent kinds of improvement or interruption in cases of 
 unsoundness of mind, present various features, which vary in accord- 
 ance with the duration and degree of abatement. 
 
 1. liitervaUum lucidum, with a restoration of consciousness in 
 general and of insight into the past and present, but without entire 
 clearness, and with a continuance of a more, though not entirely 
 subdued temperament. The patient is not yet the same as he was 
 before the disease overtook iiim. If he was, he Avould have to be 
 regarded as restored to health, and there would, in its strict mean- 
 ing, be no question as to a lucid interval. 
 
 '2. JRemis^ion diflFers from a lucid interval only in degree, being 
 generally attended with a subsidence of the external manifestations 
 of the disease, not sufficient, however, to be mistaken for recovery. 
 
 8. Altcrnatioyi is the term given to change from one form of 
 mental unsoundness to another, particularly from depression to 
 mania and the converse, not however from psychical to bodily, or 
 from bodily to psychical manifestations. Where for instance the 
 individual has long suftered from morbid depression or elation of 
 
 ' Compare Ellinger, p. 169. Scliiirmayer, § 573. 
 
 648
 
 LUCID INTERVALS. [§ 749. 
 
 spirits, this may gradually decrease and give place to an apparent 
 return of health, which, however, does not last long, but sooner or 
 later lapses into the opposite condition, so that depression turns into 
 mania, and mania into depression. 
 
 4. Intermission, when the disease recurs at more or less regular 
 periods, and the disease presents no anomalous symptoms. 
 
 § 748. The restoration of moral responsibility progresses in cor- 
 respondence with the progress of recovery. In passing, Restoratiou 
 therefore, upon a given case, regard should be had, not of I'fsp^nsi- 
 only to the individual circumstances, but also to the responds 
 
 . . . , . p . with pro- 
 
 time intervening between the cessation ot patent in- gress of 
 
 sanity and the commission of the offence.^ recovery. 
 
 § 749. On this topic Dr. Rush thus speaks : " The longer the 
 intervals between the paroxysms of madness, the more 
 complete is the restoration to reason. Remissions rather Dr. Kush 
 than intermissions take place when the intervals are of t^lJ'* 
 short duration, and these distinguish it from febrile de- 
 lirium in which intermissions more generally occur. In many cases 
 everything is remembered that passes under the notice of the patient 
 during a paroxysm of general madness, but in those cases where the 
 memory is diseased as well as the understanding, nothing is recol- 
 lected. I attended a lady in the month of October, 1802, who had 
 crossed the Atlantic Ocean during a paroxysm of derangement, 
 without recollecting a single circumstance of her voyage any more 
 than if she had passed the whole time in sleep. Sometimes every- 
 thing is forgotten in the interval of a paroxysm, but recollected in a 
 succeeding paroxysm. I once attended the daughter of a British 
 officer who had been educated in the habits of gay life, who was 
 married to a Methodist minister. In her paroxysms of madness, 
 she resumed her gay habits, spoke French and ridiculed the tenets 
 and practices of the sect to which she belonged. In the intervals 
 of her fits, she renounced her gay habits, became zealously devoted 
 to the religious principles and ceremonies of the Methodists, and 
 forgot everything she did and said during her fits of insanity. A 
 deranged sailor, some years ago, in the Pennsylvania Hospital, 
 fancied himself to be an admiral, and walked and commanded with 
 all the dignity and authority that are connected with that high rank 
 
 ' Scluirmayer, Goricht. Med. § r)74. 
 
 649
 
 § 751.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in the navy. He was cured and discharged ; his disease some time 
 afterwards returned, and with all the actions of an admiral which 
 he assumed and imitated in his former paroxysm. It is remarkable 
 that some persons when deranged talk rationally, hut act irration- 
 ally, while others act rationally and talk irrationally . We had a 
 sailor some years ago in our hospital, who spent a whole year in 
 building and rigging a small ship in his cell. Every part of it was 
 formed by a mind apparently in a sound state. During the whole 
 of the year in which he was employed in this work, he spoke not a 
 word. In bringing his ship out of his cell, a part of it was broken. 
 He immediately spoke and became violently deranged soon after- 
 wards. Again, some madmen talk rationally and write irrationally ; 
 but it is more common for them to utter a few connected sentences 
 in conversation, but not to be able to connect two correct sentences 
 together in a letter. Of this I have known many instances in our 
 hospital. "1 
 
 § 750. Mania frequently assumes a type in which the periods of 
 ,, . , return and of cessation are marked with the greatest 
 
 Mama ire- . ... 
 
 quentiy exactness and regularity.^ Medicus, in his history of 
 peno ica . pgj-jQjjj^,^] discascs,^ tclls US of a girl who was subject 
 to a delirium which came on every evening at exactly the same 
 hour, and lasted three hours and a half. Of two women attacked 
 with periodical madness, one was deranged nine days in each month, 
 and the other two days.^ 
 
 § Tol. Morel (ISGlJ)^ tells us of a lady who for a number of 
 
 years was afflicted as follows : When enjoying the full 
 Instance *' . . . "^ *^ . 
 
 given by possession of her faculties, and with no other premoni- 
 tion than that of peculiar health, and of augmented de- 
 sire to leave the asylum in which she was confined, she would fall 
 into a sleep marked by terror (cauchemar) and excitement. She 
 would soon lift herself up, and, with cries of horror, spring out of 
 bed. The fit thus began, and then ran through its course. Her 
 face would be distorted, she would refuse nourishment, beat against 
 the wall, and bite and tear, in her agony, whatever came in her 
 
 • Rush on the Mind, pp. 162, 163, * See also Henke's Zeitschr. 13 Bd. 
 
 164. sec. 159. 
 
 2 Siebold, Gericht. Med. § 217. ^ Traite de la Med. Leg., etc., p. 479. 
 
 3 Kailsr. 1764. 
 
 650
 
 LUCID INTERVALS. [§ 752. 
 
 way. About the twenty -first day from the beginning of the attack, 
 relief would begin, and she would fall into a stupor, and then gradu- 
 ally return to sound reason. This lucid interval would last about 
 three weeks, during which she would be in all respects refined and 
 intelligent. This condition has lasted thirteen years, with no other 
 permanent change than that of perhaps a slight general weakening 
 of intelligence. 
 
 § 752. Dr. Liman, whose great experience, as well as eminence, 
 as a psychological physician, has been already frequently noticed, 
 states^ that practically, so far as concerns the German criminal 
 courts, the question of " lucid intervals" comes up very rarely for 
 adjudication. "At least," he says, " among the hundreds of cases 
 as to which I have given opinions, there was not one in which the 
 existence of a ' lucid interval' was the subject of contest. In penal 
 cases the defence goes beyond this, maintaining the existence of 
 actual derangement at the time of the act, or assuming, from some 
 prior mental malady, that the defendant at the time of the act was 
 of unsound mind." 
 
 ' Liman's Casper, 1871, p. G18. 
 
 651
 
 § 753.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 CHAPTER X. 
 
 TREATMENT OF INSANE CRIMINALS. 
 
 Importance of issue, § 753. 
 
 I. Retribution. 
 
 Confinement necessary as retribution, 
 § 754. 
 
 II. Prevention. 
 
 And also for prevention, § 7G3. 
 
 III. Example. 
 And also for examjjle, § 765. 
 
 IV. Reform. 
 And so for reform, § 766. 
 
 § 753. The enlargement of the range of insane irresponsibility 
 Importance "which the preceding sections recognize, makes the sub- 
 of issue. jggj- Qf ^j^g subsequent treatment of the insane offender 
 of momentous importance. Even if we adopt the severest legal 
 tests, yet when a case occurs of an acquittal on ground of insanity, 
 as it sometimes must on the most stringent principles, the offender, 
 who in this case, on the law's own assumption, is a mere " animal," 
 should be no more permitted to range the streets than should a mad 
 dog or a mad bull. But in point of fact, there are a myriad of 
 phases of mental unsoundness, none of which are consistent with 
 entire responsibility, and yet each of which has its distinct degree 
 of moral culpability attached to it. Rare, indeed, are the instances, 
 where there is not a consciousness of guilt, which, though distorted 
 or faint, is, nevertheless, appreciable. Still rarer are the cases of 
 acquittal in which the insanity of the perpetrator is so abhorrent as 
 to exclude it from the range of imitation by those who may desire 
 to commit crime with impunity. And if these considerations be 
 thrown aside, there remains the fact that insane crime becomes epi- 
 demic when it becomes heroic ; and that the only way to divest it 
 of this quality, is to subject it to that wholesome but homely dis- 
 cipline which strips it of its sentimentality, and, at the same time, 
 destroys its capacity for mischief. In this view it is recommended 
 that wherever such provision docs not already exist, there should 
 be a separate penitentiary establishment for insane offenders, where 
 652
 
 TREATMENT OF INSANE CRIMINALS. [§ 754. 
 
 they may continue to be confined, under the severest discipline con- 
 sistent with health, until it appear, on evidence taken upon due 
 notice to the prosecuting authorities, that the patient is entirely 
 sane. 
 
 I. RETRIBUTION. 
 
 § 754. The question here depends on that of guilt. Was the 
 oftender in any sense a moral agent in the act com- 
 plained of? The answer presupposed by the present in- mentneLes- 
 quiry, viz., that of the relations of a person judged irre- ♦'^•k t -^ '^'^" 
 sponsible on account of insanity, is, that he was not. 
 And in a strict technical sense, this is undoubtedly true. The in- 
 quiry, however, may be pushed farther back, and here the case of 
 delirium tremens may be taken as an illustration.' Delirium 
 tremens, even on the most stringent principles, exonerates its sub- 
 ject from the penal consequences of a crime committed under its 
 direct influence. And yet it is clear, y?*rs^, that delirium tremens 
 is the result of a prior vicious indulgence ; second, that if the 
 patient be permitted to wander about when the delirium continues, 
 he will do further mischief ; and, third, that if he escape with entire 
 impunity, the example will be likely to be followed as a pretext, if 
 not caught as a contagion. And under these circumstances what is 
 to be done ? It is plain that some species of confinement must be 
 resorted to ; and that if such a method of discipline be applied, it 
 will be, in a moral point of view, thoroughly justified by the delin- 
 quency which was the voluntary cause of the diseased mental con- 
 dition under which the crime was committed.- 
 
 ' Tliis question has already been lengtli that to rest punishment pri- 
 touuhed upon, and the authorities marily on the grounds of either pre- 
 hearing upon it have been noticed, vention or of reformation was (1) to 
 See supra, § 202. In opposition to the invest the state with despotic preroga- 
 views expressed in the text will be tives ; (2) to limit punisliment to tlie 
 found Mr. M. B. Sampson's "Criminal cases wlicie prevention or reformation 
 .Jurisprudence considered in relation could be worked ; and (o) to defeat the 
 to cerebral organization." London, very object in view, since so far from 
 1843. unjust punishment (and if tlie condi- 
 
 2 In the eighth edition of my work on tion of justice be imposed, tluui tlie 
 
 Criminal Law, published in 1880, §§ 1 tht!ory of prevention or of reformation 
 
 f-^ *e7., I endeavored to show that p(!nal as the i)rimary object is abandoned) 
 
 iJis(;ipline was to be primarily based on ])reventing crime and producing refor- 
 
 retributive justice; and I argued at mation, it would, in proportion to the 
 
 653
 
 § 756.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 755. What has just been said of delirium tremens applies with 
 greater or less exactness to all other cases of mental unsoundness. 
 Insanity, which is not congenital, or the result of accident or old 
 age, is in most cases the result of causes which the patient himself 
 might have averted if he had chosen.^ And particularly is this the 
 case Avith that very species of mental unsoundness — that of mono- . 
 mania, or moral insanity — which is the cause of the greatest diffi- 
 culty in the present connection. This is well stated by Dr. Barlow, 
 in his essay on this topic : — 
 
 § 75G. " I have said that mental derangement and madness are 
 different things ; thus, a person may fancy he sees others around 
 him who have no existence, as in the well-known cases of Nicholai, 
 of Berlin, and Dr. Bostock. This is a certain degree of mental 
 derangement while it lasts ; but as both soon satisfied themselves 
 that these personages were merely the creation of a morbid physi- 
 cal state, they were not mad. A man of less resolution would have 
 shrunk from the labor of convincing himself that he was fooled by 
 his senses, and would have insisted that the figures were real, and 
 then he would have been mad. Of these cases Dr. Connolly very 
 justly remarks : ' Let any one reflect how Nicholai preserved his 
 reason under such visionary and auditory delusions for so many 
 months ; and why the English physiologist, though visited with the 
 images which are so well known to be familiar with mad people, 
 never lost the use of his excellent understanding. The ready 
 answer will be, they never believed in their real existence. But 
 why did they not ? And why does the madman believe in their 
 real existence ? The evidence of both is the same, the plain evi- 
 
 exteiitof its infliction, engender towards of the ablest piiMicists and jurists of 
 the government feelings of hatred and this century, and Brinz, one of the 
 contempt by which the good effect of most authoritative commentators, 
 penal discipline would be destroyed. Making retributive justice tlie primary 
 The only way, in fact, as I urged, to object of punishment is the best way, 
 make punishment preventive and re- as is elsewliere shown, to secure re- 
 formatory, is to make it just. In a form and prevention. Unless a pun- 
 review of my book in the Kritische isliment is in itself just, it will neither 
 VierteljahrcKcIirij't fiir (lesetzgehnng nnd reform tlie criminal nor prevent fur- 
 Rccl(lsc7issenscliuft, for 1881, p. 274, the ther crime. Instead of repressing and 
 I)osition taken by me is declared to be in contmlling, it will exasperate and 
 accordance with the views of the editors stimulate to fresh lawbreaking. 
 of that paper, among whom at the time ' See supra, §§ 115, 118, 403, where 
 were Bluntschli (since deceased), one this subject is discussed. 
 
 654
 
 TREATMENT OF INSANE CRIMINALS. [§ 757. 
 
 dence of sense. The explanation must be this. The printer of 
 Berlin and the physician in London retained the power of com- 
 parison : they compared the visual objects of delusion -with the 
 impressions of other senses and the perceptions of other persons, 
 and became convinced of their unreality. ' This is exactly what 
 madmen cannot do. One form of madness consists in this very 
 illusion of sense, but it is conjoined with the loss or defect of the 
 comparing power, and the madman concludes that what is only an 
 illusion is a reality. But the illusion is not the madness.' Thus, 
 according to the opinion of this very able judge, the affection of the 
 brain which causes these delusions is not madness, but the loant of 
 jxnver or resolution to examine them is. Nothing, then, but an ex- 
 tent of disease which destroys at once all possibility of reasoning, 
 by annihilating or entirely changing the structure of the organ, can 
 make a man necessarily mad." 
 
 § 757. "A man may labor under a mental delusion, and yet be 
 a responsible agent ; and, if sanity or insanity be in a great many 
 instances the consequences of a greater or less resolution in exert- 
 ing the power of reasoning still possessed, the same kind of motives 
 which influence a man in common life are still available, though 
 they may require to be somewhat heightened. It is on this princi- 
 ple that the treatment of lunatics has been generally conducted. 
 Fear, one of the lowest, but also one of the most general of instinc- 
 tive emotions, has been called in to balance the delusions of sense, 
 and, excepting in cases where the structural disease is so extensive 
 as to deprive the man of all power of connecting cause and effect, 
 it has been found sufficient to curb violence, and enforce a certain 
 degree of peaceable demeanor towards the attendants. And in this 
 the insane person differs not from the cultivated man who is left at 
 liberty, whose self-control rarely amounts to more than the avoid- 
 ing actions which would have unpleasant consequences to himself. 
 Suppose an irascible man, incensed by a false report, which, how- 
 ever, he believes to be true ; he seeks his supposed enemy, and 
 horsewhips or knocks him down ; he does not assassinate, because 
 he fears for his own life if he does ; for it is clear tliat no feeling of 
 duty has held his hand, or he would not have transgressed the laws 
 both of God and man by thus revenging himself. The madman has 
 the false report from his own senses ; wherein do the two differ ? 
 Neither has employed means within his power to ascertain the 
 
 655
 
 § 758.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 truth, and both are aware that such vengeance is forbidden. I can 
 see no distinction between them, save that the delusion of sense has, 
 as a chemist would say, decomposed the character, and shown how 
 much of the individual's previous conduct was rational, and how 
 mucli the result of mere animal instinct. It would be well for the 
 world if the soi-disant sane were sometimes to ask themselves how 
 far their sanity would bear this test, and endeavor to acquire that 
 rational self-command Avhich nothing but the last extremity of cere- 
 bral disease could unseat. We do not descend from our high rank 
 with impunity : and, as, when the matter has become organized, 
 if the process of change occasioned by the vital force be impeded 
 or arrested, the plant pines away and perishes ; as, after the 
 organs of locomotion have been superadded, the animal debarred 
 from the use of them languishes and becomes diseased ; so man, if 
 he give not full scope to the intellectual force, becomes subject to 
 evils greater than animals ever know, because his nature is of a 
 higher order." 
 
 § 758. "Neither do severe injuries from external causes, though, 
 like paralysis, they might cause a loss of those faculties which con- 
 nect man with the world about him, riecessarih/ disconnect him with 
 the world within, so as to place him beyond his own command. 
 
 " A case has been communicated to me illustrative of this. A 
 young lad, who had been carefully instructed in the principles of 
 religion and virtue by the clergyman of his parish, afterwards went 
 to sea. When he was about twenty-two, he unfortunately fell from 
 the mast upon his head on the deck, and the injury to the brain 
 was such that he was discharged from the service in a state of im- 
 becility, and sent home to his parish. He was then in possession 
 of the use of his limbs and hearing ; but articulation was apparently 
 difficult to him, and collected thought, which should enable him to 
 speak connectedly, still more so ; his sight, too, was subject to a 
 delusion which made him imagine he saw gold and silver coin strewed 
 about on tlie ground ; which, as was natural, he eagerly endeavored 
 to pick up. He was now visited by the clergyman who had been 
 the instructor of his youth, who in kind terms assured him he was 
 under a false impression, and advised him to give no heed to what 
 he imagined he saw. The poor young man thanked him, and pro- 
 mised to do as desired, and for a time abstained from attempting to 
 pick up the coin, but gradually the delusion became too strong for 
 656
 
 TREATMENT OF INSANE CRIMINALS. [^ 761. 
 
 his resolution, and he recommenced. Yet, after every visit from 
 his former instructor, he again controlled himself for a time ; and, 
 if he did not come, anxiously sought him at his own house. He 
 died in a few months, but during the whole time was mild and sub- 
 missive, seeming perfectly aware that his mind was disordered ; 
 and, like a child Avho distrusts his own power, seeking to throw 
 himself on the guidance of one whose kindness he remembered, and 
 whose character he respected. This man was suffering mental de- 
 rangement from injury of the parts, but was not insane ; for the 
 faculties left him were rationally exercised. 
 
 § 759. " Cases of this kind have been considered by some as a 
 peculiar type of insanity. By French authors it is entitled mania 
 sans delire. Dr. Prichard styles it instinctive madness. I am 
 inclined, nevertheless, to refer such deranged propensities in some 
 instances to a peculiar morbid state of sensation, and these will 
 come under the head we are now considering, consequently the 
 desire is not irresistible, though strong, for we see that it has been 
 successfully resisted ; in others I should refer it to the second class, 
 under the head of ' Inefficiency of intellectual force,' and then it 
 depends on the resolution of the person so affected whether the 
 morbid sensation shall be meditated on and indulged, and thus ac- 
 quire fresh force, or whether, by exciting other sensations, it shall 
 be weakened and by degrees vanquished. 
 
 § 760. " There is no greater error than to suppose that thinking 
 about a propensity which ought not to be gratified will conquer it ; 
 on the contrary, every hour of lonely thought gives it fresh force : 
 but let the man plunge into business that must be attended to, or 
 even a lighter occupation, so it be an engrossing one ; and do this 
 resolutely, however irksome it may at first appear, and the very 
 repose thus given to the diseased part, if there be disease, by throw- 
 ing the whole stress on other portions of the brain, will assist in 
 effecting a cure. 
 
 § 761. "When a man has reached mature age without making 
 any effort to render the brain subservient to the rational will, the 
 fatigue and even pain consequent on the endeavor to obtain tiie 
 mastery over it is such that few have resolution to undergo it volun- 
 tarily. Thus the man subsides more and more into the animal, an 
 is at last guided only by those instinctive emotions which belong to 
 the vital force merely. His i:»assions assume a delirious violence, 
 VOL. I. — 42 657
 
 § 761.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 and he is only distinguished from the brute by the greater skill 
 with which he pursues their gratification. There is no disease of 
 brain, but it has been left unexercised and ungoverned till it is as 
 unmanageable as a limb that has been treated in the same way. 
 
 " Toes have been used for writing and other arts which are 
 usually performed by fingers ; they are capable^ therefore, of such 
 use, but those who have constantly worn shoes cannot direct one 
 toe separately from the rest, as they can the fingers. Yet with 
 much trouble this power of directing might be acquired. It is thus 
 that the brain, unaccustomed to direction from the intellectual 
 force, rebels against it, and, if this latter fails to assert its sway, it 
 •may justly b€ termed inefficient. In a man thus animalized, the 
 actions differ from those of his more spiritualized fellow men, who 
 happily are more numerous ; and, when they find no such motive 
 as tliey would consider a sufficient one for his conduct, they call 
 him mad, by way of accounting for it. He commits a crime, and a 
 plea of insanity is set up as a shelter from punishment. I will give 
 an instance. It is recorded by the elder Pinel : ' An only son, 
 educated by a silly and indulgent mother, was accustomed to give 
 way to all his passions witliout restraint. As he grew up, the 
 violence of his temper became quite uncontrollable, and he was con- 
 stantly involved in quarrels and lawsuits. If an animal offended 
 him, he instantly killed it ; yet, when calm, he was quite reason- 
 able, managed his large estate with propriety, and was even known 
 to be beneficent to the poor ; but one day, provoked to rage by a 
 woman who abused him, he threw her into a well. On his trial, so 
 many witnesses deposed to the violence of his actions, that he was 
 condemned to imprisonment in a mad-house.' Yet any choleric 
 man who does in his rage what he is sorry for afterwards is as 
 much insane as this man was ; both are under the inffuence of the 
 vital force. A shock to some nerve of sensation stimulates the 
 sympathetic system ; the circulation is hurried, and the blood, 
 flowing more rapidly througli the brain, gives an unusual activity 
 to the motor nerves, the movements are sudden and violent, the 
 speech hurried, loud, and perhaps incoherent ; but the intellectual 
 force knows the source of these symptoms, and can curb them by 
 resolute silence and inaction till the blood again flows at its usual 
 pace ; if it does not, the man, for a time, is in a state of mania, but 
 is not the less responsible for having allowed himself to be so. 
 658
 
 TREATMENT OF INSANE CRIMINALS. [§ 761. 
 
 " Let us suppose another case ; the thing is so constantly seen 
 that every one could quote examples of it. A man unaccustomed 
 to self-control becomes occupied by one thought ; his ambition has 
 been disappointed, perhaps, or a lawsuit has plagued him, or he has 
 been much employed in some engrossing pursuit. Unable to regu- 
 late his thoughts at Avill, he finds the one which circumstances have 
 made habitual recur uncalled for. An effort would dismiss it, for 
 every one who has studied knows that he has had to dismiss many 
 an intruding thought, and with some effort, too, if he wished to 
 make progress in what he has undertaken ; but this individual has 
 never been accustomed to make any such effort, and he knows not 
 how to free himself from the subject which thus haunts him. If it 
 be an unpleasant one, he is wearied and worn by it ; but every day 
 that it is not driven off, it assumes a greater power, for the part of 
 the brain thus brought into action is now by habit rendered more 
 fit for use than any other : he has not resolution enough to free 
 himself from his tormentor by a determined application to something 
 else which would require all his attention ; he sits brooding over it, 
 and, when life has thus become irksome, he strives to terminate his 
 discomfort by suicide ; yet here is no structural disease, and, if the 
 man could be persuaded to exert himself, he might be sane. I will 
 give an instance. The master of a parish workhouse, about thirty 
 years of age, was subjected frequently to groundless suspicions of 
 peculation. Being naturally a taciturn, low-spirited man, these 
 false accusations, which involved his character, and consequently 
 the maintenance of his family, preyed upon his mind, and a pro- 
 found melanclioly was the result, attended by the usual sympto- 
 matic derangement of the digestive functions, and a constant appre- 
 hension that he had done something wrong, he did hot know what. 
 No assurance on the part of those who knew and esteemed him had 
 any effect, and finall}^, after some months of melancholy, he at- 
 tempted to destroy himself. He Avas then removed to St. Luke's 
 Hospital, whence, after a year had elapsed, he was discharged in- 
 curable. He was now placed in a private receptacle of the insane, 
 and here suffered all the misery which at that time pauper lunatics 
 Avere subjected to. He was visited at this jilacc by a Ijcnevolent 
 man, who, seeing his state, immediately ordered him to be removed 
 into the gentlemen's a];)artments, and paid for his maintenance there. 
 In a few months afterwards lie was visited by the clergyman of his 
 
 659
 
 § 762.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 parish, who, on conversing with him, considered him sane. The 
 man begged to be allowed to rejoin his wife and family, and the 
 rector, after many difficulties and some threats to the parish autho- 
 rities, succeeded in setting him free. The man from that time was 
 able to maintain his family by his trade of shoemaking, for, if ever 
 a fit of melancholy came over him, a threat from his Avife that he 
 should be sent back to the mad-house was sufficient to engage him 
 to make an effort to resume his cheerfulness ; and he remained to 
 old age a sane man. Here the insanity had been merely ineffi- 
 ciency of the intellectual force. Placed in a situation of compara- 
 tive ease, his mind had become calm ; the Avish to return to his wife 
 and family, and the hope of it, jcept up by the visits of benevolent 
 friends, did the rest ; for, be it observed, during the whole time he 
 never felt himself abandoned. The poor and the uneducated are 
 the classes which most usually suffer from the inefficiency of the 
 intellectual force ; it is among the liigher ranks usually that its 
 misclirection is a source of insanity. Among these, more distant 
 objects of pursuit keep the thoughts longer upon the stretch towards 
 one point ; the organs of mechanical memory are strengthened, 
 nay, even strained by the habit of learning much by rote, while the 
 constant supply of learning ready-made leaves no necessity for the 
 more laborious processes of reasoning and comparison. Hence we 
 not unfrequently find an elegant scholar, who can readily quote the 
 w'ords and opinions of others, unable himself to carry on a course of 
 close argument, or to 'prove the truth of what he advances. Who- 
 ever has moved in society knows that it is rare to meet with any 
 one Avho can command his thoughts in conversation frequently to 
 reject all that is not relevant to the subject, so as to keep on the 
 chain of reasoning unbroken.' 
 
 § 702. " When the mind is thus exercised in remembering the 
 opinions of others, thus unaccustomed accurately to examine its 
 own, what wonder is it if it should become prepossessed with some 
 irrational notion which cannot be removed by reasoning, because 
 the individual man in his healthiest state has never chosen so 
 to exercise his mind, or if, when a delusion of sense occurs, he 
 should choose rather to act upon it as truth, than to examine into 
 the grounds he has for believing it to be such ? It is a melancholy 
 
 ' Ibid. 
 660
 
 TREATMENT OF INSANE CRIMINALS. [§ 762. 
 
 fact that a great number of mankind are in this state as regards 
 the faculties most requisite to self-control, and depend far more on 
 the accident of good health than the exertion of their own intel- 
 lectual power for their sanity. I have heard of more than one in- 
 stance of hard livers, as they were termed, who probably, in 
 consequence of a slight affection of the brain from the unnatural 
 stimulus of wine long kept up, became possessed with an opinion 
 that they were slighted by one or more of their friends, and, re- 
 sisting all reasoning on the subject, ended by destroying them- 
 selves. Yet they were rational on other matters of importance, 
 and therefore it is to be concluded that, even on this point, they 
 were capable of being rational also, had they chosen to make the 
 exertion. It is recorded of Henri of Bourbon, son of the great 
 Conde, that at times he imagined himself transformed into a dog, 
 and would then bark violently. Once this notion seized him while 
 in the king's presence ; he then felt it needful for him to control 
 himself, and he did so ; for, though he turned to the window, and 
 made grimaces as if barking, he made no noise. Had the king's 
 eye been upon him, it is probable that he would have avoided the 
 grimaces also."^ 
 
 " The indulgence of violent emotions," observes Dr. Connolly, 
 " is singularly detrimental to the human understanding, and it is to 
 be presumed that the unmeasured emotions of insanity are some- 
 times perpetuated in consequence of the disorder of brain originally 
 induced by their violence. A man is at first only irritable, but 
 gives Avay to his irritability. Whatever temporarily interferes with 
 any bodily or mental function reproduces the disposition to be 
 irritated, and circumstances are never wanting to act upon this 
 disposition till it becomes a disease. The state of the brain, or 
 part of the brain, which is produced whenever the feeling of irri- 
 tation is renewed, is more easily induced at each renewal, and 
 concurs with the moral habit to bring on the paroxysm on every 
 slight occasion — other vehement emotions and passions affect the 
 same disorders of the mind.'"^ 
 
 ' Ibid. See supra, §§ 115, 188, 403. 2 ibid. See Dr. Hack Tuke's In- 
 fluence of Mind on the Body. 
 
 G61
 
 § 764.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 II. PREVENTION. 
 
 § 763. An eminent American physician tells us, that " no argu- 
 ment should weigh, for a moment, with a court of iustice. 
 And also . „ ,., . . ' . • i i 
 
 for prevcii- in favor of liberating such an individual (one subject to 
 
 homicidal mania). The fact that life has been taken 
 should overbalance all motives to send such person into society 
 again, while the delusions and estrangements of insanity continue ; 
 and, we add, not until months, if not years, of peace and freedom 
 from excitement should have confirmed their entire release from 
 this dangerous form of disease." " We recently attended," says 
 the same authority, " an interesting trial on a subject of this nature 
 in a neighboring county in this state. An habitually peaceful and 
 worthy man was indicted for the most shocking muider of his wife 
 with an axe, and a horrible attempt upon the lives of his children 
 with the same weapon. The facts were not denied, and his only 
 defence was that of insanity. He Avas acquitted, principally upon 
 our testimony as to the fact of his being insane at the time the 
 murder was committed, of which we have not the slightest doubt ; 
 but our astonishment was only exceeded by our alarm, when subse- 
 quently informed that bail had been admitted, and this afflicted but 
 truly dangerous man was permitted to go at large. This ought not 
 to be so. Science and humanity may interpose for the life of the 
 homicide, but society should ever be protected from the effects of his 
 dreadful disease. The lunatic asylum is his proper place ; and it 
 should be duly prepared for his reception and detention."^ 
 
 § 764. The man who, in an insane impulse, kills one man, is 
 more than likely, under the same impulse, to kill another. And, 
 indeed, the several facts of moral mania imply a chronic tendency 
 to the particular crime. This was agreed on all sides in Hadfield's 
 case, where the point was first mooted. "For his own sake," said 
 Lord Kenyon, " and for the sake of society at large, he must not 
 be discharged, for this is a case which concerns every man of every 
 station, from the king upon the throne to the beggar at the gate ; 
 people of both sexes and all ages may, in an unfortunate frantic 
 hour, fall a sacrifice to this man, who is not under the guidance of 
 sound reason ; and therefore it is absolutely necessary, for the safety 
 
 ' Dr. Wuodwanl, cited iu 4 Juuriial of Psychological Medicine, p. 4G9. 
 
 66-2
 
 TREATMENT OP INSANE CRIMINALS. [§ 765. 
 
 of society, that he should be properly disposed of, all mercy and 
 humanity being shown to the unfortunate creature ; but, for the 
 sake of the community, he must somehow or other be taken care of, 
 with all the attention and all the relief that can be aftbrded him." 
 Hereupon the counsel for the crown and the counsel for the defend- 
 ant agreed that the safety of the community re(;juired that he should 
 be taken care of. " It is laid down in some books," said the former 
 (Sir John Mitford, aftei-wards Lord Redesdale), " that, by the com- 
 mon law, the judges of every court are competent to direct the con- 
 finement of a person under such circumstances." " That may be, 
 Mr. Attorney-General," interposed liOrd Kenyon, " but at present 
 we can only remand him to the confinement he came from ; but 
 means will be used to confine him otherwise in a manner much bet- 
 ter adapted to his situation." It was then suggested by Mr. Gar- 
 row (afterwards a baron of the exchequer) that " it would be for 
 the benefit of posterity if the jnry would state in their verdict the 
 grounds upon which they gave it, viz., that they acquit the prisoner 
 of this charge, he appearing to them to have been under the influ- 
 ence of insanity at the time the act was committed. There would 
 then," he added, " be a legal and sufficient reason for his confine- 
 ment."' This recommendation was adopted by the jury, who re- 
 turned a verdict in these terms. Thus originated the form of ver- 
 dict now commonly returned in cases of this description. 
 
 III. EXAMPLE. 
 
 § 7G5. The recorded cases are numerous in which the supposed 
 irresponsibility of lunatics has led to the perpetration of 
 
 . ,, And also 
 
 crime by the insane. " ihey cannot liang him, was for ex- 
 whispered about in the York Lunatic Asylum, when the '^'"^^ ^' 
 firing of York Minster by a supposed lunatic was under considera- 
 tion ; " he is one of ourselves." And one of the most dangerous 
 convicts in the Eastern Penitentiary — one laboring under homicidal 
 mania in its most inveterate shape — was constantly expressing his 
 disappointment at finding that, notwithstanding ids acquittal on the 
 
 I IIowoU's State Trials, vol. xxvii. 18r)4, pp. 10, 17. S(!o an article in 35 
 
 p. 1:554 cf. acq. Suggestions for tin' Am. Jourii. Ins. p. 1><2, on Insane I'a- 
 
 futui'i^ Provision of Crininal Lunatics, ticnts and their Legal Kelalions. 
 by W. Charles Hood, M.I)., London, 
 
 063
 
 § 766.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 ground of insanity, he was to be continued in prison. He had, in 
 fact, supposed himself privileged by his disease to commit this par- 
 ticular crime. ^ And even taking the strongest case — that of the 
 man who is possessed by a homicidal mania which equals in in- 
 tensity the passion of particular classes of dogs for sheep's blood — 
 we will have strong ground to believe that such an instinct can be 
 tutored. Monomanias, in fact, are epidemics, and spread precisely 
 to the degree in which they are invested with sentimental celebrity. 
 The Leipsic " Madchen-Schander," who, when charged with grati- 
 fying a morbid sexual impulse by striking lancets in the arms of 
 such young girls as he might meet in a crowded street, never 
 exercised this propensity except when it was likely it would be 
 undetected. Shame and the fear of punishment restrained him 
 thus far ; but it was quite otherwise when he became the object of 
 a sentimental curiosity, which made him during his trial and im- 
 prisonment the object of conspicuous attention. The monomania 
 became an epidemic, and would have continued so had not an igno- 
 minious punishment been affixed. ^ 
 
 IV. REFORM.^ 
 
 And so for § 766. To permit a monomaniac to go at large will 
 be to give fuel to his disease, as well as to supply it with 
 victims — 
 
 ' In reference to tliis case I have the to know what redress he could obtain 
 
 following note from Mr. David Paul for the injuries he had unjustly sus- 
 
 Brown, who was counsel for the person tained. In conclusion, he stated that 
 
 mentioned : — if the law did not furnish redress, he 
 
 " You refer, as I suppose, to the would he his own avenger. ' If,' says 
 case of Wiley Williams, who shot Dr. lie, ' I was not insane when I was 
 Kirkbride. I have some knowledge placed in the asylum, those who put 
 of that case, tending clearly to show, or those who ke^jt me there deserve 
 in your language, that ' the recorded death for their cruelty ; and if I was 
 cases are numerous in which the sup- insane, then, if I kill them, my in- 
 posed irresponsibility of lunatics has sanity will exempt me from the conse- 
 led to the perpetration of crime by the quences of crime.' " 
 insane.' ^ See articles Ijy Dr. J. Gr. Fisher, 
 
 "Shortly before Williams shot Dr. 25 Am. Journ. Ins. 241, and by Dr. 
 
 Kirkl)ride, I received a letter from the D. S. S. Conant, vol. 2, Trans. N. Y. 
 
 lunatic, in which he complained of Ac. of ^led. ^i. 2(j!). 
 liis sufferings during several months of ^ On this topic the reader is referred 
 
 confinement at the asylum, expressed to the excellent and careful series of 
 
 his delight at his escape, and desired Reports of the Eastern Penitentiary 
 
 6U
 
 TREATMENT OF INSANE CRIMINALS. [§ 767. 
 
 " Mobilitate viget, 
 Viresque acquiret eundo." 
 
 And to nothing does this apply with greater force than that exag- 
 gerated state of the moral system which has just been discussed. 
 If the indulgence in passion, even in a healthy mind, tends, as has 
 been just shown, to derangement, it will readily be seen that 
 no recovery can be eft'ected while the patient is permitted to run 
 at large, exposed to all the irritating influences of unguarded 
 society, and encouraged by his very irresponsibility in a career of 
 lawless vice. 
 
 § 707. Dr. Mayo thus well illustrates the awkward position of 
 insane criminals under the present administration of the law : " It 
 must be confessed that the conditional responsibility which the law, 
 and, as I think, the reason, of the case attributes to the insane is 
 not easily apjilicable in practice, either under lucid intervals, or 
 under such other i)hases of the insane state as might seem to justify 
 it. The law will remain a dead letter, or will be continually ignored 
 by the sympathies of judges, juries, and, I may add, of medical 
 witnesses, unless some practical distinction can be arranged which 
 may enable the responsible insane to undergo some lower degree of 
 punishment than that inflicted on similar delinquents being of sound 
 mind. The position of many such persons under capital charges is 
 at present anomalous. They are acquitted in defiance of the law, 
 as laid down by the judges respecting M'Naughten's case, because 
 the punishment at present appertaining to the ofience woidd be too 
 severe ; and then, instead of being consigned to confinement in a 
 jail, as a secondary punishment, tliey are consigned to it iu an 
 asylum as a place simply of detention. This becomes a scene of 
 severe virtual punishment to some of them, of gratification to vanity 
 and idleness to others ; those, meanwhile, to whom it is a griev- 
 ance, as they do not regard it in tlie light of a punishment, derive 
 from it none of the preventive effects of punishment or future con- 
 duct, while the public, for the same reason, find it equally unpro- 
 ductive of good, as an example to persons of actually diseased 
 
 of Pennsylvania, published in Pliila- Physicians and Moral Instructors. See 
 
 dt-lphia, to which it is inipossilile to also The Ktate of Prisons, etc., by E. 
 
 make fuller references. Attention may C. Wines, LL.l)., ('anibridge, 18bU. 
 be specially called to the reports of the 
 
 GG5
 
 § 769 ] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 mind, or to that large class of other persons ^Yho are drifting into 
 disease under uncontrolled eccentricity."^ 
 
 § 768, It is impossible to carry out the proper disciplinary and 
 remedial measures in a penitentiary common to the sane and insane. 
 " I am satisfied of the fact," says Dr. Hood, " that criminal lunatics 
 are more difficult to manage than other lunatics ; there is more 
 irritability of temper and general restlessness about them ; they are 
 cognizant of the offences they have committed, and, being under the 
 impression that they will never recover their liberty, they are less 
 disposed to be contented or happy. They are also conscious that 
 they are separated into and form a distinct class of patients, and 
 this very circumstance establishes a species of fraternity among 
 them ; for they are in constant communication with each other, and 
 their curiosity is naturally excited to ascertain the circumstances 
 connected with every new arrival. They thus soon become ac- 
 quainted with each otlier's history, which is often the cause of much 
 ([uarrelling and mutual recrimination ; the better class of patients 
 are unhappy at being associated with the inferior order — criminals 
 whose manners and language are habitually of the most revolting 
 description. Hence I conclude that the fundamental principle upon 
 which we should proceed, in providing for the safe custody, main- 
 tenance, and medical care of our criminal lunatics, should be that 
 of establishing a certain classification among theui, founded upon 
 the degrees or nature of the crimes which they may have committed. 
 This principle conceded, we have then to consider the expediency or 
 inexpediency of organizing a state lunatic asylum for their common 
 reception ; the possibility or impossibility of each county providing 
 adequate accommodation in existing asylums for its own criminal 
 lunatics ; and whether arrangements might not be made in prisons, 
 and houses of correction, for the medical treatment of such prisoners 
 as may, while undergoing imprisonment or penal servitude, become 
 insane."- 
 
 § 769. On the other hand, the confinement of an insane criminal 
 in an ordinary lunatic asylum is beset with still greater difficulties. 
 " It is," says Dr. Hood, " not only annoying to other patients, but 
 
 ' Mayo on Medical Testimony iu sion of Criminal Lunatics, by W. 
 Lunacy, pp. 50-52. Cliarlcs Hood, M.D. London, LS54, 
 
 2 Suggestions for the future provi- pp. 28, 29.
 
 TREATMENT OF INSANE CRIMINALS. 
 
 [§ 770. 
 
 greatly disturbs the ordinary discipline of the establishment ; for, be 
 it observed, lunatics, whether criminal or non-criminal, are capable 
 of some degree of reasoning ; and their conscious incapacity of 
 enjoying this faculty to its full extent often recoils painfully upon 
 their feelings, and becomes, in itself, a source of irritation. In 
 providing, indeed, for the safe custody and the management of the 
 insane of all classes, we should proceed upon the same principles as 
 if Ave were legislating for professedly sane persons ; because the 
 mind is never totally eclipsed, there is always some lingering ray 
 of light which the intact reflection may seize upon with instinctive 
 
 truthfulness."^ 
 
 y 
 
 \ V. WHY OTIR PRESENT SYSTEM SHOULD BE REMODELLED. 
 
 X, 
 
 § 770. If the views taken in the preceding sections be sound; 
 if, in the first place, there are inherent difficulties in the way of 
 making insanity a ground of defence on the trial of a man, who, on 
 this hypothesis, is psj'chologically incapable of either tendering or 
 preparing any such issue ;- if, in the second place, we must recog- 
 
 ' Ibid. lip. 27, 28. See The State of 
 Prisons, etc., by E. C. Wines, LL.D., 
 pp. G3, 172, 335. As to insanity ori- 
 ginating in tlie discipline, ];•• -i-il. 
 
 2 The absurdity of our i^resent prac- 
 tice, in making insanity a jiersonal 
 defence, to be taken or rejected by the 
 alleged lunatic in the exercise of a 
 volition which the very nature of the 
 defence supposes him incapable of ex- 
 ercising, is fully exhibited in State r. 
 Patten, 10 La. Ann. 299 (IS55, see R. 
 V. Pearce, 7 C. & P. G'J"). 
 
 " The sanity or insanity of the pris- 
 oner, said the court, is a matter of fact ; 
 the admissibility of evidence to estab- 
 lish his insanity, under the circum- 
 stances detailed in the bill of excep- 
 tions, is a matter of law, and the only 
 matter which the constitution autho- 
 rizes this tribunal to decide. 
 
 " The case is so extraordinary in its 
 circumstances that we are left without 
 the aid of precedents. 
 
 " In sujjport of the ruling of the dis- 
 
 trict judge, it has been urged that 
 every man is presumed to be sane until 
 the contrary appears, and that a person 
 on trial for an alleged offence has a 
 constitutional right to discharge his 
 counsel at any moment, to repudiate 
 their action on the spot, and to be heard 
 by himself; hence the inference is de- 
 duced that the judge could not have 
 admitted the evidence, against the pro- 
 test of the prisoner, without reversing 
 the ordinary presumption, and pre- 
 suming insanity. 
 
 "In criminal trials, it is important 
 to keep ever in mind the distinction 
 between law and fact, between the 
 functions of a judge and those of a 
 
 " It ^^•as f<jr the jury, ami the jury 
 alone, to determine whether there was 
 insanity or not, after liearing the evi- 
 dence and the instructions of the court 
 as to the principli!S of law applicable 
 to the case. 
 " Uy receiving the proffered evidence 
 
 667
 
 § 770.] MENTAL- UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 nize sanity and insanity as pressing into each other gradually at a 
 line that cannot be judicially defined, each being capable of various 
 
 for what it might be wortli, the judge 
 would have decided no question of fact ; 
 he would merely have told the jury, 
 ' the law permits you to hear and weigh 
 this evidence ; whether it proves any- 
 thing it is for you to say.' 
 
 "By rejecting it, he deprived the 
 jury of some of the means of arriving 
 at an enlightened conclusion ujion a 
 vital point peculiarly within their 
 province, and in effect decided himself, 
 and without the aid of all the evidence 
 within his reach, that the prisoner 
 was sane. 
 
 '' It is idle to say that the legal pre- 
 sumption, and the prisoner's own de- 
 clarations, appearance, and conduct on 
 the trial, established his sanity to the 
 satisfaction of both judge and jury; 
 for presumption may be overthrown, 
 declarations may be unfounded, and 
 conduct and appearances may be de- 
 ceitful ; and the prisoner's counsel, 
 sworn officers of the court, with their 
 professional character at stake upon 
 the loyalty of their comluct, alleged 
 that they stood there prepared to prove, 
 by what they deemed clear and irresis- 
 tiblii testimony, that tlie accused was 
 insane at the time of the homicide, 
 long before, and ever since ; so tliat 
 the sole inquiry now is, not whether 
 they or the court were right as to the 
 fact of sanity, upon which we can have 
 no opinion, l)ut whether they should 
 have been allowed to put the testi- 
 mony they had at hand before the 
 jury, to l)e weighed with the counter 
 evidence. 
 
 "If the prisoner was insane at tlie 
 time of the tcial, as counsel otfered to 
 prove, he was incompetent to conduct 
 his own defence unaided, to discharge 
 his counsel, or to waive a right. 
 
 668 
 
 "Upon the supposition that the 
 counsel were mistaken in regard to the 
 weight of the evidence they wished to 
 offer, as they may have been, still its 
 introduction could do the prisoner no 
 harm, nor could it estop him from any 
 other defence he might choose to make 
 on his own account ; neither could it 
 prejudice the state, for it is to be pre- 
 sumed that the jury would have given 
 the testimony its proper weight ; if, on 
 the other hand, the counsel were not 
 mistaken as to the lo^gal effect of this 
 evidence, the consequences of its rejec- 
 tion would be deplorable indeed. 
 
 "The overruling necessity of the 
 case seems to demand that, whenever a 
 previous soundness of mind and con- 
 sequent accountability for his acts are 
 in (question, the rule tliat he may con- 
 trol or discharge his counsel, at plea- 
 sure, should be so far relaxed as to 
 permit them to ofier evidence on those 
 points, even against his will. Consid- 
 ering, therefore, that it would be more 
 in accordance with sound legal princi- 
 ples, and with the humane spirit which 
 pervades even the criminal law, to 
 allow the rejected testimony to go be- 
 fore the jury, tlie cause must be re- 
 manded for that purpose. 
 
 " It was said in argument, on behalf 
 of the state, tliat the alleged insanity 
 was, at most, but a monomania upon 
 another toj^ic, which could not exempt 
 the prisoner from responsibility for tlie 
 homicide. 
 
 " The judge will insti-uct th<^ jury in 
 regard to the principles of law which 
 govern this suliject, wlum all the facts 
 shall have been heard. At jiresent, 
 the discussion is premature. 
 
 "It is therefore oi-dered, adjudged, 
 and decreed that the judgment of tlie
 
 TREATMENT OF INSANE CRIMINALS. 
 
 [§ 770. 
 
 degrees ;^ if, in the third place, it be right that the present system 
 of confinement of insane criminals be remodelled, — then it will be- 
 come necessary for those to whom the work of legislation is com- 
 mitted to amend the law so as to require the question of insanity to 
 be determined by a competent tribunal after a conviction of the 
 fact of guilt. For the following undeniable evils result from the 
 present system : — 
 
 a. A tribunal of at least but secondary competency is charged 
 with the determination of the most difficult and yet most momentous 
 question to which human observation can be applied.^ 
 
 b. A subject is introduced into the question of guilt or innocence, 
 as to which no fixed judicial rules can be laid down, and which 
 really concerns only the character and the extent of punishment. 
 
 c. We confound by this process the sane convict ; the malignant 
 insane convict, Avho requires discipline and is in some degree morally 
 responsible ; the innocent insane convict ;^ and the lunatic^ who is 
 in confinement but is not charged with crime : for all of whom 
 
 court below be reversed, the verdict of 
 the jury set aside, and the cause re- 
 manded for a new trial according to 
 law." 
 
 ' See supra, §§ 40-66. 
 1. 2 Dr. Hood justly remarks: "All 
 human tribunals are fallible, and how, 
 ■when this plea of insanity is raised, 
 can we unvail tlie mind of the accused, 
 ami determine wliere responsibility 
 ends and irresi>onsibility begins ? We 
 may ajipreciate outward and visible 
 signs, l)ut we have no mentomrter (if I 
 may be allowed to coin a word) which 
 will indicate the thoughts that may be 
 passing through the mind. In medi- 
 cal jurisprudence the diagnosis be 
 tween sanity and insanity is, in many 
 casf^s, infinitely difficult; and it is 
 upon tliis account tliat specialists in 
 thiri branch of our profession so oft<,'n 
 come into collision with members of 
 the bar, and draw down upon tln^m- 
 si'lves occasionally animadversions 
 from the judges on tlie bencli. Tliere 
 wduld be no dillerence of opinion be- 
 
 tween the two learned professions if 
 we could arrive at any fixed princi- 
 ples by wliicli we could explain the 
 silent operations of the mind ; but this, 
 so far as insanity is concerned, is as 
 impossible in law as it is in medicine. 
 We may adjudicate upon the overt act, 
 but the motive which dictated it will 
 very often elude the most searching 
 examination. But this hapiiens con- 
 tinually in sane as well as in insane 
 life." — Suggestions for the future Pro- 
 cisio7i of Criminal Lunatics, by W. C. 
 Hood, M.D. London, 1854. 
 
 And we may add to this the testi- 
 mony of a great poet on a kindred 
 point : — 
 
 '•May it jjleasc your Excellency, your 
 thief looks 
 Exactly like tlie rest, or rather better; 
 'Tis only at the bar or in the dungeon 
 That wise men know your I'clon b}' his 
 features." . 
 
 ' See as to distinction between these, 
 ante, §§ 18.';- 2(H). 
 
 y 
 
 v"
 
 J 
 
 § 770,] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 there is in some jurisdictions but 07ie common method of discipline 
 provided, viz., that of the penitentiary ; in others, but two, that of 
 the penitentiary and of the ordinary lunatic asylum. The result 
 of this is acfpiittals in some cases where there should be convictions, 
 convictions in other cases where there should be acquittals, and in 
 almost all cases an erroneous system of punishment. 
 
 The remedy for these difficulties is one to Avhich we must come 
 sooner or later, and for which the common law has been from the 
 beginning always striving, and yet losing from almost its very grasp. 
 It is to confine the inquiry before the court and jury to the mere 
 factum of the commission of the offence ; reserving the question of 
 treatment to be determined by a special commission of experts, to 
 be appointed for the purpose of examining convicts alleged to be 
 insane. The proposition to be put by the court to the jury, under 
 such circumstances, is not, " Was the defendant capable of judging 
 between right and wrong?" a proiwsition which no jury can deter- 
 mine, but, " Did he," as a matter of fact, " commit the specific act 
 charged?" For whether he committed it as sane or insane, the 
 result is, if the offence in point of law is indictable, that the safety 
 of society requires that he should be placed in seclusion for such a 
 period as will promote the joint ends of personal reformation and 
 ■^ the preservation of the well-being of the community at large. If 
 he be guilty without tlie palliation of mental infirmity, certainly the 
 severest penal code — with the single ([ualification of cases of murder 
 in the first degree — can ask nothing more than this. If, on the 
 other hand, he was at the time laboring under mental derangement, 
 in no other way can the extent of his I'csponsibility be accurately 
 determined, and the proper degree of discij»line adjusted. For this 
 great question of sanity or insanity can really be only determined 
 by those to whose daily and hourly care the convict is committed, 
 and who have thus full opportunity of inquiring into his antecedent 
 as well as his present condition. " Thus," to adopt the language 
 of an intelligent commentator,^ " excejjt as regards the curative 
 course to be adopted, on our view of the case, the subtle line of dis- 
 tinction which there have been so many abortive attempts to draw, 
 between criminal and non-criminal lunatics, is of no practical inipor- 
 J tance, and tiie unavailing search, unless as a matter of metaphysical 
 
 ' 21 Luiuldii Law Review, 3G4. 
 
 670
 
 TREATMENT OF INSANE CRIMINALS. 
 
 [§ 770. 
 
 speculation, may be abandoned as unnecessary. In either case, 
 the person concerned, whether called a lunatic, a criminal lunatic, 
 or an ordinary criminal, should be so placed as to put it out of his 
 power to inflict further injury, and to afford the most likely means v' 
 for his cure." And thus, also, not only will the sanctions of human 
 life and property be protected from the recurrence of those monstrous 
 acquittals, by which, under the plea of insanity, the most dangerous 
 criminals are suffered to run at large, but the interests of humanity 
 will be subserved by a proper discipline, as well as a just classifica- • 
 tion, of those whose accountability is diminished or destroy 
 
 yed.i \ 
 
 ' See s!//;ra, § 200. " I may be asked knowledge of right and wrong. Can 
 what principle I would projiound for any other conclusion he drawn from the 
 the guidance of courts of law in tliese language used by the judges when pro- 
 cases. I cannot but repeat what I pounding in the house of lords their 
 have already declared to be my con- view of insanity in connection with 
 viction, that, in evei-i/ criminal case trliere crime ? ' The facts,' they say, 'of each 
 t/ie question of responsibility arises in the particular case must of necessity present 
 course oj" judicial inrjuiri/, if it be possi- themselves with endless rarietij and icith 
 BLE TO ESTABLISH AXY DEGREE OF posi- ereri/ shade qf dijferciice in euc/i casc ; ami, 
 TiVE INSANITY, IT siioi'i-D ALWAYS BE as it is their duty to declare the law 
 VIEWED AS A VALID PLEA FOR A CON- upoii eacli particular case, upon facts 
 siDERABLE MITIGATION OF PUNISHMENT, proved before them, and after liearing 
 AND AS PRIMA FACIE EVIDENCE IN FAVOR arguments of couiisel tliereou, they 
 OF THE PRISONER ; AND IN NO CASE deem it at once impracticable, and at the 
 WHERE INSANITY CLEARLY EXISTS (wiTH- same time dan(jerous to the administration 
 oi'T REGARD TO ITS NATURE AND AMOUNT) Of Justice if it Were practicable, to attempt 
 OUGHT THE EXTREME PENALTY OF THE to make minute applications of the principles 
 LAW TO BE INFLICTED. Involved in the answers given by them 
 
 "What, I may be asked, is my test to the (questions proposed.' This is a 
 of insanity? I have none. I know of safe, judicious, and philosophic motle 
 no unerring, infallible, and safe rule of investigating these painful cases ; 
 or standard, applicable to all cases, and, if strictly adhered to, the ends of 
 Tlie only logical and philosophic justice would be secured, and the re- 
 mode of procedure in doubtful cases of quirements of sciisnce satisfied, 
 mental alienation, is to compare the " In considering the question of 
 
 mind of the lunatic at the period of his 
 suspected insanity with its prior natu- 
 ral and healthy condition : in other 
 words, to consider the intellect in re- 
 lation to itself, and to no artificial r> 
 
 modified responsibility in connection 
 witli these cases of alleged insanity, 
 we sliould never lose siglit of tin- fact, 
 tliat, even if a lunatic be fully exon- 
 erated and acijuitted in conscMiuence of 
 
 priori test. Each individual cas(^ must his state of mind, he is doomed to linger 
 be viewed in its own relations. It is out the remainder of his miserable ex- 
 clear that such is the opinion of the istence in the criminal wards of a puli- 
 judges, notwithstanding they main- lie lunatic asylum, 
 tained as a test of responsibility a "To talk of a person esca2)iiig tlie 
 
 671
 
 § 770.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 extreme penalty of the law on the plea 
 of insanity, as one being subjected to 
 no kind or degree of punishment, is a 
 perfect mockery of truth and perver- 
 sion of language. Suffer no punish- 
 ment ! He is exposed to the severest 
 pain and torture of body and mind that 
 can be inflicted upon a human creature 
 short of being publicly strangled upon 
 the gallows. If the fact be doubted, 
 let a visit be paid to that dreadful den 
 at Bethlehem Hospital — 
 
 '■Regions of sorrow, doleful shades, mhere 
 
 peace 
 And rest can never dwell, hope never come, 
 That conies to all' — 
 
 where the criminal portion of the es- 
 tablishment are confined like wild 
 beasts in an iron cage ! 
 
 " Much has been said of the deterring 
 effects of capital punishment. I do not 
 doubt its having some effect in pre- 
 venting crime ; but I incline to the 
 opinion that if the real condition of 
 those confined as criminal lunatics was 
 well understood (assuming the insane 
 to l)e amenable to the fear of punish- 
 ment), it would act more potently as a 
 deterring agent than any apprehension 
 they might feel at the prospect of a 
 public execution. 
 
 " It was the opinion of Beccaria that 
 the impression mad(i by any jmnlsh- 
 ment was in proportion to its darafion, 
 and not to its intensitij. ' Our sensi- 
 bility,' he observes, ' is more readily 
 and permanently affected by slight but 
 reiterated attacks than by a violent 
 but transient affection. For this reason, 
 tlie putting of an off"ender to death 
 forms a less effectual check to the com- 
 mission of crimes than tlie spectacle of 
 a man kept in a state of confinement, 
 and employcid in hard lalior, to make 
 some reparation, by his exertions, for 
 the injuries he has inflicted on society.' 
 
 " In judicially estimating cases of 
 crime connected with alleged conditions 
 
 672 
 
 of insanity, it is our duty always to 
 bear in mind, that, if an error be com- 
 mitted on the side of undue severity, 
 it never can be remedied. 
 
 " No reparation can be made for so 
 great an injury — for so serious an act 
 of injustice. If a criminal should be 
 unjustly acquitted on the plea of in- 
 sanity (and I admit such cases have 
 occurred), a degree of injiiry is un- 
 doubtedly done to society, and the con- 
 fidence in the equitable administration 
 of justice is, to an extent, shaken. But 
 can a judicial mistake like this for one 
 moment be compared with the serious 
 and fatal error of consigning an irre- 
 sponsible creature to a cruel and igno- 
 minious death ? 
 
 "It is well observed by Bentliam 
 that ' the minimum of punishment is 
 more clearly marked than its maxi- 
 mum. What is too little is more clearly 
 observed than what is too much. Wliat 
 is not sufficient is easily seen ; but it 
 is not possible so exactly to distinguish 
 an excess. An approximation only can 
 be obtained. The irregularities in the 
 force of temptation compel the legisla- 
 tor to increase his punishments until 
 they are not merely sufficient to re- 
 strain the ordinary desires of men, but 
 also the violence of their desires when 
 unusually excited. The greatest dan- 
 ger lies in an error on tlie minimum 
 side, because in this case the punish- 
 ment is inefficacious ; but this error is 
 least likely to occur, a slight degree of 
 attention sufficing for its escajie ; and, 
 when it does exist, it is, at the same 
 time, clear and manifest, and easy to 
 be remedied. An error on the maxi- 
 mum side, on the contrary, is that to 
 which legislators and men in general 
 are naturally inclined ; antipathy, or 
 a want of compassion for individuals 
 who are represented as dangerous and 
 vile, pushes them onward to an undue 
 severity. It is on this side, therefore, 
 tliat we should take the most precau-
 
 TREATMENT OF INSANE CRIMINALS, 
 
 [§ 770. 
 
 tions, as on this side thei-e has been 
 sliown the greatest disposition to err." 
 — Winslow^s Esaay on Legal Responsi- 
 bilily, 15 Am. Journ. of Insanity, p. 191. 
 
 See also an interesting essay on 
 Criminal Insane, Insane Transgress- 
 ors, and Insane Convicts, by Edward 
 Jarvis, M.D., of Dorchester, Mass., in 
 the 13th volume of the Am. Journ. of 
 Insanity, p. 195. See also Chapters 
 on Prisons and Prisoners and tlie Pre- 
 vention of Crime, Jos. Kingsmill, M.A. 
 Lond. 1854. 
 
 A committee of the New York Senate, 
 consisting of Messrs. Woodin, Fowler, 
 and Pitts, made a sjiecial report upon 
 the condition and treatment of the in- 
 sane of the State, which is printed 
 in the New York Herald of March 7, 
 1882. 
 
 " The committee visited the luna- 
 tic asylums of tlie State, and examined 
 as witnesses superintendents of asy- 
 lums, attendants, trustees, managers, 
 medical experts not connected with 
 asylums, patients confined therein, the 
 State Commissioner in Lunacy, and 
 whoever they thought might be able 
 to throw light on tlie matters under 
 investigation. They reach conclusions 
 by saying that insanity is a physical 
 disease — one of the nervous system 
 not apart from the human nature, but 
 to be studied and tn^ated as a part of 
 a large family of nervous disf-ascs. It 
 is declared to be most marked and 
 prevalent the higher the grade of 
 civilization, but that its increase is 
 out of all proportion to the increase 
 of population in highly civilized coun- 
 tries. In (ireat Britain it has been 
 estimated by one of the ])residents of 
 the British Psychnlogical Association 
 that if insanity were to increase in 
 England and Wales as it has increased 
 the last forty years, there would be in 
 the y(!ar 1912 1,250,000 of insane per- 
 sons. It was estimatiHl tliat in 1850 
 VOL. I. — 4o 
 
 there was in Great Britain about one 
 lunatic to every 1000 persons. Ac- 
 cording to the very elaborate report 
 of the Lunacy Commissioners of Great 
 Britain in 1880 there was one lunatic 
 in every 357 persons ; in England and 
 Wales the year before, one lunatic in 
 every 360 persons, thus showing an 
 increase out of proportion to the popu- 
 lation, not only at long intervals, but 
 even from year to year. The statistics 
 of Massachusetts also show an increase 
 of lunacy out of proportion to the 
 population. The committee says it is 
 c[uite safe to estimate that in New 
 York there are in and out of asylums 
 not far from 13,000 lunatics in a popu- 
 lation of only 5,000,000, or about one 
 to every 384 of the population, the 
 proportion not differing essentially 
 from that shown by the statistics of 
 England and Scotland." 
 
 The report makes the following 
 points : — 
 
 1. Insanity is a nervous disease, to 
 be treated largely under purely medi- 
 cal conditions. 
 
 2. It is in a great measure an inci- 
 dent of complex civilization. 
 
 3. Its increase is out of proportion 
 to the growth of population. 
 
 4. It increases more rapidly among 
 the poor. 
 
 5. It has become less and less cura- 
 ble. 
 
 (!. Special provision should be made 
 for the cases of persons " mildly, mod- 
 erately insane.'' 
 
 7. Nervous diseases collateral to in- 
 sanity are largely on the increase. 
 
 The report closes with the follow- 
 ing :-— 
 
 "8. In our systematic treatment of 
 the insane in asylums, public and 
 private, and in our su^x'rvision of 
 asylums, we are in this stat(^ Vi'ry far 
 behind (ireat Britain. Wliile tliere is 
 no county in the world wlierc pliysi- 
 
 673
 
 § 770.] MENTAL UNSOUNDNESS CONSIDERED PSYCnOLOGICALLY. 
 
 cians are more intelligent than here, 
 yet there is no great country tliat is so 
 far behind in organizing and systema- 
 tizing the progress that has been made 
 by individuals in appropriate legisla- 
 tion, while our physicians are unsur- 
 passed if not unequalled in scientific 
 attainments and practical skill and in 
 hygienic knowledge in the treatment 
 of nervous diseases, including insanity. 
 We are behind Europe in not having 
 a central supervisory lunacy commis- 
 sion. In England this commission has 
 existed between thirty and forty years, 
 and it has in that time wrought many 
 changes and instituted many valuable 
 reforms in spite of superintendents 
 and officers of asylums who at first 
 were jealous of any interference. The 
 powers of the commissioners are neces- 
 sarily comprehensive, but they are 
 wielded gently yet firmly, and very 
 successfully. Tlie comniissiou is a 
 guarantee against profligate expendi- 
 ture. The commissioners are consulted 
 in regard to all constructions, altera- 
 tions, and improvements in asylum 
 buildings, and in regard to the ap- 
 pointment of officers. Tlieir i-(^ports 
 each year give elaborat(» details in 
 regard to each institution wjiich they 
 are required to visit. They examine 
 the records and registers of asylums, 
 give heed to the letters of patients ad- 
 dressed to them, see that if jiossible no 
 patients are improperly admitted to 
 asylums or improperly retained in 
 them. Patimits, whether kejtt in puli- 
 lic or private asylum, are regularly 
 visited ly them. The system of cen- 
 tral governmental supervision in Scot- 
 land seems to l»e even hetti-r thaiA tliat 
 of England, in that it is nioi-e simple 
 if not more thorough. The first great 
 need of our state is the appointment 
 of a lunacy commission, consisting of 
 three or more jiersons specially fitted 
 for such an important trust, and when 
 
 674 
 
 such a commission is appointed and 
 vested with adequate authority by ap- 
 propriate legislation, every needed re- 
 form will gradually be developed, 
 while undfu- the present system, or 
 rather lack of system, they may in the 
 future, as in the past, be retarded to 
 the detriment of taxpayers. The ex- 
 pense of caring for the insane is annu- 
 ally increasing. The state has con- 
 tributed money enough had it been 
 judiciously ex2:)ended in construction 
 to have furnished a well appointed 
 asylum for each lunatic in tlie state, 
 as well as for the estimated increase in 
 the next twenty years. The fault is 
 one that cannot now be remedied, but 
 the future of our state in providing for 
 the cure and treatment of the insane 
 onght to be wholly exempt from the 
 follies of the past. Among those who 
 have given attention to tlie subject 
 there is entire unanimity tliat tlu^ 
 asylums of tlie future should lie more 
 simple in construction, located upon 
 economical farms, where patients may 
 be employed with profit to the state 
 and iujmeasurable advantage to them- 
 selves — less to gratify tlu; .'esthetic 
 taste of asylum otficials, and more for 
 the comfort and recovery of tlu> in- 
 sane. In Europe this reform is already 
 begun. The chronic and incurable 
 insane should as far as possible be 
 kept apart from the acute insane. 
 The increase of insanity has been to 
 a great degree among the chronic 
 insane. Patients of that class do not 
 n<'eil the (expensive accommodations 
 and ajipliances of a curativ(> hosi)ital. 
 It is w<'ll known that if the insane 
 wlio are sent to asylums do not recover 
 during the first year of treatment, there 
 is little ground for hope of recovery. 
 They pass into the class of chronic 
 insaui.;. Such institutions, for instance, 
 as the Island Hospital, of New York 
 citv, have no excuse for theii' existtnice.
 
 TREATMENT OF INSANE CRIMINALS. 
 
 [§ 770. 
 
 Tlie chronic insane in tliose institu- 
 tions could be and should be kejjt 
 economically and far more comfortably 
 upon a farm or farms, more or less 
 remote from the city, where they could 
 in part at least support themselves by 
 their labor. Too little heed is given 
 to the value of labor as a therapeutic 
 agent in our asylums generally. In 
 the best asylums of Europe labor is 
 the rule — non-labor the exception. Of 
 541 pauper patients in the Royal Edin- 
 burg Asylum 28 women and IS men 
 only were prevented by their condi- 
 tion from being profitably employed. 
 In the West Home of the Royal Edin- 
 burgh Asylum there were 347 private 
 and pauper male patients. Of these 
 254 were profitably employed — 184 in 
 outdoor work. Employment is not 
 only profitable but healthful. In the 
 Willard Asylum every patient, male 
 and female, in a condition to labor is 
 systematically employed in some way ; 
 if not always profitable, in a pecuniary 
 sense, yet never M'ithout great advan- 
 tage to the patients. On these jjoints 
 the best authorities are everywhere 
 agreed, viz., that labor is an invalua- 
 ble aid in doing away with mechanical 
 restraint and also with the use of nar- 
 cotic remedies. If for no other oliject 
 tlian the substantial abolition of me- 
 chanical and chemical restraint of tlie 
 insane, humanity demands tliat our 
 asylum authorities make employment 
 of patients one of the most prominent 
 and distinguishing features in their 
 administration. 
 
 ".4 Iiiniiaiie method demanded. — The 
 medical oflicers in many of our asy- 
 lums and the attendants also under 
 their influence show a disposition to 
 resist the introduction of clianges and 
 improvements in asylum management 
 which observation and experience in 
 otlujr fiountries have demonstrated to 
 be invaluable in the treatment of tlie 
 
 insane. We do not doubt that our 
 superintendents as a class are men of 
 ability, conscience, and humanity, but 
 the pertinacity with which the most 
 of them resist the introduction of me- 
 thods which distinguish the asylums 
 of England, Scotland, and Germany 
 above all others is not easily accounted 
 for. The humane advance of Piuel 
 in removing chains and other cruel 
 instruments of restraint from the in- 
 sane was made in spite of earnest pro- 
 tests of conscientious men. So, at a 
 later day, when Connolly ventured a 
 step further and favored a practical, 
 absolute non-restraint, English alien- 
 ists resisted vigorously the methods of 
 that great reformer and predicted the 
 most disastrous results and a record 
 in the management of the insane over 
 which humanity would blush. But 
 Connolly's courage was equal to his 
 convictions, and non-restraint becara(( 
 the rule in English asylums, and his 
 humane example has not ceased to 
 have its influence in other countries. 
 In Scotland every appearance of re- 
 straint is being removed — doors are 
 unlocked, windows are not disfigured 
 by massive iron bars, almost absolute 
 freeilom is given to inmates. 
 
 "lo/(/fi of state sii])ervision. — We do 
 not, of course, recommend any legisla- 
 tion whicli shall determine methods of 
 care and treatment, but it is our confi- 
 dent belief that central state super- 
 vision will aid much in getting the 
 oflicers and attendants out of the rut 
 which long-continued service and habit 
 have formed, and, what is of prime 
 importance, will tend to allay the 
 rapidly growing distrust among the 
 piM^pIe by afFonling just assurance that 
 those wlio are so unfortunate as to lose 
 their reason are treated economically, 
 scientifically, and humanely. It has 
 bi'cn stated by comjjetent persons and 
 is believed that at least $2,000,000 
 
 675
 
 § 770] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 could have been saved to the state in 
 the last twenty years had there been 
 intelligent and economical state sujier- 
 vision over building of asylums, and 
 that without any sacrifice of the com- 
 fort of the patients. Tlie conmiittee 
 think it is unwist; to authorize the 
 establishment of small local asylums 
 for the care of the insane, as in almost 
 every case it must happen that what 
 the taxpayer saves in expense is more 
 than lost to the patient in a lower 
 standard of care. 
 
 "The commission — the creation of 
 which we recommend — should be given 
 
 676 
 
 amj^le i)owers to look after the inter- 
 ests of the state in the matter of ex- 
 penditure and to protect the patient 
 in the matter of physical care, with 
 full powers to redress all grievances 
 and remedy whatever wrong they m.ay 
 discover." 
 
 See, in this connection, an interest- 
 ing and able pamphlet entitled Some 
 Remarks on Crime-Cause, by the Hon. 
 Richard Vaux (Phila. 1879), originally 
 printed in the Report of the Secretary 
 of Internal Affairs of Pennsylvania for 
 1875-G.
 
 PSYCHICAL INDICATIONS. 
 
 CHAPTER XI. 
 
 PSYCHICAL INDICATIONS. 
 
 Importance of psychical imlicatioiis, § 
 771. 
 
 1. Pkior to Crime. 
 
 I. Preparations. 
 
 Inference from as indications of guilt, 
 
 § 773. 
 Palmer's case, § 774. 
 
 2. Intimations. 
 
 Direct belong to ruder states of society, 
 § 775. 
 
 Indirect the more significant in civil- 
 ized life, § 776". 
 
 So of jirecautions, § 777. 
 
 Significance of jirophetic intimations, 
 § 778. 
 
 Superstitious tendency to forewarn, § 
 779. 
 
 3. Oveructin'j. 
 Suspiciousness of sudden accessions of 
 
 friendship, § 7S0. 
 
 II. At Ckimk. 
 1. Ineoherince. 
 
 Conspicuousness of crime, § 781. 
 Impossibility of jterfeet execution, § 
 
 782. 
 Zwanziger's case, § 783. 
 Fauntleroy"s case, § 784. 
 Crowninshield's case, § 78;'. 
 Ticliborne case, § 78G. 
 Lefroy's case, § 78(!((. 
 
 2 . Sdf-o rerrcucli imj . 
 Infrrence from excessive precautions, 
 
 § 787. 
 From life insurance, § 787 a. 
 
 III. After Crime. 
 1. Convuhive confessions. 
 Confessions may be instinctive, § 788. 
 When in delirium or dreams, § 789. 
 From callousness, § 790. 
 Cautions as to confessions under de- 
 lusion, § 791. 
 
 Delusions. Case of the Boorns, § 791 «. 
 
 From desire for notoriety, § 792. 
 
 From interest, § 793. 
 
 From morbid excitement, § 794. 
 
 From nervous derangement, § 79"). 
 
 From alleged supernatural possession, 
 § 796. 
 
 Not necessarily insane, § 797. 
 
 Retributive element in secret sin, § 79b. 
 
 From mania, § 799. 
 
 From epidemic influence, § SOU. 
 
 From weariness of life, § 801. 
 
 As a mode of suicide, § 802. 
 
 Sanity always a condition of reliabil- 
 ity, § 803. 
 
 Corjnis dtlicli to be proved, § 804. 
 
 2. \erroiis tremor. 
 Consequent on sense of guilt, § 805. 
 Peterson's case, § SOG. 
 Webster's case, § S0«. 
 Weston's case, § 809. 
 Queen Elizabeth, § 810. 
 Inference from instinctive faltering or 
 self-intlicted ])ain, § 811. 
 
 3. ilorhid projiensitif to re<ur to scene 
 of (juilt. 
 Disclosures thus produced, § 812. 
 Eugene Aram's case, § 813. 
 
 677
 
 § 771.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Robinson's case, § 814. 
 Farrar's case, § 815. 
 
 4. Permanent mental ivretchedness. 
 
 Entire extinction of conscience rare, 
 
 § 816. 
 Memory permanent, § 817. 
 Conscience autocratic, § 818. 
 Illustrations, § 819. 
 Effect of extraneous circumstances, § 
 
 820. 
 Sadlier's case, § 821. 
 Distinction between remorse and grief, 
 
 § 822. 
 
 Disguised suicide as a recognition of 
 public sense of right, § 823. 
 
 5. Animosity among confederates. 
 Tendency in confederates to disagree, 
 
 § 824. 
 " Honor among thieves" only during 
 
 community of interest, § 825. 
 Illustrations, § 826. 
 
 IV. General Conclusions. 
 Conscience part of divine economy, § 
 
 83U. 
 Punishment is retributive, § 833. 
 
 § 771. Mr, Rawlinson, as his motto to the Bampton Lectures 
 of 1859, takes the following from Aristotle : — 
 
 TcJ jxiv ■yag d'kr^Qii Tlavta ovvdhti ra vna^xovta, ToJ 6f ^f'-'Sf'' taxv Sio'J'ai'ft 
 
 (FOR AVITII THE TRUE ALL THINGS THAT EXIST ARE IN HARMONY ; 
 BUT AVITII THE FALSE THE TRUE AT ONCE DISAGREES.) 
 
 This conflict between the true and the false arises in all cases 
 where i!;uilt is attempted to be screened by human con- 
 
 Importance . ,,, . . . . 
 
 ofpsyehicai trivauce. The mind involuntaril_y becomes its own 
 
 iudicatious. , Tt i .. i -'i -i j. 
 
 prosecutor, it droj)S at eacli point evidence to prove 
 its guilt. Each statement that it makes — each subterfuge to Avhich 
 it resorts — each pretext it suggests — -is a witness that it prepares 
 and (jualifies for admission on trial. In this, and in the univer- 
 sality of the psychological truth that guilt cannot keep its counsel, 
 we may find an attribute of divine justice by which crime is made 
 involuntarily its own avenger. Man cannot conceal the topic of a 
 great crime, either anticipated or committed. It sometimes leaps 
 out of him convulsively in dreams ; sometimes a false cunning leads 
 him to talk about it to know what suspicions may be afloat ; some- 
 times that sort of madness which impels people to dash themselves 
 from a high tower forces him to the disclosure. Even his silence 
 tells against him ; and, when it does not, the tremor of the body 
 supplies the place of the tremor of the mind. Nor can he keep 
 peace Avitli his associates. There is a disruptive power in con- 
 sciousness of common guilt, which produces a hatred so demonstra- 
 tive, that, if it does not supply the ]iroof, it attracts the suspicion 
 of a great wrong having been done. 
 678
 
 PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 774. 
 
 I. PRIOR TO CRIxME. 
 
 1 . Preparations} 
 
 § 773. In the preparation for acts of guilt the most astute leave 
 unguarded points. Poison has to be obtained some- jnfereuce 
 \Yhere. For domestic purposes it might be boldly pur- f™™- 
 chased ; but the poisoner, in a vast majority of cases, is impelled to 
 a more circuitous course. He buys it to kill vermin, and then 
 gives a false excuse — as in a case -where the prisoner pointed to a 
 mouse which he said was killed by the poison, when in fact, it 
 turned out that the mouse was not so killed. He places a loaded 
 ])istol on his person on a pretext which he takes care to announce, 
 but which turns out in like manner to be false. There is, in almost 
 every kind of crime, a swelling of the upper soil which shows the 
 subterranean road which the criminal travelled. It would seem as 
 if it Avere a crerminal element of ffuilt that it cannot work without 
 such memorials. Adroit management may lure witnesses away 
 from the intended spot — the greatest caution may be shown in the 
 purchasing, the collecting, or the fashioning of instruments — but 
 still the traces remain, ready to increase the presumption, if not the 
 positive material for conviction. 
 
 § 774. At the Shrewsbury races, in November, 1856, appeared 
 two young men, each of whom had large stakes involved paimer's 
 — in each case those of life and death. Polestar, one of ^''^^^- 
 the horses entered, belonged to Jolni Parsons Cook ; a sporting 
 character and spendthrift, and not much besides. He had inherited 
 a considerable estate, but a large portion of this had gone in dissi- 
 pation, and now, tlie result of the race was to decide whether the 
 remnant was to be doubled or destroyed. Watching him pretty 
 closely, though with an off-hand familiarity which required an ex- 
 perienced eye to penetrate, was William Palmer, a man several 
 years his senior, whose fortune, wliich had also been considerable, 
 was now entirely gone. The " Chicken" was Palmer's horse, and 
 on this he had ventured enormous bets. Put he had a double game. 
 Ruin, it is true, was imminent, but there was a method of escape. 
 He was a medical man, and he had discovered the fatal properties 
 of strychnine — how that it produced a disease scarcely to be dis- 
 
 ' As to tlio admissibility of proof of tins class, sou Wli. Cr. Hv. Btli I'd. § "tWd. 
 
 ti79
 
 ^ 774.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 tinguished from lockjaw — how it could l)e administered without 
 exciting the victim's attention — what was tiie minimum dose neces- 
 sary to take life, and how, when this dose alone was administered, 
 the poison was dispersed, leaving no traces behind. He had a book 
 in which these points were stated, and to make himself certain, he 
 not only turned down the book at the place, but made a memoran- 
 dum giving the substance in his note-book. He was a man of the 
 world, and he made himself, without appearing to do so, thoroughly 
 master not only of Cook's confidence, but of his secrets. He knew 
 that Cook had a disease which produced sores on the tongue which 
 might be considered, if talked about in the right light, as the cause 
 of lockjaw, so he proceeded to tell about them in this light. He 
 knew how to imitate hand-writing. So he wrote a paper by which 
 Cook acknowledged himself his debtor in a sum sufficient to absorb 
 all Cook's eftects. " Polestar" won and " Chicken" was beaten. 
 Palmer, in his careless, sporting way, borrowed Cook's winnings to 
 pay his losses. Then everything was ready to poison Cook, and 
 the work was done with complete coolness and success. A little 
 preliminary sickness was induced, during which nothing could be 
 more kind and yet less officious than Palmer's attentions. It is 
 true the strychnine had to be bought, but this was done in a circuit- 
 ous way, and under a false color. Tiien it had to be administered, but 
 two medical men, of undoubted probity, were called in, and, as they 
 recommended ])ills, it was very easy to su])stitute pills of strychnine 
 for pills of rhnbra'd. So Cook was killed, and this so subtly, that 
 the attending physician gave a certificate of aj)Oplexy. As to the 
 'j)OHt-vioriein, Palmer knew it would not amount to much, nor did it. 
 No strychnine was discovered, but here the nerves of Palmer gave 
 way. He showed an undue fidgetiness while the examinations were 
 going on. He tried to tamper with the vessels in which the parts 
 to be examined Avere placed. Then, also, the note he produced te 
 show Cook's indebtedness to him was suspected ; and then Cook's 
 betting book could not be found. Tliis led to Palmer's arrest. The 
 first medical authorities in England proved that Cook's deatli came 
 from strychnine and nothing ehe. The apothecaries from whom 
 the strychnine was bought, attracted by the discoveries, identified 
 Palmer. In a dark passage he had been seen to drop something 
 into a glass ior the sick man, but the passage was not so dark but 
 tiiat he was oi)served. I'lien his note-book turned up, showing how 
 680
 
 PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 775. 
 
 acquainted he was with the poison. And upon these facts, skilful 
 as he was, and comjdetely as he had covered up his guilt from the 
 superficial eye, he was convicted and executed. 
 
 2. Ivthnathms} 
 
 § 775. Intimations are to be tested by the character of the party 
 from whom they emanate. In the present connection, they may be 
 divided into three classes. 
 
 Direct intimations are the less frequent. The coarse old feudal 
 baron, over whom there was no law which would inter- ^. 
 
 ' _ Direct be- 
 
 fore to make a threat defeat itself — whose importance io'>s to 
 
 depended upon the emphasis with which he pursued his states of 
 
 enemies — to whose temper deceit was intolerable — ^"^i^'J- 
 
 threatened dashingly, and performed implacably. So the Scotch 
 
 clansman followed his hereditary vengeance until the last of the 
 
 tribe he hated was extinguished. 
 
 Now in these cases there was neither parsimony nor insincerity 
 in the threat, and no reserve in the execution. Wliat was said was 
 meant. It is only, however, in the rudest and most laAvless states 
 of society that we now find this phase. In a community where 
 there is a justice of the peace, to threaten life is followed by a 
 binding over to keep the peace ; and such a threat, therefore, 
 is rarely heard except as a bluster. Civilization, it is true, 
 has not extracted the venom from homicide, but it has mufiied its 
 rattle. 
 
 There are cases, however, where the rattle is still heard. A 
 purpose of vengeance may be whispered in a friend's ear. Among 
 men over whom there is no law, in the mountain slopes or prairie 
 sweeps to which no juiisdiction cxcejjt that of the vigilance com- 
 mittee has reached — among the hunters of the wilderness who 
 have preceded law, or the wreckers of the coast who have defied 
 it, or the outcasts of the city who have been rejected by it — in 
 those cases of domestic outrage Avhere social usage seems to permit 
 vengeance being taken into private hands — here threats may be 
 the precursor of deeds. Desperation, also, gives out the same 
 warning ; and in such cases the warning uttered is of real conse- 
 (juence. 
 
 ' 8eo as to admissibility ot evideiice of tbis class, Wb. Cr. V.\ . Mb c(i. §§ 750 
 (t seij. 
 
 t)81
 
 § 776.1 MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Then, again, a threat which may be meant merely as bravado 
 may afterwards become a real and desperate purpose. Provoca- 
 tion — opportunity — the desire to save the character from the impu- 
 tation of mere bullying — may stiffen the attempt to frighten into 
 an attempt to destroy. Or, again, a settled animosity may be 
 produced, which may lead, though circuitously, to secret mischief. 
 
 Taking out these exceptions, however, and assuming the case to 
 be that of a man of ordinary prudence, where there is no proved 
 settled purpose of revenge, and in a community where the usual 
 restraints of the law are applied, it becomes unsafe to connect 
 threats previously uttered by such a party with a recent homicide. 
 " The tendency of such a prediction," says Mr. Bentham, " is to 
 obstruct its own accomplishment. By threatening a man, you put 
 him upon his guard, and force him to have recourse to such means 
 of protection as the force of the law, or any extrajudicial powers 
 which he may have at command, may be capable of affording iiim." 
 In the case last put, it is not like!}' that the one who really accom- 
 plished a deed which would lead to condign punishment was the 
 one who publicly threatened it. 
 
 The weight to be attached to such threats depends upon the 
 state of society at the time. In a rude and barbarous community 
 the assailants who intend violence are apt to threaten it. In a 
 civilized community, where justice is efficiently administered, the 
 intention to perform deeds of violence is concealed. 
 
 § 770. In high states of civilization, Avhere direct threats arc 
 T ,. . not often heard, the ijreparations for a crime are much 
 
 Indirect ' i i 
 
 the more more likelv to be found in ambuscades likely to in- 
 
 siiriiitieant ". . . . . . . , • , i 
 
 in civilized veiglc the intended victim into a position in which he 
 Avill more readily fall a prey. When the massacres of 
 8t. Bartholomew were planned, the Huguenot chiefs were invited 
 to Paris on the pretence of the wedding between Henry of Xavarre 
 and Margaret of Yalois. '• This politeness of the Italian Queen is 
 very suspicious," said the more wary of them ; " she kisses whom 
 she would betray." But they went, were caressed, and were 
 massacred. 
 
 The Admiral Coligny had been wounded by an assassin under 
 the pay of the Duke of Guise. He hiy helpless on his sick-bed, 
 when Charles IX., then a buy of only nineteen, but thoroughly 
 682
 
 PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 776. 
 
 schooled by his malign mother, was announced. The Huguenots 
 were thoroughly aroused by the attack on the admiral. The pre- 
 parations for crushing them, hoAvever, were not then complete. It 
 was necessary that they should be quieted and kept together. So 
 Charles entered into the admiral's chamber, and, throwing his arms 
 around the aged warrior, said, " Father, you received the wounds, 
 but 1 the sorrow." Two or three nights afterwards, Coligny, 
 hacked and helpless as he was, was torn from his bed and cut to 
 pieces. Then his body was dragged through the streets, and at 
 last his trunk was kicked about like a foot-ball in the presence and 
 for the diversion of the young king, who had shortly before em- 
 braced it. " Had it been the mother," said the survivors, " we 
 would have had suspicion ; but it was only the boy." Here was 
 the Medicean mask — the very luxury of artifice in which Catharine 
 of Medicis enveloped herself when about to commit a crime ; and 
 yet, from its very excess, it was a premonition. So it is that subtle 
 guilt, in the very degree to which its subtlety is refined, gives its 
 own warning, and at all events invokes its own retribution. For 
 the recoil of St. Bartholomew's night destroyed the House of Valois 
 far more effectually than did the massacre of the Huguenots. 
 Charles IX. died only a few years after, of a disease in which 
 nervous horror, if not remorse, was the prime agent, and so did 
 men turn from him, that his body was deserted when on its way to 
 the grave, and was followed to St. Denis by only three private 
 gentlemen. His brother, Henry III., who succeeded him, was the 
 last of his race. 
 
 Cowardice may work in the same way, from the fear of being 
 struck back, if a face-to-face blow be attempted. So it was with 
 James I. : — 
 
 "Willing to wound, and yet afraid to strike." 
 
 When he was roUino; the execution of the Earl of Somerset as a 
 sweet morsel in his mouth, he hung about the nock and slabbered 
 over the face of that unfortunate favorite. It is not that he wanted 
 to entrap — Somerset was caught already. Nor did he Avant to 
 prevent detection, for he afterwards never shrank from the moral 
 conse([uence of the deed. It was merely ])ecausc he was physically 
 afraid to face a collision. 
 
 683
 
 § 778.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 777. Precautionary intimations arc entitled to peculiar weight.^ 
 So of pre- ^^f these the following may be taken as illustrations : 
 cautions. Captain Donellan was tried in Warwick, in 1781, for poi- 
 soning Sir Theodosius Boughton, on whose estates his wife had a 
 reversionary interest. The defendant had no doubt long formed a 
 plan by which the deceased was to be removed. To exclude sus- 
 picion, the idea was thrown out long in advance that the latter's 
 health was desperate — that speedy death was certain — that his 
 imprudence was constantly heaping up causes upon causes to pro- 
 duce it. 
 
 When Sir Thomas Overbury was in the tower, and when the 
 arrangements for his poisoning, under the direction of the Countess 
 of Somerset, were made, the doctors, whom the countess had in 
 pay, were careful, long before the poison took effect, to announce 
 that the patient was very sick, and, indeed, " past all recovery." 
 It was a ti'ick to prevent surprise. 
 
 § 778. Prophetic intimations, though less rare, may indicate the 
 parties who have been brooding over some projected 
 ciiuceof crime. Those who approach a crime under the stress, 
 Intima " either felt or assumed, of a supernatural decree, often 
 tions. move with the pomp worthy of so grand a mission. The 
 
 muttered forebodings of the fanatic precede the fanatic's bloAV. 
 The assassinations of John of Leyden, and the assassinations of 
 Joe Smith, were always ushered in by intimations, more or less 
 obscure, that the intended victim had fallen under the divine ban. 
 Nor can we dismiss this as mere hypocrisy. The consciousness, 
 though only partially sincere, of a supernatural impulse, cannot be 
 com})letely repressed. The Greek tragedians felt this when they 
 made those who meditated, under such an impulse, a deed of blood, 
 bear witness to their awful mission by their dark forebodings of 
 misery to him tliey would destroy. So it was that Clytcmnestra 
 stalked over the stage, relating to the sympathetic chorus the 
 terrors before her eyes and the fate by which she was driven, and 
 so it was that they ejaculated back their admiring horrors. So it 
 was with the first Napoleon, with whom this sense of the super- 
 natural was sometimes master, sometimes creature, lie l«iew how- 
 to use it to overreach others ; but he knew not how to use it with- 
 
 I S.'c Wli. V.r. Kv. Sth od. §§ 734 et scq. 
 
 684
 
 PSYCHICAL INDICATIONS PRIOR TO CRIME. [§ 779. 
 
 out its sometimes overreaching himself. In the very face of policy 
 he could not always conceal within himself the deci"ees of destiny 
 with which he supposed himself charged. Thus the death of the 
 Duke d'Enghien was muttered forth by him long before the fatal 
 arrest ; and so before sovereign houses ceased to reign came the 
 intimations of this vice-regent of destiny that the decree was about 
 to issue. It was not mere threats — it was not ambuscade — it was 
 the involuntary witness borne against itself bv crime actinji under 
 the guise of fate. 
 
 § 779. Among the vulgar these intimations are not infrequent. 
 Murderers, especially in the lower walks of life, are 
 frequently found busy for some time previous to the act tious'teii- 
 in throwinic out dark hints, spreading rumors, or utterins; f^^"^3'to 
 prophesies relative to the impending fate of their in- 
 tended victims. It would seem as if the criminal intention could 
 not be kept secret; that it must in some Avay be let out. Susannah 
 Holroyd was convicted, at the Lancaster assizes of 181G, for the 
 murder of her husband, her son, and the child of another person. 
 About a month before committing the crime, the prisoner told the 
 mother of the child that she had had her fortune read, and that, 
 within six weeks, three funerals would go from her door, namely, 
 that of her husband, her son, and of the child of the person whom 
 she was then addressing. And so, on the trial of Zephon, in 
 Philadelphia, in 1845, it was shown that the prisoner, who Avas 
 a negro, had got an old fortune-teller in the neighborhood, of 
 great authority among the blacks, to prophesy the death of the 
 deceased. 
 
 "When there is a family or local superstition, it may be invoked 
 for the same purpose. Thus Miss Blandy, when her preparations 
 for poisoning her father were in progress, threw out references to 
 the supernatural music with which the house was pretended to be 
 pervaded — music whicli, according to tradition, betokened a deatii 
 in twelve months. 
 
 It is in these scvci-al classes of intimations, most of them in- 
 voluntary, that we find another instance of the self-detective jiower 
 of guilt. 
 
 685
 
 § 781.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 3. Overacting. 
 
 § 780. Extraordinary afFection is often simulated before a near 
 
 relative is removed by poisoninir. Thus, a husband is 
 Suspicious- .,,.'.„ , , . , 
 
 ness of reconciled to and lives with his wire whom he intends to 
 
 accessions clispatch ; and a wife, as in Mrs. Chapman's case, be- 
 of fncud- comes sino;ularlv demonstrative in her public attentions 
 
 ship. o ./ I ^ 
 
 to her husband. Mary Blandy, at the time her father 
 was writhing under poisons she had herself administered, heaped on 
 him attentions so inappropriate to his condition as to become the sub- 
 ject of suspicion then, and the in2;redients of proof afterwards. So 
 industrious declarations of friendliness and fairness not unfrequently 
 are thrown out prior to an assassination. The alleged sudden ac- 
 cess of attention by Mary Queen of Scots to Darnley shortly before 
 his murder is one of the points, it will be remembered, urged most 
 strongly against her by Mr. Froude. 
 
 ir. AT CRIME. 
 
 1. Incoherence. 
 
 § 781. "Providence," said Mr. Webster, in his speech in Knapp's 
 ^, . case, " hath so ordained, and doth so govern thin<2;s, that 
 
 Coiispicu- ' ' o O 5 
 
 ousiicss of those who break the irreat law of Heaven by sheddinjr 
 crime. .... 
 
 man's blood seldom succeed in avoiding discovery. Dis- 
 covery must come sooner or later. A thousand eyes turn at once 
 to explore every man, every thing, every circumstance, connected 
 witli the time and place ; a thousand ears catch every whisper ; a 
 thousand excited minds intensely dwell on the scene, shedding all 
 their light, and ready to kindle the slightest circumstance into a 
 blaze of discovery."^ 
 
 ' " Tlie detection of a forgery by the color, and even texture — so that the 
 
 paying-teUer of tlie Bank of the Re- thing becomes a unity in his mind, or 
 
 public (in 1872) was a remarkable rather to liis perception. The smallest 
 
 instance of the unconscious dexterity variation, theretbre, makes a discord, 
 
 wliicli habit gives. The check ap- and induces scrutiny. In tliis case, 
 
 peared to be drawn by a well-known thi'V cannot tell vJuit it was that led 
 
 liouse, and was upon tlie peculiar tVirm him to examine the signature, which, 
 
 of blank used by that house. A tel- although it proved a forgery, was 
 
 ler"s eye learns to connect the usual so closely imitated, that a careful 
 
 writing of every dealer with the blank comparison with the genuine hardly 
 
 commonly used by liim — its shape, justified suspicion. But he remem- 
 
 686
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 783. 
 
 § 782. While there is on the one hand this concentration of 
 observation, there is an ahnost unlimited multiplication 
 of points to be observed. The criminal stands in the J'-'T'^^'V 
 
 bility of 
 
 position of a country which has a coast line of indefinite perfect 
 
 , , It 1 / , 1 , „ ., execution, 
 
 extent, compelled to meet an adversary whose powerful 
 
 and vigilant fleet commands the seas. There is this distinction, 
 however, between the cases. The coast line may be broken with- 
 out ruin, but not so the line of a criminal's defence. A single false 
 position in his plans — such, for instance, as the omission to wash 
 oft" a blood-stain — the leaving a letter or a paper disclosing identity, 
 in the room — the forgetting that snow was on the ground, by which 
 footprints could be tracked — over-industry in setting up a sham 
 defence — sudden forgetfulness in answering to a real and not a 
 feigned name — is destruction. And yet this is the necessity of all 
 Avho seek to cover up guilt. They are acting a part which, to be 
 perfectly acted, requires perfect skill, perfect composure, perfect 
 foresight, perfect powers of self-transposition. Now we all know 
 how impossible it is for even the most consummate actor to be true 
 to an assumed character for an hour, and this under the tension of 
 the stage. Yet this is required of a criminal constantly, in the 
 lassitude of home, as well as in the excitement of public observa- 
 tion, in liis chamber as well as in the court-house. 
 
 § 783. Of all the great poisoners, the most stealthy and feline, 
 
 bered that, as he took the check in and snspiciou;;, and a whisper, a look, 
 
 hand, the paper seemed a little stiffer or a rustle frightens liim. No cunning 
 
 tlian that commonly used by tlie firm ! can effectually evade tliis law ; the 
 
 Ho slight are tlie clues, sometimes, that more artful go a litlb' furtlicr, that is 
 
 lead to the discovery (if crimes. all. It is a cui-ious f;ict, that in its 
 
 " Rogues are rarely philos(>]>hers, or opi-ratinn tlu' cxpcrti'st tliief-taker in 
 
 they would not b(i i-ogues. Tlie (Mjui- tlic wurld is habit — not in great things 
 
 lil)rium of things, so nicely adjusted to niTcssarily, Init just as much in litth* 
 
 universal fair-dealing, is disturbed by things ; not a wise, observing, or 
 
 the slightest deviation from right. As, thiniglitful man's habit, but even more 
 
 on strings stretched in every direction, eoiiiUKinly a simi)le man's lialiit, dften 
 
 a thrill passes to the social limit of th(^ a eliild's. Sometliing is disjilaced witli- 
 
 central offending blow, the culprit feels, out ordinary or adequate caus(>, and 
 
 although he may be unconscious oftiie tlie piTson whose nneoiiscioiis habit is 
 
 feeling, that all unseen jiowers and in- thus violated looks twice, and tlie 
 
 telligences are in league against him. second look jiroves too much for the 
 
 By dint of self-control h(! may hear an seereiy of the crime that broke the 
 
 unmoved face; 1ml his soul is alert slight but charnuMl tjn-ead." 
 
 G87
 
 § 784."1 MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Zwanzi- we have been told, was the widow Zwanziger, known in 
 gerscab . {^jgj^ory by the name of her last husband, the Privy- 
 Councillor Ursinus, of Berlin. Madame de Brinvilliers was an 
 enthusiast, who poisoned with a spread and dignity of circumstances 
 Avhich necessarily invited detection. The widow Zwanziger, on the 
 other hand, slid softly about from house to house poisoning unob- 
 trusively. So quiet and homsdike were her attentions to tiie 
 deceased — so deep and yet so well controlled her grief — so com- 
 pletely her Avhole deportmemt that of a tender, sober, and yet 
 undemonstrative friend, that when her lover, who began to be 
 tired of her — her husband, of whom she began to be tired — her 
 aunt, whose heir she was — successively sickened and died, she was 
 the last who would have been suspected of having dispatched them. 
 Yet this most experienced, self-disciplined, and wary of poisoners — 
 this actress so consummate that to the end she played the jiarts of 
 the lady of fashion, and the sentimental and pieiistic poetess, with 
 a perfection that showed no flaw — was careless enough, wdien en- 
 gaged in such common game as the poisoning, as if merely to keep 
 her hand in, of an ordinary man-servant — to leave the arsenic open 
 in a room where her intended victim, made curious by one or two 
 abortive operations slie had attempted on him, scented it out, car- 
 ried it to a chemist, and established the fact that it was of the 
 same character with the poison by which she had seasoned sOme 
 prunes she had been giving to him for dessert. 
 
 In the same line may be mentioned the case of Mrs. Sherman, 
 hereafter noticed.^ 
 
 § 784. Eipially wary and ariistic, though in a different line of 
 Faiuitie- g^^i^t, was Fauntleroy, perhaps the most complete forger 
 roy's case, of modern times. He was subtle, reticent, accomplished, 
 and imperturbable. In a long course of years, he perfected a sys- 
 tem of forgery, by means of which he obtained the transfer of 
 stocks entered in the bank of England, in the names of various per- 
 sons, to the amount of ^£100,000. Such was the thoroughness of the 
 fictitious accounts and false entries by which his forgeries were 
 covered up, that his partners and clerks, as well as the bank, were 
 deceived, and yet, at the very time he was weaving a veil otherwise 
 impenetrable, he took the extraordinary step — a step unaccounta- 
 
 ' //)//■'/, § 790. 
 
 688
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 785. 
 
 ble except on the hypothesis of the innate inability of the mind to 
 act out with perfection any fabricated part — of keeping a private 
 diary of his guilt, and executing a paper, signed with his name, and 
 carefully put away among his vouchers, in which he expressly de- 
 clared that guilt. 
 
 § 785. Richard Crowninshield, of Salera, Massachusetts, was, 
 in 1880, a young man of good family and education. Of Crownin- 
 dark and reserved deportment, quiet and self-possessed, si'ieid's. 
 he united a malignity of heart, which made crime natural and 
 normal to him, with a courage of purpose, a temperance in sensual 
 indulgence, and a sagacity and adroitness in the choice and in the 
 use of means, which made crime easy. His tastes and temperance 
 were such as to cover his tracks with almost impenetrable darkness. 
 "Although he was often spoken of as a dangerous man, his person 
 was known to few, for he never walked the streets by daylight. 
 Among his few associates he was a leader and a despot." 
 
 Joseph White, a wealtliy merchant, eighty-two years of age, was 
 found murdered in his bed, in his mansion house, on the mornino^ of 
 the 7th of April, 1830. Ilis servant man rose that morning at six 
 o'clock, and on going down into the kitchen and opening the shut- 
 ters of the window, saw that the back window of the east parlor 
 was open, and that a plank was raised to the window from the back 
 yard ; he then went into the parlor, but saw no trace of any person 
 having been there. He went to the apartment of the maid-servant, 
 and told her, and then went into Mr. White's chamber by its back 
 door and saw that the door of his chamber leading into the front 
 entry was open. On approaching the bed he found the bedclothes 
 turned down, and Mr. Wliite dead ; his countenance pallid, and his 
 night-clothes and bed drenched in blood. He hastened to the 
 neighboring houses to make known the event. He and the maid- 
 servant were the only persons who slept in the house that night, 
 except Mr, White himself, whose niece Mrs. IJeckford, his house- 
 keeper, was then absent on a visit to her daughter, at \Venhani. 
 
 The physician and the coroner's jury, wlio were called to examine 
 the body, found on it thirteen deep stabs, made as if by a sharp dirk 
 or poniard, and the appearance of a heavy blow on the left temple, 
 which had fractured the skull, but not broken tlie skin. The body 
 was cold, and appeared to have been lifeless many hours. On 
 examining the apartments of the house, it did not appear that any 
 VOL. I.— 44 089
 
 § 785.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 valuable articles had been taken, or the house ransacked for them ; 
 there was a package of doubloons in an iron chest in his chamber, 
 and costly plate in other apartments, none of which was missing. 
 The first clue obtained to the murder Avas by the arrest, at New 
 Bedford, of a man named Hatch, who stated, when under examina- 
 tion for another offence, that he had heard Crowninshield mutter 
 intimations of violence towards Mr. White. Soon another thread 
 was found. Mr, Wliite was childless, and left as his legal repre- 
 sentative Mrs. Beckford his housekeeper, the only child of a de- 
 ceased sister, and four nephews and nieces, the children of a de- 
 ceased brother. He had executed, as was known in the family, a 
 will by which he left by far the larger portion of his estate to 
 Stephen White, one of the few children of the testator's brother, 
 reserving but a small legacy to Mrs. Beckford. A daughter of Mrs. 
 Beckford married Joseph J. Knapp, Jr., who with his brother, 
 John Francis Knapp, were young shipmasters of Salem, of respect- 
 able family, the sons of Joseph J. Knapp, also a shipmaster. 
 Shortly after tlie murder, the father received a letter obscurely 
 intimating that the party writing the letter was possessed of a 
 secret connected with the murder, for the preservation of Avhicli he 
 demanded a " loan" of three hundred and fifty dollars. This letter 
 Mr. Knapp was unable to comprehend, and handed it to his son, 
 Joseph J. Knapp, who returned it to him, saying he might hand it 
 to a vigilance committee which had been appointed by the citizens 
 on the subject. Tliis the father did, and it led to the arrest of 
 Ciiarles Grant, tlie person writing the letter, who, after some delay, 
 disclosed the following facts : He (Urant) had been an associate 
 of R. Crowninshield, Jr., and George Crowninshield ; he had s{)ent 
 part of the winter at Danvers and Salem, under the name of Carr, 
 part of which time he had been their guest, concealed in their 
 father's house in Danvers ; on the 2d of April he saw from the 
 windows of the house Frank Knapp and a young man named Allen 
 ride up to the house ; George walked away with Frank, and Richard 
 with Allen, and on their return, George told Richard that Frank 
 wished them to undertake to kill Mr. White, and that J. J. Knapp, 
 Jr., would pay one thousand dollars for the job. They proposed 
 various modes of doing it, and asked Grant to be concerned, which 
 he declined. George said the housekeeper would be away all the 
 time ; that the object of Joseph J. Knapp, Jr., was first to destroy 
 690
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 786. 
 
 the will, and that he could get from the housekeeper the keys of 
 the iron chest in which it was kept. Frank called again in the 
 same day in a chaise, and rode away with Richard, and, on the 
 night of the murder. Grant stayed at the Halfway House in Lynn. 
 In the mean time suspicion was greatly strengthened by Joseph J. 
 Knapp, Jr., writing a pseudonymous letter to the vigilance com- 
 mittee, trying to throw the suspicion on Stephen White. Richard 
 Crowninshield, George Crowninshield, Joseph J. Knapp, Jr., and 
 John F. Knapp were arrested and committed for murder. Richard 
 Crowninshield made an ineffectual attempt, when in prison, to influ- 
 ence Grant, who was in the cell below, not to testify, and, when 
 this failed, committed suicide. John F. Knapp was then convicted 
 as principal, and Joseph J. Knapp, Jr., as accessory before the 
 fact. George Crowninshield proved an alibi, and was discharged. 
 
 We have here a murder coolly planned and executed by persons 
 of consummate skill, and yet we find the whole scheme disclosed 
 by the following incoherences: — 
 
 (1) Josepli J. Knapp, Jr., instead of retaining or destroying 
 Grant's letter, as he could readily have done, losing his presence 
 of mind so far as to hand it to his father, with directions to give it 
 to the vigilance committee. 
 
 (2) Crowninshield, ordinarily so astute and reserved, letting 
 Grant, who was not even an accomplice, and who therefore was not 
 pledged by fear to silence, into the secret. 
 
 (3 j All the parties basing the assassination on a mistake of law, 
 they supposing that Mr. White's representatives, in case of his 
 death intestate, would take per stirpes, whereas in fact they would 
 take per capita; so that actually Mrs. Beckford, to increase whose 
 estate the murder was committed, received no more by an intestacy 
 than she would have by the will. 
 
 § 78G. Shrewd as was the claimant in the Tichborne case, there 
 were defects in the case which he presented which xichborne 
 made its breaking down inevitable. These defects may case. 
 be thus enumerated : — 
 
 (1) The marks on his person, which were alleged to be similar 
 to those on the person of the genuine Roger, were evidently of 
 recent creation ; and so of marks of alleged bleeding in the feet, 
 which, it was shown, must have been made in imitation of old in- 
 
 691
 
 § 786 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 cisions, but which could not have been produced in childhood, as 
 was contended. 
 
 (2) The claimant paraded French such as a cockney would be 
 likely to get up on short notice, while the genuine Roger had spent 
 all his early years in a French school. 
 
 (3) The claimant's efforts to obtain information, in Australia, of 
 the history and habits of the genuine heir, were in themselves 
 marks of imposture. 
 
 (4) The resort, at the trial, to the charge of illicit intercourse, 
 in order to break down Lady Radcliflfe's testimony, had the eifect 
 of breaking down the testimony of the claimant himself in one of 
 its material points.^ 
 
 (5) The claimant's feigning sickness, when visited by Lady 
 Tichborne, and refusing to be seen, except in a dark room, showed 
 an unwillingness on his part to submit to inspection. 
 
 (6) By a blunder of the advertisements which were published 
 for the purpose of discovering the lost heir, he was described as 
 having " light brown hair." This was one of the marks of identity 
 relied on by the claimant, who also had "light brown hair." It 
 turned out, however, that the advertisement was wrong, and that 
 the hair of the genuine heir was dark. 
 
 (7) The theory of shipwreck set up by the claimant, in order 
 to explain his arrival at Australia, was so absurd that it had to be 
 abandoned by him. 
 
 (8) So as to blunders made by the claimant in assuming certain 
 peculiarities which he was erroneously informed belonged to the 
 lost heir. 
 
 (9) And so as to his shirking of all interviews which Avould bring 
 him into close proximity with parties with whom he had been 
 ac(iuainted prior to the time of his assuming the Tichborne name. 
 
 §780 rt. The exposure of Lefroy, as the assassin of Mr. Gold, in 
 Lcfrciy's ^^ English railway carriage in 1881, was duo to one 
 case. Qf those slips which have been spoken of as among the 
 
 incidents of crime. Lefroy's object was to rob a railway passen- 
 ger, and to then cover his tracks by throwing his victim out of 
 the carriage. In the English railway system this could be done 
 by a strong man, the victim being comparatively weak, with the 
 
 ' See Morse's Famous Trials, 59 et seq. 
 
 692
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 786 (1. 
 
 probability that the criminal could escape detection, supposing he 
 was unknown at the time to the railway guards and to the ticket- 
 sellers, and that they took no notice of his entrance into the par- 
 ticular carriage. Had Lefroy attempted a robbery on a line where 
 he was entirely unknown, he might have evaded pursuit. But he 
 did not. His blunder and his consequent detection are thus noticed 
 in the London Spectator of November 12, 1881 : — " The Lefroy 
 case was commonplace throughout. The explanation which the 
 prisoner gave of the facts passed the limit which divides the impro- 
 bable from the impossible. The most ingenious invention could not 
 possibly have shielded him, and the invention to which he actually 
 resorted was not even ingenious. . . . It is true that the pro- 
 secution were not able to show the steps by which the intention of 
 murdering Mr. Gold was built up in Lefroy's mind. But it is not 
 in the least necessary to assume that he had any knowledge of Mr. 
 Gold or his movements before he saw him in the railway carriage 
 at London bridge, or that in the first instance he had even formed 
 the idea of murdering him. It seems more likely that he came to 
 the station with the idea of committing a simple robbery on a 
 passenger, and that it was for this purpose that he got into the 
 carriage with Mr. Gold. To make this probable, it is only neces- 
 sary to prove that he was poor enough to make the temptation to 
 robbery very great, and on this point the evidence is complete. 
 He was at his wit's end for money ; he had pawned nearly every- 
 thing he had to pawn ; he had got the means of buying his rail- 
 way ticket by passing off two Hanoverian medals as sovereigns in 
 the neigliborhood where he lived. . . . These facts supply all 
 the connection with ]\Ir. Gold that is needed to explain Lefroy's 
 acts. He sees an elderly man disposing himself to sleep in a first- 
 class carriage. There is no other passenger in the compartment, 
 and he tliinks that he may rob him, and then make his escape before 
 reaching his journey's end. Very possibly he may have read of 
 some such i^icident, either as a fact or a fiction, and, perliaps, have 
 painted to himself how he would set about doing the same thing. 
 At all events, he must have made up his mind, on seeing Mr. Gold, 
 to murder and rob him. But the shot designed to destroy life did not 
 even completely disable him, and the resistance wliich Lefroy encoun- 
 tered deranged his plans, and possibly disturbed his self-control. 
 The notion of escaping from the carriage himself, and leaving his 
 
 693
 
 § 787.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 victim in it, was abandoned — if it had ever been entertained — possi- 
 bly because he no longer had the nerve to achieve the dangerous feat 
 of jumping from a train in rapid motion ; possibly because it was 
 easier to complete the murder by throwing Mr. Gold out of the 
 carriage than in any other way. The only remarkable feature in 
 the case is the rapidity with which he formed the plan — which for 
 a few hours he can-ied out successfully — of attributing the murder 
 to a third person who had afterwards left the carriage, unless, in- 
 deed, this notion was from the first included in his scheme, and he 
 intended all along to inflict some slight wound on himself, and then 
 inform the police of the murder, in the hope of throwing them oif 
 the scent. There is an air of sensational romance about this plan, 
 which may very probably have had its attractions for an excitable 
 and half-educated man, such as Lefroy evidently was. 
 
 " It is singular what a fatal obstacle to the success of his plan the 
 fact of his being known to be ticket-collector at London bridge 
 would have constituted, even if lie had succeeded in killing Mr. 
 Gold at the first shot. Had there been no resistance on Mr. 
 Gold's part, Lefroy probably meant to throw out the body while 
 the train was in a tunnel, and then, if the carriage had shown no 
 very obvious traces of the crime which had been committed in it, 
 he might have walked away from the station without hindrance, or 
 even notice. Even then, hoAvever, the case against him would have 
 been a strong one. He would still have been known as the only 
 man in the carriage with Mr. Gold, so tliat, with the omission of 
 the incident of the watch in his boot, the evidence would have been 
 pretty much the same in kind, though less in amount. If Lefroy 
 had not chosen a line on which he happened to be known, it is 
 quite possible that the notice taken of his appearance would not 
 have been sufficient to insure his identification, and in that case he 
 would almost certainly have escaped." 
 
 2 . Self -overreach Ing. 
 
 § 787. The Earl of Northampton, the second son of Henry 
 
 Howard, Earl of Surrey, was the uncle of Lady Frances 
 
 iVomTx^es- Susscx, the wifc first of the Earl of Essex, 'and aftcr- 
 
 sive pre- wards of Robert Carr, the famous Earl of Somerset, 
 cautious. 1 1 1 • 1 •(> 1 
 
 Private revenge and state policy led this beautitul and 
 
 brilliant though bad woman to desire the murder of Sir Thomas 
 
 69-4
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 787. 
 
 Overbury, who opposed her marriage with her second husband, 
 and held secrets which might, if disclosed, thwart her political 
 ambition. She procured or promoted the committal of Overburj 
 to the Tower, where poison was administered to him vxnder her 
 direction. In the attempt, at least, she had as accomplices, her 
 husband, and her uncle. Lord Northampton. The work was suc- 
 cessful. The next effort was to conceal it. Helwysse, the lieuten- 
 ant of the Tower, was instantly to advise Lord Northampton of the 
 result. This he did, and then came a letter, evidently meant to be 
 confidential, from the earl in reply: — 
 
 " Noble Lieutenant — If the knave's body be foul, bury it 
 presently. I'll stand between you and harm : but if it will abide 
 the view, send for Lidcote, and let him see it, to satisfy the damned 
 crew. When you come to me, bring me this letter again yourself 
 with you, or else burn it. Northampton." 
 
 This was written early in the morning. So great, however, was 
 the turmoil in Northampton's mind, lest the body should not be got 
 out of sight, that at noon on the same day he hurries off the fol- 
 lowing : — 
 
 " Worthy ]\Ir. Lieutenant — Let me entreat you to call Lidcote 
 and three or four friends, if so many come to view the body, if 
 they have not already done it ; and so soon as it is viewed, without 
 staying the coming of a messenger from the court, in any case see 
 him interred in the body of the chapel within the Tower instantly. 
 
 " If they have viewed, then bury it by and by ; for it is time, 
 considering the humors of the damned crew, that only desire means 
 to move pity and raise scandal. Let no man's instance cause you 
 to make stay in any case, and bring me these letters when I next 
 see you. 
 
 " Fail not a jot herein, as you love y'' friends : nor after Lidcote 
 and his friends have viewed, stay one minute, but let the priest be 
 ready ; and if Lidcote be not there, send for him speedily, pre- 
 tending that the body will not tarry." 
 
 This had no signature, and was evidently meant for the eye of 
 Helwysse alone. But what would the world say if the proud and 
 great Earl of Northampton, the " wisest among the noble, and the 
 noblest among the wise," should seem to be silent when officially 
 informed of the death of one with Avhom he and Lord Rochester 
 (the first title of Somerset) had been on such intimate terms ? So 
 
 695
 
 § 787 rt.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 he writes to the lieutenant the following artful letter, meant for the 
 public eye : — 
 
 " Worthy Mr. Lieutenant — My Lord of Rochester, desiring to 
 do the last honor to his dec'd friend, requires me to desire you to 
 deliver the body of Sir T. Overbury to any friend of his that 
 desires it, to do him honor at his funeral. Herein my Lord de- 
 clares the constancy of his affection to the dead, and the meaning 
 that he had in my knowledge to have given his strongest straine at 
 this time of the King's being at Tibbald's, for his delivery. I fear 
 no impediment to this honorable desire of my Lord's but the un- 
 sweetness of the bod}^, because it was reputed that he had some 
 issues, and, in that case, the keeping of him above must needs give 
 more offence than it can do honor. My fear is, also, that the body 
 is already buried upon that cause whereof I write ; which being so, 
 it is too late to set out solemnity. 
 
 " This, with my kindest commendations, I ende, and reste 
 " Your affectionate and assured friend, 
 
 " H. Northampton. 
 
 '- P. S. You see my Lord's earnest desire, with my concurring 
 care, that all respect be had to him that may be for the credit of 
 his memory. But yet I wish, witlial, that you do very discreetly 
 inform yourself whether this grace hath been afforded formerly to 
 close prisoners, or whether you may grant my re(juest in this case, 
 who speak out of the sense of my Lord's affection, though I be a 
 counsellor, without offence or prejudice. For I would be loth to 
 draw either 3^011 or myself into censure, now T have well thought of 
 the matter, though it be a work of charity."^ 
 
 Unfortunately for the success of the plot, both sets of letters 
 were preserved; and their inconsistency formed one of the chief 
 presumptions in the remarkable trials that ensued. 
 
 § 787 a. Insurance of the life of a person with whom the party 
 
 insuring has no tie of blood or of common interest is an 
 
 aiKM^'onvil^'- ^^^ whicli, cou])led with a subsequent homicide, naturally 
 
 till! as a attracts suspicion. It is true that there are cases in 
 coniessiou. '^ _ 
 
 which one man may insure another's life merely for 
 
 speculative purposes ; and it is true, also, that men often insure 
 
 the lives of those to whom they are much attached, and whose 
 
 ' Amos's Great Oyer, 173, etc. 
 
 696
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 787 a. 
 
 health they cherish as they wouhi their own. Is is impossible, 
 however, in view of many recent trials, to overlook two important 
 facts. One is, that the prevalence of life insurance opens the way 
 to a new line of crimes. The second is, that in opening the Avay, 
 it points to the probable criminal. Two of the most extraordinary 
 cases of this class are those of Goss, who was murdered near 
 West Chester, Pennsylvania, in 1873, and of Armstrong, who was 
 murdered in Camden, New Jersey, in 1878, the murderer in 
 each case having an insurance on the life of the victim. A re- 
 markable illustration of the same principle is to be found in the 
 trial of Paine, in London, 1880, for the killing of Miss Maclean. 
 "To understand," said the London Titnes, of February 27, 1880, 
 " the motives at work and the exact position of Paine and Miss 
 Maclean before her death, it was essential that the jury should have 
 present to them the whole history of their relations, and this obliged 
 the crown to call many witnesses. We have, at all events, the 
 satisfaction of knowing that the verdict of guilty has been arrived 
 at after an exhaustive imjuiry. It is not an insignificant fact that 
 Miss Maclean was of very small stature, that she suffered from 
 spinal deformity, and that she w^as lame. Her father, Lieutenant- 
 Colonel ^laclean, died several years ago ; and for some time after 
 his death she lived with her mother in London. Just as the mother 
 and daughter were about to take up their residence in a house 
 called the Shrubbery, at the village of Broadway, in Worcester- 
 shire, the former died. The daughter then became entitled to some 
 property, including gas shares and an interest in a house at East- 
 bourne-terrace. Miss Maclean went after a short time to live at the 
 Shrubbery, and she was joined there by Paine. Their acquaint- 
 ance dated from before tiie mother's death. He had visited occa- 
 sionally at the house in the motlier's lifetime, and had, it is to be 
 feared, led the daughter into ba<l habits. After the death of the 
 former, he renewed his acquaintance ; he managed to gain her 
 affections ; and in the month of July tliey were living together and 
 passing as husband and wife at tlie Shrubbery. With the exception 
 
 ' Udderzook r. Com., App to Wlmr. Hunter r. State, 40 N. J. L. § 40r) ; 
 
 on Horn. ; 70 Peiin. St. 348, discussed in discussed in Wh. Cr. Kv. §§ 2tJ2-:>. 
 Wh. Cr. Ev. §§ 340, 353, r)44, 778, 788, 
 805, 819. 
 
 697
 
 § 787 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 of a visit to London for ten days, they resided in Worcestershire 
 until the journey which was to be Miss Maclean's last. There can 
 be litttle doubt that she drank far too much, and that her weakness 
 had revealed itself even before she went to live with Paine. He 
 was dissipated and often intoxicated, and in his company her habits 
 of intemperance grew to a degree which enfeebled her health. 
 Whether he at first tempted her to indulge this passion is unknown; 
 but it is clear that he took no pains to prevent her drinking to ex- 
 cess, and the amount of alcohol consumed during their first visit to 
 London sounds incredible. Her brother, who supposed that Paine 
 was going to marry her, and who did not know that he had a wife 
 living, naturally wished her to make a settlement of her property 
 which would protect her against Paine ; but this did not recommend 
 itself to him and ]^Iiss Maclean. They preferred to make wills in 
 favor of each other, she leaving him all her property, and he leaving 
 her all his property, which was nothing. Still more significant was 
 the fact that Miss Maclean executed, in October, a deed of gift 
 transferring all her property to Paine. The result of this trans- 
 action was to strip her of all that she possessed. It is also not 
 unimportant, in an inquiry as to what was in Paine's contemplation, 
 to note that about the time that this deed of gift was being prepared 
 Paine tried, though unsuccessfully to effect an insurance for j£250 
 on the life of INIiss Maclean. The chief witness as to their life at 
 Worcester, in September and October, was Fanny Matthews — a 
 suspected witness, no doubt — and iier testimony, if true, showed 
 that at a time when Miss Maclean was ill Pain had pressed neat 
 spirits upon her and poured them down her throat. It is fortified, 
 too, by the evidence of Mrs. Porter who lived next door to the 
 Shrubbery. According to her account. Miss Maclean, while ad- 
 mitting that she had drunk a bottle of brandy in a day, said, ' lie 
 forced me to drink it ; he makes me drink it.' Why, it was asked 
 by ^Ir. Serjeant Ballantine, with reference to this part of the case, 
 did not the prisoner, if his intentions were criminal, make away 
 with her as soon as a Avill was made in his favor ? This is a perti- 
 nent and plausible question. The objection is, however, partly 
 explained away by the wayward, vacillating temper of Paine, who 
 was too often tipsy and bemuddled to be capable of deep, consecu- 
 tive designs. The question might be further answered if the exact 
 date of the attempt to insure Miss Maclean's life were known ; and 
 698
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 787a. 
 
 it is partially answered by the fact, that during September, Paine 
 was arranging about the deed of gift, which would vest at once in 
 him what he desired. All this early history was relevant only so 
 far as it threw light on the journey to London, on the 3d of 
 November, and what took place while Miss Maclean, the prisoner, 
 and Fanny Matthews lived at the coifee-shop kept by the Powells, in 
 Seymour place. Indeed, the guilt of the prisoner was mainly, if 
 not exclusively, to be determined by what Paine did during a few 
 days before Miss Maclean's death. She was brought to London 
 very ill or intoxicated, or both. The description of her miserable 
 state as she was carried up stairs at Seymour place recalls the 
 story, as told in a somewhat similar infjuiry, of the death of Mrs. 
 Staunton at Penge. According to the prisoner's story, he took her 
 to London in order to obtain medical advice. But, whatever were 
 his motives, he acted, to say the least, with cruelty and culpable 
 negligence. ]\Irs. Powell and Fanny Matthews, the two chief 
 witnesses who spoke as to what took place after the 3d of Novem- 
 ber, did not agi-ee as to all points ; and it was open to Serjeant 
 Ballantine to argue that as the Powells had quarrelled with Paine, 
 their evidence against him was unworthy of credit. Bat enough 
 remained, after making all due allowance for discrepancies and 
 exaggerations, to convict him of gross guilt. L^nless Fann}^ Mat- 
 thews, Mrs. Powell, and the nurse were in a league of perjury 
 against him, he had failed in every duty towards one with respect 
 to whom he had contracted obligations recognized by the criminal 
 law as well as morality. Liquor was forced upon her while she 
 was feeble and ill. She was ' dosed' or ' crammed' with alcohol. 
 At a time when Paine was well aware that abstinence from stimu- 
 lants was imperative, he plied her, contrary to the doctor's orders, 
 with raw spirits. He took no steps to inform her relatives of her 
 dangerous state. His sole desire appeared to be tliat few {leople 
 should see her ; that she should sign nothing ; and that brandy and 
 gin should be constantly within her reach. The motive for the 
 crime lay on the surface. Li November, Paine had secured all the 
 property ; and his marriage, to say nothing of his intrigue Avith 
 Fanny Matthews, sufficiently accounted for a desire to get rid of 
 Miss Maclean. The difficulty under which the prosecution labored 
 was in showing that Paine's misconduct, though morally heinous, 
 fell within the purview of the criminal law. It is not a crime to 
 
 699
 
 § 787 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 stand by unconcerned while a person injures himself by drinking 
 too much alcohol. Nor is it a crime for a stranger to be callous 
 and indifferent towards a person who needs care and solicitude. 
 Fanny INIatthews had not engaged to provide food for Miss Maclean ; 
 her conduct was no crime ; and the attorney-general had no choice 
 but to withdraw the case against her. The same difficulty applied 
 in some degree to the charge against Paine. It was difficult to 
 prove that excessive stimulants had been administered by him with 
 the deliberate intention of accelerating death ; and nothing less 
 would warrant a verdict of murder. He could not be found guilty 
 of manslaughter without showing that he had grossly failed in some 
 legal duty towards one who was not his wife, and \vho was of 
 mature age and average intelligence. What was that duty ? It 
 did not arise out of any contract ; it was not exactly the same as 
 the duty of a father to a child. It was a duty which the law im- 
 poses whenever any one assumes the control of one who is depend- 
 ent and helpless — an obligation of an ill-defined character created 
 for the protection of the weak who are at the mercy of the strong. 
 No one will deny that Miss Maclean had fallen wholly under the 
 control of Paine, whom she seems to have at once loved and feared; 
 and a jury have found, on good grounds, that he grossly abused his 
 position and cruelly failed in the duty which he had undertaken." 
 
 In the address of Hawkins, J,, to the prisoner, after conviction, 
 the motives prompting to the homicide are thus pointedly exposed: — 
 
 "You knew well enough at the time that you could do no such 
 thing, as you were already married, and you were in friendly com- 
 munication with your wife. I do not believe, as you say, that 
 there was any ill-feeling between Mrs. Wilson and the deceased ; 
 but what I do believe is that the mother being dead and the brother 
 having gone abroad, you, knowing that this poor girl had property, 
 kept her from her aunt and every other soul who was interested in 
 her. No sooner had you gone to Broadway after you had isolated 
 this poor creature from her friends than you made your way over 
 to Worcester, where you had made for her a will bequeatiiing to 
 you every farthing she possessed. You then tried to get her life 
 insured in the Gresham Office for ^£250, and if that proposal had 
 been accepted, it would have been <£'JoO more in your favor in the 
 event of her death. Then you tell me that all this was done for 
 the purpose of satisfying her. You really must think people very 
 700
 
 PSYCHICAL INDICATIONS AT CRIME. [§ 787a. 
 
 credulous indeed. I confess, for my own part, I believe not one 
 Avord you have said in that respect. I cannot search your mind. I 
 can only infer what you thought from what you did. Something 
 occurred to you which led you to write to Mr. Goldingham, asking 
 him to prepare the deed of gift, which you no doubt thought would 
 be more secure for you, as a will is not always secure — it might be 
 impeached on the ground of undue influence. You got this deed of 
 gift prepared, and got her to execute it. At that time she seems 
 to have been in perfect health, as there is not a single witness who 
 speaks to her health having been failing before that time, although 
 it was said that she was fond of drinking and given to taking more 
 than was good for her. She, however, suffered little from that, 
 and was always cheerful and happy, and appeared to be attached 
 to you. You appeared to be attached to her, and you made use of 
 expressions when at the insurance agent's which led him to believe 
 that you were a little too affectionate. Possibly you thought that 
 a great deal of affection shown at that time would the more readily 
 induce her to sign more documents to put her property into your 
 hands at a time when she had no friends and no advisers — her 
 mother dead and her brother gone." 
 
 " You have spoken of your kindness and attachment to her. 
 How did you show it on the first night ? You left her alone. How 
 did you show it the next night ? Why, by taking from the house 
 her only attendant, and from that time you and Fanny Matthews 
 lived together as man and wife. Then you wanted to make believe 
 that this poor creature had gone to Brighton with you. I caiuiot 
 dwell with moderation upon your inhuman conduct. I can conceive 
 nothing more atrocious than the exclamation you made on the last 
 morning on which that poor creature saw the light of day — to her 
 you said it was a sin to preserve such a life. Under these circum- 
 stances what ought I do with you, who have, in my judgment, been 
 guilty of a crime next in enormity to the crime of murder. Had 
 you been guilty of murder, most unquestionably you would have 
 been hanged, as you richly deserve to be. As it is, I have the 
 power to pass upon you the next sentence in severity to that of 
 death, and that sentence T think it my duty to pronounce. For 
 the atrocious crime of wliich you have been convicted, I condeuni 
 you to be kept in penal servitude for the term of your natural life." 
 
 701
 
 § 789.] MENTAL UNSOUNDNESS CONSIDERED PSYCHULOQTCALLY. 
 III. AFTER CRIME. ^ 
 
 1. Convulsive confessions. 
 
 § 788. "The guilty soul," said Mr. Webster, in a speech already 
 quoted, " cannot keep its own secret. It is false to itself; 
 sioiis may or rather it feels an irresistible impulse of conscience to 
 be mstruc- ^^ ^^^^ ^^ itself. It labors under its guilty possession, 
 and knows not what to do with it. The human heart 
 ■was not made for the residence of such an inhabitant. It finds itself 
 preyed on by a torment, which it dares not acknowledge to God or 
 man. A vulture is devouring it, and it can ask no sympathy or 
 assistance, either from heaven or earth. The secret which the 
 murderer possesses soon comes to possess him ; and, like the evil 
 spirits of which we read, it overcomes him, and leads him whither- 
 soever it will. He feels it beating at his heart, rising to his 
 throat, and demanding disclosure. He thinks the whole world sees 
 it in his face, reads it in his eyes, and almost hears its workings in 
 the very silence of his thoughts. It has become his master. It 
 betrays his discretion, it breaks down his courage, it conquers his 
 prudence. When suspicions from without begin to embarrass him, 
 and the net of circumstance to entangle him, the fatal secret strug- 
 gles with still greater violence to burst forth. It must be confessed, 
 it will be confessed ; there is no refuge from confession but suicide, 
 and suicide is confession." 
 
 Confessions that are voluntary are out of the range of the present 
 discussion. Of those that are involuntary or convulsive we may 
 take the following illustrations : — 
 
 § 780. A confession by an insane person is entitled to no weight.^ 
 . It may happen, however, that a reliable confession may 
 
 delirium or be made during a lucid interval, or that true statements 
 made during delirium may be corroborated aliunde. 
 John Whitney, a wealthy farmer of Loudonville, Ohio, was robbed 
 and murdered in November, 185G. Great but unsuccessful eti'orts 
 were made to ferret out the murderer. A man named Stringfellow, 
 who was living at Loudonville at the time, was strongly suspected 
 
 ' This topic is discussed in its tech- ^ See Wh. on Cr. Ev. 8th ed. §§ 
 nical rel.atioMS in Wh. Cr. Ev. 8th ed. 632 et seq. 
 §§ t)li8 et scq. 
 
 702
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 789. 
 
 of the crime, but nothing could be fastened upon him. Stringfellow 
 soon afterwards left the neighborhood, and, after an absence of two 
 years, settled in the village of Johnstown, Hardin County. Here 
 he was taken sick, and in his illness became delirious. It would 
 seem that conscience was constantly at work within him, for during 
 his delirium he mentioned Whitney's name frequently, and divulged 
 a number of secrets which had been long hidden in his bosom, and 
 which left but little doubt that he was the guilty man. The clue 
 having been obtained, facts were elicited which established his 
 guilt. 
 
 The fact that a confession was made during sleep excludes it ;^ 
 but it may nevertheless be the means of drawing out facts on which 
 a conviction may rest. A person who worked in a brewery at 
 Ba^le, in Switzerland, (luarrelled with a fellow-workman, and struck 
 him in such a manner as to produce instant death. He then took 
 the dead body and threw it into a large fire under the boiling vat, 
 where it was in a short time so completely consumed that no traces 
 of its existence remained. On the following day, when the man was 
 missed, the murderer observed that he had seen his fellow-servant 
 intoxicated, and that he had probably been drowned in crossing a 
 bridge which lay on his way home. For seven years after no one 
 entertained any suspicion as to the real state of the case. At the 
 end of tliis time, the murderer, being again employed in the same 
 brewery, was constantly reflecting on the singularity of the circum- 
 stance that his crime had been so long concealed. One night one 
 of his fe]low-Avorkmen, who slept with him, hearing him say in his 
 sleep, " It is now fully seven years ago," asked him, " What was it 
 you did seven years ago ?" " I put him," he replied, still speak- 
 ing in his sleep, " under the boiling vat." As the affair was not 
 entirely forgotten, the man, suspecting that his bed-fellow might 
 allude to the person who Avas missed about that time, informed a 
 magistrate of what he had heard. The murderer was ap])rehcnded, 
 and, though at first denying all knowledge of the matter, afterwards 
 confessed and was executed. An analogous case is reported by 
 Abercrombie as having occurred in Scotland early in the present 
 century. A peddler had disap[)eared under circumstances which 
 made it probable that he liad been murdered. All attempts to dis- 
 
 ' Wh. Cr. Kv. 8th ed. § 670. 
 
 703
 
 § 789.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 cover the assassin failed. At last a wayfaring man, who had been 
 strolling about the neighborhood, dreamed that the body would be 
 found in a particular spot, and that certain persons with whom he 
 had lately been sleeping in a barn were the guilty parties. It 
 turned out that this was true. But it also turned out that the 
 dreamer had, in his own dreams, heard the convulsive confessions 
 of one of the assassins, the latter also dreaminir.^ 
 
 ' In Mr. Noak's speech in Lowen- 
 stein's case (Albany, 1874) we have the 
 following : — 
 
 " Tlie trutli is the conscience of the 
 murderer is never silent. On one oc- 
 casion he may be compelled, in order 
 to restrain and stifle the stings of con- 
 science, to resort to apparent ease and 
 forced gayety, and in another he may 
 not be able to throw olf that spectre 
 that haunts him ever after committing 
 such a crime. To refer to a well- 
 authenticated case that occurred in 
 tliis city within the last thirty years. 
 It is the case of the celebrated English 
 forger, Charles We)>b. 1 refei- to it to 
 show how certain the criminal is, to 
 himself furnisli the proof which leads 
 to his detection, and which points to 
 him as the criminal. On the 28th of 
 November, 1847, a man presented at a 
 bank in this city, of which Mr. A. P. 
 Palmer was cashier, a check purport- 
 ing to have been drawn by Tweddle & 
 Darlington for $805, and received the 
 money upon it. It was paid to him in 
 $10 bills of a new issue. Within a 
 short time after he left the bank it was 
 discovered that the check was a for- 
 gery. Immediately on this discovery 
 the bank cancelled all the bills of tliat 
 issue and destroyed the plates, believ- 
 ing that if they were out the forger 
 would be unable to pass them, or that 
 they \vould lead to his detection. A 
 few of them came in — one came from 
 Ballstdii and one from Saratoga — but 
 in each case the numher had been 
 ))urned out, showing that the person 
 
 who committed the forgery was aware 
 that the bank had destroyed all simi- 
 lar bills, and that if the numbers re- 
 mained they might lead to his identi- 
 fication. About a year from that time 
 a man presented himself at Dixon's hat 
 store in this city and purchas<>d a hat. 
 After he had purchased it he said to 
 Mr. Dixon, ' I don't know as you will 
 take my money.' This remark caused 
 Mr. Dixon to think there was some- 
 tliing wrong about the money. It was 
 a bill on a bank in his own city, and 
 it apjieared to be genuine, but the 
 simple remark made by his customer 
 made liim think there was sometliing 
 wrong ; so lie sent a boy to George E. 
 Payne, a broker, to see if the bill was 
 genuine. Mr. Payne at once saw it 
 was one of the bills that had been ob- 
 tained upon the forged check, and 
 walked over to Mr. Dixon's store to see 
 the man who presented the bill. Webb, 
 who went by a fictitious name, suspect- 
 ing something was wrong, went out of 
 the store and walked up State Street. 
 He was speedily overtaken and ar- 
 rested, and was soon afterwards in- 
 dicted. While in the jail he gave the 
 sherifl' the key of a trunk which he 
 said he had at Troy, and asked the 
 sheriff to get it for him, not for a mo- 
 ment supposing that he would open 
 the trunk to see what it contained. 
 But the sherifl' having the key did so, 
 and in it were seven hundred dollars 
 of the stolen bills, witli the dates 
 burned out. He was convicted, and it 
 turned out our police had captured the
 
 PSYCHICAL INDICATIONS AFTER CRIME. 
 
 [§ 790. 
 
 § 790. Confessions may also, with hardened criminals, become 
 in a degree involuntary from tlie fact that crimes which 
 
 r 1 • 1 , From cal- 
 
 have been irequently committed become so familiar to lousuess. 
 
 celebrated forger, Charles Webb, of 
 England. It was a simple remark, 
 and one would have thought he would 
 never have made it. 
 
 " I remember the case of Gordon, and 
 so do many of you, who was tried for 
 the murder of a man named Owen 
 Thompson, at West Albany, a short 
 distance only from where this murder 
 was committed. A drover in that case 
 was murdered for a few hundred dol- 
 lars. No one saw it done. In the 
 morning the poor man was found hang- 
 ing on to a fence with his skull crushed 
 in by a blow with a piece of wood used 
 for binding bales of hay. The day 
 previous, at West Albany, the sup- 
 posed murderer had had a conversation 
 with a man named Genter. During 
 the conversation he said to Genter, 
 ' Haven't I seen you somewhere behind 
 a bar ?' It was a simple remark, and 
 of no consequence or significance then 
 to Genter. The murderer went on to 
 Rochester. Chief Maloy went to Ro- 
 chester, where a state fair was being 
 held, with a man who claimed he 
 could identify the man who was last 
 seen with Thompson. Gordon passed 
 within a few feet of them. Strange to 
 say, Maloy 's companion never said a 
 word about it, in consequence of the 
 superstition some people have against 
 being considered informers. Time went 
 on. Gordon went to Saratoga and pur- 
 chased' a span of horses, and the vaga- 
 bond of a sliort time previous was now 
 driving a spirited team. TIk; same 
 Providence which prompt(;d the remark 
 by Gordon to Genter the day previous 
 to the murder, set him down in the 
 same car with him, one seat in front of 
 Genter. The same train of ideas wt're 
 in his mind on tliis occasion as on the 
 VOL. I. — 45 
 
 day previous to the cruel murder. 
 Looking at Genter and scrutinizing 
 him, again he said : ' Haven't I seen 
 you somewliere behind a bar ?' Genter 
 at once remembered hearing the re- 
 mark before, and that he was the man 
 who was suspected of having murdered 
 Thompson. At the next station he 
 telegraphed to the chief of police in 
 this city, and detained Gordon at 
 Schenectady until the chief came there. 
 He was placed under arrest, and, when 
 it was found that it was Gordon, Maloy 
 was laughed at for the blunder. But 
 the train of circumstances pointed to 
 him with certainty, and he was in- 
 dicted, tried, and convicted, and but 
 for the action of a single juror he 
 would have been hanged. As it was, 
 he was committed to state prison for 
 life, and that juror, who lived in 
 Schoharie County, has never got over 
 tlie public odium which attached to 
 liis course upon the trial. It was a 
 simple remark, ' Haven't I seen you 
 somewhere behind a bar ?' but it 
 pointed to Gordon, who talked with 
 Genter the afternoon before Tliomj)son 
 was murdered, as certainly as the fact 
 that yon and I are here now trying 
 this case." 
 
 In Burrill's Cir. Ev., pp. ()73-7(), is 
 the following : — 
 
 " In crimes of a coniparativ<!ly petty 
 character, the same singular disregard 
 of relations and constMjUcaices is some- 
 timt^s found to take j)lace. Thieves 
 and receivers oF stolen goods have been 
 known to keep the stolen articles in 
 their possession witli the owner's 
 marks still apparent upon them, thus 
 furnishing a mc^ans of immediate iden- 
 tification and detection. 
 
 "'i'lic causes of this singular and 
 
 705
 
 § 790.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the criminal himself as to seem every-day occurrences, which he 
 recurs to as naturally as a farmer to his ploughing and sowing, 
 
 sometimes sudden blindness to the 
 criminal's immediate and obvious in- 
 terest in the case, and this disregard 
 of what may be called the necessary 
 policy of his conduct, may now be 
 more particularly examined. The 
 circumstance of creating evidence 
 against himself, in the way of omission 
 (that is, by omitting to destroy the 
 impressions and vestiges of his own 
 action), sometimes arises from the self- 
 imposed necessity of the case. In enter- 
 ing upon the actual perpetration of a 
 great crime, the criminal commits him- 
 self to the issues of events which he 
 can neither foresee nor perfectly con- 
 trol. With the best contrived plan of 
 proceeding, and the best adapted means 
 of action, he often encounters, and 
 sometimes at almost every step, diffi- 
 culties and obstacles, against whicli no 
 provision (or no effectual one) could be 
 made. A trifling accident may serve 
 to endanger the whole entei'prise. The 
 premises sought to be invaded are 
 found to be secured with unusual care : 
 the intended victim takes the alarm, 
 and makes a long and desperate resist- 
 ance, with cries of distress wliich vio- 
 lence cannot wholly stifle. To deal the 
 mortal blow and escape for his life is 
 sometimes all the murderer can do. 
 He has no time for acts of concealment 
 whicli often take whole days and nights 
 to perform adequately. Again, this 
 omission or neglect to conceal the traces 
 and evidences of criminal action, even 
 when present to the actor's view and 
 witliin his rcacli and control, may be 
 attributed to that rinij'nsion of mind and 
 memory, whicli, particularly in cases 
 of inexpc^rieuced offenders, is often 
 found to attend the commission of grtuit 
 crimes, and occasionally wholly frus- 
 trates their accomplishment. Tlie mur- 
 
 706 
 
 derer forgets that his feet are making 
 the impressions which are to lead to 
 his discovery. The thief forgets to 
 erase from the article which he has 
 stolen the owner's marks ; or he trusts 
 to superficial appearances without 
 making thorough examination. He 
 keeps the stolen box in his possession, 
 till it is there found, without thinking 
 of looking on the bottom, where the 
 evidences of ownership) are distinctly 
 written. Lastly, supposing greater 
 coolness and circumspection to be ob- 
 served in the criminal act, the same 
 circumstance of omission may be 
 ascribed to an excess of confidence on 
 the part of the offender, in his own in- 
 tended after-conduct, and in liis pur- 
 pose and plan of subsequent destruction 
 or concealment of the evidence of guilt, 
 or of the concealment of his own per- 
 son, or final escape from danger by 
 flight. All such explanations, how- 
 ever, fail to take from these acts of 
 omission their character of intrinsic 
 and manifest folly. But it is in those 
 cases where tlie criminal, having effect- 
 ually perpetrated the crime and escaped 
 di.<(i)c'eri/, deliberately creates with his 
 own hand the strongest evidence of it, 
 and puts it, as it were, upon record, 
 that this feature of folly is found to 
 reach the height of absolute infatua- 
 tion, having almost the quality of 
 mental imbecility, though without any 
 of its exculpatory claims or conse- 
 qiunices. 
 
 "Tlie folly, therefore (even to a 
 glaring d('gree), of pai-tieular acts on 
 tlie part of a person accused of crime 
 is by no means an unanswerable proof 
 of their not having been committed by 
 him, or, if committed, of having been 
 the result of irresponsible agency. 
 They are parts of a condition of human
 
 PSYCHICAL INDICATIONS AFTER CRIME. 
 
 [§ 790. 
 
 or a merchant to his sales. As illustrating this principle may be 
 considered the case of Mrs. Lydia Sherman, of New Haven, Con- 
 necticut, as reported in the New York Herald for January 13th, 
 1878. The technical questions arising in this extraordinary case 
 are noticed by me in another work.^ Mrs. Sherman, after her con- 
 viction, confessed, according to a subsequent summary in the Lon- 
 don tSj^ectator, in full to eight murders by arsenical poisoning ; the 
 victims being her first husband, Mr. Struck, a carriage blacksmith, 
 and afterwards a policeman ; four of her own children ; her third 
 husband, Mr. Sherman, and two of his children, ller second hus- 
 band, Mr. Hurlburt, died with similar symptoms of arsenical poison- 
 ing, but she maintained that it was not with her knowledge at all 
 
 action, which seems to have been di- 
 vinely appointed, as a most effectual 
 instrument in a system of self-retribu- 
 tion ; and without which crimes of the 
 most aggravated enormity would con- 
 stantly and forever escape and defy 
 discovery. 
 
 "But in a wider range of observa- 
 tion, looking at crime m general, as a 
 course of conduct prompted by certain 
 motives, and persisted in, in the hope 
 of attaining certain ends, its intrinsic 
 folly, under any circumstances, be- 
 comes apparent. In yielding to the 
 force of temptation (the real essence of 
 most forms of guilt), and voluntarily 
 encountering the hazard of conse- 
 quences far outweighing the jiain pro- 
 posed ; in entering on a path pur- 
 posely obscured, and most literally 
 crooked and tortuous, where the end 
 can never be seen from the beginning, 
 and trusting himself and all his inter- 
 ests to the issues of events whicli Ik? 
 can never wholly control, the criminal 
 constantly manifests the most egregious 
 folly. And such is often his own de- 
 clared estimate of himself, the moment 
 after the criminal impulse is satisfi(!<l, 
 and he has time to mtU'cA on what has 
 been done, and what is to he done. And, 
 perhaps, the bitterest and most intoler- 
 
 able ingredient of remorse, when, after 
 all his arts have been exhausted in 
 attempts to conceal his guilt, he finds 
 himself detected and condemned, is the 
 same abiding consciousness of his own 
 folly. 
 
 "The criminal practice of the old 
 Roman law furnishes an illustration 
 which may be used as a fitting conclu- 
 sion to the present course of remark. 
 In capital cases, when the jury con- 
 demned the accused, instead of using 
 the direct language of our time and 
 system, and pronouncing him ' guilty' 
 of the crime charged, they adopted an 
 indirect form of expression, and dis- 
 guised the dreadful announcement 
 under one of those euphemisms in 
 winch their language abounded : 
 ' Puruni cavisse videtur,'' said they : ' lie 
 seems to have been incautious,' 'We 
 think he has not been sufficiently upon 
 his guard !' Want of Anv. caution most 
 comprehensively and forcibly expresses 
 th(! sum of the whoh? (conduct of a i;on- 
 demned criminal, from its earliest in- 
 stigating impulse to its fatal result. 
 Caution might, perhaps, have hsd him 
 to escape detection and its peTialty ; 
 but truer and wiser caution would have 
 enal)le<l him to escape tins crime." 
 
 • Wh. Cr. Ev. 8th ed. § 50. 
 707
 
 § 790.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 events, that he got the poison ; it is possible, that in this instance 
 she may have been only the occasion of the death, and not its cause 
 — Mr. Hurlburt having possibly confounded some of his wife's 
 arsenic with powders of his own with which he was accustomed, as 
 she says, to guard against the acidity of his beer. What is re- 
 markable, as is noticed by the /Spectator, is that Mrs. Sherman 
 always uses the same phrase, " discouraged," to describe the state 
 of mind which induced her to commit murder. " Time after time 
 she repeats that she was greatly ' discouraged' at the thought of 
 her husband or her children being a burden to her, and that under 
 this sense of discouragement she quietly put them out of the way. 
 Only on the first occasion does she attribute the crime to external 
 suggestions. She asserts that a police officer suggested to her to 
 put her first husband, who had taken to his bed, and was apparently 
 suffering from softening of the brain, out of the way, and recom- 
 mended her to try arsenic. But as there does not appear to have 
 been the slightest motive for his suggesting such a crime, as there 
 is no hint even of an intrigue, or of any further relation between 
 him and the woman he is said to have advised, we cannot believe 
 tiiis part of the story ; a bad man would not have given very dan- 
 gerous advice by which he was to take no profit, and, of course, a 
 decent man would not have given such advice at all ; so that the 
 falsehood, if it be one, throws grave doubt on her assertion of being 
 innocent of the murder of her second husband, and makes it seem 
 not unlikely that this apparently arbitrary disavowal of guilt was 
 due to some inexplicable association Avhich made it more painful to 
 her to confess this than any another crime. It seems that to this 
 husband she was indel^ted for a substantial becjuest in the way of 
 property, and this, while it adds to the probability of the murder, 
 may have rendered her less wilHng to avow it. It clearly was not in 
 this case ' discouragement'— the motive uniformly pleaded in every 
 other — which led to the murder, if murder it was. There was no 
 pretence for fearing that Mr. Hurlburt would be a great burden to 
 lier, either pecuniarily or otherwise. He had enriched her, and 
 left her better off" than she had ever been before in life. One of 
 the worst parts of the story of Mrs. Sherman's confession is that, 
 after making it, and talking a good deal of horrid rant about her 
 conversion and reconciliation to Christ, she declared herself very 
 happy indeed, which she had, she said, never been before in life, 
 708
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 790. 
 
 and accompanied her declaration vritli what the New Yorlt HeralcTs 
 reporter calls a kind of ' festive titter,' which went through her 
 whole frame and gave her an appearance of real enjoyment. The 
 chronic ' discouragement' which had led to her eight or nine mur- 
 ders had now apparently for the first time ceased. It is another 
 curious feature of the case that the woman seems to have lived a 
 regular and quiet domestic life till she was nearly forty, and only 
 to have begun her course of murders at that age, when her first 
 husband's brain began to soften and she first became ' discourasred.' 
 After that every little discouragement led to new murders. She 
 put two of her children, a daughter and son, out of the way — the 
 son, ' a beautiful boy, who did not complain during his illness' — 
 from ' discouragement' at the prospect of having to support them ; 
 then a third son, nearly grown up, was murdered from discourage- 
 ment at the prospect of a long illness in which she might have had 
 to support him ; then a second daughter, somewhat of an invalid, 
 the care of whom kept her occasionally at home, was murdered, 
 out of discouragement at the prospect of ' a hard winter ;' her third 
 husband she dosed with arsenic in his drink, she says out of the 
 wish to sicken him of drink — a very unlikely story for a woman so 
 experienced in the fatal effects of arsenic ; and his two children — 
 the baby, and a daughter who had shown great attachment to her 
 murderous step-mother — she apparently poisoned solely to get rid 
 of small domestic annoyances. She seems to have had a calm, 
 kindly maimer popular with men, and not exciting any suspicion 
 among the doctors, who, like our English country surgeons in the 
 recent case in the north, uniformly ascribed the arsenical sickness, 
 to the woman's own great surprise, to gastric fever, excej)t in one 
 case, that of her eldest son, a painter, in which it Avas ascribed to 
 ' painter's colic' Under this calm, easy manner she seems to have 
 concealed one of those cold and callous hearts to which the pros- 
 pect of inconveniences or annoyances of any kind immediately sug- 
 gested that they were most likely to be radically removed by 
 removing the persons who caused tiiem. The interest of the per- 
 petually recurring phrase she uses to describe her motive — 'dis- 
 couragement' — is not so much that it appears to have been really 
 her chief motive, as that it was almost certainly the state of feeling 
 by which she excused to herself her wonderfully cruel and reiterated 
 murders. In confessing her state of mind when about to murder 
 
 709
 
 § 790.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY, 
 
 her eldest son, she remarks that she now knows that her deep feel- 
 ing of discouragement was ' not much of an excuse, but I felt so 
 much troubled that I did not think about that.' To her own mind 
 it evidently palliated the enormity of her guilt to reflect that she 
 had no heart to encounter the troubles and annoyances before her 
 if she had allowed her husbands and children to go on fretting her 
 by their demands for attendance and help. What could she do in 
 that dejected state but just slip them quietly out of the way, by 
 mixing ' half a thimbleful of arsenic' in their tea or gruel ? If she 
 had had more energy, more hope, more life, she thinks there would 
 have been less excuse for her. As it was, the temptation was too 
 severe ; she subsided into murder, as it were, through sheer fatigue 
 of mind at the thought of the many troubles before her if she hesi- 
 tated about it. The grim peculiarity of the case is this curious 
 assumption that murder, instead of needing positive passion or other 
 powerful incentives of some vulgar kind to account for it, is, as it 
 were, the natural resource of feebleness and languor of tempera- 
 ment. If you don't feel up to fighting your way through difficulties, 
 the natural man suggests to you, as Mrs. Sherman evidently thinks, 
 not to droop and die, or at worst to put an end to yourself, but to 
 put an end to your sources of human anxiety, as you would to 
 gnats or hornets, by extinguishing their life, not your own. You 
 see your eldest son, who had contributed a good deal to your sup- 
 port, sickening, and becoming not only a pecuniary burden, but 
 a probable cause of fatigue and fret for weeks to come, and the 
 natural recourse of the imagination is to the most convenient mode 
 of finally silencing all these importunate demands. The woman, by 
 her own account at least, never seems to have thought of murder 
 till some inconvenience arose to her from the person whom she 
 proposed to murder. She had no insane or morbid delight in the 
 process. It was not till it occurred to her that but for little Ann 
 Eliza's claims on her time she and the elder daughter Lydia would 
 make a good income together, that she gave little Ann Eliza arsenic 
 to clear her out of the way. It was not till she found that her little 
 step-son, Fratdcy Sherman, very inconvenientl}^ for her, would nei- 
 ther get (piite well nor die, that she found it advisable to put an 
 end to the hesitation of nature by giving him a very decided impulse 
 towards the grave. There does not seem to have been any murder- 
 ous eagerness in the woman. It was simply that she felt it the 
 710
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 790. 
 
 most natural resource when she wanted to remove a cause of fric- 
 tion. A husband or child caused her low spirits, and the only way 
 to remove the weight on her spirits was to make the inconvenient 
 husband or child disappear. No account of the psychology of 
 murder more ghastly can well be suggested, and yet it does put 
 very strongly before us one element in moral evil to which atten- 
 tion is too little drawn. The common conception of the most hideous 
 forms of moral evil is a conception of something due to the excess 
 of passion, or self-will, or love of wealth or ambition, or some other 
 not necessarily ignoble motive — only ignoble when it comes into 
 collision with and overpowers other far nobler impulses. But we 
 forget too much that in all these cases what looks like the super- 
 fluous energy and excess of some quality which, in moderation, we 
 do not despise but perhaps even admire, almost always implies also 
 an immense deficiency in the power of sympathy, in the capacity 
 for entering into the life of others. And it is less the apparently 
 active motive, than the deficiency of some other much nobler motive, 
 which really causes the temptation. Ambition, however high and 
 overweening, would seldom lead to crimes of this kind, unless there 
 was such a slowness and poverty of sympathy with the victims of 
 our evil deeds that the weio-ht in the other scale were wantinsi;. 
 After all, it is far oftener want of sympathetic life than excess of 
 egoistic life which tempts to these crimes. And in this wretched 
 woman's case we have the most perfect illustration that the most 
 dwindled nature, the nature not of most passion, but of least, is the 
 one of purest evil. A creature whose languor is the destructive 
 element in her, who murders to save herself from a little worry, 
 who gets rid of her daughters and sons as she would of troublesome 
 midges, and first finds out when she is convicted that low s])irit3 
 are not sufficient excuse for a habit of murder, is the most terrible 
 warning that human imagination can conceive of the wholesale 
 destructiveness of pure, unadulterated self-occupation — of the fierce 
 scourge which moral nothingness — refined, as it were, to a sharp 
 invisible sword-edge for the slaying of others — may become for the 
 more positive life with which it comes in contact. Cease to care 
 for any one but yourself, and, thougli you have not life enough to 
 want for yourself anything postitivc, though your only real desire 
 may be to rid yourself of inconvenience, you will become, by virtue 
 of the very grinding away of your nature, at once more destructive 
 
 711
 
 § 791a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 and far more dangerous than creatures of larger passions with some- 
 tliing left in them on which the sense of guilt and fear may act. 
 Mrs. Sherman, with her titter of recovered happiness and her mur- 
 derous ' discouragement,' seems to us a sort of parable of the truly 
 negative and yet sweepingly destructive character of pure evil — of 
 that climax of calm deceit and deadly purpose to which dwindling 
 sympathies and torpid desires may rise, when they have shrunk 
 into the keen, intangible, invisible knife-edge of purely passive self- 
 love." So far as concerns the topic immediately before us, the 
 retributive element in guilt of this particular type is, that when the 
 criminal loses his abhorrence of crime he loses the reticence by 
 which crime is concealed. When he becomes callous he ceases to 
 become secretive. The wickedness that perpetrates a long series 
 of crimes is the wickedness that discloses their perpetration. 
 
 § 791. It must be remembered, however, that confessions may 
 
 emanate from delusion, or from a morbid desire to at- 
 to confes- tract attention, a sort of epidemic which sometimes 
 deiusi"n^'' strikes down whole classes with a passionate impulse to 
 
 insist upon some blood-stain on the conscience, some- 
 thing like the hypochondriac epidemic impulse which insists upon 
 some personal al)normity ;^ from weariness of life, or from a pro- 
 pensity to self-destruction through a channel which from its very 
 tortuousness possesses its own fascination.^ 
 
 § 791 a. As illustrating delusions the following case may be 
 _ cited : Two brothers, named Boorn, living in Vermont, 
 
 Delusions. ... . 
 
 Cuf^e of the had an altercation with their brother-in-law, a man named 
 Colvin, a partial lunatic. Tliey left him, as they may 
 well have supposed, in a dying state. Pie crawled off, however, and 
 fled to the Middle States. Several years afterwards, suspicion was 
 excited by a dream of an uncle of the supposed murderers. In 
 this dream he was told that Colvin had been murdered, and that 
 his remains would be found in a spot that was pointed out. The 
 dream was repeated three times until at last the place was searched, 
 and some articles of clothing were found which were identified as 
 Colvin's. Then a spaniel, connected in some way with the Colvin 
 
 ' We have <in illustration of the ^ These points will he found ex- 
 latter in a convent of nuns, near Clia- pandcd and illustrated in Wh. Cr. 
 Ions, who were stricken down with the Ev. 8th ed. §§ 62lj et seq. 
 belief that they were cats. 
 
 712
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 791a. 
 
 family, was seen snuffing uneasily about the spot close by, calling 
 attention to it by his importunities. It, too, was examined, and a 
 cluster of bones were drawn up by the dog's paw. That these 
 were Colvin's, and that these almost miraculous interpositions were 
 designed to bring the murder out, there were none in the commu- 
 nity who doubted. Other circumstances led to the arrest of the 
 Boorns. They were conscious of guilt, and it is no wonder that 
 these strange prosecutors, who after so long an interval had united 
 by means so extraordinary to ferret out their guilt, should have 
 impressed them with a belief that it was vain to fight against what 
 seemed to be divine vengeance. So one of them confessed the 
 murderous assault, and went on further to state how, in order to 
 evade detection, the body had been partially burned, and the 
 clothes destroyed. The first part of the story was true ; the last 
 was a fabrication, the result either of delusion or of desperation, 
 or of that impulse to complete a story with which the imagination 
 is sometimes seized. That the actual death Avas indeed false, 
 was shown by the subsequent appearance of Colvin himself, in 
 time to intercept the execution of at least one of his supposed 
 murderers. 
 
 But a still more singular confession followed. The first was in 
 1819. In 1860 a very old man named Boorn was arrested in 
 Cleveland for counterfeiting. When in custody, he confessed that 
 forty years before he had been concerned in a murder, and escaped 
 by a false personation of the deceased. The confession led to a 
 re-investigation of the former trial. That the second confession, as 
 well as the first, was a delusion, was established finally. But the 
 retention of this delusion for forty years in the criminal's breast 
 shows the enduring eftect on the nervous system of a sense of 
 guilt, even though that guilt was not consummated.^ 
 
 > 8o« Wh. Cr. Ev. 8th w\. § (;.34 ; "Springfield, June 1!), 1841. 
 
 IJlackwood's Magazine, .July, ]8G(>, p. " Dkak Speed: We have liad the 
 
 r)4 ; .Journ. Psyc. Med. 1871, p. :5r»7 ; liigliest state of excitement here for a 
 
 suprn, § 2001). See also the case of week jiast tliat our coiinnunity has 
 
 SiJren Qvist, in Mr. riiillii)s's Famous tu'er witnessed; and altliouj;ii the 
 
 Cases of Circumstantial Kvidence. puMie feeling is somewliat allayed, 
 
 Lamon's Life of Lincoln (1872), p. the curious affair which aroused it is 
 
 318, gives the following letter from Mr. very (:u- from heing over yet, cleared 
 
 LiiH^oln : — of mystery. It would take a (juiri' of 
 
 713
 
 § 791 a.'] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 In the same connection may be examined a well-known English 
 case called the Campden Wonder. An old man, named William 
 
 papor to give yon anything lilce a full 
 account of it, and I, therefore, only 
 propose a brief outline. 
 
 " The chief personages in the drama 
 are Archibald Fisher, supposed to be 
 murdered, and Archibald Trailor, 
 Henry Trailor, and William Trailor, 
 supposed to have murdered him. The 
 three Trailors are brothers. The first, 
 Archibald, as you know, lives in town ; 
 the second, Henry, in Clary's Grove ; 
 and the third, William, in Warren 
 county ; and Fisher, the supposed 
 murdered, being without a family, had 
 made his home with William. On 
 Saturday evening, being the 2rtth of 
 May, Fisher and William came to 
 Henry's in a one-horse dearborn, and 
 there staid over Sunday ; and on Mon- 
 day all three came to Sijringfield 
 (Henry on horseback), and joined 
 Archibald at Myers's, the Dutch car- 
 penter. That evening at supper Fisher 
 was missing, and so next morning 
 some ineffectual search was made for 
 him; and on Tuesday, at one o'clock 
 P. M., William and Henry started 
 home without him. In a day or two 
 Henry and one or two of his Clary 
 Grove neighbors came back for him 
 again, and advertised his disajipear- 
 ance in the papers. 
 
 " The knowledge of the matter thus 
 far had not been general, and here it 
 droj>p('d t'utirely till about the lOth 
 inst., wlien Keys received a letter from 
 the postmaster in Warren county, tliat 
 William liad arrived at home, and was 
 telling a very mysterious and improba- 
 ble story about the disapiiearance of 
 Fisher, which induced the community 
 theie to supi)ose he had been disposed 
 of unfairly. Keys made this letter 
 public, which immediat(4y set tht; 
 whole towu and a(ljf)ining county agog. 
 
 714 
 
 And so it has continued until yester- 
 day. 
 
 " The mass of the people commenced 
 a systematic search for the dead body, 
 while Wickersham was dispatched to 
 arrest Henry Trailor at the Grove, 
 and Jim Maxcy to Warren to arrest 
 William. On Monday last Henry was 
 brought in, and showed an evident 
 inclination to insinuate that he knew 
 Fisher to be dead, and that Archibald 
 and William had killed him. He said 
 he guessed the body could be found in 
 Spring Creek, between the Beardstown 
 Road and Hickox's mill. Away the 
 peo])le swept like a lierd of buffalo, and 
 cut down Hickox's mill-dam nolens 
 vole.ns, to draw the water out of the 
 pond, and then went up and down, and 
 down and up the creek, fishing and 
 raking, and raking and ducking, and 
 diving for two days ; and, after all, no 
 dead body found. In the mean time a 
 sort of a scuifling-ground had been 
 found in the brush in the angle or 
 point where the road leading into the 
 woods past the brewery and the one 
 heading in past the brick grove meet. 
 From the scuffle-ground was the sign 
 of something about the size of a man 
 having been dragged to the edge of the 
 thicket, where joined the track of some 
 small wheeled carriage drawn by one 
 horse, as shown by the road-track. 
 The carriage track led off towards 
 Spring Creek. Near this drag-trail, 
 Dr. Merryman found two hairs, which, 
 after a long scientific examination, he 
 jjronounced to be triangular human 
 hair, which term, he says, includes 
 within it the whiskers, the hair grow- 
 ing under tlie arms, and on other ])arts 
 of the body ; and he judged that tliese 
 two were of tlie whiskers, because the 
 ends were cut, showing that they had
 
 PSYCHICAL INDICATIONS AFTER CRIME. 
 
 [§ 791 a. 
 
 Harrison, steward to Lady Campden, went out on foot on the 16th 
 of August, lG(iO, to collect rents. He did not return at his usual 
 
 flourished in the neighborhood of the 
 razor's operations. 
 
 " On Thursday last Jim Maxcy 
 brought in William Trailor from War- 
 ren. On the same day Archibald was 
 arrested, and put in jail. Yesterday 
 (Friday) William was put upon his 
 examining trial before May and Lavely; 
 Archibald and Henry were both pres- 
 ent. Lainborn prosecuted, and Logan, 
 Baker, and your humble servant de- 
 fended. A great many witnesses were 
 introduced and examined, but I shall 
 only mention those whose testimony 
 seemed most important. The first of 
 these was Capt. Ransdell. He swore 
 tliat, when William and Henry left 
 Springfield for home on Tuesday be- 
 fore mentioned, they did not take the 
 direct route, which, you know, leads 
 by the butcher-shop ; but that tliey 
 followed the street north until they got 
 opposite, or nearly opposite, May's new 
 house, after which he could not see 
 them from where he stood ; and it was 
 afterwards proved, that, in about an 
 hour after they started, they came into 
 the street by the butcher's shop from 
 towards the brick-yard. Dr. Merry- 
 man and others swore to what is stated 
 about the scuflle-ground, drag-trail, 
 whiskers, and carriage tracks. 
 
 " Henry was then introduced by the 
 prosecution. He swore that when they 
 started for home, they went out north, 
 as Ransdell stated, and turned down 
 west by the brick-yard into the woods, 
 and there met Archibald ; that they 
 jjroceeded a small distance further, 
 when he was placed as a sentinel to 
 watch for and announce the approacli 
 of any one that might hai)pen that 
 way ; that William and Archiliald took 
 th*^ dearborn out of tlie road a small 
 distance to the edge of the thicket, 
 
 where they stopped, and he saw them 
 lift the body of a man into it ; that 
 they moved oflf with the carriage in the 
 direction of Hiokox's mill, and he 
 loitered about for something like an 
 hour, when William returned with the 
 carriage, but without Archibald, and 
 said that they had put him in a safe 
 place ; that they went somehow, he did 
 not know exactly how, into the road 
 close to the brewery, and proceeded on 
 to Clary's Grove. He also stated that 
 some time during the day William told 
 him that he and Archibald had killed 
 Fisher the evening before ; that the 
 way they did it was by him (William) 
 knocking him down with a club, and 
 Archibald then choking him to death. 
 "An old man from Warren, called 
 Dr. Gilmore, was then introduced on 
 the part of the defence. He swore that 
 he had known Fisher for several years, 
 that Fisher had resided at his house a 
 long time at each of two diiferent spells ; 
 once while he built a barn for him, and 
 once while he was doctored for some 
 chronic disease ; that two or three years 
 ago Fisher had a serious hurt in his 
 head by the bursting of a gun, since 
 which he had been subject to continued 
 bad health, and occasional aberration 
 of mind. He also stated that on last 
 Tuesday, being the same day that 
 Maxcy arrested William Trailor, he 
 (the doctor) was from home in the early 
 part of the day, and on his return, 
 about 11 o'clock, found Fisher at his 
 house in bed, and apparently very un- 
 well ; that he asked him how he had 
 come from Springfield ; that Fislier said 
 he had come by Peoria, and also told of 
 several other plac<!S he had been at, 
 more in the direction of Peoria, which 
 showed that Iks at the time of sjxsaking 
 did not know where he had been wan- 
 
 715
 
 § 791a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 hour, and his wife sent his servant, John Perry, to inquire after 
 him. Perry, according to his own account, wandered about during 
 the night without finding his master. The next mornin";, however, 
 a hat and comb much hacked and cut, and a band stained with blood, 
 which had been worn by Harrison the evening before, were found 
 in a wihi spot, near a large furze brake, where he would have been 
 likely to have been met by Perry. The neighborhood naturally 
 enough jumped at the conclusion that Harrison was murdered, and 
 that Perry was the murderer. Perry soon came to this conclusion 
 too, and made a confession to this effect, implicating his brother and 
 mother. The trial took place, and, though there was no proof of 
 
 deriug about in a state of derangement. 
 He further stated, that in about two 
 hours he received a note from one of the 
 Trailor's friends, advising him of his 
 arrest, and requesting him to go on to 
 Springfield as a witness, to testify as 
 to the state of Fislier's health in former 
 times ; that he immediately set oif, 
 calling upon two of his neighbors as 
 company, and riding all evening and 
 all night, overtook Maxcy and William 
 at Lewistown in Fulton County. That 
 Maxcy refusing to discharge Trailor 
 upon his statement, his two neighbors 
 returned, and he came on to Spring- 
 field. Some question being made as to 
 whether the doctor's story was not a 
 fabrication, several acqiiaintances of 
 his (among whom was the same post- 
 master who wrote to Keys as before 
 mentioned) M'ere introduced as a sort 
 of compurgators, wlio swore that they 
 knew the doctor to be of good character 
 for truth and veracity, and generally 
 of good character in every way. 
 
 " Here the testimony ended, and the 
 Trailers were discharged, Archibald 
 and William expressing, both in word 
 and manner, their entire confidence 
 that Fisher would be found alive at the 
 doctor's by Cxalloway, Mallory, and 
 Myers, who a day before had Iteen dis- 
 patched for that purpose ; while Henry 
 
 716 
 
 still protested that no power on earth 
 could ever show Fisher alive. Thus 
 stands this curious afl'air. 
 
 "When the doctor's story was first 
 made public, it was amusing to scan 
 and contemplate the countenances, and 
 hear the remarks of those who had 
 been actively engaged in the search for 
 the dead body ; some looked quizzical, 
 some melancholy, and some furiously 
 angry. Porter, who had been very 
 active, swore he always knew the man 
 was not dead, and that he had not 
 stirred an inch to hunt for him. Lang- 
 ford, who had taken the lead in cut- 
 ting down Hickox's mill-dam, and 
 wanted to hang Hickox for ol)jecting, 
 looked most awfully woebegone ; he 
 seemed the ' victim of hunrerjnited ciffec- 
 tion,^ as represented in the comic al- 
 manacs we used to laugh over. And 
 Hart, the little drayman that hauled 
 Molly home once, said it was too 
 damned bad to have so much trouble, 
 and no hanging after all. I commenced 
 this letter yesterday, since which I re- 
 ceived yours of the 1.3th. I stick to 
 my promise to come to Louisville. 
 Nothing new here, except what I have 
 written." 
 
 See 4 West. Law .Journ. 25, for addi- 
 tional details.
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 792. 
 
 the corpus delicti, the mother and the two sons were convicted and 
 executed. Some years afterwards Harrison reappeared at Campden, 
 stating that he had been robbed by ten horsemen on the night in 
 question, and then kidnapped and carried beyond seas. It is possi- 
 ble, supposing this to be true, to explain Perry's conclusion on the 
 ground either of delusion or of desire for notoriety. 
 
 § 792. Of confessions from desire for notoriety we have nume- 
 rous illustrations. A mulatto named Chastine Cox was Desire for 
 tried in New York in 1879 for the murder of a lady ^°toriety. 
 under circumstances which made it for some time difficult to find 
 the track of the assassin. Public attention was directed to the 
 question for several weeks ; numerous communications appeared in 
 the papers implicating more or less directly various parties ; and 
 the police were advised of a confession by a tramp, who took this 
 way of attracting attention to himself as the supposed murderer, 
 but who turned out ultimately not to have had the slightest connec- 
 tion with the offence. 
 
 Mr. McCarthy, when discussing in his history the Jamaica in- 
 vestigation of 18G5, says: " Many wild exaggerations had found 
 their way into some newspapers. These came from private letters. 
 It sometimes happened that men who had been engaged in putting 
 down the insurrection represented themselves as having done deeds 
 of savage vengeance of which they were really not guilty. . . . 
 Such seems to have been- the fervor of repression in Jamaica that 
 persons were found eager to claim an undue share of its honors by 
 ascribing to themselves detestable excesses which, in point of fact, 
 they had not committed." 
 
 Of confessions of this class hypochondria gives many illus- 
 trations. Persons whose temperament has become thus touched 
 will resort to the most desperate methods to attract attention. 
 The most innocent type that we have is that of the sentimentalist, 
 who feigns certain mental experiences of a peculiarly poignant 
 character, which experiences are hung out something in the way 
 pictures are in a gallery, to excite the interest of the amateur. 
 Of course the more lurid the coloring, and the more sad the sorrow 
 it depicts, the more real the sympathy to be secured from an honest 
 and kind-hearted observer, and the more profuse tiie ejaculations 
 of the mere co-sentimentalist. 
 
 Next/a6'^8 are fabricated as well as experlenccH. Thus Cheru- 
 
 717
 
 § 792.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 bina believes that she was changed in the cradle, and that an earl 
 and a countess are her parents, instead of the old farmer and his 
 wife who brought her up. This big lie, of course, necessitates a 
 myriad of minor ones to enable it to be carried about with a 
 proper retinue, until Cherubina's whole life becomes a fabrication. 
 If guilt has to be confessed to make up a consistent story, a con- 
 fession of guilt is fabricated. 
 
 Persecutions with such are favorite myths. Margaret Fuller, 
 whose attitudes and surroundings, in spite of her apparent earnest- 
 ness, were all pictorial and artificial, made the neglect she suffered 
 from her father one of the favorite topics in her letters, though 
 even her editor, laudatory as he is, is forced to tell us that all this 
 neglect was imaginary — that a kinder or truer father did not exist. 
 It is still doubtful whether Casper llauser's wounds were not self- 
 inflicted and his dumbness self-assumed. And it is certain that the 
 more tender the care bestowed on such cases is, and the more con- 
 fiding the sympathies, the more frequent and subtle the simulation. 
 
 But if the flag by which this attention is to be roused is inscribed 
 among the more refined with a sentiment, among the coarser it is 
 likely to be blazoned with a crime. Lord Cockburn, in his memoirs, 
 gives us the following instance of this : — 
 
 " On the 13th of November, 180(3, a murder was committed in 
 Edinburgh which made a greater impression than any committed 
 in our day, except the systematic murders of Burke. James 
 Begbie, porter to the English Linen Company's Bank, was going 
 down the close in which the bank then was, on the south side of 
 the Canongate, carrying a parcel of bank-notes of the value of 
 four or five thousand pounds, when he was struck dead by a single 
 stab, given by a single person who had gone into the close after 
 him, and who carried oft' the parcel. This was done in the heart 
 of the city, about five in the evening, and within a few yards of a 
 military sentinel, who was always on guard there, though not 
 exactly at this spot, and at the moment possibly not in view of it. 
 Yet the murderer was never heard of. The soldier saw and heard 
 nothing. All that was observed was by some boys who were ])lay- 
 ing at hand-ball in the close ; and all that they saw was that two 
 men entered the close as if together, the one behind the other, and 
 that the front man fell, and lay still ; and they, ascribing this to 
 his being drunk, let him lie, and played on. It was only on the 
 718
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 794. 
 
 entrance of another person that he was found to be dead, -with a 
 knife in his heart, and a piece of paper, through which it had been 
 thrust, interposed between the murderer's hand and the blood. The 
 skill, boldness, and success of the deed produced deep and univer- 
 sal horror. People trembled at the possibility of such a murderer 
 being in the midst of them, and taking any life that he chose. 
 But the wretch's own terror may be inferred from the fact that in 
 a few months the large notes, of which most of the booty was 
 composed, were found hidden in the grounds of Bellevue. Some 
 persons were suspected, but none on any satisfactory ground ; and, 
 according to a strange craze or ambition not unusual in such cases, 
 several charged themselves with the crime, who, to an absolute 
 certainty, had nothing to do with it." 
 
 § 793. Confessions, also, may be self-serving, and if so, they are 
 valueless. When they would promote an end, they lose Yrom in- 
 all evidential value. ^ Under this head fall the confes- t""*^**- 
 sions of the alleged paramours of Anne Hyde, Duchess of York, 
 who, under the belief that in this way they would please Charles 
 II., falsely confessed to adulterous intercourse with the duchess.^ 
 
 § 794. The Englisli common law wisely refuses to admit in evi- 
 dence confessions made under the influences of promises -^^^^^^ ^^^^^_ 
 or threats. It has not been so careful, however, in guard- t)i<i t^xcitc- 
 
 . iiieut. 
 
 ing against morbid influences which may elicit confessions 
 in themselves untrue. In the life of Sir Christopher Wren, pub- 
 lished in 1881, we have the following: — 
 
 " In the parish of Ilaseley is the manor of Ryecote (or Ricot), 
 which by marriage had become the property of Sir Henry Norris, 
 Queen Elizabeth's ambassador to France, whom she created Baron 
 Norris (or Norreys) of Ryecot, and whose descendants, now the 
 Earls of Abingdon, possess the manor to this day. During Dr. 
 Wren's incumbency a strange event took place. Among the re- 
 tainers of Lord Norris was an old man who had charge of the fish- 
 ponds ; he had one nephew, who was the heir of all his uncle's 
 possessions and savings. Tlie nephew enticed tlie old man out one 
 night, waited till he fell asleep under an oak tree, murdered him 
 by a blow on tlie head, dragged the body to one of the ponds, tied 
 a great stone to the neck, and threw the corpse in. There it lay 
 
 ' Wh. Cr. Ev. 8tli ed. § <>27. ^ See, also, Shillito'H case, Alb. I,. 
 
 J. Oct. 28, IfcSU. 
 
 719
 
 § 794.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 five tveeks, during which time Lord Norris and all the neighbors 
 wondered what had become of the old man. At length the body 
 was found by the men who were about to clean the pond, and were 
 attracted to the spot by the swarms of flies ; they raised the corpse 
 with great difficulty and recognized it. The stone tied to the neck 
 was evidence of foul play, though no one could guess at the mur- 
 derer. Lord Norris, in order to detect the criminal after the usual 
 manner, commanded that the corpse, preserved by the water from 
 the last extremity of decay, should on the next Sunday be exposed 
 in the church-yard, close to the church door, so that every one 
 entering the church could see and touch it. The wicked nephew 
 shrunk from the ordeal, feigning to be so overwhelmed with grief 
 as to be unable to bear the sight of his dearest uncle. Lord Norris, 
 suspecting that the old man had been murdered by the one person 
 whom his death would profit, compelled him to come, and to touch 
 with his finger, as so many had willingly done, the hand of the 
 dead. At his touch, however, ' as if opened by the finger of God, 
 the eyes of the corpse were seen by all to move, and blood to flow 
 from his nostrils.' At this awful Avitness the murderer fell on the 
 ground and avowed the crime, which he had secretly committed and 
 the most just judgment of God had brought to light. He was de- 
 livered to the judge, sentenced and hung." 
 
 Now, as a matter of fact, the accidental bleeding of a dead body 
 when touched might throw an innocent party into such a convulsive 
 tremor as to produce an untrue confession. A true confession, 
 however, may be elicited by terror under a sense of supernatural 
 imposition. Mr. Saville in his work on Apparitions' gives us the 
 following : — 
 
 " Li the year 1730, when Mr. Harris was in London, he received 
 a letter from his confidential servant, informing him that the house 
 had been broken into at night, and that a lad who had lately been 
 taken into service had mysteriously disappeared. Mr. Harris im- 
 mediately left London for his seat in Devonsliire, and on his arrival 
 was told that no alarm had been given on the night of the robbery 
 until the morning, when a window opening on the lawn was dis- 
 covered to have been broken through, and footstep marks discovered 
 outside. Morris, the butler, was found in the plate-room, half- 
 
 '' London, 1874. 
 
 720
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 794. 
 
 dressed, tied to a table, and Avith a gag in his mouth. His own 
 account of the robbery was that, having been roused by some noise 
 in the middle of the night, he had got up and gone down to the 
 plate-room, the door of which had been previously forced ; that he 
 was there seized, gagged, and bound before he could escape, or 
 even call for help ; and that there were five or six men altogether, 
 none of whom he recognized, except the lad lately taken into ser- 
 vice, who had disappeared since that night. 
 
 " In those days there were no telegraph wires, no means by 
 which a criminal fleeing from the scene of his crime could be out- 
 stripped by that wondrous machinery which elicited the remark of 
 the silent traveller, ' Them's the cords that hung John Tawell,' and 
 no detective or rural police. A week had elapsed before Mr. 
 Harris could reach his home. In the mean while the village con- 
 stables had attempted to trace out the robbers, but without success. 
 No clue to the missing plate or the thieves could be discovered. 
 After making a careful and strict search of the premises, Mr. 
 Harris returned to his court duties in town, giving up all hope of 
 finding either his lost property or the criminals. 
 
 " Some six months passed away before Mr. Harris again visited 
 his country seat, where he was received by Morris, and found 
 everything in its usual state, nothing more having been ascertained 
 about the robbery. Tired with his long journey from town, Mr. 
 Harris retired early to bed, and soon fell into a sound sleep. 
 
 " In the middle of the night he suddenly awoke — as he iiiraself 
 was always wont to declare on relating the incident, he was in an 
 instant thoroughly wide awake, how or why he never could ex- 
 ])lain — and he saw by the light of a small lamp burning in his room 
 the lad who had disappeared on the night when the plate was 
 stolen standing at the foot of the bed. Mr. Harris asked what he 
 w^uited at that time of night. The boy beckoned to him, but made 
 no rej)ly. Again lie asked him for what purpose he had come, and 
 again the boy beckoned to him, and pointed to the door. 
 
 " Mr. Harris was as devoid of fear as most men ; so ho rose 
 from his bed, partly dressed himself, took his sword under his arm, 
 and then followed the lad, still beckoning and pointing with his arm 
 out of the room. His own statement subse(piently of his IVidings 
 was that he was in doubt as to whether t!ie lad was alive or an ap- 
 parition ; tiiat he felt no fear, but only a strong desire and doter- 
 VOL. I.— 46 721
 
 § 794.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 mination to see the matter to an end. The two went down the 
 staircase, and throu<fli a side door, which Mr. Harris remembers 
 to have been, to his astonishment, unlocked and open ; they passed 
 into the park. 
 
 ^' The lad led the way for about a hundred yards towards a very 
 large oak, the trunk of which was surrounded and almost hidden 
 by low shrubs and bushes, which had been allowed to grow wild 
 from time immemorial. Here the lad stopped, pointed to the ground 
 with his forefinger, and then seemed to pass towards the other side 
 of the tree. It was not a dark night, and when Mr. Harris fol- 
 lowed, as he immediately did, the lad had vanished from his sight. 
 It seemed useless to search for him ; and after a little while Mr. 
 Harris returned to the house, fastened the door as he let himself 
 in, and went to his room for the remainder of the night. 
 
 " Before the dawn he had resolved on his course of action, and 
 having made his arrangements, he first had the butler, Richard Mor- 
 ris, taken into custody. He then set workmen to dig round the oak 
 tree, who, after a short search, came upon the body of the lad, 
 buried in his clothes, scarcely a foot below the surface. It was 
 evident that his death was occasioned by strangulation, as the cord 
 was still fastened tightly round his neck. 
 
 " The butler, after attempting at first to deny having had any 
 hand in the business, soon made a confession of the whole affair. 
 He had two accomplices to help him in the robbery, who had 
 carried oft' the stolen plate to Plymouth, but being interrupted by 
 tiie lad whilst removing it, they had murdered him, and buried his 
 body under the tree, where it was subsequently discovered in the 
 way related above. They then proceeded to tie and gag the butler, 
 as he was found in the pantry. The murderers were never traced, 
 and so escaped the penalty of their crime ; but Morris, the butler, 
 was tried at the ensuing Exeter assizes, and, having pleaded guilty, 
 was condemned and executed." 
 
 The dream of j\Ir. Harris, supposing it to be accurately given 
 above, may be explained on the ground of long brooding on his 
 part over the roblicry and the disappearance of the lad. That 
 among the myriads of dreams on that particular night one should 
 have hit upon the truth with regard to a current conspicuous trans- 
 action, is not strange. And it is much less strange that the butler, 
 under the shock of this apparentl}^ supernatural interposition, 
 722
 
 PSYCHICAL INDICATIONS AFTER CRIME. 
 
 [^ 795. 
 
 should have divulged the secret with which his conscience was 
 oppressed.^ 
 
 § 795. Peculiar scrutiny should be applied to confessions of 
 adultery made by women when under peculiar nervous 
 or physical excitement. The circumstances that led to vous de- 
 Mrs. Tilton's confession, as brought out in the suit ' '' 
 against Mr. Beecher, and the weight to be attached to that con- 
 fession, have been the subjects of the copious criticism of eminent 
 counsel on both sides of that remarkable trial. But whatever may 
 be said as to that particular case, there can be little doubt that the 
 confessions of Mrs. Burch, as put in evidence in the Burch divorce 
 case, were the result of certain insane delusions on her part, pro- 
 duced by morbid excitement, into which she was thrown by her 
 husband's treatment.^ And the same criticism may be applied to 
 
 ' The Pall Mall Gazette, in au article 
 imhlished in 1S75, gives the follow- 
 ing : — 
 
 "A mnrder committed three years 
 ago at Adrianople has lately been 
 bronght to light nnder singular cir- 
 cumstances. The victim was a Cretan 
 trader, who came to seek his fortunes 
 at Adrianople, bringing with him a 
 capital of £800. Instead, however, of 
 gaining a fortune with this amount, it 
 cost him his life, for it tempted the 
 keeper of a khan where he lodged, 
 named Yovantcho, to plan his assassi- 
 nation. Yovantcho, who was of a con- 
 fiding nature, imparted this scheme to 
 two intimate friends and to his ser- 
 vant, who readily entered into the 
 spirit of the affair. The Cretan trader 
 was therefore invited to a supper, 
 which was served in the Bulgarian 
 school, where, having been hospitably 
 plied with wine till he became drunk, 
 he was garroted and strangled. His 
 body was then pitched into a well, and 
 thus closed the evening's entertain- 
 ment. The murdered man had a son, 
 wlio, strange to say, observing the 
 mysterious disappearance of his fatlxT, 
 gave notice of the fact to tlie police ; 
 
 but, as is not uncommon in murder 
 cases even in this country, even ' the 
 most active and intelligent' officers of 
 the force failed to discover the culi^rits. 
 The matter was soon forgotten, and 
 probably would have remained forever 
 buried in oblivion, but that Yovant- 
 cho's servant the other day killed a 
 man in a tavern, and was arrested. 
 For some time his master sent him 
 daily a supply of luxuries not to be 
 found in the prison bill of fare, but at 
 last imprudently discontinued tliis de- 
 licate attention. The imprisoned ser- 
 vant, grieved at his master's ingrati- 
 tude, told to the vali the story of tlio 
 murder in which he had l)onie an 
 humlile part. The well of tin; Bul- 
 garian cemetery was immediately 
 emptied and searched ; the bones and 
 some of the clothing of the missing 
 Cretan trader were discovered. Yo- 
 vantcho and his two friends were 
 arrested ; they are now on thi;ir trial, 
 and some interesting revelations are ex- 
 pected touching the fate of otiier per- 
 sons besides tlie trader wlio have at va- 
 rious times mysteriously disajipeared." 
 2 Donavan's Modern Jury Trials, N. 
 Y., 1881, p. .'■/23. 
 
 723
 
 § 797.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 Mrs. Dalton's confession, as put in evidence in the famous divorce 
 case in which she was defendant, and Avhich was the occasion of one 
 of the most brilliant speeches of Mr. Choate.^ 
 
 § 79(). Somewhere between sane and insane delusions may be 
 
 classed those of witches. So far as concerns the spirit- 
 
 le^^ed ^u- ^'^^^ sii"*) they had no doubt a foundation of fact. The 
 
 pernatural loosest deist will admit that there are exterior agencies, 
 possession. _ _ o 7 
 
 in the shape of temptations, which assault the human 
 heai't, and with which it is a sin to tamper. The Christian ascribes 
 these temptatiot)S to the direct agency of Satan. Now let us sup- 
 pose the temptation of jealousy. A rival is hated, and his death 
 vehemently agonized for. Here is a positive sin of the heart. Let 
 the law ascribe this — as the common law did and does — to the in- 
 stigation of the devil ; and let a tampering with this temptation, as 
 a sort of commerce with the evil one, be made a specific offence, as 
 it once was. And add to this the spites arising from the petulance 
 of old age. Here you have a series of subjective crimes which may 
 be confessed with truth. 
 
 But the witches did not stop here. They confessed to all sorts 
 of consequential overt acts. Their machinations had taken eftcct. 
 Infants had melted aAvay before their evil eye, as Avax before the 
 fire. The old had Avitliered and wrinkled as the same glance fell 
 on them. Hearts which loved were alienated — hearts tliat believed 
 were made to curdle in unbelief. ]\iothers dropped their untimely 
 fruit. The warrior's courage forsook him in battle. Cattle took 
 sick, and pains, through the witches' magic, tore and Avrung the 
 frames of those who crossed the witches' path. 
 
 ^ 797. Now many of these confessions were the result of mere 
 insanity. But it would be wrong, however, not to re- 
 
 Not neces- . . • • , r ^ ^^ • 
 
 sariiy in- coguize m others of them incidents or that divme eco- 
 ''''"''■ nom}^ which permits a superstitious foreboding and 
 
 sometimes monomaniac realization of the consequences of crime, 
 among the results of the criminal conception. The mind that revels 
 in intended guilt is apt, in the delirium of remorse, if it be not in 
 the development of the imagination under the fever of a wounded 
 conscience, to see the consequences which that guilt would have 
 
 ' Groat Speochcs by Great Lawyers, New York, 1881. 
 
 724
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 798. 
 
 produced. There is never an entire orphanage of the deed from 
 the intent. There are few who cannot recall waking in an agony 
 of terror at the picture brought before them in a dream, of 
 the consummation of some unlawful purpose. They dreamed 
 they did the thing over which they were brooding, but from 
 which they were held back by want of opportunity or fear of con- 
 sequences. 
 
 § 798. Now the policy which permitted the execution of these 
 poor wretches, without proof of a corpus delicti, was, 
 no doubt, barbarous and wrong. But this should not element il^ 
 lead us to refuse to recognize, as a part of the divine ^'"'^i"*^'^ sm. 
 economy of rewards and punishments, this very self-punishing in- 
 cident of that criminal purpose on which the mind has consciously 
 and determinedly revelled. The intent brings its phantom conse- 
 quences with it. Sometimes they continue phantoms, but they do 
 not the less torture or degrade the mind they haunt. They may 
 torture it by the presence of a tribe of avenging shades, or they 
 may degrade it by introducing into it a progeny of foul and pol- 
 luted consciousnesses. The monastic system has brought many 
 witnesses to this. So it was with the phantoms of sensuality of 
 Jerome, and the phantoms of pride of Simon Stylites. Wilkie, in 
 one of his drawings, brings before us — and no one who has studied 
 it can forget it — a copy of a Spanish picture, where a young monk, 
 feverish and macerated with the internal ^nawinss of a brood which 
 had been hatched in his heart in the heat of mere permitted con- 
 ceptions, appeals for pity and solace to an aged confessor ; and 
 the agonized expression of the suppliant, and the sad, wise sym- 
 pathy of the confessor, tell the story but too plainly. But the 
 story is not one of the confessional alone, but of every heart which, 
 before whatever throne, pours forth the burden of the sin of pam- 
 pered desire. And every lunatic asylum bears witness to-th*^ same 
 fact that in the cases of imbecility in wliich unexecuted purposes 
 of sin — purposes which had only been tliought over, but at the 
 time nursed — arc babbled out, and with all their coarse conse- 
 (juences told by the tongue of old age. The muscular hand of youth 
 kept the curtain down, and the secret thougii nourished sin was 
 thus concealed. ]>ut when the power of self-restraint weakened — 
 when the cords and rings of the curtain decayed — then the secluded 
 contents of the heart — these unexecuted sins, now exhaling phan- 
 
 725
 
 § 799.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 toms by their very exposure — rise and spread themselves in their 
 deformity before the public gaze. Sometimes overt acts follow, 
 and we hear of sudden falls in old and heretofore unblamed men — 
 falls, however, which were not sudden, for there were back-stairs 
 in the heart down which the culprit had been for years descending. 
 Sometimes the act is one of imagination only, but is talked out in 
 the gross familiarity of senility. But, however this phenomenon 
 may exhibit itself, it is a part of that grand system of Providence, 
 by which giiilt is lodged in the intent, and by Avhich, as a compen- 
 sation for human law, Avhich judges of the overt acts alone, the 
 intent incloses in itself its own retribution. The thing is patent 
 in the history of society, and is meant to be so, as a mark of the 
 divine purpose — as a deterrer — as an avenger — as an element to 
 be received into consideration in adjusting the balance of human 
 jurisprudence. 
 
 § 799. But there are cases in which these delusive confessions 
 p,.f)„^ may be the offspring of pure mania, though in such the 
 
 maoia. delusion must be proved by the mania, not the mania by 
 
 the delusion. Bunyan speaks of such a case, half pityingly, half 
 doubtingly : — 
 
 " Since you are entered upon stories, I also will tell you one, 
 the which, though I heard it not with my own ears, yet my author 
 I dare believe. It is concerning one old Tod, that was hanged 
 about twenty years ago or more, at Hartford, for being a thief. 
 The story is this: At a summer assize holden at Hartford, while 
 the judge was sitting upon the bench, comes this old lod into the 
 court, clothed in a green suit, with his leathern girdle in his hand, 
 his bosom open, and all in a dung sweat as if he had run for his 
 life ; and being come in, he spake aloud as follows : '•31y lord,'' 
 said he, '■Jwre is the veri/est rogue that hreatltes upon the face of the 
 earth; I haoe been a tliief from a child ; wlten I ivas hut a little 
 one I gave rngself to rob orchards, and to do other such like ivieked 
 things, and I have continued a thief ever since. My lord, there 
 has not been a robbery conunitted this many years, tvithin so many 
 miles of this jdace, but I have either been at it or privy to it.' The 
 judge thouglit the fellow was mad ; but after some conference with 
 some of the justices, they agreed to indict him, and so they did, of 
 several felonious actions, to all of which he heartily confessed guilty, 
 and so was hanged with his wife at the same." 
 726
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 800. 
 
 " I murdered ray wife, some years ago," says the inmate of an 
 insane asylum to a visitor. " It is necessary that I should be 
 placed here in confinement." i\.nd then the supposed murderer 
 goes on to relate with great equanimity and circumstantiality the 
 details of the murder. But the wife was not murdered at all, and 
 is still alive. 
 
 So the publication of a conspicuous homicide is apt, as we have 
 seen, to generate a series of pretenders to the honor of being the 
 perpetrator. Why should there not be several Charlotte Cordays 
 among a thousand patients, as well as several Robespierres ? 
 
 § 800. Then comes the epidemic confession — the strangest of all. 
 We have several instances of this in the German monkish 
 
 . , „ „ II- . From cpi- 
 
 chronicles ot the twelith and thirteenth centuries. True demic in- 
 purposes, as well as feigned facts, are often thus con- ^*^"'^'^- 
 fessed. Whole communities, acting under that singular fascination 
 which mind in the aggregate often acquires over mind in the indi- 
 vidual, have thus come forward in sackcloth and ashes and accused 
 themselves sometimes falsely of the act, sometimes perhaps truly 
 of the intent. Xor are these epidemics peculiar to a superstitious 
 age. Dr. Southwood Smith, in his lectures on Forensic Medicine, 
 brings an instance in the present century. Captain Pigot, during 
 the naval struggles between France and England under the empire, 
 commanded the Hermione frigate. A mutiny took place, and he 
 and a portion of his officers were murdered very barbarously. " One 
 midshipman escaped, by wiiom many of the criminals, who were 
 afterwards taken and delivered over to justice, one by one, were 
 identified. Mr. Finlaison, the government actuary, who at that 
 time held an official situation at the admiralty, states : ' In my 
 own experience I iiave known, on separate occasions, more than six 
 sailors who voluntarily confessed to liaving struck the first blow at 
 Captain Pigot. These men detailed all the horrid circumstances of 
 the mutiny with extreme minuteness and perfect accuracy ; never- 
 theless not one of them had ever been in the ship, nor had so much 
 as seen Captain Pigot in their lives. They had obtained ])y tradi- 
 tion from their mess-mates the particulars of the story. Wlien long 
 on a foreign station, hungering and thirsting for home, their minds 
 became enfeebled ; at length they actually believed tliemselvcs 
 guilty of the crime over which tliey so long brooded, and submitted 
 
 727
 
 § 803.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 with a gloomy pleasure to being sent to England in irons for 
 judgment.' " 
 
 § 801. Finally we may notice confessions from weariness of life — 
 
 " I am foot-sore, and very weary, 
 And I travel to meet a friend." 
 
 That friend is death, and the frame of mind which thus 
 weariness soeks it is Very apt to engender phantoms of blood- 
 ° ' ^' guiltiness which soon appear as realities. Thus, cases 
 
 have not been unfrequent where women, deserted by those in whom 
 they trusted, and sick of living, have accused themselves, and this 
 perhaps sincerely though falsely, of the murder of infants whom 
 they never bore, or who died naturally. By one, who was thus 
 life-weary, was the whole scene described with the most touching 
 minuteness — the wailing of the young child — its piteous look — its 
 burial in a little grave under the matted and crisp spires at the foot 
 of a pine. Yet no one had been buried there, nor had the mother 
 aught to do with the child's death. 
 
 § 802. In this line may also be noticed a false confession as a 
 As a mode Congenial method of suicide. Death is sought in a way 
 of suicide, -which may best correspond to the then morbid condition 
 of the brain ; in a way which involves others, though innocently on 
 their part, in the self-murder, and makes them strike the blow. " I 
 fling myself, not into the river, nor into the abyss, but upon the 
 scaffold." Thus Lord Clarendon tells us of a Frenchman, named 
 Hubert, who was convicted and executed on his confession of hav- 
 ing occasioned the great fire in London, " although," says that 
 sagacious jurist and historian, " neither the judges nor any one 
 present believed him guilty, but that he was a poor, distracted 
 wretch, weary of life, and who chose to part with it in this way."^ 
 
 § 803. Before a confession be acted upon, therefore, it should be 
 exposed to the tests which have been above mentioned. 
 
 Sanity a ^ . , , , . , i f 
 
 condition JjCt it DC remembered, to sum up in the words oi a great 
 biiity"^' civilian, that " there sometimes lurks, under the shadow 
 of an apparent tran(|uillity, an insanity, which impels men 
 readily to accuse themselves of all kinds of iniquity. Some, de- 
 luded by their imagination, suspect themselves of crimes which they 
 have never committed. A melancholy temperament, the tcediuin 
 
 ' Contiiuiation of Lord Clarendon's Memoirs, written by himself, p. 352. 
 
 728
 
 PSYCHICAL INDICATIONS AFTER CRIME. 
 
 [§ 80i. 
 
 vitce, and an unaccountable propensity to their own destruction, 
 urge some of the most false confessions ; whilst thej were extracted 
 from others by the dread of torture, or the tedious misery of the 
 dungeon."^ 
 
 § 804. The last motive rarely exists among ourselves, but the 
 first mav be not infrequent. The first precaution is to ^ 
 
 " ^ >■ Corpus 
 
 have absolute proof of the corpus delicti. This, however, delicti to be 
 is not enough. There may be abundant proof that a 
 crime was committed, and yet the confession may be false. We 
 must exact proof that connects the supposed criminal with the actual 
 crime. We must examine into his condition of mind, and see how 
 far insanity, or remorse, or bravado, or weariness of life, or delu- 
 sion may have influenced him. When these tests are applied, we 
 are ready to take the confession as impressed Avitli its true signifi- 
 cance. It thus becomes a definite form of proof. ^ 
 
 ' Hein. Ex. IS, § 6. The subject, 
 in its technical relation, is examined 
 at large in Wli. Cr. Ev. Sth ed. §§ 753 
 et seq. 
 
 2 "To guard against false confes- 
 sions," says Jeremy Bentham, "the 
 two following rules ought to be ob- 
 served : — 
 
 " 1. One is, that, to operate in the 
 character of direct evidence, confession 
 cannot be too particular. In respect 
 of all material circumstances, it should 
 be as particular, as, by dint of interro- 
 gation, it can be made to be. Why so ? 
 Because (supposing it false) the more 
 particular it is, the more distinguish- 
 able facts it will exhibit, the truth of 
 which (supposing them false) will be 
 liable to be disproved by their incinii- 
 patibility with any facts, the truth of 
 which may have come to be established 
 by other evid(!nce. The greater the 
 particularity required on the part of 
 the confession, the greater is the care 
 taken of the confessionalist — the great- 
 er the care taken to guard him against 
 undue conviction, brought upon him 
 by his own imbecility and imprudence. 
 
 " 2. The other rule is, that, in re- 
 
 spect of all material facts (especially 
 the act which constitutes the physical 
 l>art of the offence), it ought to compre- 
 hend a particular designation in respect 
 of the circumstances of time and place. 
 For what reason ? For the reason al- 
 ready mentioned : to the end that, in 
 the event of its proving false (a case 
 not impossible, though in a high degree 
 rare and improbable), facts may be 
 found by which it may be proved to be 
 so. ' I killed such a man' (says the 
 confessionalist, mentioning him) 'on 
 such a day, at such a phu-e.' ' Impos- 
 sible' (says the judge speaking froin 
 other evidence), 'on that day neither 
 you nor the deceased were at that 
 placid.' 
 
 " But tiiue and place are both indefi- 
 nitely divisible. To what degree of 
 nnnuteness shall the division be en- 
 deavored to be carricilfor this purjiose:' 
 A particular answer that shall suit all 
 cases cannot be given. The end in 
 view, as above stated, must be con- 
 sidered, and C()mi)arcd with the par- 
 ticular circumstances of tlie casi-, in 
 ri-gard to cither species of extension, 
 ere the degree of particularity proi)er 
 729
 
 § 805.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 2. Nervous tremor. 
 
 § 805. Tlie Countess of Somerset, when arrested on the charge 
 of the murder of Sir Thomas Overbury, laughed off 
 
 "N'crvotis 
 
 tremor the possibility of guilt with that fascination which so 
 
 sequent on eminently belonged to her. It was hard to believe that 
 
 sense of underneath that young and beautiful brow, so cruel and 
 
 guilt. . . 
 
 artful an assassination could have been planned. No 
 alarm was shown, no cloud of manner by which the slightest trouble 
 of conscience was betrayed. So she bore herself until she found 
 she was to be taken to the Tower. There Sir Thomas Overbury, 
 himself but a young man, and one whom she had frequently and 
 kindly met, had just died in unspeakable torments. There she had 
 sent, under the guise of kindness, the poisoned tarts which caused 
 his death. One great terror grew over her — that she should be 
 taken to his room — that she should have to pass lonely nights there, 
 and in that bed. At last her nerves, wrought up to their highest 
 dissimulation, snapped asunder. She sank prostrate and wretched 
 to the ground, and then followed her confession. 
 
 From this nervous tremor arose the habit we have already 
 noticed, of requiring supposed criminals to touch the corpse of the 
 murdered man. With this was no doubt joined a superstition that 
 the corpse would bleed when it felt the murderer's hand. But this 
 was but collateral to the belief that in this Avay the conscience of 
 the guilty party would be exposed to a test which might prove 
 efficacious. It is true that when the criminal has time to nerve 
 himself for the purpose, he is able, if he has much courage of 
 manner, to bear himself calmly and impassively. This was the 
 case with Major Strangways, in 1(357, who, on being required to 
 take the deceased by the liand and touch his wounds, did so with a 
 
 to lie aimed at by the interrogatories is not equally obsequinus ; the house ? 
 can be marked out. Under tlie heail of yes ; if the supposed scene of the sup- 
 time, thi.^ English law, in the instru- posed transaction be a house ; the 
 ment of accusation, admits of no other street ? yes ; if the scene were in a 
 latitude than what is included in the street ; but a field, a road, a common, 
 compass (jf a day. The nature of things a forest, a lake, a sea, the ocean ; any 
 did not, in this instance, render uni- of these may have been the scene." 
 formity impossible; the parts into (Bentham, Rationale of Jud. Ev., Book 
 which time is divided are uniform and v. chap. vi. § 3.) 
 determinate. Place — relative space — 
 
 730
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 806. 
 
 demeanor undisturbed. It is true, also, that others, by a powerful 
 effort of nervous imagination, may fling themselves into the char- 
 acter of an innocent person, in the same way that Mrs. Siddons 
 could fling herself into the character of Queen Catharine, or Talma 
 into that of Hamlet. " You looked as if you were really metamor- 
 phosed, and not merely trying to appear so." " I made myself 
 believe that the audience was divested of all flesh — mei'e spirits, and 
 I a spirit speaking to them," was Talma's reply. But this leap 
 requires some little breadth of base from which to start. The mind 
 cannot rise up to it suddenly. The murderer who might, if a due 
 interval be given, nerve himself to the work, often collapses if sud- 
 denly brought in contact with the deceased. The old result is 
 reversed ; for in former times it was the dead man that gave sign ; 
 now it is the living. An English case to this effect has been already 
 noticed. Another is reported in this country. A man named John- 
 son, under trial for murder in New York, in 182-i, was taken out of 
 his cell to the hospital by the high constable, and required to touch 
 the murdered body. He did so, but the touch broke the texture of 
 the murderer's dissimulation. He fell into a nervous tremor, which 
 resulted in a confession. This confession, when he recovered, he 
 sou2;ht to retract ; and his counsel endeavored to exclude it in court, 
 on the ground that it had been improperly obtained. But the 
 judges overruled the objection, without in any way objecting to the 
 process.^ 
 
 § 800. William Peterson, a young man of only about nineteen, 
 but of the most extraordinary self-control, was charged, petei-sou's 
 in the Memphis District, Tennessee, in 1852, with the *^''■■^^■• 
 highway robbery and murder of Thomas Alerriweathcr. No feature, 
 in this very remarkable case, is more remarkable than the mastery 
 over his nervous system which had been obtained by this young 
 but desperate criminal. An almost girlish delicacy and fairness of 
 skin and features covered an iron energy of muscle and nerve that 
 was able to brace itself against any expected attack. Yet even 
 this power gave way. Closely resembling the murdered man — so 
 closely as to produce mistakes between the two — was his brother , 
 William Merriweather. The prisoner, not knowing he was sus- 
 pected, was lying asleep in his bed near midnight. His cliambor 
 
 ' People I--. Johnson, 2 Wheeler's C. C. 378. 
 
 701
 
 § 807.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 was suddenly entered by the officers charged with his arrest. He 
 betrayed no sign, though the slight trembling of the eyelids showed 
 that his sleep was feigned. " I will go with you readily," and he 
 got up quietly to meet the charge. But suddenly his eyes fell on 
 a figure which may well have recalled to him the dead man, for 
 there, darkened in the background, stood William Merriweathcr, 
 pale and corpse-like, in the exhaustion and excitement of his long 
 search for, and final discovery of, his brother's murderer. It was 
 as if the dead and living were confronted. Then, as in former 
 cases, the living broke down. Peterson's composure could not 
 stand the trial. The policy of his intended defence was that he 
 did not know the deceased ; but as he looked at the brother his 
 " head dropped upon Ids breast, and he sighed deeply." A par- 
 tial confession and a conviction followed.^ 
 
 § b07. The following incident is given in Parton's Life of Burr. 
 On a trial for murder, the prisoner was defended jointly by Colonel 
 Burr and General Hamilton. " At first, the evidence against the 
 prisoner seemed conclusive, and I think Burr himself thought him 
 guilty. But as the trial proceeded, suspicions arose against tjie 
 principal witness. Colonel Burr subjected him to a relentless 
 cross-examination, and he became convinced that the guilt lay 
 between the witness and the prisoner, with the balance of proba- 
 bility against the witness. 
 
 " The man's appearance and bearing were most unprepossessing. 
 Besides being remarkably ugly, he had the mean doivn look, which 
 is associated with the timidity of guilt. Hamilton had addressed 
 the jury with his usual fluent eloquence, confining his remarks to 
 the vindication of the prisoner, without alluding to the probable 
 guilt of the witness. The prosecuting attorney replied, and it was 
 now Burr's province to say the last word for the prisoner. But 
 the day had worn away, and the court took a recess till candlelight. 
 This was extremely annoying to Colonel Burr, as he meditated 
 enacting a little scene, to the success of which a strong light was 
 indispensable. He was not to be balked, however. Through one 
 of his satellites, of whom he always had several revolving around 
 him, he caused an extra number of candles to be brought into the 
 court-room, and to be so arranged as to throw a strong light upon 
 
 ' See this case reported, vol. ii. 
 
 732
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 809. 
 
 a certain pillar, in full view of "the jury, against which the sus- 
 pected witness had leaned throughout the trial. The court reas- 
 semhled, the man resumed his accustomed place, and Colonel Burr 
 rose. With the clear conciseness of which he was master, he set 
 forth the facts Avhich bore against the man, and then, seizing tAvo 
 candelahras from the table, he held them up towards him, throwing 
 a glare of light upon his face, and exclaimed : — 
 
 " ' Behold the murderer, gentlemen !' 
 
 " Every eye was turned upon the wretch's ghastly countenance, 
 which, to the excited multitude, seemed to wear the very expression 
 of a convicted murderer. The man reeled, as though he had been 
 struck ; then shrunk away behind the crowd, and rushed from the 
 room. The effect of this incident was decisive. Colonel Burr con- 
 cluded his speech, the judge charged, the jury gave a verdict of 
 actputtal, and the prisoner was free." 
 
 § 808. The longer the prior tension the more sudden and com- 
 plete the crash. When Dr. Webster was brought by the -Webster's 
 police to the medical college, where for so many days he ^'•^^^■^ 
 had with great external composure been covering up the proofs of 
 his guilt, his whole system, at the recurrence of the scene under 
 these new auspices, gave way. " He seemed," said one of the 
 witnesses, " like a mad creature. When the water was put toward 
 him, he would snap at it with his teeth, and push it away with great 
 violence, without drinking, as if it were offensive to him."^ " Dr. 
 Webster appeared to be very much agitated," says another ; " sweat 
 verv muph, and the tears and sweat ran down his cheeks as fast as 
 they could drop."^ "The perspiration was so excessive as to wet 
 through his clothing."^ 
 
 § 800. Richard Weston was sub-keeper of the tower at the time 
 of the poisoning of Sir Thomas Overbury. Jle was the ^Vi.st,„rs 
 hrst person tried for that crime. When the l)il] of in- '"'"'■• 
 (lictment was returned, as we learn from Mr. Amos's "Great 
 < >ver," all eyes were turned to the bar, wliere the wretched 
 prisoner was brought up. He was a man of about sixty years of 
 age. His forehead was wrinkled with ngc, his hair sprinkled with 
 gray. His countenance, though not wanting in a certain degree of 
 
 ' P.cinis's Report cf the Webster 2 Il.ia. pp! 120, 121 . 
 Ciise, p. (iU. * ll>id- !>• 1!':5. 
 
 733
 
 § 810.] MENTAL UNSOUNDNESS CONSIDERED PSYCnOLOGICALLY. 
 
 comeliness, had a stern and grim expression, and was now distorted 
 with terror. His face was deadly pale, his lips quivered, and his 
 knees tottered as he stood at the bar while the indictment was read. 
 It charged him with having murdered Sir Thomas Overbury in the 
 Tower of London by administering various poisons — rosalgar, white 
 arsenic, and mercury sublimate — on four different occasions. The 
 prisoner was then asked, in the usual form, whether he was guilty 
 of the murder, yea, or no. The poor wretch, instead of answering, 
 became agitated, and in his distress screamed several times, " Lord 
 have mercy on me ; Lord have mercy on me." At length he 
 stammered out, " Not guilty." But, when asked how he would be 
 tried, instead of answering in the usual form, " By God and my 
 country," he exclaimed he referred himself to God — he would be 
 tried by God alone. And though the chief justice spent an hour 
 in persuading him to put himself upon his country, he could get no 
 other answer out of him than that he referred himself to God. 
 
 § 810. The Earl of Essex was the last favorite of Queen Eliza- 
 Queen beth. Young, brilliant, of remarkable fascination both 
 Elizabeth, -j-^ pgj^.gQj^ g^j-jj mind, he held, on the queen's affections, 
 hereditary claims of which his personal graces may well have re- 
 minded her. For — except the two Careys — he was her only male 
 relative on her mother's side ; and, as she looked on his handsome 
 person, and studied his ardent though inconsistent character — bold, 
 rather than courageous — dashing, but inconsequent — chivalric in 
 bearing, yet not always generous in heart — she could not but 
 recognize the defects as well as the graces of her kinsmen of the 
 Boleyn blood. Then, besides, his father had served her at the time 
 when her faithful servants were few, and it was one of her prin- 
 ciples ever to be true not only to those wiio had been true to her, 
 but to their children. But even Elizabeth's constancy might be 
 overstrained. To almost more than womanly weakness in domestic 
 life, she added more than masculine severity in matters of state. 
 She became piqued with Essex's waywardness to her personally, and 
 permitted herself, upon his failure in his Irish campaigns, not only 
 to rebuke but to degrade him. The favorite was stung tothe(|uick, 
 and rushed into a desperate scheme to forcibly change the adminis- 
 tration. He was tried and sentenced to be executed. Then came 
 with her the struggle. Whatever may have been her relations to 
 him, she loved him still too affectionately, and had, by her indul- 
 734
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 811. 
 
 gence, given too large a margin to his excesses, to permit her to 
 consent to his death. That he should die she never intended. But 
 with that singular and cruel waywardness by which her Tudor 
 blood and her woman's caprice were alike shown, her plan seemed 
 to have been to have humbled her favorite until she brought him to 
 her feet as a devoted suppliant, once more to be fastened to her 
 person, as one who first could give life and then renew prosperity. 
 To this plan one thing was needed on Essex's part. Elizabeth had 
 given him a ring which he was to send to her whenever he was in 
 straits, and which, she had given him her word, should bring back 
 from her a free pardon. The death-warrant had issued, and she 
 passionately waited for the ring. She recalled the warrant to give 
 more time, but no sign was made by Essex. The sentence of his 
 peers hung over him — he asked not to have it remitted — and at last 
 the queen let the axe fall. 
 
 Two years passed of eminent prosperity. The Spaniards were 
 finally repulsed, the Irish subdued, a firm alliance was secured with 
 France, and England was placed at the head of the Protestant 
 powers. Elizabeth had apparently deadened all recollection of 
 Essex. But on the death-bed of the Countess of Nottingliam, a 
 scene took place which brought back the old love Avith all the addi- 
 tional powers of remorse. It appeared that Essex had reserved the 
 ring for his last extremity, and then had given it — to follow Hume's 
 incomparable narrative — " to the Countess of Nottingham, whom he 
 desired to hand it to the queen. The countess was prevailed on by 
 her husband, the mortal enemy of Essex, not to execute the commis- 
 sion ; and Elizabeth, who still expected that her favorite would 
 make this last appeal to her tenderness, and who ascribed the 
 neglect of it to his invincible obstinacy, Avas, after much delay and 
 many internal combats, pushed by resentment and policy to sign the 
 warrant for his execution. The Countess of Nottingham, falling 
 into sickness, and afiected with the near approach of death, was 
 seized with remorse for her conduct ; and, having obtained a visit 
 from the queen, she craved her pardon, and revealed to her tlie 
 fatal secret. The queen, astonished with this incident, burst into a 
 furious passion. She shook the dying countess in her bed ; and, 
 crying to her that God might pardon her, but she never could, she 
 broke from her, and thenceforth resigned herself over to the dee])cst 
 and most incurable melancholy. She rejected all consolation. She 
 
 735
 
 § 811.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 even refused food and sustenance ; and, throwing herself on the 
 floor, she remained sullen and immovable, feeding her thoughts on 
 her afflictions, and declaring life and existence an insufferable burden 
 to her. FcAV words she uttered, and they were all expressive of 
 some inward grief which she cared not to reveal. But sighs and 
 groans were the chief vent which she gave to her despondency, and 
 which, though they discovered her sorrows, were never able to ease 
 or assuage them. Ten days and nights she lay upon the carpet, 
 leaning on cushions which lier maids brought her ; and her physi- 
 cians could not persuade her to allow herself to be put to bed, much 
 less to make trial of any remedies which they prescribed to her." 
 And then came death. 
 
 § 811. Wounds or mutilations self-inflicted for the purpose of 
 
 turning on others an alleged crime, are peculiarly open 
 
 from in-*^ to the same criticism. They are inflicted usually with a 
 
 stiDctive faltering hand; and, even when this is not the case, they 
 
 falteriugor /^ ' .' . . 'J 
 
 seif-in- can Only operate within a certain range, and under limi- 
 
 wounds. tations which point to tlie cause by which they are pro- 
 duced.^ We have an illustration to this effect in the nar- 
 rative given by Mr. Curtis in his .Life of Mr. Webster : "• Goodridge 
 was a person of previous good character and respectable standing, 
 who professed to have been robbed of a large sum of money at 
 about nine o'clock in the night of December 19, 1816, on the road 
 between Exeter and Newburyport, soon after passing the Essex 
 Merrimac Bridge on his way from New Hampshire into Massa- 
 chusetts. Among the proofs of the robbery was a pistol-shot 
 through his left hand, received, as he said, before the robbers 
 pulled him from his horse, he and one of his assailants discharging 
 their pistols at each other on the same instant. He was then, 
 according to his account, dragged from his horse and across a fence 
 into a field, robbed and beaten until he was senseless. On his re- 
 covery he went back to the toll-house on the bridge, where he 
 appeared to be for a time in a state of delirium. But he had suffi- 
 cient self-possession to return to the place of the robbery with 
 some persons who accompanied him with a lantern, where his 
 watch, papers, and other articles were found scattered on the 
 ground. On the following day he went to Newburyport, and re- 
 
 ' Wli. Crim. Ev. 9tli ed. § 781. 
 
 730
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 811. 
 
 mained there ill, at intervals in a state of real or simulated frenzy, 
 for several weeks. Having regained his health, he set ahout the 
 discovery of the robbers ; and so general was the sympathy for 
 him in a very orderly community that his plans were aided by the 
 innocent zeal of nearly the whole countryside. His first charge 
 was against the Kennistons, two poor men who dwelt in the town 
 of New Market, N. H., on the other side of the river. In their 
 cellar he found a piece of gold, which he identified by a mark 
 which he said he placed on all his money, and a $10 note which he 
 also identified as his own. The Kennistons were arrested, examined, 
 and held for trial. He next charged the toll-gatherer, one Pearson, 
 as an accomplice ; and on his premises, with the aid of a witch- 
 hazel conjuror, he also found some of his gold and papers in which 
 it had been wrapped, Pearson was arrested, examined before two 
 magistrates, and discharged. Goodridge then complained against 
 one Taber, a person who lived in Boston. Finally he followed a 
 man named Jackson to the city of New York, in whose house he 
 swore that he also discovered some of his marked wrappers. The 
 machinery of an executive requisition was put into motion, and 
 Jackman was brouglit into Massachusetts, and lodged in jail. He 
 and Taber and the Kennistons were then indicted for robbery in 
 the county of Essex. So cunningly had this man contrived his 
 story that the popular belief was entirely with him. The witch- 
 hazel of his evidence probably did not disincline the populace to 
 believe him. But it is even said that there were few members of 
 the county bar who did not regard the case of the Kennistons as 
 desperate. There were some, however, who believed Goodridge's 
 story to be false, and these persons sent for Mr. Webster to under- 
 take the defence of the accvxsed. The indictment against Taber 
 Avas nol. prossed. That against the Kennistons came on for trial 
 at Ipswich in April, 181T. They liad nothing on which to rely but 
 their previous good character and the negative fact that since the 
 supposed robbery they had not passed any money, nor were seen 
 to have any, and the improbabilities which their advocate could 
 develop in the story of Goodridge. The theory of the defence 
 was that Goodridge was his own robber, and had fired the pistol 
 shot though his hand.— In the power of cross-examining wit- 
 nesses Mr. Webster had no superior of the day, and his rej)ut:ition 
 in this respect doubtless aided the impression which he produced 
 VOL. I. — 47 7^7
 
 § 811.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 upon the juvy. — There were traditions which had come over the 
 border from New Hampshire of his terrible skill in baffling the 
 deepest plans of perjury and fraud, which excited the jury to the 
 closest attention to his method of dealing with Goodridge. They 
 f aw his well-concocted story laid bare in all its improbable features, 
 while every aid was given to him by Mr. Webster to develop sug- 
 gestions which could be set off against the theory that the latter 
 meant to maintain. But when all the evidence for and against 
 Goodridge's narrative had been drawn out, and it came to the 
 summing up, there remained tAvo obvious difficulties in the way of 
 that hypothesis. One of them was that no motive had been shown 
 for so strange an act as a man's falsely pretending to have l)een 
 robbed, and charging the robbery upon innocent people ; the other 
 that the theory of Goodridge being himself a robber apparently 
 made it necessary to believe that he had proceeded in this fraudu- 
 lent manufacture of proofs to the extremity of shooting a pistol 
 bullet through his own hand. These were very formidable difficulties, 
 for the law of evidence, as administered in our criminal jurispru- 
 dence, very properly regards the absence of motive for an act, the 
 commission of which depends on circumstantial proof, as one of tlie 
 important things to be weighed in favor of innocence ; and as to 
 the shooting, it was certainly in a high degree improbable tliat a 
 man w'ould maim himself in order to maintain a false statement 
 that he had been robbed and maimed by some one else. But in 
 grappling with these difficulties, Mr. Webster told the jury that 
 the range of human motives is almost infinite ; that a desire to 
 avoid payment of his debts, if he owed debts, or a whimsical ambi- 
 tion for distinction might have been at the bottom of Goodridge's 
 conduct, and that having once announced himself to a community 
 as a man who had been robbed of a large sum and beaten nearly 
 to death, he had to go on and charge somebody with the act. This 
 was correct reasoning, but still no motive had been shown for tlie 
 original pretence ; and if there had not been some decisive circum- 
 stances developed on the evidence, it is not easy to say how this 
 case ought to have been decided. These circumstances make it 
 necessary to believe that, although Goodridge had himself dis- 
 charged the pistol which wounded him, he intended that result. 
 His story was that the pistol of the robber went off at the moment 
 when he grasped it with his left hand. Yet according to the testt- 
 738
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 812. 
 
 mony of the physicians who attended him, there were no marks 
 of powder on his hand; and the appearance of the wound led to the 
 conclusion that the muzzle of the pistol must have been three or 
 four feet from his hand, while there were marks of powder on the 
 sleeve of his coat, and the hall passed through the coat as ivell as 
 the hand. This state of evidence justified Mr. Webster's remark 
 that ' all exhibitions are subject to accidents ; whether serious or 
 farcical, they do not always proceed exactly as they ought to do.' 
 Goodridge, he argued, intended to shoot the ball through his coat 
 sleeve, and it accidentally perforated his hand also. Goodridge, 
 however, returned to the charge. Jackman Avas put on trial at the 
 next term of the court, and the jury disagreed. At the second 
 trial Mr. Webster defended him, and he was acquitted. These 
 criminal proceedings were followed by an action for malicious 
 prosecution, instituted by Pearson against Goodridge. Mr. Web- 
 ster was a counsel for the plaintiff in this case. The evidence was 
 now still more clear against Goodridge ; a verdict for a large sum 
 was recovered against him, and the public at last saw the fact judi- 
 cially established that he had robbed himself. lie left New Eng- 
 land a disgraced man ; but no clue to his motive was ever dis- 
 covered. Twenty years afterwards Mr. Webster was travelling in 
 the western part of tlie State of New York ; he stopped at a 
 tavern, and went in to ask for a glass of water. The man behind 
 the counter exhibited great agitation as the traveller approached 
 him, and when he placed the glass of water before Mr. Webster, 
 his hand trembled violently, but he did not speak. Mr. Webster 
 drank the water, turned without saying another word, and rccutered 
 his carriage. The man was Goodridge." — In the same line uiav be 
 mentioned the alleged self-mutilation of Whitaker, claimed to have 
 taken place at West Point in lb80.' 
 
 3. Morbid p)ropenmiy to recur to scene and topic of guilt. 
 
 § 812. There are certain abnormal states of the nervous organism 
 in Avhich the propensity to commit a desperate act is j)iy,.i(,g„,.eg 
 almost irresistible. There are few who have not felt H'l'" i"""- 
 
 . llllCL'cI. 
 
 this when standing on a tower or on the brmk of a prcci- 
 
 ' See Wh. Cr. Kv. 8tli od. §§ 1\A, 849, wliere tliis rciiiarkuble case is more par- 
 ticularly examined. 
 
 739
 
 § 815.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 pice. A strange curdling runs and quivers through the veins, an 
 impulse to break this mystery of life, and desperately to face what 
 stands beyond. There are few great criminals who have not borne 
 witness to the same propensity. They are ever on the precipice- 
 brink of discovery, and often comes this convulsive impulse, to 
 throw themselves, blood-stained and confessing, into the chasm be- 
 low. And even when this is not consummated, there is a strange 
 fascination which makes them flit over the scene and topics. The 
 impulse is to get as near to the edge as they can without toppling 
 over. 
 
 § 813. This impulse, working in a mind of peculiar delicacy and 
 Euffene Culture, betrayed itself in Eugene Aram's case in a series 
 Aram'scase ^f refined and oblique allusions to acts of guilt, such as 
 that of which he had been the perpetrator. Ilis mind hovered and 
 quivered over the topic, assuming and expressing itself in varied fan- 
 tastic shapes, often flitting apparently away, but floating again from 
 the same spot, as would an exhalation from some hidden pernicious 
 mine. So showed the evidence on the trial, which is paraphrased, 
 with extraordinary psychological accuracy, in Hood's famous poem. 
 
 § 814. Among coarser minds the same propensity exhibits itself 
 Robinson's J^ the affectation of jocularity and rude jest. Thus 
 case. Robinson, Avho was tried for the murder of Suydam, 
 
 whose body was found under the front basement floor of Robinson's 
 house, remarked, tAvo days before the discovery, to a carpenter who 
 found liim, with a hoe, dragging the earth in the back basement, as 
 if he had been getting out sand for the masons, " Here's where I 
 was going to poke Suydam under ;" adding that " he had not time 
 to do it." This was tossed oft' as a joke, and may perhaps be re- 
 garded as an artifice to divert attention. But it arose more probably 
 from a morbid propensity impelling the murderer to dwell in 
 language on the topic which was to him at once so perilous and so 
 engrossing. 
 
 § 815. The same peculiarity was observable in Nancy Farrer's 
 Farrer's casc. Whether or no that remarkable woman was tech- 
 case, nically responsible it is not proposed now to consider. 
 Conceding, however, that she was insane (and to this effect went the 
 last verdict taken in her case), she had a vein of shrewd cunning 
 running through her which enabled her to shelter herself from sus- 
 picion during two successive groups of poisonings. There were the 
 740
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 816. 
 
 same precautions as taken by other criminals to deaden surprise by 
 intimations of the ill health of her intended victims — the same asser- 
 tions of constitutional tendency to these particular symptoms. And 
 with this there was the same subsequent hovering of the mind over 
 the scene of guilt. Thus, after the death of " Johnny," one of the 
 children whom she was employed to nurse, and whom she had poi- 
 soned, she was found " excited and anxious if any two were talking, 
 to get close to them, and to wish to know what they were saying." 
 And then came one of those strange convulsive confessions such as 
 that in Robinson's case — confessions in which the truth is thrown 
 out as if it were too hot for the heart to hold, and yet at the same 
 time put forth as if it were a joke, so as to relieve the mind of him 
 that speaks from the solitude of this awful secret, and yet not too 
 boldly proclaim guilt. Nancy told a witness, after the death of one 
 of the children, " how lucky she was with sick folks ; they all died 
 in her hands." The witness saying, " May be you killed them ;" 
 she said, "• May be I did." " She seemed to be joking — seemed to 
 be smiling — seemed to be very careless about it."^ 
 
 4. Permanent mental wretchedness.'^ 
 
 § 816. We may pass the case of a tender conscience, which com- 
 mits a heinous act inconsiderateh'-, or under force of 
 
 . 1 1 • 11 Extinction 
 
 strong temptation, and then is stung by bitter and endur- of eou- 
 ing remorse. These cases may be said to be exceptional. ^^^^^^ 
 AYe may be told, and perhaps truly, that the majority of 
 great crimes are committed by men whose hearts are so rigid and 
 callous as to give no sign of a troubled conscience. The sun, on 
 the day after the crime, shines upon a face just as hard as that on 
 which he shone the day before. Blood cannot stain a skin already 
 black with guilt. No man is suddenly a great criminal. He be- 
 comes so, it is argued, by long and slow processes, during wliich all 
 the impressible elements of the heart are hardened and solidified. 
 
 Now this may be all true, and yet common observation tells us 
 that there are certain types of character among which tt priori we 
 are accustomed to look for the perpetrator of some great crime. 
 And this rigidity of heart is one of tlicsc. This, in itself, may give 
 
 « Farrer v. State, 2 Ohio St. R. (N. ^ See unpm, § 406. 
 
 S.) 64. 
 
 741
 
 § 818.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 a faint though definite psychological presumption. But it is 
 questionable whether there are any characters in which this type 
 is permanent. 
 
 § 817. " To my mind," says Dr. Maudsley, an eminent London 
 Memory physician whose prejudices are far from being in favor 
 permanent. Qf supematuralism,^ " there are incontrovertible reasons 
 to conclude that the organic conditions of memory are the same in 
 the supreme centres of thought as they are in the lower centres of 
 sensation and of reflex action. Accordingly, in a brain that is not 
 disorganized by injury or disease, the organic registrations are 
 never actually forgotten, but endure while life lasts ; no wave of 
 oblivion can efface their characters. Consciousness, it is true, may 
 be impotent to recall them ; but a fever, a blow on the head, a 
 poison in the blood, a dream, the agony of drowning, the hour of 
 death, rending the veil between our present consciousness and these 
 inscriptions, will sometimes call vividly back, in a momentary flash, 
 and call back, too, with all the feelings of the original experience, 
 much that seemed to have vanished from the mind forever. In the 
 deepest and most secret recesses of mind, there is nothing hidden 
 from the individual self, or from others, which may not be thus 
 some time accidentally revealed ; so that it might well be that, as 
 De Quincey surmised, the opening of the book at the day of judg- 
 ment shall be the unfolding of the everlasting scroll of memory." 
 
 § 818. " Something was wrong with him. My suspicion was 
 Conscience ^roused by his troubled sleep." This is the frequent 
 autocratic, answer to the question as to what put the witness first on 
 the watch. Shakspeare makes Lady Macbeth's great secret vent 
 itself in this way, and to attract very much the same observation 
 from by-standers. And this, in fact, is but in obedience to one of 
 those divine sanctions by whicli crime is made in part its own 
 avenger. " There are violent and convulsive movements of self- 
 reproach," says Dr. McCosh, " which will at times break in upon 
 the self-satisfaction of the most complacent. Man's peace is in this 
 respect like the sultry heat of a summer's day ; it is close and dis- 
 agreeable at the time, and ever liable to be broken in upon by the 
 thunders and tempests of divine indignation. Even in the case of 
 those who are anxious to keep their attention turned away as much 
 
 ' Body and Miud, Loudon, 1870, p. 21. 
 
 742
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 819. 
 
 as possible from themselves, and as little as possible upon the state 
 of their hearts, there will occur intervals unfilled up between the 
 scenes that express them, and on these occasions there will be 
 recollections called up which occasion the keenest misery. It may 
 be after a day of selfish business, or an evening of sinful excite- 
 ment, that such unwelcomed visitations are paid to them to disturb 
 their rest, while others have buried their cares in the forgetfulness 
 of sleep. Or it may be in the time of disease, or in the prospect of 
 death, that the ghosts of deeds committed long ago spring up as 
 from the grave. These gloomy fears, proceeding from conscious 
 guilt, always rise up like a ghostly apparition, never in the sun- 
 shine of prosperity, but always in the gloom of adversity, to render 
 the darkness more horrific." 
 
 " In other cases, the troubling of the conscience is produced, we 
 can scarcely tell how, by the state of the nervous system, or by an 
 accidental event, recalling the deed committed to oblivion, or by a 
 sudden flashing of some willingly forgotten scene upon the mind, 
 revealing, like the lightning's glare at night, dreadful depths of 
 darkness. In regard to such phenomena we may know Avhat are 
 the general laws ; though it may be as difficult to explain the 
 specific causes as it is to tell the immediate cause of the raising this 
 gust of wind, or of this cloudj atmosphere, of both of which we may 
 know perfectly what are the general means of their production." 
 
 " cowai-d conscience ! how dost thou afflict me ! 
 The lights hurn blue. Is it not dead midnight ? 
 Cohl fearful drops stand on ray trembling flesh. 
 What ! do I fear myself ? There 's none else by." 
 
 liicli. III. Act. V. Scene 3. 
 
 § 819. INI. Guillon relates the following remarkable case : " The 
 
 Chevalier de S had been engaged in seventeen nuistra- 
 
 'aftairs of honor,' in each of which his adversary fell. *'""■• 
 But the images of his murdered rivals began to haunt him night 
 and day : and at length he fancied he heard nothing but the wait- 
 ings and upbraidings of seventeen families — one demanding a father, 
 another a son, another a brother, another a husband, etc. Har- 
 assed by these imaginary followers, he incarcerated himself in the 
 monastery of La Trappe ; but the French revolution threw open 
 this asylum, and turned the Chevalier once more into the world. 
 lie was now no longer able to bear the remorse of his own con- 
 
 74;i
 
 § 820.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 science, or, as he imagined, the sight of seventeen murdered men, 
 and therefore put himself to death. It is evident that insanity was 
 the consequence of the remorse, and the cause of the suicide." 
 
 Mr. de Quincey, in one of the volumes of his literary reminis- 
 cences, thus speaks of a duel between Colonel Montgomery and 
 Captain Macnamara : — 
 
 " The colonel, as is well known, a very elegant and generous 
 young man, fell ; and Captain Macnamara had thenceforward a 
 worm at his heart, whose gnawings never died. He was a post- 
 captain ; and my brother afterwards sailed with him in quality of 
 midshipman. From him I have often heard afiecting instances of 
 the degree in which the pangs of remorse had availed to make one 
 of the bravest men in the service a mere panic-haunted, and, in a 
 moral sense, almost paralytic wreck. He that, whilst his hand was 
 unstained with blood, w'ould have faced an army of fiends in dis- 
 charge of his duty, now fancied danger in every common rock- 
 ing of a boat ; he made himself, at tjmes, the subject of laughter 
 at the messes of the junior and more thoughtless officers ; and his 
 hand, whenever he had occasion to handle the spy-glass, shook (to 
 use the common image), or rather shivered, like an aspen tree !" 
 
 § 820. Extraneous circumstances may evoke this involuntary 
 Latentcon- remorse. The culprit may form around him his own 
 oTs^uiiThi atmosphere, which will impart for a while its tinge to 
 voiuutariiy his conduct. He may, by a powerful effort of imagina- 
 byextrane- tion. Create lor himseli fictitious wrongs and fictitious 
 cumstau- justification. Suddenly, however, comes a rude touch 
 ^<^®- and dissolves the whole fabric. Heretofore he believed 
 
 himself a hero, or an instrument of inexorable fate. ISJow he sees 
 himself a murderer, cruel and loathsome, and' a spasmodic cry of 
 agony escapes his lips, or insanity, or suicide, or, what may be 
 worse than either, a dull and incurable despair, closes his life. 
 
 The independent existence of this latent consciousness of guilt is 
 shown by the fact that it is called into action by events over which 
 the will has no control. It is not the creation of a diseased brain. 
 It is not the result of a morbid self-introspection. Were it either 
 of these, the will could recall it, or perhaps again banish it. But 
 it is produced arbitrarily and convulsively by circumstances with 
 which the will has nothing to do. The sudden sight of a ring 
 belonging to one whom Queen Elizabeth had loved but sacrificed, 
 744
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 822. 
 
 threw, as we have seen, that proud and self-poised woman into 
 an agony of demonstrative remorse. The countess of Somerset, 
 who had borne herself with such consummate self-possession and 
 tact during the prior periods of the prosecution, screamed with 
 terror at the prospect of being taken to sleep in the room of Sir 
 Thomas Overbury, whom she had poisoned. Nor are these cases 
 unfamiliar to our every-day observation. A little locket, a lock of 
 hair, a faded rose, a ribbon, taken from the person of one who has 
 been loved and lost, will recall a passionate torrent of long-buried 
 grief. We may have been, a moment before, calm or buoyant. If 
 we had been able to exercise our own will, we would have banished 
 these memories finally. But now, without our agency, they burst 
 upon us and overwhelm us. 
 
 § 821. How corrosive is remorse, even when crime is undetected, 
 is illustrated by the case of John Sadleir, whose forge- ga^ieir's 
 ries startled London a few years ago. " A highly re- case. 
 spectable solicitor, who was himself engaged in London, received 
 one night from a correspondent in Dublin a telegraphic dispatch 
 
 which merely said, ' All wrong about 's mortgage ; I will 
 
 write by post.' Sadleir, who saw the dispatch, immediately con- 
 ceived that it alluded to one of his forgeries, and that he was on 
 the point of being discovered. Without saying a word, he went 
 home, and on his road purchased a quantity of essential oil of 
 almonds ; and the same night committed suicide. How great must 
 have been the mental torture this wretched man had endured for 
 some time previous to his committing this rash act may be judged 
 from the fact that the coats of his stomach were impregnated with 
 opium ; and it was afterwards discovered that, from the constant 
 use of the drug, the quantity he was obliged to take in order to 
 procure a few hours' sleep was enough to have killed an ordinary 
 person. For some time before his decease he seemed scarcely 
 capable of fixing his mind for five minutes upon one continuous sub- 
 ject — his eye was incessantly turning with a haggard expression, 
 and he was totally unconscious of the matter under discussion."' 
 
 § 822. There is a feature, however, in respect to a consciousness 
 of guilt thus produced, that distinguislies it from a suddenly re- 
 called grief. The latter reproduces merely a past memory, the 
 
 ' Good Words, 18G6, p. 4G7. 
 
 745
 
 § 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 former a present reality. The recollection of the latter is, I was 
 Distinction ^^ T!iME PAST SO and SO. The discovery with the former 
 
 between [^ . I j^^ j^qW A CRIMINAL: I DID THAT DEED OP GUILT, 
 
 conscious- 
 ness of n'uilt Of this discovery there are but two or three consequences. 
 
 deniy re- One is confession, and the consequent relief from a com- 
 caiied grief paratively unburdened Conscience. Another is a continued 
 condition of misery. A third is the stupor or hardness which is so 
 common an attribute of old criminals. Either of these is a posi- 
 tive psychical condition, as much the subject of ascertainment as 
 are the types or phases of the physical condition. 
 
 § 823. When death is voluntarily encountered, by an intelliijent 
 Diso-uised ™^^? ^"^ Order to avoid the disgrace and penalties of dis- 
 
 suicide is covered crime, it is an impressive illustration of the crreat 
 a recoo;- . ^ .... 
 
 nition of ethical truth we have now under consideration. This is 
 
 standard of peculiarly the case when the death sought for tliis pur- 
 right. pQgg jg ^ death skilfully disguised in advance by the 
 
 criminal himself, in order to preserve his reputation. The con- 
 fession here is twofold ; there is a confession that a wrong has 
 been done whose discovery the wrong-doer is unable to endure, and 
 a confession that the suicide itself is a wrong which must on its own 
 account be covered up. The stratagems resorted to for this pur- 
 pose are of peculiar importance in our present inquiry, for they are 
 not contrived for the purpose of shielding self, since they can only, 
 if effective, operate when the person designing them is out of the 
 range of human censure or human discipline. They are the pro- 
 duction, therefore, not of fear, nor of interest, but of a desire, in 
 part, to retain a reputation heretofore untarnished, in part to save 
 the feelings of surviving friends. In proportion to the ingenuity 
 and complication of such contrivances, they illustrate a conscious- 
 ness of the disgrace attending not merely the discovery of wrong, 
 but the exposure of suicidal attempts to evade such discovery. The 
 suicides which are undisguised efforts at the evasion of punishment 
 are undoubtedly impressive confessions of guilt ; but they are far 
 less impressive than the disguised suicide, which involves the con- 
 fession of the wrongfulness of the confession itself. The undis- 
 guised suicide, also, may be the work of sudden impulse, or of brutal 
 indifference to life and reputation ; not so the disguised suicide, 
 brooded over with often protracted suspense, and in solitary agoniz- 
 ing deliberation and circumspection. Such a suicide is not, indeed, 
 746
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 823. 
 
 a testimony to the power of conscience in the breast of the wrong- 
 doer himself, unless we suppose him dead to the sense of justice in 
 the world to come, and having a conscience only for this life ; but 
 it is a testimony, and that the strongest that individual recognition 
 can give, to the existence of a public conscience which makes dis- 
 covered crime a curse to the criminal himself. — In this li<Tht we 
 notice, in detail, a remarkable case of alleged suicide which took 
 place in the village of Dexter, Maine, in February, 1879 ; the facts 
 being condensed from an elaborate report in the Boston Daily 
 Advertiser of February 1, 1879 : — 
 
 On the morning of the 22d of February, 1878, Mr. James Wilson 
 Barron, cashier of the Dexter Savings Bank, left home, saying to 
 his wife that he had business which would probably detain him until 
 three o'clock in the afternoon ; that he should not be home until 
 then, and that he had his town report to make out, he being at the 
 time town treasurer. He had promised to meet Mrs. A., a depositor, 
 at the bank that morning for the purpose of settling her accounts, for- 
 getting at the time the promise was made that the day was a holi- 
 day. Mrs. A. went to the bank at the time specified; but not 
 finding Mr. Barron there, called upon him at his home. After 
 some conversation, he started with her for the bank, making the 
 remai^k above quoted to his wife upon leaving the iiouse. ]\Irs. A.'s 
 account amounted to S400, and upon arriving at the banking rooms, 
 ]\Ir. Barron informed her that there was not money enough in the 
 bank at that time to pay her ; but, that if she would accept a check 
 for S200 he would pay the remainder in money. To this proposi- 
 tion she agreed ; and Mr. Barron immediately left the bank, went out 
 upon the street, and borrowed of the town tax collector the sura of 
 S250. Of this sum $200 was given Mrs. A. in settlement of her 
 account, the remainder being charged on the books of the bank as 
 having been paid out on town orders. The transaction of this 
 business occupied his time until twelve o'clock. During the after- 
 noon Mr. II. C. Parsons, an insurance agent, who hired desk-room 
 in the bank, was at his desk writing letters. He had occasion to 
 leave the banking-room twice during the afternoon, but at twenty 
 minutes of five, having finished his business, he left the room 
 finally, leaving Mr. ]]arron, who had been in the b;uik all the al'ttT- 
 noon, sitting upon a stool, a])parently engaged in figuring. At the 
 time Mr. Parsons left, the doors of the safe were uidocked. Upon 
 
 747
 
 § 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 leaving, he locked the door leading from the bank into the corridor 
 and started for home. As subsequent developments proved, he was 
 the last person who saw Mr. Barron before he was found in a dying 
 condition within the vault two hours subsequently. Between six 
 and seven o'clock, her husband not having made his appearance, 
 Mrs. Barron became anxious, and a search was instituted. 
 
 " A. F. Bradbury, Esq., was first visited. The eiforts to secure 
 an entrance through the door leading to the savings bank were un- 
 successful. It was then suggested by Mr. Curtis, cashier of the 
 Dexter National Bank (which is in the same building and on the 
 same floor with the savings bank), that, as the safes of both banks 
 were in the same vault, with only ten inches of space between them, 
 by entering the last-named bank and opening the doors of the vault 
 they might be able to ascertain whether or not Mr. Barron was in 
 the adjoining room. The suggestion was acted upon. On opening 
 the outer doors of the vault, the visitors heard heavy breathing, 
 which evidently came from the other side of the vault. 
 
 " One of the visitors, named Crowell, forced his way into the vault 
 of the savings bank, and reported that ^Ir. Barron was lying upon the 
 floor of the vault, with his head resting upon the edge of a small 
 trilnk, with a gag in his mouth, and his hands fastened behind him 
 with a pair of Tower's patent ratchet handcuft's. Crowell cut the 
 string with which the gag was fastened, and with the dying man 
 was forced through the space between the safes and into the vault 
 of the national bank, from which he was removed to the banking- 
 room and medical assistance summoned, which was soon obtained, 
 the patient remaining insensible. His breathing was very heavy, 
 and, after several fainting fits, he died at a little before five o'clock 
 the next morning. After being removed from the vault, a slight 
 scratch Avas found on the forehead, another under the left eye, and 
 a slight purple mark under the right ear and another on the back 
 of the neck. There was also a swelling on one side of the head, 
 over the temple. One singular fact was that, with all the marks, 
 there was no abrasion of the skin discovered, and not a drop of 
 blood anywhere to be seen. There were no marks of choking upon 
 his throat, and no evidence of any violence having been used in 
 putting the gag in his mouth. Soon after his removal from the 
 vault, the door leading to the savings bank was forced open, and 
 an examination made of the outer door of the vault, which fastened 
 748
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 823. 
 
 with a combination lock. This was opened by Mr. Curtis, who 
 knew the combination, and the inner doors of the safe were also 
 found securely locked. The questions next to be decided were, 
 how did Mr. Barron come to his death ? and how did he get into 
 the vault?" 
 
 In solving this question the following facts are to be noted : In 
 the room leading from the place in which the banking business was 
 transacted, the key to the handcuffs was found ; and in a pile of 
 rubbish in one corner of this room his bunch of keys. Among 
 them was a key to the inside door of the vault, one to the outside, 
 or door leading into the street, a key to the door opening into the 
 banking-rooms, keys to three doors in Masonic hall, located in the 
 top of the building, besides several other keys belonging to differ- 
 ent parts of the building. A door at the head of the stairs leading 
 to Masonic hall was found open, as were also three other doors 
 leading through the hall. A window in the rear room was found 
 open, and tlie iron shutters were swung open. On the floor of this 
 room, which was used for the storage of coal, a coal-hod was found 
 tipped over on its side. Four feet from the coal-hod Mr. Barron's 
 false teeth w^ere discovered, and exactly four feet from the teeth his 
 pen and holder were found lying on the floor. The first view of 
 these articles seems to indicate that he was coming from the coal-bin, 
 with the coal-hod in his hand, at the time an attack was made upon 
 him. '' In the drawers in the counter were found $15 and a few 
 cents. On the counter was found a dividend statement which was 
 made out on the 1st of January, settled up and carried to the 
 accounts of diflFerent depositors. In addition to this statement the 
 general deposit book was also found upon the counter. Besides 
 the $15 in the money drawer, there were SlOO worth of revenue 
 stamps in one pigeon-hole in the inside safe, $15 in money in 
 another, and $35 in still another. It was also a noticeable fact 
 that there was no trace of thieves having been in the bank ; not 
 even a tool had been left behind by the supposed murderer or mur- 
 derers." 
 
 An examination of the cash-book, as it was balanced up to tliat 
 day, showed the cash account to be correct, and that on the day 
 the supposed murder was committed there ought to have boon 
 $1600 on liand. It was supposed that amount had been taken by 
 the robbers, as there was only $15 in the money-drawer at the 
 
 749
 
 § 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 time Barron was found. Included in the $1600 was a $500 bond, 
 which was entered on the cash-book as having been received the 
 day previous, February 21. Detectives were employed, and on 
 their report, proceedings were instituted against a man named Hope 
 as concerned in the burglary. This, however, resulted in an ac- 
 quittal, there being no evidence of guilt. 
 
 So strong, hoAvever, was the public feeling that Barron had died 
 a martyr to duty that a subscription was made, mainly by the New 
 England bankers, and four thousand dollars collected as a tribute 
 to his family. Several important developments, however, operated 
 to stop this movement, and dispel the theory of burglary. On the 
 first of November, 1878, Mr. George Hamilton, the new cashier, 
 made up his statement to send to the bank examiner, W. W. 
 Bolster, Esq., and, never before having performed such a duty, 
 took, as a sample, the copy of the one made by Mr. Barron on the 
 previous year. In that copy the liabilities of the bank at that 
 time appeared to be $218,819.11. In looking over the deposit 
 book of that date, he discovered that on that day the actual liabili- 
 ties of the bank were $220,319.11, making an apparent deficit of 
 $2000 between the sworn statement and the actual liabilities, as 
 shown by the general deposit book and trial balance. On making 
 this discovery, they examined all the entries on the books from that 
 date back to October of the same year. On the 27th of October 
 it appeared by the trial balance, as made up by Mr. Barron, that 
 the liabilities were $219,663.51, which showed that the deficit 
 existed at that time. They also examined the cash books from 
 November 1, 1877, up to February 22, 1878, the time of the sup- 
 posed murder, and ascertained that, if the entries on that book 
 were correct, there ought to have been about $1600 in the bank at 
 that time. Among the regular entries on the book, between the 
 two last-named dates, were found items of various amounts, aggre- 
 gating the sum of $1600, which, it will be perceived, just equals 
 the amount of money which should have been on hand at that time. 
 A singular coincidence in connection with these entries was that 
 they were not entered on the general deposit book, and no record 
 of them appeared on the trial balance sheet. One of these items 
 was under date of February 21, and recorded the purchase of a 
 $500 United States bond ; but the margin, where the number of 
 the bond should appear, was blank. Neither did the number of 
 750
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 823. 
 
 the series appear in any portion of the book. A further examina- 
 tion showed that loans on collateral had been made to the amount 
 of $10,788.50, while from the general deposit book it would appear 
 that the true 'amount loaned on such security was $12,789.50 
 showing, as before, a deficit of $2000. 
 
 Barron's last statement to the bank examiner was audited by 
 two of the trustees, Messrs. Dastin and Abbott, and, the books 
 agreeing with it, said statement was approved. By a more minute 
 examination the discovery was made that the figures 1 and 8 in 
 Barron's original statement had been erased, and the figures 2 and 
 substituted. It was further discovered that, in the sum charc^ed 
 to loans on collateral securities, the figure 2 had been substituted 
 for the 0, making the sum loaned appear $12,789.50, instead of 
 $10,789.50. These erasures and alterations had evidently been 
 made after the statement had been audited. 
 
 Other alterations were subsequently discovered, and a Boston 
 detective named Dearborn called in. " The first suspicious cii-cum- 
 stance appeared to be that the trays in which the cash was kept 
 still contained the sum of $15 when found lying upon the counter 
 the morning after the tragedy. In the safe, inside the vault, were 
 a number of pigeon-holes, in several of which various sums of money 
 and other valuables were found. One contained $100 worth of 
 revenue stamps, another $o5 in bills, another $15, and still another 
 $20. Strange as it may seem, not a single dollar was missing, and 
 none of the papers had been disturbed. The safe doors were o|)en, 
 but the steel chest inside the safe, containing the bank's securities, 
 and upon which there was a time-lock, was unmolested. These and 
 other developments convinced the detective that the work had not 
 been performed by thieves, and in confirmation of this belief, he 
 failed to learn that, on the day in (question, any strangers had been 
 seen in or about Dexter, or that any strange teams had either 
 entered or left the town. An inspection of the gag found in Mr. 
 Barron's mouth still further served to dispel the theory of murder 
 and robbery. The gag Avas not at all such a one as a professional 
 tiiief would think for a moment of using, as it did not at all hinder 
 respiration, or prevent the victim from making an outcry. The 
 cord around Barron's neck was very clumsily contrived, and liung 
 loosely about his shovdders, while the cord by which the gag — the 
 wooden handle from the bail of a water-pail — was secured, jiruved 
 
 751
 
 § 823.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 to be nothing but a piece of common cotton twine in three strands. 
 Twine of this kind, it was shown, was in common use in the bank. 
 The cord found round Barron's neck, and with which he was sup- 
 posed to have been choked, could have been picked up in the bank. 
 It should be here stated that after the discovery of Mr. Barron in 
 the vault a window in the rear room, leading from the bank, was 
 found open. It was subsequently shown that this window had been 
 open all day." 
 
 Facts were developed from which it was inferred that it was im- 
 possible that the bank could in that afternoon have been entered by 
 burglars ; and the conclusion, not only of the detectives, but of the 
 bank officers, was that the late treasurer was not only a defaulter and 
 a perjurer, but that, with the aid of an accomplice, he had deliber- 
 ately planned and executed the whole scheme in order to save him- 
 self from inevitable exposure and the disgrace which would follow. On 
 this theory they set to work Avith reneAved energy, Barron's accounts 
 being $3600 short seeming to provide a substantial basis upon which 
 to establish the theory of suicide. It also appeared that Barron's 
 watch, chain, and pocket-book had not been disturbed. " There was 
 in the back room a coating of dust and ashes over the whole floor quite 
 thick. This coating was disturbed only in a direct line from the 
 door to the coal-bin, and had there been a scuffle there (where the 
 teeth, hod, and pen were found), there must, it is agreed, have been 
 evidence of it. There was no dirt of any kind upon his clothes, 
 and if he had been thrown down, with a dark suit on, there would 
 have been plenty of it." Eminent physicians who attended the 
 dying man united in holding that the death was caused by poison, 
 and not by the wounds found on the body. They testified further 
 that Barron must have entered the vault about five o'clock, and that 
 the eftects noticeable were just such as would have been caused had 
 he taken eight or ten grains of morphia into his system. Had he 
 taken such a dose, death would naturally have ensued in about 
 twelve hours. They also said that if he had not taken any poison, 
 and liad been in the vault with the gag in his mouth for two and 
 one-half hours, there would be no good reason why he should not 
 soon revive after being taken into the air. 
 
 No post-mortem examination was ha<l, the family refusing to 
 permit it. 
 
 It has been ascertained that Mr. Barron had a quantity of drugs 
 752
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 823. 
 
 in his possession at the time of this aftair, and that at the top of the 
 bank building a little room was fitted up in which he was in the 
 habit of compounding medicines for one Dr. Fitzgerald, a clairvoy- 
 ant physician, residing in Dexter. The detectives could not recon- 
 cile themselves to the idea of his having had an accomplice, who 
 would naturally have been an interested party. The most difficult 
 question to decide, on the hypothesis of suicide, was how Barron 
 could have locked himself in the vault, leaving the keys where they 
 were found : on the floor of the room outside. " In making an ex- 
 amination of the inside of the vault. Detective Dearborn discovered 
 on the top of the safe a screw-driver and an old kerosene lamp, 
 which were (so said the present cashier) found in the vault on top of 
 the safe, after the discovery of Mr. Barron. Cashier Hamilton 
 said further that ]Mr. Barron had been in the habit of using the 
 screw-driver in removing locks, preparatory to oiling them. The 
 finding of the lamp and screw-driver proved the key to the mystery. 
 Upon learning this it occurred to the officers that Barron might 
 have locked himself in the vault, and, acting upon this idea, they 
 proceeded to experiment, with the assistance of Cashier Hamilton. 
 After one day's experimenting the officers demonstrated that Bar- 
 ron could have locked himself in. On the outer door of the vault 
 was a combination lock. Tiiis was held to the door on the inside 
 by a cap fastened by one screw. The cap being removed, it was 
 easy to pull the door to, shove the bolts into place with the hand 
 from the inside, and then secure them by a finger manipulating the 
 bolt of the lock into its proper place. This done it was easy to re- 
 place the cap. Then the door was locked, and could not be opened 
 except from the outside, and then only by one who knew the com- 
 bination. Barron had that cap off frequently, in order to change 
 the combination, and knew all about the lock. It was claimed that 
 this could be done by working by the light of the kerosene lamp 
 above referred to. The second or inside door of the vault was 
 double, opening to right and left. It had a Yale lock upon the in- 
 side of one half. When the bolt of this was thrown out it held in 
 place uprigiit bolts (which from the outside operated by a handle), 
 and prevented the one from being droj)ped and the other from being 
 raised. It was possible to remove this lock without a screw-driver, 
 and then throw the bolt in the lock by means of the key. If JJar- 
 ron did this, there is no reason why he could not have put his keys 
 VOL. I.— 48 753
 
 § 823.] MENTAL UNSOUNDNESS CONSTDERED PSYCHOLOGICALLY. 
 
 where they were subsequently found, and leave them there, as he 
 could have locked this door from the inside without their further 
 use. Having done this, he could have closed the doors, put the 
 lock back in place, and thus fastened the door the same as if it had 
 been done with the key from the outside. This the officers did over 
 and over again, and this, they claim, Barron did. It was then a 
 very easy matter to extinguish the light, and place the lamp and 
 screw-driver where they were found — on the top of a small inner 
 safe. Next in order, probably, came the swallowing of the poison, 
 and the adjustment of rope and gag. To place the manacles upon 
 his wrists was a comparatively easy task. Everything being then 
 ready, all that remained was to lie down upon the floor and await 
 his now inevitable doom. 
 
 "After making this, to them, important discovery, the president, 
 cashier, and board of directors assembled at the bank, where Mr. 
 Dearborn went through the entire operation, as described, in just 
 four and one-half minutes. An attempt was made to trace the hand- 
 cuflFs, and it was leai'ned that some six Aveeks or two months prior 
 to the 22d of February last, the date of the alleged tragedy, an 
 intimate friend of Mr. Barron, a police officer, was in the Dexter 
 savings bank consulting Mr. Barron on a matter of private business. 
 Incidentally the conversation turned upon the subject of bank bur- 
 glaries, and the method in which they were performed. These 
 interrogatories were propounded by Mr. Barron to his friend, whom 
 he knew to be an officer. The opinion requested was given by the 
 officer, so far as he possessed it, although it was a subject concern- 
 in.'^ which he had no great amount of personal information. Finally 
 Mr. Barron s})oke of handcuffs, and was shown a pair which the 
 officer had in his possession. These he examined with great minute- 
 ness, asking a variety of questions, receiving all the explanation 
 which the officer could give. He then tried the handcuffs upon his 
 own wrists. He finally asked where such could be procured, and 
 the officer told him that he knew of one place where they could be 
 purchased, and that was at the corner of Brattle and Washington 
 streets in Boston, The pair of manacles which the officer showed 
 to Barron were a sample of Tower's ratchet handcuffs, and the pair 
 found upon Barron's hands when he was discovered in his helpless 
 condition were identical with those that the officer had shown him." 
 It was also shown that, to have effected such a robbery by profes- 
 754
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 824. 
 
 sional burglars, four men would have been requisite ; while there 
 was no proof of the presence of any strangers in the village that 
 afternoon. 
 
 Abundant evidence was given that Mr. Barron was virtually 
 insolvent at his death, but that his life was largely insured for the 
 benefit of his family. The bank officials ascertained that on the 
 1st day of January, 1877, Mr. Barron discharged a mortgage on 
 his house of $2000. They also found that he began covering up 
 his tracks as far back as October, 1876 or 1877, by "doctoring" 
 his books. 
 
 In the drawer, in Barron's desk, was found a copy of the trial of 
 Scott and Dunlap, the Northampton bank robbers. It will be re- 
 membered that when that bank was robbed the cashier was taken 
 from his house, gagged, handcuffed, and partially choked by a rope 
 around his neck in order to compel him to open the doors of the bank. 
 The supposition is that Barron imitated as closely as he could the 
 modus ojjermidi of those ruffians. By his cash book it appears 
 that there ought to have been $520 in cash on hand, when in reality, 
 there was much less money in the bank, as has already been stated. 
 The theory thus presented is, that the impending disclosure of the 
 falsity of his statement to the bank examiner in November, 1877, 
 together with the suspension of the Newport Savings Bank the week 
 previous, and the knowledge in his possession that the Dexter Bank 
 could not stand a run, impelled him to tlie commission of the fatal 
 deed. If the bank suspended, the examiner would be compelled to 
 investigate its affairs. The cashier would then be exposed as a 
 perjurer and defaulter. He stood so high in the community, having 
 occupied nearly every position of honor and trust in the town, that 
 the idea of being regarded as a criminal by his associates Avas, to a 
 man of his sensitive temperament, unbearable. To prevent such a 
 discovery, to secure the life insurance, and to enlist the sympathy 
 of the public, the scheme of robbery, it was alleged, was concocted. 
 
 5. Animosity among confederates. 
 
 § 824. "lie knows my secret, and I must dispatch him." " Be- 
 cause he fears ray betraying him, he will try to get rid '|-,ii,i,.niv 
 of me." One of these feelings, and perhaps Ijoth, lurk [.'l,','^",',',''"'''" 
 in the breast of the confederates in almost every joint iii^"-i(T. 
 
 755
 
 § 824 a.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 secret crime. How dangerous is the possession of a political secret 
 in a despotic government, is evidenced to us in the many assassina- 
 tions by which fell the favorites of the French and English monarchs 
 of the seventeenth century. 
 
 But another and more subtle impulse sometimes intervenes to 
 work out the same result. It seems almost an invariable psycho- 
 logical rule that passionate love, producing crime, is followed by 
 passionate hatred. Take, for instance, the reign of James I., and 
 go to Lord Coke's great Oyer, which has been already more than 
 once referred to. Whether or no the Earl of Somerset was really 
 guilty of the consummated poisoning of Sir Thomas Overbury, may 
 perhaps be doubted. It is clear, however, that his countess caused 
 poison to be sent to the deceased to remove or punish his opposition 
 to her marriage, and that her husband was at least privy to her 
 designs. It is clear, also, that he must have known, if not partici- 
 pated in the nefarious plot by which his wife, as a preliminary to 
 her marriage with himself, was divorced from the Earl of Essex. 
 For by fraud, if not by bloodshed, as all England knew, was the 
 first marriage dissolved and the second secured. To make this 
 second marriage happy many outward circumstances conspired. 
 The earl and his countess were each remarkable for their beauty 
 and grace. They had wealth and station ; they loved each other 
 with a love which had torn asunder the most sacred barriers, and 
 had conquered almost unsurmountable difficulties ; but when they 
 at last met, they found an invisible obstacle between them which 
 they could not overcome. This was the consciousness of a common 
 crime. Their love was followed by hatred so intense, and by quar- 
 rels so bitter, that quiet was only secured by separation. For years 
 they lived in the same house with hearts so hostile that they in- 
 stinctively shrank from each other when they met. Aversion was 
 followed by divorce. 
 
 § 824 a. The case of Udderzook,^ a case remarkable in many 
 other respects, furnished us with a striking instance of the inability 
 of confederates in crime to carry out their plans harmoniously. 
 William E. Udderzook and Winfield Scott Goss entered into a con- 
 spiracy to defraud certain insurance companies, and, having pro- 
 cured insurance on the life of the latter to a large amount, they 
 
 ' Wh. on Horn. Appendix to 2d ed. 
 
 756
 
 PSYCHICAL INDICATIONS AFTER CRIME, [§ 824 a. 
 
 set fire to a frame shop in the city of Baltimore, in which shop Goss 
 was known to have been working, having first placed in the shop the 
 body of a man which bore a general resemblance to Goss. Upon 
 the discovery of this body, they relied for a case against the in- 
 surance company, and they were not mistaken, Goss's wife, his 
 stepfjither, and his stepmother, all professing to recognize the body 
 as that of Goss, who, in the mean time, disappeared. The fire took 
 place in February, 1872. Mrs. Goss sued the insurance companies 
 and obtained a verdict ; in the mean time Goss, who had been livino- 
 at Newark, N. J., under the name of A. C. Wilson, was induced to 
 hide himself at Jennerville, in Chester County, Pennsylvania, in 
 June, 1873, On the 11th of July, 1873, Gainer P, Moore discovered 
 in " Blair's Woods," near Penningtonville, in Chester County, the 
 body of a man " mysteriously hidden" under leaves, a thin coverinfi- 
 of earth and the dead limbs of trees. After being viewed by the 
 coroner, buried, and twice disinterred for examination by physicians, 
 it was decided that this was the body of Goss, alias Wilson ; and 
 at the August sessions of the Chester County Oyer and Terminer 
 of the same year, Udderzook was indicted by the grand jury for 
 his murder. At the trial, the Commonwealth proved the dissimilar- 
 ity between the characteristics of the body found in the burned 
 building in Baltimore, in 1872, and those of Goss, the identity of 
 Goss and Wilson, and the strong likeness of the body found by 
 Moore to the appearance of Goss ; several witnesses swore to 
 certain strong points of personal resemblance, and several inanimate 
 witnesses — a ring, bits of clothing, and the like — testified to similar 
 effect. It was shown that, on the 1st of July previous to the mur- 
 der, the prisoner left Jennerville in company with a man avIio bore 
 a strong resemblance to Goss or Wilson, and reached Pennington- 
 ville alone ; much other circumstantial evidence pointed to the 
 prisoner's guilt ; and he was convicted and executed. Here, then, 
 was a case in which a conspiracy to obtain a very large sum of 
 money — Goss's life had been insured for $25,000 — was carefully 
 planned, ably executed, and nearly carried out to a successful 
 termination. There could be, a{)parently, no reason why the con- 
 federates, if the result of the suits they had procured to be brouglit 
 remained unchanged, should not have divided tiuur plunder unde- 
 tected and in peace ; but the rapacity of Uddcr/ook, or his inability 
 to come to a satisfactory agreement as to a division witli (loss, led 
 
 757
 
 § 825.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 to the murder of Goss, and the subsequent discovery of the whole 
 dark transaction. So thoroughly imbued was Udderzook -with the 
 desire to get rid of Goss and pocket the money himself, that he 
 went to the length of proposing to his brother-in-law, Rhoades, to 
 induce Goss to make a journey to West Chester, and steal from 
 him money which he pretended Goss had, offering to guarantee 
 Rhoades $1000 ; and not only this, but in defiance of the most 
 ordinary rules of caution, he wrote to Rhoades, making an appoint- 
 ment, and desiring him, in the most suspicious terms, to let no one 
 know of their meeting, but to join him without fail in an enterprise 
 in which there was, he said, " a cool $1000, and nothing to prevent 
 us from getting in." But Rhoades having failed him, " on the 
 evening of the same day," said Judge Butler in his charge to the 
 jury, " after the interview with Rhoades, as night was coming on, 
 the prisoner started, with the man by his side, in the direction of 
 Penningtonville. Baer's woods is about nine miles from the place 
 of starting, and in this direction the parties were going when last 
 seen. John Hurley, who lives within a short distance of the woods, 
 testifies that his wife in the night aroused him to hear a noise in 
 that direction, that he distinctly heard hallooing and distinguished 
 the voices of two individuals, but could not distinguish any expres- 
 sion except the exclamation, ' oh !' " Udderzook arrived in Pen- 
 ningtonville at twelve that night. The carriage in which he returned 
 there was damaged and bloody. The homicide was detected by 
 the necessary incidents of its execution ; the fraud on the insurance 
 company was detected by the exposure of the homicide. 
 
 ^ 825. The following striking remarks are from Mr. Hargraves's 
 "Honor (1871) curious work on "The Blunders of A^ice and 
 
 among Folly." " On the other hand, what is the position of 
 
 thieves" inn f tt i- • 
 
 only when the Confederate .'' He, too, lives in constant apprehcn- 
 
 ofTntel-est"^ sion, for he knows that his employer has the strongest 
 remains. possible inducement to remove him in order that he may 
 extinguish the evidence of his guilt. He knows, also, that a man 
 who has instigated one misdeed will not hesitate at another ; and 
 still more, he perceives that his own destruction is a condition which 
 is essential to the secure enjoyment of the advantages arising from 
 the original oftence. And thus they stand, eyeing each other with 
 alarm, like stags whose antlers have sometimes been found inter- 
 locked in some furious struggle, and for whom there is no release 
 758 .
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 826. 
 
 till death arrives ; for each remembers (and this is a most gallino- 
 element in the transaction), that, by the very terms of the case, 
 both are to be destitute of principle, and therefore neither can be 
 trusted for a single instant." Among illustrations of this may be 
 mentioned the assassination of Count Konigsmark by some Italian 
 desperadoes, whose employer, it is alleged, gave them a slow poison 
 before they started on their errand, so as to make sure that they 
 should not betray their secret. 
 
 " There is an old saying," continues the same author, " which 
 assumes that honor exists among thieves. Doubtless, some measure 
 of fellowship and freemasonry is to be found among the chevaliers 
 crinduatrie, whether their operations are conducted on a large or a 
 small scale. But it is only so long as a common interest binds them 
 together, and constrains them to unite for the avoidance of a com- 
 mon danger, that the slightest dependence can be placed on their 
 good faith. The man who pi'oves himself a traitor to the com- 
 munity will rarely scruple to betray his comrade whenever a fitting 
 opportunity occurs, provided he can turn a few pounds by the 
 transaction. From Vidocq's Memoirs we learn that the regular 
 thieves of Paris showed no reluctance to assist the police in detect- 
 ing and exposing their professional brethren ; for some of tliem 
 were frequently employed by the officials in unearthing cidj)rits, 
 and accepted the commission with pleasure, either in consideration 
 of the reward, or in the hope of securing a little indulgence for 
 themselves. He himself, whilst in prison, volunteered to act as a 
 spy upon his fellow convicts, and afterwards, when set at liberty, 
 entered into a compact with the police, at a fixed salary, to feed 
 justice with a stated number of rogues each year, in default of 
 which he was liable to be sent back to Brest." 
 
 § 826. Poets have often dwelt upon this property of crime, but 
 by no one has this been done witli greater energy or fidelity to 
 truth than by Robert Browning. Uttiraa, an Italian woman, pur- 
 sues with the utmost passion an adulterous intercourse with a <!cr- 
 man, Sebald. Together they murder her husband. Then comes 
 for a moment the passionate voluptuousness of guilty love in its lull. 
 But while they are still in the tlusli of delight at the removal of the 
 obstacle to their umlisturbed enjoyment, a country girl jiasses under 
 the Avindow singing a home song wliicli brings them l)ack to the 
 reality of the crime they have committed. It is the ordinary reac- 
 
 7o9
 
 § 828.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 tion produced on a morbid state of the brain bj a single healthy 
 thought. Then fierce love is followed by fierce hatred, and death 
 by death. ^ 
 
 § 827. "The mutineers of the Bounty, after turning Bligh and 
 his eighteen companions adrift in a small boat in the midst of the 
 Southern Ocean, at the distance of 3600 miles from the nearest 
 European colony, found it necessary to forego their plan of settling 
 down in luxurious sloth in some insular paradise, and betook them- 
 selves to a lonely rock rising perpendicularly from the deep, and 
 accessible at one landing-place only. Tliere they immured them- 
 selves to escape observation, turning the key of their dungeon, as 
 it were, by burning the ship that brought them, lest it should 
 reveal their presence ; and there they wore out life, the party 
 quarrelling among themselves and perishing by each other's hands, 
 for only two were permitted to die a natural death. "^ 
 
 § 828. Catharine de Medicis, on the death of Francis II., had 
 still three surviving sons, Charles IX., who succeeded to the crown ; 
 Henry, Duke of Anjou, afterwards Henry III. ; and Francis, Duke 
 of Alengon. Over each she had ac(jiuired an ascendency which 
 would give her supreme power could she make the crown autocratic. 
 There was in the way of this, however, an insurmountable difficulty. 
 The Huguenots were a co-ordinate power in the state, and their 
 religion and their political principles alike made them intractable. 
 Coligny was their leader, and besides this possessed military skill, 
 popular influence, and inflexible integrity. Assassination was to 
 Catharine the natural remedy, and in this she obtained the ready 
 support of the chief of the Catholic party, the Duke of Guise, and 
 then the reluctant assent of Charles IX. The blow was struck ; 
 Coligny murdered ; and forty thousand Huguenots in one night 
 destroyed. 
 
 Then came the reaction, and prominent in this was the disruption 
 between the queen, her sons, and her accomplices. To exclude 
 Henry of Navarre from the succession was one of the chief points 
 in the confederacy, yet eight days after the massacre, Charles IX., 
 according to Ranke, was obliged to summon Henry to him in the 
 
 ' " Pippa Passes," by Robert Brown- 2 Hargraves's Blunders of Vice and 
 ing. Mr. Hawthorne's novel, "The Folly. London, 1S71, p. 253. 
 Marble Faun," deals with the same 
 tendency. 
 
 760
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 828. 
 
 night to quiet the agonies by which he was tortured. The young 
 king was filled with dread at a wild tumult of confused voices, 
 among which were distant shrieks and howlings, mingled with the 
 indistinguishable raging of a furious multitude, and with groans 
 and curses, as on the day of the massacre. So vivid was his con- 
 viction of the reality of these sounds, that he sent messengers into 
 the city to know if a fresh tumult had broken out. But the sounds 
 were mere delusions, which continued to torment Charles durino- 
 the short remainder of his life. Thus he died alternately cursing 
 his mother, as the cause of his misery, and turning to her submis- 
 sively, in awe of her overweening power. 
 
 So it was with her two remaining sons. Francis, Duke of Alen- 
 gon, flew into open rebellion, making the massacres of which he 
 was one of the joint agents the plea. Henry III., it is true, when 
 he succeeded to the crown, bowing before the queen's superior 
 genius, conceded to her for a w^hile the supremacy. But this same 
 restlessness under the joint load of a common guilt, this almost 
 anguish to throw it off on her who produced it, soon severed the 
 son from the mother. The final act was in the castle of Blois, 
 where the Duke of Guise, almost at the foot of the throne, was ob- 
 liged to defend himself by teeth and nails like a wild beast, for he 
 had not time to draw his sword. He had been invited there by the 
 king, as one of the counsel of state, and when there was thus mas- 
 sacred by his old co-conspirator. And underneath, on her dying 
 bed, lay Catharine of Medicis, the wild tumult above giving her 
 proof of this final dissolution of the strange partnership she had 
 formed for the Huguenot massacre. The community of guilt had 
 to them been indeed fatal. It had been followed by the bitterest 
 recriminations and imprecations. It had been followed by massa- 
 cres and cross massacres. Charles IX. did not hesitate to ascribe 
 to poison administered by his mother's hand, the disease whicli tore 
 his vitals ; and, though this may be discredited, she permitted his 
 death-bed to be neglected, and his funeral deserted, to increase the 
 welcome to her more favored son, Henry. The Duke of (iuise was 
 massacred by Henry ; Henry a short time after by an avenger of 
 the Duke of Guise. Catharine, after having successively deserted 
 those for whom she had risked so much, died at last deserted liy 
 each in turn. 
 
 70 1
 
 § 829.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 § 829. The National Bank of Northampton, Massachusetts, had, 
 in 1875, a capital of four hundred thousand dollars and a surplus 
 three-fourths as large. Its stock was selling in the market at one 
 hundred and sixty dollars a share. The bank edifice was con- 
 structed with peculiar care. " Inside of the massive bank building 
 was a solid vault. To unlock the outer door of the vault several 
 keys were required, and these keys were distributed among as 
 many bank officers. Inside of the vault . . . were two inner 
 doors, each with its combination of four sets of figures ; there was 
 a new and solid safe with double doors, each also with its combina- 
 tion of four figures ; finally, a watchman stationed within the bank 
 kept guard until four o'clock each morning." Large special de- 
 posits, in addition to the moneys of the bank, were placed in these 
 vaults. It was discovered on the morning of the 2(3th of January, 
 1876, that the bank had been robbed, and securities worth almost 
 a million and a quarter of dollars and all the cash of the bank had 
 been taken away. The parties, as it ultimately appeared, by whom 
 the robbery was planned, were Robert C. Scott, James Dunlap, and 
 "William Connors who, in 1872, had robbed the Falls City Bank in 
 Louisville, Kentucky, of §200,000, and two years later had stolen 
 from a bank vault at Quincy, Illinois, several hundred thousand 
 dollars. Preparatory to attempting the Northampton bank, they 
 obtained the aid of William D. Edson, a skilled workman of 
 Herring and Company, the safemakers. Edson, being in North- 
 ampton in 1875, was sent for by the officers of the bank to make 
 some repairs in the locks. " Entrusted with the keys used to open 
 the outer door of the vault, he took wax impressions, from which, 
 on his return to New York, duplicate keys were made. There still 
 remained the four-fold combinations of the inner doors and the safe 
 to be overcome. Edson was aware that a clerk of the bank knew 
 some of these combinations, and he suggested to John Whittlesey, 
 the cashier, that there was danger in thus trusting a subordinate. 
 By his advice all the combinations were finally given to Cashier 
 Whittlesey. With the keys of the outer vault held by the robbers 
 the whole question of a successful robbery depended upon eliciting 
 the comlnnations from the cashier — a matter of no small audacity 
 and peril, for he lived two-thirds of a mile from the bank in a house 
 where beside himself there dwelt six persons." — The aid of several 
 confederates being obtained, the leaders of the attack, about one 
 762
 
 PSYCHICAL INDICATIONS AFTER CRIME. [§ 829. 
 
 o'clock on the morning of the 26th of January, 1876, " gathered, 
 masked, in front of Cashier Whittlesey's house. The front door 
 was opened by turning the key with nippers, and the masked men 
 entered. All of the seven inmates, consisting of Cashier Whit- 
 tlesey, his Avife, another married pair, two ladies, and a servant, 
 were awakened, bound, and placed under guard. Scott and Dunlap 
 then took Whittlesey in charge. He was ordered at the point of 
 the pistol to surrender the combinations of the vault and safe. He 
 tried to temporize, and gave the robbers a false set of combinations. 
 Here was an emergency that the cunning of Scott was equal to. 
 It would have wasted precious time to have gone after four o'clock 
 to the distant bank to test the figures, and to take Whittlesey there 
 through the open streets would be to risk the success of the whole 
 scheme. So Scott, who had taken down the numbers on paper, 
 suddenly asked Whittlesey to repeat them. The cashier could not 
 recall the fictitious figures, and his deceit was evident. The rob- 
 bers then resorted to more heroic means. The cashier was 
 pounded, kicked, and choked until at last in pain and terror he 
 gave the real numbers." The whole family, Whittlesey included, 
 were kept gagged and imprisoned until four o'clock, at which time 
 the watchman was expected to leave the bank. '" Then while one 
 part of the gang remained on guard over Whittlesey and the other 
 captives, another part went to the bank. The weak doors were 
 quickly entered, the outer door of the massive vault swung open at 
 the touch of Edson's duplicate keys, and one after another the four 
 sets of combinations of the vault and safe yielded, and all the 
 securities in the large safe were exposed to view. The bonds, stock, 
 and money were tumbled hastily into bags, and taken to a hiding 
 place to be described hereafter in a sciioolhouse about a mile from 
 the bank. All the doors were then closed and the dials wrenched 
 off so as to delay the opening of the vaidts and safe. The robbers 
 stole altogether about $1,200,000, of which $888,000 was in cou- 
 pon and registered bonds, $;500,000 in stocks, and $12,000 in 
 baidv bills. Of the bonds some $85,000 were in govenmieut cou- 
 pon bonds, and easily negotiable. There was a second safe in this 
 vault containing with other securities about $100,0<IO in l)()n(ls 
 belono-ins to Smith College for Women; but tlie cDiiibinafKui of 
 this safe the gang had forgotten to get from Whittlesey, and no 
 attempt to open it was made. Having hidden their booty, part of 
 
 763
 
 § 829.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 the burglars took a wagon in waiting, and rode to Springfield, 
 twenty miles away, where they Avere joined by their associates, 
 who had come down by rail on an early train. The whole party 
 then escaped to New York by different routes." The only trace 
 found of the burglars Avas in a small schoolhouse where, as it ulti- 
 mately transpired, they had been accustomed to meet Avhen concoct- 
 ing their plans. " With obvious lack of caution they had left in 
 the upper part of the schoolhouse bits of food, a lantern, and other 
 marks of their profession. These discoveries led to a most rigid 
 search of the building. Partitions were knocked apart, and every 
 part of the structure, save one, that could possibly be used as a 
 hiding-place, was explored. In that single spot left unsearched 
 the bonds were actually concealed. At one end of the lower 
 rooms was a small platform on which the younger scholars used to 
 stand to reach a blackboard. The robbers had taken up a board, 
 placed the stolen booty inside, and fastened back the timber with 
 screws. The heads of the screws, however, they covered with 
 putty, which had been painted the exact color of the paint on the 
 platform. The searchers examined the board, but the unbroken 
 line of paint threw them off the scent, and they overlooked the 
 plunder when actually standing within a few inches of it. After 
 the first alarm and general search were over, one of the robbers 
 returned to Northampton by night, entered the schoolhouse, secured 
 the bonds, and took them to New York." The exposure of the 
 crime is due, not to this negligence on the part of the confederates, 
 which illustrates the incoherency of crime noticed in a prior section, 
 but to the inherent animosity between confederates now immediately 
 under discussion. "After the robbery Edson fell out with his eon- 
 federates. They had refused him his share of the booty, accused 
 him of treachery, and feeling sure that he would not disclose a 
 crime in which he had been so important an actor, they despised 
 his threats. . . Whatever the motive he was induced to dis- 
 close the secret. Scott and Dunlap Avere arrested on the cars at 
 Philadelphia by Pinkerton's detectives, and Scott incautiously ad- 
 mitted the ownership of a hand-bag found under his seat, and con- 
 taining burglars' tools. The two criminals were hurried secretly 
 through New York and to Northampton without giving opportunity 
 for legal delays at the metropolis. In due season their trial came 
 on. They Avere indicted for entering the bank and also Whittle- 
 764
 
 GENERAL CONCLUSIONS. [§ 830. 
 
 sey's house, and on both indictments were found guilty, and sen- 
 tenced to twenty years in the Massachusetts State Prison." 
 The testimony of Edson was sustained by strong corroborative 
 proof.^ " Marks of tools found in their possession Avere traced at 
 Whittlesey's house and at the bank. Both robbers were also iden- 
 tified by Mrs. Whittlesey and others. The handwriting of Dunlap 
 was traced in the addresses of letters proposing a compromise with 
 the bank, although the body of the letters were in characters printed 
 with a pen." 
 
 Another instance of the disintegrating power of crime is to be 
 found in further proceedings in this remarkable case. Four years 
 after the conviction of Scott and Dunlap, two professional burglars, 
 Draper and Leary, were arrested as implicated in the same offence. 
 The stolen securities had not been returned ; and it was now made 
 known that Scott and Dunlap, thinking that in this way they 
 might obtain a pardon, had determined, unless the spoil was given 
 up, to appear as w^itnesses against not only Draper and Leary, but 
 the whole gang. The intimation took effect. All the stolen docu- 
 ments (excepting SI50,000 which had been disposed of, but which 
 had not got into the hands of the principals in the crime) were 
 returned to the bank. The second prosecution, however, broke 
 down, nor, in fact, after the recovery of the stolen bonds, was it 
 pushed by the bank with the zeal which the public service re- 
 quired. The failure of the second trial, however, was technically 
 due to the refusal of Edson to testify to the participation of the 
 accused.^ 
 
 IV. GENERAL CONCLUSIONS. 
 
 § 830. Such are some of the ways in which psychology may be 
 used in the detection of guilt. It shows how a crime conscience 
 betrays itself, before its commission, in preparations, in JJ^^^',"/ 
 intimations, in over-acting ; at the time of its commission, tronomy. 
 
 1 See Com. r. Scott, 123 Mass. 222, Lars, by the voice. To show tliat there 
 reported in Wh. on Cr. Ev. 8th eil. §§ was no peculiarity in his voice, Scott 
 l.i 312 430 433, 441, 803. was asked to repeat something, wliich 
 
 2 The i^aragraphs in inverted com- he did. But the court lield, that, 
 mas in the above narrative are taken though identification coul.l b.- by 
 from a detailed account in the New voice, experiments in court with the 
 York Evening Post of June 29, 1881. voice were inadmissible. Com. r. 
 On the trial the cashier stated that lie Scott, 123 Mass. 222. 
 
 could identify Scott, one of the burg- 
 
 765
 
 § 831.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in incoherence ; after its commission, in convulsive confessions, in 
 remorse, in involuntary recurrence to the guilty topic, and in dis- 
 ruption between confederates. The inquiry is an important one 
 in legal psychology, for it not only aids in the enforcement of the 
 law, but it leads us to those supreme sanctions on which all law 
 rests. When we visit a city, and see a series of police officers en- 
 gaged in ferreting out crime ; when we see, in connection with this, 
 courts in which the criminal is tried, and the penalties to which 
 crime is subjected, we draw from these facts the inference of a 
 government whose office it is to prevent wrong. In proportion to 
 the perfection in which this police system is carried out, do our 
 conceptions of the wisdom, the power, and the earnestness of the 
 supreme authority increase. So it is with the agencies we have 
 been examining. Wherever guilt goes, they go. They dog it in 
 all its stages. Its most secret haunts are not closed to them. Its 
 weakness as well as its wisdom — its slips as well as its successes — 
 they notice and record. Nor is their function that of detection alone. 
 They have a strange power of compelling guilt to disclose itself. 
 They show us that whatever doubts there may be as to the origin 
 of evil, there is no doubt as to its close. For they show it to be 
 pursued by a subtle and powerful avenger, which leaves it not until 
 in one sense or another it is judicially punished. 
 
 § 881. There is one difference, however, between the police of 
 the courts and that of the conscience. The former, in order to 
 scent out the crime, often assumes the garb of the criminal. Vidocq 
 goes into the thieves' den to discover the thieves' secrets. He re- 
 culls memories of past crime, so as to induce a similar communica- 
 tiveness in his associates ; he gloats enticingly over the pleasures of 
 guilt ; he incites to fresh adventures by which the criminal may be 
 entrapped. But it is not so with the angels of the conscience. 
 They warn, they appeal, they implore, and this in tones the tender- 
 est and holiest. Their garb is that of light, telling from whence 
 they come. While they announce ' beforehand who they are, and 
 use the most touching entreaties to prevent wrong, they declare it 
 will be theirs afterwards to avenge that wrong if done ; — while they 
 leave no secret as to tlieir awful mission, they gently plead by all 
 the powers that persuasion can give, that vengeance may not be 
 theirs to inflict. The memories they recall are not of early guilt, 
 but of early innocence — of periods when no mad or polluted com- 
 766
 
 GENERAL CONCLUSIONS. [§ 832. 
 
 rade stood by, inciting to ruin, but some tender friend or relative, 
 uttering counsels of love. They paint not the pleasures of guilt, 
 but its misery, and they point to scenes of peace to which guilt 
 cannot reach; It is not theirs to avenge until their final entreaties 
 are exhausted ; and, when at last they hurry away to give their 
 last report, he Avhose guilt is disclosed cannot but say : " This, your 
 office of exposure as well as of restraint, I knew beforehand. You 
 told me this — you told me that ray sin, if unchecked, would find 
 me out." 
 
 § 882. It is here that the presumptions from this agency rise a 
 step higher than those f^om an earthly police. The latter tells of 
 a government, comprehensive, sagacious, and just, so far as its 
 general object of punishing crime is concerned, but of a government 
 which at the same time deals in punishment alone, and that by in- 
 struments which are often as polluted as the evils they are to cor- 
 rect. The former tells of a government, austere it is true, yet very 
 tender ; moving to holiness through holiness ; permeating not merely 
 the outer life, but the secrets of the heart ; everywhere warning 
 and entreating, while evei-ywhere judging ; making punishment 
 certain and terrible, and yet so working it up into the conseciuences 
 of the criminal's voluntary act as to render it his own choice. So 
 it is that while a police of mere detection and exposure argues an 
 executive of mere power, a police of love argues an executive of 
 mercy ; a police that is omnipresent, an executive that is onnii- 
 present ; a police that for a time entreats, warns, and dissuades, an 
 executive that recognizes a temporary probation ; a police that 
 ultimately and irrevocably avenges, an executive that after a free 
 probation judges definitely and finally. It is here we have brought 
 before us the elements of that Christian Providence which the courts 
 invoke as the foundation of public justice. In crime itself, there- 
 fore, we find the proof of that Chief Magistrate who avenges crime. 
 
 So it is that while the court-house derives its sanctions from this 
 Supreme Power, it contributes to the proof of the existence of this 
 Power an independent share of evidence. No witness can be sworn 
 until he declares his belief in a future state of rewards and punish- 
 ments ; no trial can take place without strengthening the evidence 
 on which this state rests. Human justice falls back on divine for its 
 support ; divine justice appeals to human as its witness. Tlie penal 
 precepts of the common law professedly find their basis in the dic- 
 
 7G7
 
 § 833.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 tates of an enlightened Christian conscience ; the divine sanction of 
 this conscience is nowhere so fully shown as in the course of a trial 
 at common law. The present discussion will not be without its 
 value if, by illustrating these truths, it shows how close is the con- 
 nection between the divine law and the human ; and how the science 
 of jurisprudence, while it draws down its strength from heaven to 
 earth, may still, if rightly studied, lead its votaries from earth to 
 heaven. 
 
 § 833. The conclusion which has just been reached is not with- 
 Punish- ^^^ ^^^ value in determining the vexed question of the 
 mentis object of punishment. It is arfrued by an influential 
 
 retributive. ,i<.,., , , ,.n ., 
 
 school 01 thinkers that the object oi punishment is the 
 prevention of crime ; that whenever we can thereby prevent crime 
 we are justified in inflicting punishment ; and that we are notj usti- 
 fied in inflicting punishment unless by so doing we can prevent 
 crime. By another school of thinkers it is held that the object 
 of punishment is the reformation of the offender ; that we are justi- 
 fied in inflicting punishment whenever it may reform the party 
 punished, though it follows from this that he is not to be punished 
 when he cannot be reformed. The true view, as has been elsewhere 
 urged, is that punishment is to be imposed as a matter of retribu- 
 tive justice ; and that when so imposed crime is more likely to be 
 prevented and reformation induced than would be the case were 
 punishment inflicted for the mere purpose of prevention or reform 
 irrespective of justice. And what has been said in the preceding 
 sections tends to strengthen this view. The punishment which, as 
 we have seen, is self-inflicted by crime is not primarily either pre- 
 ventive or reformatory. In a secondary sense it has undoubtedly 
 both these effects ; but this is not because the punishment is im- 
 posed, but because it is felt to be deserved. We are deterred 
 from wrong, for instance, when w^e witness the remorse of great 
 wrong-doers, not because we see them suffering this remorse, but 
 because we know they are suffering in consequence of their wrong- 
 doing. Our own remorse at wrong done by ourselves is reformatory 
 just in proportion as we feel the remorse is the consequence of the 
 wrong. The system, then, that governs the world is that sin is to 
 be punished because it is sin : punitur quia peccatum est. And 
 it is worthy of notice that by this view are best preserved the sanc- 
 tions at once of liberty and of law. It is not strange that absolutist 
 768
 
 GENERAL CONCLUSIONS. [§ 833. 
 
 economists should claim the right to inflict punishment whenever 
 prevention or reformation would be worked, because, if either 
 prevention or reformation be the primary object of punishment, 
 then the right of the state to punish is unlimited. I am entitled, 
 however, to know beforehand what acts are unlawful, and, as a 
 member of a civilized state, I am entitled to demand that when 
 an act is made punishable the punishment assigned should be in 
 proportion to the heinousness of the act. Unless this be the case 
 I have no liberty worth having. Turgenieff, in his Punin and 
 Babwin, has depicted with great vividness the stagnation produced 
 by a system of government under which a transportation to Siberia 
 is decreed whenever it is thought by the chief of the police that the 
 person transported would be improved by the transportation, or 
 other persons prevented from wrong-doing by seeing hira driven 
 into exile. Far more vivid would be the contrasts could we suppose 
 such a system introduced among ourselves. In Russia it works / 
 badly enough, but in Russia free institutions never existed, and jus- \/ 
 tice was never impartially administered. Our traditions are differ- 
 ent. The establishing of such a system would be a demolition as 
 Avell as a revolution. Our country, great and active as it is, would, if 
 we submitted to the introduction among us of such a system of penal 
 discipline, be paralyzed. There would be no business enterprise in 
 which we could engage which might not to-morrow be pronounced 
 criminal ; there is no one, no matter how meritorious, who migiit 
 not look forward to a moment in which, from some transient unpopu- 
 larity, it might be, or from some other equally irrelevant conspicu- 
 ousness, he might not be seized upon and punished in order to 
 prevent others from wrong. If prevention alone be the standard, 
 it is immaterial wlio is punished, or how severe the punishment is, 
 if the desired terror is produced. Equally despotic is the plea of 
 reformation not based on retrilnitive justice. If reformation is the 
 sole standard, then, as has been incidentally noticed, the utterly 
 incorrigible could not be punished at all, and the punislinient of 
 others Avould have to be proportioned to their capacity for receiving 
 and retaining impressions, just as the efforts of the sculptor are pro- 
 portioned to the capacity of the material on wliicli he works to 
 receive and retain the finishing strokes of the chisel. Trevention 
 and reformation are undoubtedly secondary objects of pmusliiucnt ; 
 VOL. I.— 49 709
 
 § 833.] MENTAL UNSOUNDNESS CONSIDERED PSYCHOLOGICALLY. 
 
 in other ■words, retributive justice should be so shaped as best to 
 eflfect these important ends. But unless a punishment is just, it 
 will neither prevent crime in others, nor reform the person unjustly 
 punished. Unjust punishment if inflicted in order to prevent law- 
 lessness would stimulate lawlessness ; if inflicted in order to reform 
 an alleged ofi'ender, it would drive him into implacable resistance to 
 the government which perpetrates so atrocious a wrong. To the pre- 
 servation of law as well as to the preservation of liberty it is essen- 
 tial that punishment should be inflicted only in just retribution of a 
 convicted crime which the law has previously made punishable.^ 
 
 ' See Wh. Cr. L. 8tli ed. §§ 1 e seq., where the topic is discussed at large ; 
 and see supra, § 754, note 2. 
 
 770
 
 INDEX TO A^OL. I. 
 
 [the figures refer to sections.] 
 
 AIDOIOMAXIA, 617. 
 
 ALCOHOLISM, 639. 
 
 AMENTIA, 698. 
 
 AXGER, distinguishable from insanity, 422 
 
 APPARITIONS due to mistake of senses, 654. 
 
 APHASIA, 324. 
 
 AUTOPSIES of insane, 321. 
 
 BLINDNESS, 95, 469. 
 
 BOOKS on insanity, authority of, 279. 
 
 BRAIN, lesions of, not due to insanity, 321. 
 
 injuries to, 348. 
 
 influenced by stomach. 646. 
 BURDEN OF PROOF (see Presumptions), 246. 
 
 conflict as to, in cases of wills, 3U. 
 
 in criminal issues, 251. 
 
 CAPACITY, contractual, 1. 
 
 testamentary, 19. 
 
 to plead, 200 a. 
 
 of deaf-mutes, 95. 
 CHOREA, 647. 
 
 CHRISTIANITY has no tendency to produce insanity, 662. 
 CLASSIFICATIONS of insanity, 305-318. 
 COMMISSIONS OF LUNACY, 99. 
 CONFESSIONS, insane, 200 a, 788, 804. 
 
 CONSANGUINEOUS MARRIAGES, as aflecting idiocy, 269, 684. 
 CONSCIENCE, extinction of, rare, 816. 
 
 part of divine economy, 830. 
 CONTRACTS, capacity to execute, 1-18. 
 
 lunacy as aflectinfr, 1. 
 
 lucid intervals as afl'ectin^', 2. 
 
 monomania as aflccting, 3. 
 
 fraud as allecting, 6. 
 
 771
 
 INDEX TO VOL. I. 
 
 COl^TR ACTS— (continued). 
 
 deeds, how affected by insanity, 9. 
 partnership, how alFected by insanity, 11. 
 torts, how affected by insanity, 15. 
 intoxication, effect of, on, 16. 
 marriage, capacity for, 1 7. 
 undue inffuence, 76. 
 CONVERSATION as a test of insanity, 378. 
 
 CORPUS DELICTI, necessity of proving in case of confessions, 804. 
 CRIME, hereditary, 367, 371. 
 psychical indications of, 771. 
 prior to crime. 
 
 preparations, 773. 
 intimations, 77.5. 
 over-acting, 780. 
 at crime. 
 
 incoherence, 781. 
 self- over-reaching, 787. 
 after crime. 
 
 convulsive confessions, 788. 
 nervous tremor, 805. 
 
 morbid j^ropensity to return to scene of guilt, 812. 
 permanent mental wretchedness, 814. 
 animosity between confederates, 815. 
 responsibility for (see Respunsiblliti/), capacity for, 116-201. - 
 CRIMINAL LUNATICS, treatment of, 753. 
 CUNNING consistent with insanity, 381-385. 
 
 DEAF-MUTES, 95, 461. 
 
 DEFINITION OF INSANITY, to come from court, not exports, 112, 190. 
 
 DEEDS (see Contracts). 
 
 DELIRIUiM, difficulty of feigning, 447. 
 
 general delirium, 702. 
 
 partial delirium, 706. 
 
 mania or amentia occulta, 706. 
 mania transitoria, 710. 
 DELIRIUM TREMENS, as affecting responsibility, 202. 
 
 as constituting a monomania, 639. 
 DELUSIONS, as aff"ecting contracts, 3. 
 
 as affecting wills, 34. 
 
 as aff'ecting crime, 125. 
 
 objective and subjective, distinction between, 135. 
 
 due to sexual causes, 525. 
 
 psychological character of, 723. 
 DEMENTIA, 698. 
 DEMONIACAL POSSESSION, G44, 
 
 772
 
 INDEX TO VOL. I. 
 
 DEPORTMENT, as a test of insanity, § 378. 
 DEPRESSIOX, 502. 
 
 DERANGEMENT OF SENSES, deaf and dumb, 4G1. 
 psychologically, 4G1. 
 legally, 464. 
 
 blind, 469. 
 
 epileptics, 470. 
 DETECTION OF INSANITY, 338. 
 DIPSOMANIA, 639. 
 
 DRUNKENNESS (see Intoxication and Commissions of Lunacy). 
 DUMBNESS, 95, 461. 
 
 ECCENTRICITY, does not per se incapacitate, 29, 86. 
 is not equivalent to delusion, 38. 
 cruelty of refusing capacity on account of, 60. 
 ECSTASIES, 659. 
 EPIDEMICS, hysterical, 647. 
 
 of confession, 800. 
 EPILEPSY, 470. 
 EROTOMANIA, 617. 
 
 ESCAPE, neglect to, presumption from, 406. 
 EVIDENCE, mode of proof of insanity, 246. 
 testimony of experts and non-experts, 257. 
 scientific books inadmissible, 270. 
 EXAMINATIONS OF INSANE, by whom conducted, 338. 
 at what time made, 341. 
 by what tests, 345. 
 EXPERTS, who they are, 262. 
 
 dilliculty in determining their (qualifications, 268. 
 question to be put to them, 262. 
 
 as to matter of common knowledge, 264. 
 court to decide Avhether matter belongs to them, 265. 
 as to scientific authorities, 286. 
 as to hypothetical case, 32, 267. 
 as to disputed facts, 267. 
 as to conclusion of law, 112, 190. 
 weight to be attached to their testimony, 33, 195, 270, 275. 
 duties of, 2 78. 
 
 should be assessors, 274. 
 testimony not to be speculative, 275. 
 examinations should be tliorough, 276. 
 all materials for diagnosis siiould be secured, 278. 
 entitled to special fees, 263. 
 non-experts, 257. 
 
 may give opinions as to sanity, 31, 102, 257, 261. 
 not competent as to occult conditions, 258. 
 
 773
 
 INDEX TO VOL. I. 
 
 EXVEKTS— (continued). 
 
 cannot be asked as to hypothetical case, 259. 
 
 subscribing witnesses admissible as to sanity, 2G0. 
 EXPERT APPELLATE COURT, difficulties caused by absence of, 273. 
 
 FANATICO-MAJsIA, 614. 
 
 supernatural or pseudo-natui'al demoniacal possession. 
 d priori improbability of such possession, 644. 
 solubility of the Instances of such possession by natural tests, 
 disease, 646. 
 
 morbid imitative sympathy, 647. 
 legerdemain and fraud, 651. 
 mistake of senses, 654. 
 guesswork, 656. 
 
 natural phenomena at present inexplicable, 659. 
 historical evidence of such possession, 660. 
 religious insanity. 
 
 Christianity, taken in its practical sense, has no tendency to produce 
 
 insanity, 662. 
 what is called religious insanity is produced — 
 
 by a departure from practical Christianity, 669. 
 
 appeal to the selfish element, 675. 
 by constitutional idiosyncrasies, 677. 
 fanatico-mania as a defence, 678. 
 FEAR, as a check on passion, 149. 
 
 sane and insane, distinction between, 432. 
 not insanity, 432. 
 
 delusion as to danger as affecting responsibility, 130. 
 FEIGNED insanity (see Simulated Insanity). 
 FORGETFULNESS, as a test of insanity, 410. 
 FRAUD (see Undue Injiuence). 
 
 GRIEF, not insanity, 426. 
 
 GUARDIANS, may avoid contracts of ward, 13. 
 in lunacy, 99. 
 
 HALLUCINATIONS (see Delusions).^ 
 
 HANDWRITING, as a test of insanity, 386. 
 
 HEREDITARY TENDENCIES, as a test of insanity, 143, 2.-J4, 362. 
 
 psychologically considered, 362. 
 HISTORY, as a test of Insanity, 388. 
 HOME-SICKNESS, 429. 
 HOMICIDAL MANIA, 578. 
 HYPOCHONDRIA, 508. 
 HYPOTHETICAL CASE, examination of experts as to, 32, 267. 
 
 non-experts cannot give opinions as to, 257. 
 
 774
 
 INDEX TO VOL. I. 
 
 HYSTERIA not insanity, 517. 
 
 selfishness a form of, 6 76. 
 HYSTERICAL epidemics, 647. 
 
 IDIOCY as to contracts, 1. 
 
 marriage, 17. 
 
 wills, 20. 
 
 crime, 117. 
 
 produced by excesses of parents, 369. 
 
 viewed psychologically, 682. 
 ILLUSIONS (see Delusions). 
 IMBECILITY as to contracts, 1, 76. 
 
 marriage, 17. 
 
 wills, 19, 76. 
 
 crime, 117. 
 
 murder, in the case of, 441. 
 
 psychologically, 691. 
 IMPULSE (see Irresistible Imjmlsc). 
 INCENDIARY PROPENSITY, 604. 
 INQUISITION OF LUNACY, generally, 99. 
 
 is only jrriina facie proof to third parties, 6 a, 255. 
 INSANE CRLNIINALS, treatment of, 75.3. 
 
 retribution, 754. 
 
 prevention, 763. 
 
 example, 765. 
 
 reform, 766. 
 
 why our present system should be remodelled, 770. 
 INSANITY, when occult, 7U6. 
 
 when ti'ansitory, 162, 710. 
 INSENSIIilLITY of act, test of insanity, 389. 
 
 to extremes of temperature, in the insane, ."58. 
 INSURANCE, LIFE, when avoided by insanity, 228. 
 INTERMEDIATE THEORY, 329. 
 INTOXICATION, as affecting capacity to contrai't, 16. 
 
 as aflfecting testamentary capacity, 65. 
 
 as a defence to charge of crime, 202. 
 
 insanity produced by delirium ti-eiucns afreets responsiliility in (he same 
 way as insanity produced by any oilier cause, 2o-j. 
 
 insanity immediately proihiccd jjy intoxication docs W)\ destroy resjidn- 
 sibility where the jiatient, wlien sane and responsible, made himselC 
 voluntarily intoxicated, 207. 
 
 while intoxication is, per se, no defence to the fact of guill. yet when the 
 (juestion of intent or j)remeditation is concerned, it m;iy be pi-oved for 
 the purpose of detciinining the precise degree, 211. 
 
 as affecting responsiliility, (j'.','.) (see Coiitmissioiis af /.inittci/). 
 IRRESISTIBLE IMPULSE, 146, 567. 
 
 775
 
 INDEX TO VOL. I. 
 KLEPTOMANIA, 590 
 
 LETTERS as a test of insanity, 38G. 
 LIBERTARIANISM not inconsistent with reason, 664. 
 LIFE INSURANCE as affected by insanity, 228. 
 
 liUCID INTERVALS in relation to contractual and testamentary capacity 
 2, 61. 
 
 presumptions as to, 247-249. 
 
 psychologically considered, 744. 
 LUNACY, commission of, 99. 
 LUNATICS, CRIMINAL, treatment of, 753-770. 
 LYING PROPENSITY, 626. 
 
 MAGNETIC PHENOMENA at present inexplicable, 659. 
 MANIA A POTU as affecting responsibility, 202. 
 
 as constituting a monomania, 639. 
 MANIA OCCULTA, 706. 
 MANIA TRANSITORIA, 162, 710. 
 MARRIAGE, capacity to contract, 17. 
 
 MATERIALISM, its theory of insanity and volition, 150 a, 327. 
 MEDICINES may produce incapacity, 75. 
 
 witnesses under influence of, 245. 
 MEDICAL BOOKS, 279. 
 MEMORY, loss of, inferring insanity, 410. 
 
 often cause of supernatural jiresentiments, 657. 
 independent of corporeal conditions, 658. 
 MIND not divisible, 305, 533. 
 and matter, union of, 334. 
 MONOMANIAS as affecting contracts, 3. 
 as affecting wills, 34. 
 
 psychologically, 5G7, 670 (see Moral Insanity). 
 MORAL INSANITY does not ailect testamentary capacity, 37. 
 as a defence to charge of crime, 123, 163. 
 general, 531. 
 
 as to psychological possibility of separate insanity of moral function, 
 
 533. 
 as to whether such separate insanity exists, 541. 
 authorities in the afhrmative, 541. 
 present weight of authority is negative, 552. 
 not recognized by the courts, 163. 
 MORAL MONOMANIAS, special, 567. 
 at present repudiated, 567. 
 absurdity of classification, 572. 
 homicidal mania, 578. 
 
 kleptomania (morbid propensity to steal), 590. 
 pyromania (morbid incendiary propensity), 604. 
 
 776
 
 INDEX TO VOL. I. 
 
 MORAL MO'^OMA^ 1 AS— (coutlmml). 
 
 erotomania (morbid sexual propensity), 617. 
 
 pseudomania (morbid lying propensity), 626. 
 
 oikeiomania (morbid state of domestic aflfections), 630. 
 
 suicidal mania, 636. 
 
 dipsomania (morbid passion for drink), 639. 
 
 fanatico-mania, 644. 
 
 politico-mania, 679. 
 MORBID IMITATIVE SYMPATHY, 647. 
 MOTIVE as a test of insanity, 399. 
 
 there may be a legally motiveless act, 405. 
 
 NARCOTICS (see Medicines). 
 NECESSARIES, liability of lunatics for, 1. 
 
 of drunkards, 16 c. 
 NEGLECT, to escape presumption from, 406. 
 NERVOUS DISEASES, as transmitting mental derangement, 368 
 
 causing confessions, 795. 
 NOSTALGIA, 429. 
 NOTORIETY, desire for, causing untrue confessions, 792. 
 
 OBLIVION as a test of insanity, 410. 
 
 OCCULT MANIA, 706. 
 
 OIKEIOMANIA, 630. 
 
 OINOMANIA, 639. 
 
 OLD AGE as atfecting capacity, 87, 104, 691. 
 
 OPTICAL DELUSIONS, 655. 
 
 PARTNERSHIP CONTRACTS (see Contracts). 
 PASSIONS as distinguishable from insanity. 
 
 remorse, 413. 
 
 anger, 422. 
 
 shame, 423. 
 
 grief, 426. 
 
 homesickness, 429. 
 
 fear, 432. 
 PHRENOLOGY, psychological value of, 320. 
 PHYSICAL PECULIARITIES explaining mental conditions, 253. 
 
 tests of insanity, 347. 
 
 theory of insanit}-, 330. 
 PLEAD, capacity of lunatic to, 200 «. 
 / ' L 1 7 yr 'O-MA NIA ,679. 
 
 PKLMEDITATION (see Dehislous -muX Intoxlcallou). 
 PRESUMPTIONS IVom diaiacfcr of act, 63. 83, 389, 773, 782. 
 
 from olfl age, 87. 
 
 from relation of beneficiaries to testator, 82. 
 
 777
 
 INDEX TO VOL. I. 
 
 PRESUMPTIONS— (con^inwe^Z). 
 
 from party being deaf, dumb, or blind, 95, 461. 
 
 from suicide, 241. 
 
 as to sanity generally, 246-256. 
 
 as to lucid intervals, 2, 61, 744. 
 
 from hereditary tendency, 362. 
 
 burden of proof, 246. 
 PROSTRATION, 682. 
 PROVOCATION, delusion as to, 130. 
 
 passion consequent on, a mitigating element, 151. 
 
 incase of intoxication, 216. 
 PSYCHICAL theory of insanity, 319. 
 
 indications of crime, 771 (see Crime). 
 PULSE as a test of insanity, 352. 
 PUNISHMENT necessary to prevent crime, 148, 833. 
 
 efficiency of penal discipline, 189, 337. 
 
 in relation to insane criminals, 753-770. 
 PYROMANIA, 604. 
 
 QUESTIONS OF LAW must be decided by judge, not by jury, 113. 
 
 RAGE distinguishable from insanity, 418. 
 RELIGIOUS INSANITY (see Fanatico-mania) . 
 REMORSE distinguishable from insanity, 413, 788. 
 
 and grief, distinction between, 822. 
 RESPONSIBILITY FOR CRIME, where the defendant is incapable of dis- 
 tinguishing between right and wrong as to the particular act, 116. 
 
 where the defendant is acting under an insane delusion as to circum- 
 stances which, if true, would relieve the act from responsibility, or 
 where his reasoning poAvers are so depraved as to make the commission 
 of the particular act the natural conse(juence of the delusion, 125. 
 
 where the defendant, being insane, is forced l)y an ii-resistible impulse to 
 do the particular act, 146. 
 
 moral insanity (;. e., a supposed insanity of the moral system claimed to 
 coexist with mental sanity) is no defence, 163. 
 
 while experts may be called to testify as to states of mind and conditions 
 of health, it is for the court to declare whether such states and condi- 
 tions constitute irresponsibility, 190. 
 
 predisposition to insanity as lowering grade of guilt, 200, 
 
 capacity of insane defendants to plead, 200 a, 
 
 how far intoxication affects responsibility, 202. 
 
 moral insanity viewed psychologically, 531. 
 
 moral monomanias, 567. 
 
 liomicidal mania, 578. 
 
 kleptomania, 590. 
 
 778
 
 INDEX TO VOL. I. 
 
 RESPONSIBILITY FOR Cm:SlE— {continued). 
 
 pyroiuania, 604. 
 
 erotomania, 617. 
 
 pseudomauia, 626. 
 
 oikeiomania, 630. 
 
 suicidal mania, 636. 
 
 dipsomania, 639. 
 
 fanatico-mania, 644. 
 RIGHT AND AVRONG TEST in criminal cases, 119. 
 
 not applicable to cases of life insurance, 240. 
 
 SCIENTIFIC TREATISES, authority of, 279. 
 
 SECRETIONS as a test of insanity, 352. 
 
 SELF-DEFENCE, murder under delusions as to necessity of, 440. 
 
 SENSORIAL SYSTEM, as atlected by insanity, 360. 
 
 SEXUAL MORBID INSTINCT, 617. 
 
 SHAME, distinguishable from insanity, 423. 
 
 causing suicide, 425. 
 SIMULATED INSANITY, reasons for suspecting, 445. 
 forms generally simulated, 446. 
 not proved by sanity at trial, 452. 
 tests, 354, 454. 
 physical conditions, 347. 
 injuries to brain, 348. 
 
 anomalies of sensibility, of pulse, of secretions, of sense, : 
 hereditary tendency, 362. 
 psychologically, 362. 
 legally, 373. 
 conversation and deportment, 378. 
 writings, 386. 
 prior history, 388. 
 nature of act, 389. 
 
 its insensibility, 389. 
 
 its incongruity with antecedents, 390. 
 
 its motivelessness, 399. 
 
 motives rarely simple, 401. 
 passion as a motive, 403. 
 lawlessness as a motive, 404. 
 neglect to escape, 406. 
 forgetfuliiess, 410. 
 SLEEP, its relations to insanity, 482. 
 SLEEP-DRUNKENNESS, 484. 
 SOMATIC THEOliY of insanity, 320. 
 SO.MN AMli Vj LI S.M, 4 9 2 . 
 SOMNOLENTIA, 484. 
 
 77! •
 
 INDEX TO VOL. I. 
 
 SOUL, ineorporeallty of, 333. 
 SPIRITUALISM as affecting capacity, 59. 
 STEALING MANIA, 590." 
 SUICIDE not conclusive evidence of insanity, 241. 
 
 under influence of melancholia, 529. 
 
 from shame, 425. 
 
 as a recognition of public sense of right, 823. 
 SUICIDAL MANIA, 636. 
 SUPERNATURALISM, effect of spiritualism on capacity, 59 
 
 manifestation of, due to fraud, 652. 
 
 supernatural presentiments often due to memory, 657. 
 SUPERNATURAL POSSESSION (see Demonology). 
 SYMPATHY (see Morbid Sijmpathy). 
 
 TEMPERAMENT, affections of, 502. 
 
 depression, 502. 
 
 hypochondria, 508. 
 
 hysteria, 517. 
 
 melancholia, 523. 
 THEOLOGY, attitude of, towards intermediate theory of insanity, 332. 
 TORTS, how insanity affects responsibility for, 15. 
 TRANSITORY MANIA, 162, 710. 
 TREATISES, SCIENTIFIC, when evidence, 279, 
 
 UNDUE INFLUENCE, as affecting contracts, 2. 
 as affecting wills, 7G. 
 
 VOIDABILITY OF CONTRACTS, law as to, 7. 
 VOLITION, conilicting views as to, 150, 327. 
 
 "WILLS, capacity for, as affected by insanity, 19-98 (see Burden of Pronj). 
 "\VITNI2SSES, when disqualified by insanity, 242. 
 non-experts, 257. 
 
 may give opinions as to sanity, 31, 162, 257, 261. 
 
 not competent as to occult conditions, 258. 
 
 cannot be asked as to hypothetical case, 259. 
 
 subscribing witnesses admissible as to sanity, 260. 
 experts, 262. 
 (juestions to be put to them, 262. 
 
 as to matter of common knowledge, 264. 
 
 court to decide whether matter belongs to them, 265. 
 
 as to scientific authorities, 26(;. 
 
 as to hypothetical case, 32, 267. 
 
 as to disputed acts, 26 7. 
 
 as to conclusion of law, 112, 190. 
 
 780
 
 INDEX TO VOL. I. 
 
 WITNESSES— (continued). 
 
 weight to be attached to their testimony, 33, 195, 270, 275. 
 duties of, 274. 
 
 . should be assessors, 274, 
 testimony not to be speeuhitive, 275. 
 examinations to be tliorough, 27G. 
 all materials for diagnosis should be secured, 278. 
 entitled to special fees, 263. 
 WRITINGS, as evidence of sanity, 386. 
 
 781 
 
 END OF VOL. I.
 
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