Lyj:- ^ .,\\^' c ^UFORa/^ A ^ ^m&/yy^ When, from lohom, and hoio this volume toas obtained, with the price paid, if avy, may he found opposite the above number in the Register of Books, ivhich is always open to inspection. E.ictract fraivt the Polttteal Code. Skctios 2296. Hooks may be taken from the Librarj by the mkmbers of thk Lkgislaturk, during thk sessions THEREOF, and b}' other State olficers at any time. Sec. 2298. Tlie Contioller, if notified by the Librarian lliat an}' officer has failed to leturn books taken b}' him witliin tlie lime prescribed by the Rules, and after demand made, must not draw his warrant for the salary of such officer until the return is made, or three times the value of tiie l)ooks, or of any injuries thereto, has been paid to the Librarian. Sec. 2299. Every person who injures or fails to return any book taken is liable to the librarian in thi-ee times the value thereof. No person shall take or detain from the General Library more than two volumes at any one time, or for a longer period than two weeks. Books of reference shall not BE TAKEN from THE LIBRARY AT ANY TIME. — [Extract from the Rules.] ftse'Tlie Foregoing Regulations will be strictly enforced. "S-ft THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES INSANITY % CONSIDERED IN ITS MEDICO-LEGAL RELATIONS. "ORNARI RES IP&A NEGAT, CONTENTA DOCERI." BY T. R. BUCKHAM, A.M., M.D. PHILADELPHIA: J. B. LIPPINCOTT & CO. LONDON: 16 SOUTHAMPTON STREET, STRAND. 18 8 3. Copyright, 1883, by J. B. Lippincott & Co. TO THE HONORABLE THOMAS M. COOLEY, LL.D., ETC., ETC., ETC., ASSOCIATE JUSTICE OP THE SUPEEME COTJET OF MICHIGAN, WHOSE ERUDITION AND ABILITIES HAVE ADORNED THE LEGAL PROFESSION OP THIS COUNTRY, THIS ^V^ORK, WITH GRATEFUL ACKNOWLEDGMENT OF IMPORTANT AID IN THE PREPARATION OP THE LEGAL SECTIONS, IS, AVITH HIS PERMISSION, KESPECTFULLY DEDICATED BY THE AUTHOR. PREFACE. In preparing this work for the public the chief objects in view were to point out the pernicious uncertainty of verdicts in insanity trials, with the hope that by arousing attention to the magnitude of the evil, at least, some of the more objectionable features of our medical jurisprudence may be re- moved; to faithfully call attention to the more prominent causes of that uncertainty; "to 'hold as 'twere the mirror up to nature ; to show virtue her own feature, scorn her own image;" and, with the most friendly feelings for both my own and the legal profession, to criticise severely, and to censure when necessary, not the individuals, but the system which has made insanity trials a reproach to courts, lawyers, and the medical profession. My intention at the first was to prove every proposition introduced ab initio, but afte* carrying out the intention for some time, I found I had written over seven hundred pages, and had not then fairly commenced the discussion of the points particularly contemplated ; and, believing that 6 PEEFACE. few readers would be content to toil throngli so many- pages of preliminary matter; and, that in place of one small volume, tliere would be several large ones ; that part of my plan was abandoned, and instead I have laid the conclusions of standard writers under large contribution, with just enough of the authors' reasoning to give them coherence, referring in every case to the work quoted, so that my readers may investigate the subject more fully if they so desire. By the aid of the "physical medid!^ theory here introduced, and, I think fully established, by abolish- ing legal tests of insanity so called, and by securing efficient, trustworthy expert testimony in every trial, through the scheme herein proposed, it is believed that the disgraceful, haj)hazard trials of the past, and present, will give place in the future, to trials as orderly, and in which verdicts will be regarded as certain and trustworthy, as those in any other class of cases brought before the courts. The work being designed for members of the legal, as well as of the medical profession, the use of technicalities, psychical, metaphysical, and medical, has been stu- diously avoided. THE AUTHOK. Flint, Mich., 1883. CONTENTS. CHAPTER I. INTRODUCTORY. FAQK Uncertainty of Verdicts in Insanity Trials — Aim and Scope of this Work — Causes of Uncertainty — Insanity not understood — Definitions of Insanity — Legal Tests and Definitions — Con- tradictory Opinions of Judges — Improper Use of the Term "Expert" — Taylor's " Ordinary Rule of Society" Test exam- ined — Conclusion reached — Illustration, the Eucharist — Gen- eral Conclusion reached that, " no Unreasonableness of Belief, nor Extravagance in Behavior is alone Conclusive Evidence of Insanity" 13 CHAPTER II. "physical media theory" introduced and discussed with THE " psychical" OR " METAPHYSICAL" THEORY. Crime cannot be committed unless there is a Mind to will and a Body to execute — Medical Jurisprudence has nothing to do with either Mind or Body if separated — What is Mind ? — No Direct or Primary Evidence of the Existence of Mind — Impor- tance of the Body — Sensations — Diseased Organs produce Dis- ordered Sensations — Diseased Organs of Transmission produce Distorted Mental Manifestations — Distorted or Abnormal Men- 7 8 CONTENTS. PASS tal Manifestations are called Diseases of the Mind, Insanity — No Proof that the Mind is ever diseased — IMedication of the Insane irrational if the Disease is Mental — Definition of Dis- ease — Partial Insanity impossible according to the Psychical Theory — Insanity does not prove that it is the Mind that is diseased — Evidence in favor of the " Physical Media Theory" from the Physical Expression of Mental Emotions — The Mental Manifestations in Diseases (Fevers, Inflammation of the Brain, etc.) — Insane Delusions induced and removed at will by Medicines — Post-Mortem Disclosures — Cases reported — Evidence from Small Brains— Brain the Organ of Mind — All Experts believe Insanity to be a Physical Disease — Evi- dence from Insane Asylums — Conclusions reached — Definition of Insanity — Corollary 35 CHAPTER III. THE SOMATIC THEORY. In considering Insanity a Physical Disease the " Somatic and Physical Media Theories" are in Accord — Important Points of Difi'erence between the Theories — Mind not necessarily a Brain Function, because it is obliged to use the Brain in its Manifestations — Which is Precedent and which Consequent — Somatists deny the Existence of Free Will— Heredity deter- mines irresistibly the Character — Cannot even will against it — There can be no Crime where there is no Free Will — If the Effect of Hereditary Neuroses, Crime is not Guilt to the Per- petrator — Heredity considered — Efforts to obtain Trustworthy Data— Heredity supported by the "Evolution Theory" — Evo- lution Theory defective — Defects considered — Physical Devel- opment of Thought Hypothesis examined — Scientific Demon- stv.itions not always Trustworthy — Conclusions reached . . 73 CONTENTS. 9 CHAPTER IV. THE INTERMEDIATE THEORY. PAQE What Messrs. Wharton and Still6 claim for it — A Theory must be established to have any Authority — Claims of the "Interme- diate" to be regarded as a Theory considered — Want of Clear- ness and Precision of Language deprecated — Definition of " Theory" and " Hypothesis" — Designation "Intermediate" a Misnomer — Physical Origin and Growth of Mental Disease considered — System of Therapeutics — Obviation of Difficulties by " Intermediate" considered — Position assumed by Messrs. Wharton and Still6 considered — Legal Testa cannot define or determine Physical Diseases — Conclusion . . . .89 CHAPTER V. EXPERTS. Definition of Experts in Insanity — General Medical Practitioners are not Experts in Insanity — Non-Experts ought not to bo allowed to give Evidence as Experts — Result pernicious when so allowed — Precedent — Many Legal "Precedents" discarded Medical Opinions — Importance of studying the Reasons which underlie Judicial Decisions — Conflict between Expert Opinions and Legal Tests — The Question of Responsibility considered — Crime cannot be committed by an Insane Person — Insanity a Question of Fact for the Jury, not of Law for the Judges — Only Experts can diagnose Insanity — Hypothetical Cases — How prepared — Want of Opportunity and Skilled Observation — Prepared by Interested Parties — Deceptive and Untrustwor- thy — Alleged Insane Prisoners should be sent to Insane Asy- lums, and Superintendents after Examination should depose directly to the Question of Insanity — Sanity or Insanity of Testators — Guiteau Trial — Responsibility already fixed by 10 CONTENTS. FAQE Law — Necessity for Amendments in the Law — Judges' Ke- sponsibility — Experts' Irresponsibility — Remedy — Insane Pris- ons should be provided — Scheme for securing Responsible, Trustworthy Experts — Benefits that would accrue — Contra- dictory Legal and Expert Tests of Insanity cannot both be correct — Judges v. Judges — No settled Legal Criteria of In- sanity — Criminal Legal Tests, if applied, would turn Thou- sands of Lunatics loose from Insane Asylums — Mode of ex- amining Expert Witnesses criticised — Probate Insanity Trials — Important Discoveries and Improvements hindered by^Ex- cessive Fear of Innovation — Harvey, Jenner, Simpson — Quali- fication of Experts — Medical Profession — Responsibility and Services — Brothers, Expert and Judge — Official Reconciliation of Conflicting Expert Opinions — " American Medical Associa- tion" — Vexed Questions settled — "Association of Medical Superintendents of American Institutions for the Insane" — Experts worthy of Trust — Conclusions 120 APPENDIX. judges' opinions. (The figures refer to the section.) "Wild-Beast Test" — Absolute Alienation of Reason Necessary, 72 — Insanity no Bar to Responsibility, must be punished as a Warning to Others — Punishment of the Insane against Law, of Extreme Inhumanity, and is no Warning to Others, 73_<' Right and Wrong" Test affirmed, 74— Last Opinion declared to be of Exquisite Inhumanity, Absurd, and Im- practicable, 75 — Total Insanity precludes a Trial, Insanity regarding the Particular Act sufficient — The Test lies in the Word " Power," had he Power to think and act rightly? 76 — Did he know that the Act was forbidden by the Law? — An Offence against the Laws of God and Nature — Burden of Proof CONTENTS. 11 FAOH on the Accused, and must be unquestiontible, and Alienation absolute, 77 — Must know that he was doing Wrong in the Act in Question — Must know that he was doing Wrong in the Act in Question and at the Time, 78 — The Law does not recognize "Uncontrollable Impulse" — "Uncontrollable Impulse" no De- fence, 79 — Uncontrollable Impulse a Good Defence — Under " Uncontrollable Impulse" the Act was not his Act, and he is not Guilty, 80 — "Moral Insanity" relieves from Responsibility, 81 — "Moral Insanity" affords no Relief from Responsibility — "Moral Insanity" does not relieve from Responsibility, 82 — Proof of Insanity rests on the Prisoner, if in doubt the Jury ought to convict — The Proof of Insanity to acquit ought to be as strong as of Guilt to convict, 83 — The State must prove San- ity as well as Guilt — After the Presumption of Sanity has been removed the State must prove Sanity as well as Guilt, 84 — Preponderance of Evidence of Insanity ought to acquit, 85 — A Reasonable Doubt as to Sanity ought to acquit — A Doubt whether the killing was the result of Mental Disease ought to acquit, 86 — Whether there is such a Disease (Dipsomania), and whether the Prisoner had it, are Questions of Fact, not of Law — When the Expert testifies to one Test of Insanity and the Judge gives another, either the Expert testifies to a Ques- tion of Law or the Judge to a Matter of Fact — All Symptoms and all Tests of Mental Disease are Matters of Fact for the Jury, 87 — Medical Theories of Insanity arise from the Vicious Principle of considering Insanity a Disease, 88 — Lawyers are profoundly ignorant of, and Medical Superintendents know, all that is known of Mental Diseases, 89 — Medical Expert Testi- mony of no Value — Medical Testimony not only valueless, but worse than that, 90 — Medical Experts much better acquainted with Insanity than either Courts or Lawyers — Medical Expert Opinions Competent Evidence and entitled to Great Respect, 91 221 MEDICO-LEGAL RELATIOxNS OF INSANITY. CHAPTER I. INTEODUCTOEY. Uncertainty of Verdicts in Insanity Trials — Aim and Scope of this Work — Causes of Uncertainty — Insanity not understood — Defini- tions of Insanity — Legal Tests and Definitions — Contradictory Opinions of Judges — Improper Use of the Term " Expert" — Tay- lor's " Ordinary Rule of Society" Test examined — Conclusion reached — Illustration, the Eucharist — General Conclusion reached that, " no Unreasonableness of Belief, nor Extravagance in Be- havior is alone Conclusive Evidence of Insanity." • § 1. That a feeling of profound and general dis- trust prevails with reference to legal decisions in all cases in which insanity is an element of the trial, is an under-statement of the fact. One of the ablest medico-forensic writers^ states : " It is notorious that the acquittal or conviction of a prisoner when in- sanity is alleged is a matter of chance. Were the issue to be decided by tossing up a shilling, instead of by the grave procedure of a trial in court, it could ^ Mandsley, Responsibility in Mental Diseases, p. 101. 13 14 MEDICO-LEGAL EELATIONS OF Ilf SANITY. hardly be more uncertain. The less insane person sometimes escapes, while the more insane person is sometimes hanged; one man laboring under a par- ticular form of derangement is acquitted at one trial, while another having an exactly similar form of derangement, is convicted at another trial." Another eminent medical jurist,^ an acknowledged authority, both in this country and in Britain, says : ..." acquittal on the plea of insanity is, on some occasions, a mere matter of accidentr " Either some persons are improperly acquitted on the plea of insanity, or others are unjustly executed;"^ and, unfortunately, the facts, on a careful examination of the subject, fully corroborate this severe arraign- ment of the jurisprudence of insanity. Is not the travesty of justice shocking? Guilty persons ac- quitted and innocent persons hanged in the sacred name of justice, after an intended impartial legal trial ! The thought is appalling, and the magnitude of the evil cannot easily be exaggerated. Inde- pendent of the injustice to individuals and to society, possibly no greater calamity can befall a nation than to lose confidence in the judiciary thereof. 1 Taylor, Med. Juris., vol. ii. p. 589. . ^ Ibid., p. 580. IliTTEODUCTOKY. 15 Apart from " insanity trials," our judicial decisions give very general satisfaction, and are received with confidence by the people. The probity and ability of our judges have rarely been challenged. The ability of the bar of this country is unquestioned, and from no people can more intelligent and trustworthy jurors be drawn than from American citizens. Pos- sessing unimpeachable judges, able lawyers, and in- telhgent jurors, all the elements of eminently reliable courts, why is it that verdicts in a large class of cases are not at all to be depended upon — are so uncertain that they command neither the respect nor confidence of the people, and are therefore shorn of the moral force and influence that properly appertain to judg- ments of courts? § 2. That such uncertainty of verdict exists, or is possible, postulates some grave error or defect in the judicial proceedings, and consequently the interests of society, of the judiciary, and. of all persons con- nected with insanity trials demand a searching inves- tigation, to discover if possible the cause or causes, the persons or classes, responsible for the miscarriage of justice, and to devise such remedies as, properly applied, will insure reasonable certainty of true ver- dicts in all insanity cases, " a consummation devoutly 16 MEDICO-LEGAL KELATIOISTS OF INSANITY. to be wished," wliicli, if obtained, would render life and liberty more secure, and erase the foul blot that mars the otherwise fair record of our judicial pro- ceedings. Such is the task undertaken by the writer. § 3. Doubtless, underlying the whole subject of the jurisprudence of insanity, as a potent cause of the uncertainty of verdicts, is the fact that the real prem- ises are imperfectly understood. At every trial the question, "What is insanity?" is reiterated, and no definition has yet been furnished that commands gen- eral credence and acceptance. The oj)inions of the courts, as expressed in their rulings and charges to juries, are contradictory one of another, and physi- cians called to testify as experts exhibit in their evi- dence anything but uniformity of oj^inion. What do authorities say as to this ? § 4. Webster defines insanity as " the state of being insane ; unsoundness of mind ; derangement of intel- lect; madness." Worcester, as "the state of being insane ; lunacy ; mania ; Avant of sound mind ; mad- ness; delirium." These authorities do not help us, as, according to them, insanity is a want of sound mind, madness, lunacy, mania, and delirium ; and what are delirium, mania, lunacy, madness, and want of sound mind? Insanity, of course. Lexicogra- INTEODUCTOKY. 17 phers afford us no aid. We sliall now consult meta- physicians, psychologists, and medical jurists. Locke defines a madman to be " one who reasons correctly from false premises." Cullen defines insanity to be " a lesion of the intellectual faculties, without pyrexia, and without coma." Abernethy, as " the loss of the faculty of attention." Combe says, " It is a prolonged departure, and without an adequate external cause^ from the state of feeling and modes of thinking usual to the individual who is in health ; that is the true feature of disorder of the mind." And the same writer gives another definition, in which he characterizes insanity as " a morbid action in one, in several, or in the whole of the cerebral organs, and, as its necessary consequence, functional derangement in one, in sev- eral, or in the whole of the mental faculties which these organs subserve." Connoly, "a disorder of the- power of comparison or judgment." Guislam, "a derangement of the mental faculties, morbid, apy- rexial, and chronic, which deprive man of the power of thinking and acting freely as regards his happi- ness, preservation, and responsibihty." Lelut, "a lesion in the association of ideas." Marc, "the loss of the faculty of volition." Morel, " a cerebral affec- tion, idiopathic or sympathetic, destroying the in- 18 MEDICO-LEGAL EELATIONS OF INSAJTITY. dividual's moral liberty, and constituting a derange- ment of his acts, tendencies, and sentiments, as well as a general or partial disorder of his ideas." Cop- land, " a deviation from, or perversion of, the natural or healthy state of the mind, as manifested either by the moral emotions and conduct, or by a partial or general disorder of the intellectual powers and under- standing." Taylor says,^ " The terms insanity, lunacy, unsoundness of mind, mental derangement, mental disorder, madness, and mental alienation or aberration have been indifferently applied to those states of disordered mind in which a person loses the power of regulating his actions and conduct according to the ordinary rules of society." Definitions and criteria of insanity might be quoted almost indefi- nitely, as the number is limited only by the number of writers on the subject, but enough have been re- ferred to to show that there is none that commands general assent, because had one been found wholly trustworthy, all others would have been discarded. § 5. Let us now turn to the law. It has to deal officially with insanity. What settled tests or well- defined criteria have the courts which may be invoked 1 Med. Juris., vol. ii. p. 476. IXTEODUCTOEY. 19 in determining responsibility where insanity is alleged as a defence, or bar to punishment for crime com- mitted? Unfortunately, an examination of "judges' opinions" proves that what has been shown to be con- cision among psychical authorities is, with the added contradictory rulings of the courts, " confusion worse confounded." Giving in a few words or sentences the following legal tests or criteria of insanity, it will be impossible in every, or indeed in any, case to convey the exact shade of thought, with the nice distinctions, as ex- pressed by the learned judges in their elaborate opin- ions. To guard, however, against even the appear- ance of misrepresentation, reference will be made to the Appendix "Judges' Opinions,"^ giving in every case the section, and name of the judge whose opinion is epitomized. " General insanity would necessarily preclude a trial, as a person in that condition can make no de- fence whatever." Beardsley, C. J., § 76. " That you are of unsound mind I believe, but that is no reason why you should not be punished, as an example to others." Bramwell, B., § 73. ^ Vide Appendix, pp. 221-250. 20 MEDICO-LEGAL KELATIONS OF INSANITY. " To execute an insane person is against law, and of extreme inhumanity and cruelty, and can be no warning to others." Sir Edward Coke, § 73. To relieve from responsibility, insanity must be absolute ; a man must know no more than an infant, a brute, or wild beast. Trac}^, J., § 72. Absolute insanity not necessary; if the prisoner was insane ivith reference to the crime charged, it is suflScient. Beardsley, C. J., § 76. It must be clearly shown that the accused did not know right from wrong. Partial insanity no bar to responsibility. English Judges in Conference, § 74. The preceding opinion designated " exquisitely in- humane" and absurdly impracticable. Ladd, J., § 75. "The test lies in the word 'power.' Had the accused power to know right from wrong, and had he j)ower to adhere to the former and avoid the latter?" Brewster, J., § 76. The law does not recoo;nize "uncontrollable im- pulse" if the prisoner knew right from wrong. Al- derson, B., § 79. There is an uncontrollable impulse, or irresistible inclination to kill, which, when proved, relieves from res^Donsibility. Gibson, C. J., § 80. " If he knew that he was committing an act against INTKODUCTOEY. 21 God and nature, lie is responsible." Lord Lynd- liurst, § 77. " If the person acted under uncontrollable impulse, notwithstanding his knowledge, the act was not his act ; hence he is not responsible." Shaw, C. J., § 80. "Moral insanity" affirmed to be held a good de- fence by all enlightened jurists. Robertson, J., § 81. " Moral insanity" denied as being a good defence, and the opinion that it was, declared to be a most startling, irresponsible, and dangerous doctrine, un- known to the courts of last resort in either Britain or this country. Williams, C. J., § 82. If he did not know that the act he was doing was wrong, he is not responsible. Tindal, C. J., § 78. If he knew that the act was wrong at the time he committed the deed, he is responsible. Parke, B., §78. "The defence must prove absolute alienation be- yond all doubt, such insanity as would prevent the accused from knowing that murder was a crime against the laws of God and nature, and ' that there ivas no other proof of insanity which would excuse murder or any other crimeJ " Sir James Mansfield, §77. An insane man cannot commit a crime. If there 22 MEDICO-LEGAL EELATIONS OF INSAIflTY. is a doubt of the insanity, how can the jury say a sane man committed the crime ? A reasonable doubt as to insanity should avail as much as a doubt of any matter of fact. Crawford, J., § 86. The onus of proving insanity is on the accused, and if left in doubt, the jury should convict. Rolph, B., § 83. The onus of proof of insanity, as well as of guilt, rests on the state after the presumption of sanity has been removed by the defence. Cooley, C. J., § 84. The proof of insanity to acquit should be as strong as the proof of guilt to convict. Hornblower, C. J., § 83. If the jury entertain a reasonable doubt of in- sanity, they ought to acquit. Doe, J., § 86. A prepojiderance of evidence in favor of insanity should acquit. Shaw, C. J., § S5. Whether there is such a mental disease (dipso- mania) is a matter of science and of fact, not of law. Smith, C. J., § 87. If he knew that the act was a crime forbidden by the law, he was responsible. Lord Brougham, § 77. There are no legal tests of insanity. When the judge gives a legal test of insanity, he either testifies to a question of fact, or the expert witness has testi- INTEODUCTORY. 23 fied to a question of law. Thus the law is brought into conflict with itself. Doe, J., § 87. The introduction of medical opinions and theories in the subject of insanity has proceeded up)on the vicious principle of considering insanity a disease. Lord Chancellor Westbury, § 88. Judges and lawyers, profoundly ignorant of in- sanity, have invaded the province of medical experts, the province of those who know all that is known on the subject, and for legal tests use exploded obsolete medical theories. Doe, J., § 89. Ordinary men of the world just as competent as witnesses as medical experts in insanity cases. Bram- well, B., § 90. Medical experts are infinitely better qualified to judge of insanity than are courts or lawyers. Ladd, J., § 91. Expert testimony not only of no value, but worse than that. Davis, J., § 90. Expert testimony of great weight, and deserves the respectful consideration of the jury as competent evidence. Shaw, C. J., § 91. The whole difiiculty is that courts have under- taken to declare that to be law which is a matter of fact. All symptoms and all tests of mental disease 24 MEDICO-LEGAL EELATIONS OF INSANITY. are purely matters of fact for tlie jury, and not mat- ters of law for the judge. Doe, J., § 87. § 6. In the foregoing comparatively few utterances of the courts, what phase or degree of insanity, as re- lieving the individual from responsibility, has not been authoritatively affirmed and authoritatively de- nied ? An insane person cannot be tried for crime ; insanity must be absolute ; partial insanity sufficient ; the insane must be punished as a warning to others ; punishing an insane person extremely cruel and in- humane, and no warning to others ; must know right from wrong; must know right from wrong at the time ; must know right from wrong at the time, and that the act charged loas wrong ; insanity must be proved beyond a doubt ; a preponderance of proof of insanity sufficient ; if any reasonable doubt of insanity exists, acquit ; the onus of proof of insanity on the defence ; the onus of proof on the State ; medical opinions and theories in insanity cases are vicious ; medical experts know all that is known on the sub- ject ; judges and lawyers j)rofoundly ignorant of in- sanity ; expert testimony of high value ; expert testi- mony worse than valueless ; and last, but not least, there are no legal tests of insanity. These pro^DOsi- tions, and many more, have all been affirmed as ques- INTRODUCTORY. 25 tions of law, and, unfortunately, tlie changes of legal tests appear to have little relation to time ; they do not keep pace with our increased knowledge of insan- ity, as the opinions of the English judges in confer- ence, designated by Judge Ladd as of " exquisite in- humanity," and absurd, were delivered less than forty years ago, and the savage dictum of Baron Bramwell was uttered in 1860, while the exquisitely humane opinion of Sir Edward Coke was delivered three cen- turies ago, ere the subject of insanity had emerged from the thick superstitious gloom with which it was enshrouded, when the loss of reason was looked upon as a dire disgrace, — the special visitation of the Al- mighty in his anger, or as a direct demoniacal pos- session. § 7. With such variable legal criteria in insanity trials, is it surprising that there should be uncertainty of verdict ? The legal tests appear to be as untrust- worthy as are the psychical definitions, and, as if the diversity and mutability of criteria were not enough, the almost invariable practice of allowing, and re- quiring general medical practitioners, who, in a criti- cal sense, know nothing whatever of insanity, to tes- tify as experts, removes the little remaining proba.bility of uniformity of procedure or certainty of verdict. 26 MEDICO-LEGAL EELATIONS OF INSANITY. It is obvious that no metaphysical or psychical definition or legal test has yet been found which can be safely invoked to determine the sanity or insanity of prisoners charged with the commission of crime; nor do we think a safe criterion ever will be found, for reasons which will be presented when inquiring into the nature of insanity. § 8. Dr. Taylor says :^ "Many attempts have been made by psychologists to define insanity ; but the defi- nitions . . . are defective, inasmuch as they are not adapted to the various foi'ms of the disease." Messrs. AVharton and Stille do not attempt a definition ; they say :^ "To those who have examined that portion of the preceding pages which treats of the legal relations of mental unsoundness, it will be obvious that no hypothesis can be constructed which will meet with exactness every possible future case. No general definition has therefore been attempted, and it is suffi- cient at present to notice the three prominent hypo- theses by which the cause, rather than the nature, of mental unsoundness has been explained. This ex- amination is here made more thorough, from the fact that it is upon the result of this inquiry that the plii- 1 Med. Juris., vol. ii. pp. 476-7. ^ Med. Juris., I 318. INTRODUCTORY. 27 losoj)liy of tlie common law doctrine of insanity must depend." Definitions and criteria, legal, moral, and intellectual in their scope, must therefore be dis- carded, as, with a single exception, one after another of them has repeatedly been shown to be untrust- worthy. The exception referred to is the criterion laid down by Dr. Taylor, known as the "ordinary rule of society" test, which is sometimes invoked ; and not being aware of the existence of any analysis of it, a brief examination of its claim to be considered a criterion of insanity will be made before entering upon the discussion of the " three prominent hypotheses." § 9. Dr. Taylor says : ^ " The terms insanity, lu- nacy, unsoundness of mind, mental derangement, mental disorder, madness, and mental alienation or aberration have been indifferently apj)lied to those states of disordered mind in which a person loses the power of regulating his actions and conduct according to the ordinary rules of society." That which is to be used as a criterion or rule of judgment must itself be a fixed quantity if it is ex- pected that conclusions deduced therefrom will be exact and uniform; that which is mutable cannot ^ Med. Juris., vol. ii. p. 476. 28 MEDICO-LEGAL EELATIONS OF INSANITY. properly be used as such standard. At what time in the world's history have " the ordinary rules of soci- ety" been of Medo-Persian immutability ? What are " the ordinary rules of society" to-day, what were they a hundred years ago, and what will they be a century hence ? Tliere are in society three grades of men, — those who are abreast with, those who are behind, and those wdio are intellectually in advance of the times in which they live. It would be mani- festly unjust to judge those who are either before or after their own times by " the ordinary rules of so- ciety," because they do not properly belong to that period, and the world's greatest men have almost in- variably been in advance of their own times. Had Galileo not been in advance of the age in which he lived, he would not have been persecuted for asserting the earth's diurnal motion and its motion round the sun. Festus declared Paul to be mad through much learning because he expressed a new and strange belief, at variance with " the ordinary rules of society" in Judea, and yet, Festus and society to the contrary notwithstanding, the mad doctrines of Paul are now, and have been for centuries, believed by the majority of the civilized world, giving tone and direction to society. * A little less than two liun- INTEODUCTOEY. 29 dred years ago a person living in Salem, Massacliu- setts, judged by the "ordinary rules of society" of that day, would have been thought insane if he could not believe in witchcraft; to-day, in the same city, judged by the same standard, he would be considered a lunatic if he did. It is unnecessary to multiply illustrations showing the variableness of "the ordi- nary rules of society," as even a cursory examination of the subject will convince any person that they are different to absolute contradiction in many particulars, in different ages, in different countries, nay, even in different localities of the same country. That any- thing so changeable as " the ordinary rules of society" should ever have been thought of as a standard of judgment in insanity almost passes belief, and yet, reader, your sanity and mine may be determined by that criterion, as it is found in a work that is consid- ered " good authority" on medical jurisprudence at the present time. But another important question arises : How nearly complete must be the agreement with, or how great must be the divergence from, " the ordinary rules of society" to constitute a person sane or insane ? To which of the social command- ments must we yield implicit obedience, and which of them may we break with impunity without ren- 30 MEDICO-LEGAL RELATIONS OF INSANITY. dering ourselves obnoxious to the charge of hinacy ? There is no authoritative answer furnished, nor can there be, because there is, in fact, no code estab- lished for the regulation of society. The usual method employed, however, is to call a number of physicians to testify as experts in the premises. Why are medical men called upon to give evidence, as if they were the sole exponents of the ordinary rules of society, when but few doctors are society men at all? The procedure is absurd, but not more so than calling general medical practitioners as experts in insanity, because in no strict use of the term are they experts, — persons specially skilled in either the "rules of society" or insanity. Mark the apparent contradiction. Taylor says:^ "In an insane person there may be no bodily disease ;" and yet he and all other medical jurists, most of whom deny the physi- cal origin of insanity, nevertheless insist upon em- ploying physicians as experts in insanity. Does not this indicate most forcibly that the writers have an undefined conviction, after all, that insanity is a physi- cal disease to be determined by physicians ; but, un- fortunately, the conviction lies at such a jirofound ^ Med. Juris., vol. ii. p. 476. INTEODUCTORY. 31 depth in tlieir consciousness that they are unable to formulate it distinctly for themselves, or to express it in lucid sequence to the apprehension of others ? It is not enough to say that the test in question is untrust- worthy ; its basis is unsound, as no departure, however great, from " the ordinary rules of society, ^^ no un- reasonableness of belief, nor extravagance in conduct or behavior, is alone, conclusive evidence of insanity. From a multitude of illustrations at our disposal we select one which proves the above proposition. § 10. The devout Roman Catholic receives a wafer which he knows is made of flour and water, but after consecration by an ecclesiastic he believes the wafer to be changed to flesh. That belief is not confined to an isolated few, as more than half the Christian world so believe; nor is it confined to the ignorant or uneducated, as, aside from the literary among the laity, it is believed by the priesthood and hierarchy of the papal church, a body of men, who, for char- acter, education, and scientific attainments are perhaps the peers of any other class. The consecrated wafer may be subjected to chemical analysis by one of themselves, the result, hydrated flour, and yet, in de- fiance of the demonstration by one of the exactest, most reliable sciences, and despite the evidences of 32 MEDICO-LEGAL RELATIONS OF INSAmTY. their senses, hundreds of thousands of the most learned, most scientific men, including the analyst himself, still believe the consecrated wafer to be veri- table flesh, and millions have so believed since the doctrine was first promulgated. The most momentous interests are ordinarily de- cided by the evidence of any one of our senses. The judge and jury form their opinions from what they hear; the witnesses testify to what they saw; and thus from the sight of the witnesses and from the hearing of the court and jury the most important suits are determined by the universal consent of man- kind. Yet, in determining the constituents of the consecrated wafer, we have the evidence, not of one sense alone, but the corroborative evidence of four out of our five senses, — sight, touch, taste, and smell, — to wliich is superadded the scientific demonstration, all emphatically testifying that the consecrated wafer is not flesh, and yet millions upon millions believe and have believed in the sacred transubstantiation, the evidence of their senses and scientific demonstra- tion to the contrary notwithstanding. AVill any per- son dare to pronounce that belief evidence of insanity? The supposition is preposterous ; and yet there cannot be found among the ravings of the most insane a IISTTEODUCTOEY. 33 statement of belief more at variance with the evidence of our senses and of science. For an illustration of extravagance in conduct in persons of whose sanity there can be no question, from an almost limitless historical storehouse, we think a reference to the disciples of Ignatius Loyola will suffice.^ The self-imposed flagellations and tor- tures publicly inflicted upon themselves by the Jesuits could not easily be surpassed in wild extravagance, and yet no sane man would hazard the opinion that that most wonderful organization was composed of lunatics ; therefore the conclusion is inevitable that " no unreasonableness of belief nor extravagance in conduct or behavior is alone conclusive evidence of insanity.""^' § 11. Assuming that " the ordinary rules of society'*" test or criterion has been shown to be as untrustworthy as those previously referred to, which have been ex-- amined by others and found wanting, the "three prominent hypotheses" of Messrs. Wharton and= Stille will now be considered, and as their " Medical Jurisprudence of Insanity" is so much more extensive than that of any other writer on the subject in this country, that it embraces all the important opinions. ^ See History of the Jesuits, Steinmetz et al. ^ Ante, p. 31., a 34 MEDICO-LEGAL EELATIOJfS OF INSA^TY. and is in general accord with tlie views of all Ameri- can medical jurists (excepting Dr. Kay's advocacy of moral insanity), reference will be made almost exclu- sively to the text of their work in the further discus- sion of the tests, theories, and hypotheses of insanity in their medico-legal relations. The three prominent hypotheses referred to are the "somatic or materialistic," the "metaphysical or psychical," and " the intermediate." The two former theories have existed for ages ; the latter hypothesis, we believe, owes its being, in its present proportions, to the writers referred to. The most marked di- visions of the subject are the " somatic" and " meta- physical" ; the former denying and the latter affirm- ing the mind to be a distinct entity, not dependent upon the body for its existence. The " psychical" or " metaphysical" theory will be considered first, and while examining its apj)licability to insanity we shall introduce the ^^ physical media^ theory, and, we think, fully establish it. The expe- diency of considering these two theories together arises from the fact that much of the evidence and many of the arguments used in proving the one dis- prove the other; hence by treating them together useless and tedious repetitions are avoided. ^ CHAPTEK 11. "physical media theory" introduced and dis- cussed WITH the psychical OR METAPHYSICAL THEORY. Crime cannot be committed unless there is a Mind to will and a Body to execute — Medical Jurisprudence has nothing to do with either Mind or Body if separated — AVhat is Mind ? — No Direct or Pri- mary Evidence of the Existence of Mind — Importance of the Body — Sensations — Diseased Organs produce Disordered Sensa- tions — Diseased Organs of Transmission produce Distorted Mental Manifestations — Distorted or Abnormal Mental Manifestations are called Diseases of the Mind, Insanity — No Proof that the Mind is ever diseased — Medication of the Insane irrational if the Disease is Mental — Definition of Disease — Partial Insanity im- possible according to the Psychical Theory — Insanity does not prove that it is the Mind that is diseased — Evidence in favor of the " Physical Media Theory" from the Physical Expression of Mental Emotions — The Mental Manifestations in Diseases (Fevers, Inflammation of the Brain, etc.) — Insane Delusions in- duced and removed at will by Medicines — Post-Mortem Disclo- sures — Cases reported — Evidence from Small Brains — Brain the Organ of Mind — All Experts believe Insanity to be a Physical Disease — Evidence from Insane Asylums — Conclusions reached — Definition of Insanity — Corollary. § 12. The "Physical Media Theory," like the "Metaphysical Theory" regards the mind as a dis- tinct, intangible, incorporeal entity, not dependent upon the body for its existence; but, unlike the 35 36 MEDICO-LEGAL EELATIOXS OF IISTSANITY. " Metapliysical Theory," it recognizes tlie most inti- mate relations between mind and body, and holds that in this life the mind is ivholly dependent for the manifestations of its operations on certain organs of the body which we designate ^^ physical medial Whether the mental part of man is cajDable of an independent existence ; whether it will so exist as a disembodied spirit, with capacity for exquisite enjoy- ment or intense suffering, is a question of all-absorb- ing interest to the individual and to the race; but, important as it is per se, it does not properly form a part of the discussion of the " Medico-legal Relations of Insanity.'" The expert, the medical jurist, and the law have to deal with the mind only tvhen con- nected with the body, the individual comprising both the mind and the body. It will not be alleged that the mind, unless associated with the body, can make a will or commit a crime of which human laws can take cognizance, nor can the body without the mind. The act does not make a person guilty unless the in- tention be guilty also.^ Hence to the medical jurist the mind and body together constitute the individual, as only when so considered can there be any legal * "Actus non reum facit nisi mens re.i." — Legal maxim. "physical media theory." 87 responsibility. Suppose it possible for the mind, without the aid of the body, to imagine, plan, reason, and speculate, as long as those mental operations re- main unacted there can be no legal interference. It is only when the body responds to the mental urging, by word or act, that the individual may become amenable to the courts ; but that the mind, while a part of the individual, can be independent of the body so as to plan or reason is only a supj)osition, be- cause we know absolutely nothing of the mind per se, which fact is admitted by all who claim for it exist- ence as an independent entity. Herbert Spencer says:^ "To write a chapter for the purpose of showing that nothing is known, or can be known, of the subject which the title of the chap- ter indicates (the substance of mind), will be thought strange. . . . For if by the phrase 'substance of mind' is to be understood mind as qualitatively differentiated in each portion that is separable by in- trospection but seems homogeneous and undecompos- able; then we do know something about the 'sub- stance of mind,' and may eventually know more. Assuming an underlying something, it is possible in ^ Principles of Psychology, vol. i. p. 146. do MEDICO-LEGAL EELATIONS OF INSANITY. some cases to see, and in the rest to conceive, how these multitudinous modifications of it arise. But if the phrase is taken to mean the underlying something of which these distinguishable portions are formed, or of which they are modifications, then we know noth- ing about it, and never can know anything about it. It is not enough to say that such knowledge is be- yond the grasp of human intelligence as it now exists, for no amount of that which we call intelligence, how- ever transcendent, can grasp such knowledge." What the mind is we do not know. But, startling as that admission may appear to those who have not given the subject close attention, the statement that we have no direct or primary evidence that we possess a mind at all will be more surprising ; yet such is the fact. By direct or primary evidence is meant that which appeals for confirmation to one or more of our senses. We cannot see, hear, taste, touch, or smell the mind ; it is not patent to any of our senses ; and therefore we have no direct or primary evidence of its existence. I am aware that it is held by many that what we call oicr 0W71 consciousness is direct evidence of the strong- est kind, but the objection arises, how can we be con- scious of anything unless through the organs of sense, "physical media theory." 39 the sensorium ? While a very interesting question to the psychologist, it is unnecessary to determine, for the purposes of this work, whether or not the senso- rium is indispensable to consciousness; because, the result affects the individual alone, and cannot be used as proof of anything, for every one will believe his own consciousness rather than that of any other person. § 13. The somatists, noting the in dispensability, and marvellous adaptability, of our physical structure for expressing mental operations, conclude that mind is simply a function of the nervous system, the most highly organized part of our structure, and many in- genious hypotheses have been offered, tracing with more or less exactness and plausibility the molecular -^ Uui^ -k. changes which generate thought and the other attri- butes of mind ; but, we think they fail to establish the theory of materialism. "While many metaphysicians, psychologists, and theologians appear to run to the opposite extreme, unduly exalting the mental, they as unjustly degrade and hold in comparative contempt that most transcendently perfect mechanism, the human body, asserting, often with more regard to rhetoric than to logic, that the body is but an encum- brance to the mind. The Apostle Paul appeared to hold it in higher estimation when he made its resur- *t- ^i 40 MEDICO-LEGAL EELATIONS OF INSANITY. rection the test of the truth of the whole fabric of the Christian religion : " But if there be no resurrection of the dead, then is Christ not risen ; and if Christ be not risen, then is our preaching vain, and your faith is also vain. Then they also which are fallen asleep in Christ are perished."^ § 14. Whether there are stored up in the human ova, — the germs of our being — ^potentialities and ca- pacities, which irresistibly determine character, trans- mitted through countless generations of ancestors, as taught by many eminent writers,^ is a question that will receive consideration in its proper place. What- ever may be the latent powers and capacities of the infant, we know that the senses furnish the conditions of knowledge. " It is obvious that we cannot go back ^ 1 Corinthians xv. 13, H, 18. * Prominent among the school of writers referred to is Dr. Mauds- ley, who says:* "Not only has the human ovum this destiny of the species in its nature, but each particuUir ovum has an individual in- heritance which makes for it an individual destiny. Men are in much alike, but each individual differs in some respects from any other indi- vidual who now exists, or, it may be confidently assumed, ever has ex- isted, or ever will exist. And this is not a difference which is due to education or circumstances, but a fundamental difference of nature which neither education nor circumstances can eradicate." * Responsibility in Mental Disease, p. 21. "physical media theory." 41 in personal experience to the rise of self-conscious- ness with the view of constructing a history of the development of our knowledge. Nor will observation of the dawn of intelligence in the life of a child sup- ply what is required. There is but one method open, — analysis of present experience in order to discover its essential elements."^ "A person touches with the forefinger a sheet of note-paper, a table-cloth, and an ink-bottle. Passing to the open air, the breeze plays on his face, he strikes his foot against a stone, and is jostled by a passer-by. The facts brought under notice are these : simple sensation, succession of sensations, difference of sensations, discrimination of sensations, discriinina- tion of things, or knowledge of external reality by means of sensation. Each sensation is a distinct fact of experience, dependent on a single separate action or vibration of the nerve-fibre. The fibre must have accomplished its functional action in one case before it is capable of performing another like action. If we try to hurry the actions of the fibre, we lose dis- tinctness. There is thus entire separateness of action in the organism ; the union is in our experience, and ^ J, S. Mill, Ex. Hamilton's Philosophy, p. 171. 42 MEDICO-LEGAL EELATIONS OF INSANITY. nowhere else. The successive sensations, united in experience, are, however, distinguished by us, and that not merely as facts following each other in a certain order, but as forms of experience, differing from each other in nature. Nay, more ; not only are the feelings distinguished, but so also are the things or objects by contact with which the sensations arise ; the nerve movements are not distinguished by us, be- cause they are not exj)erienced. But all these other features belong to the experience described by simple enumeration of the six different sensations involved in the experiment now under consideration. A philosophy of human sensations must then be a philosophy of all these elements of experience."^ As the elements of oar experience are dependent upon sensations, it in- evitably follows that if our organs of sense are dis- eased or disordered, the respective sensations will be defective or distorted, consequent ujDon the disease or disorder of the medium of transmission. If tlie optic nerve, for instance, is diseased, the true representation of the object will not be conveyed to the sensorium. Nay, it is not necessary for the nerve of any of the senses to be diseased; a, slight disorder consequent ^ Calderwood, Relations of Mind and Brain, p. 215. "PHYSICAL MEDIA THEOKY. 43 upon disease of other organs will materially change or modify the sensations. " All seems infected that the infected spy, As all looks yellow to the jaundiced eye." To offer proof of that which can so readily be verified by observation is unnecessary. Such modifi- cations are of every-day occurrence in the lives of physicians, and every person who has with any care noted his own feelings cannot have failed to observe the different appearances of the same scene, dependent wholly upon his surroundings, his associations, or even upon the condition of his liver, stomach, or bowels. It is, then, indispensably necessary to a true repre- sentation of the object in the sensorium, that the organs of transmission should be in health. From the primary impression on the terminal branches of the nerves of sensation, through all the degrees of progress, as sensation, ideation, and volitional impulse, to the external manifestation of these mental opera- tions, the physical media must he healthy if the mani- festations are normal, and vice versa, if the media are diseased or disordered; pari passu, the manifesta- tions of the mind^s oioerations ivill be abnomnal, dis- ordered, some of which disordered mental manifesta- 44 MEDICO-LEGAL RELATIONS OF INSANITY. tions are called diseases of the mind, — insanity, when in reality they are the result of diseased or disordered physical media, while the mind, as far as we know (assuming for it an existence as a distinct entity), is not the subject of disease. If the mind can be diseased, then, if the disease he sufficiently 'prolonged and intensified, the mind must DIE. Having no direct or primary proof of the ex- istence of mind, it must be considered in the light of the secondary evidence furnished by the manifesta- tion of its ojDerations through physical media. § 15. On what theory, or even hypothesis, other than that of diseased physical media, can the medica- tion of the insane be otherwise than irrational and absurd ? What do physicians know of the constitu- tion of mind, on the assumption that it is a distinct entity, and subject to disease? Or what do physicians know of the therapeutic action of material remedies on an immaterial mind ? The idea of curing a dis- eased incorporeal intangible entity by the use of ma- terial remedies is so utterly absurd that it is difficult to suppose a man sane who entertains it. But on the theory that the disordered mental manifestations are the result of diseased physical media, the exhibition of material remedies to cure material disease is rational " PHYSICAL MEDIA THEORY." 45 and proper, and if, by the administration of suitable remedies, disease is removed from tlie media, then the manifestations of the mind's operations again become normal and natural, and it is notorious that such is the effect of medical treatment in many cases of in- sanity. When a case of insanity is cured by medical treatment it is obvious that physical, not mental, dis- ease has been beneficially treated, and therefore those cases which are so cured were unquestionably cases of insanity due to physical causes; id est, "diseased media." Had the sage who centuries ago wrote " mens sana in cor pore sand'^ that idea in his mind ? § 16. Regarding the mind as a distinct entity, a unit, indivisible and indestructible, according to the metaphysical or psychical theory, what evidence is there afforded of its being subject to disease ? What is disease? Dr. Samuel Johnson's admirable defini- tion is, " That which causes destruction by disintegra- tion of the elements of its contexture or the resolution of its parts." Applied to the mind it would be non- sense, because that cannot be disintegrated which has no parts, nor can there be a " resolution of its parts" of that which is a unit; neither can there be "de- struction by disintegration" of that which is indi- visible. 46 MEDICO-LEGAL KELATIONS OF INSANITY. It may, however, be urged by those who beheve in a " diseased mind" that the incorporeal is affected dif- ferently by disease — is not subject to the same laws of health and disease as the corporeal ; granted that it may be so, we do not know. Will they furnish the modus operandi of that disease ? All ideas of disease not deduced from what we know of disease in nature must be speculative, vague, and unreal, altogether too uncertain to be made the basis of any hypothesis of practical jurisprudence. Again, if the mind is a unit, indivisible, how can partial insanity, or insanity Avith regard to one or more classes of subjects, while at the same time the person is sane on other subjects, be ex- plained ? And that condition unquestionably exists. Dr. Luys says:^ "Thus, in the cases to which we allude, the perceptive regions of the sensorium — those in which the manifestations of conscious personality take place, are sometimes spared, and in a condition of complete integrity, while the neighboring regions are invaded by different kinds of morbid processes ; and then we witness a strange phenomenon — a sort of duplication of the mental unity. The individual — thus divided into two parts — one portion of himself remain- ^ Luys, The Brain and its Functions, pp. 207-8. "physical media theory." 47 i'.ig healthy, while the other is at the mercy of the phenomena of automatic involuntary impulse — looks on, as a conscious spectator, at certain extravagant acts that he is forced to commit, at certain senseless words that he utters. He is in a manner reduced to the painful position of the tetanic patient, who at .the mo- ment of the attack sees his muscles escape from the influence of his will, contract under the influence of the cells of the spinal cord, in a paroxysm of automatic, irresistible activity, and thus become unwieldable in- struments which cease to belong to him. The annals of mental disease include numerous examples of this state of dissociation of the vital forces of cerebral activity. There are patients sometimes who write and describe their distresses — the involuntar}^ agonies through which they pass, the words they have pro- nounced unwittingly ; how they are impelled to speak in spite of themselves, to say what they would not have wished to say, to go through ridiculous gesticu- lations, and to commit extravagancies they believe themselves incapable of restraining. . . . These strange phenomena, these general or partial deliriums, these strange impulses of which we see abortive speci- mens in certain pregnant women, constitute, in the form of suicidal or homicidal impulses the essential 48 MEDICO-LEGAL KELATIONS OF INSANITY. , morbid elements, and in a manner the primary fac- '^ tors of mental pathology." It is a well-established fact that very many insane persons reason with force and clearness on some sub- jects, while on other subjects, at the same time, they are extravagantly irrational. In general mania the central brain functions are usually exalted, and rea- soning is, for the individual, unusually forcible ; and when the conclusion reached is incorrect, it is from the incorrectness of the assumption rather than from lack of logic in the argument. This condition cannot be satisfactorily accounted for on the psychological or metaphysical theory, because, if the mind is a unit, indivisible, it must all be healthy or all diseased, either all rational or all irrational. We cannot think of a unit being partly healthy and partly diseased ; if it were so, there would be at least two parts, the healthy and the diseased. It has been alleged, however, that insanity itself is prima facie evidence of diseased mind. Granted ; but prima facie evidence is not conclusive proof. In past ages, when medical and allied subjects were not submitted to severe scientific criticism, it is not surprising that, judging from appearances, insanity should have been believed to be a disease of the "physical media theoky." 49 mind ; but close scrutiny lias shown that the apjoear- ances were illusory ; and it may be remarked that prominent among the reasons which led to a close examination of the subject were the two to which reference has already been made — viz., the irration- ality of medicating lunatics on, and the impossibility of reconciling j)artial insanity with, that theory of insanity. In the preceding pages indirect evidence of the "physical media" theory has been offered, showing its reasonableness, its ability to harmonize the con- tradictions, and to render the impossibilities of the- metaphysical theory legitimate sequences. We shall now proceed to the consideration of the^ direct and positive evidence by which the " physical media theory" will be fully established. § 17. Prof Bain, who is not in accord with soma- tists, says, ^ " The facts showing that the connection of mind and body is not occasional or partial, but thorough-going and complete, are such as the follow- ing : In the first place, it has been noted in all ages and countries that the feelings possess a natural lan- guage or expression ; so constant are the appearances. ^ Mind and Body, p. 6. 4 \^ 50 MEDICO-LEGAL EELATIONS OF INSANITY. characterizing tlie different classes of emotions that we regard them as a part of the emotions themselves. The smile of joy, the j)uckered features in pain, the stare of astonishment, the quivering of fear, the tones and glance of tenderness, the frown of anger, are united in seemingly inseparable association with the states of feeling that they indicate. If a feeling arises without its appropriate sign or accompaniment, we account for the failure either by voluntary sup- pression or by the faintness of the excitement, there being a certain degree of intensity requisite to affect the bodily organs. On this uniformity of connection between feelings and their bodily expression depends our knowledge of each other's mind and character, . . . and we can even estimate in any given case the degree of the feeling." "In the artistic conceptions of the Middle Ages, more especially, the most divine attributes of the im- material soul had their countei-part in the material body ; the martyr, the saint, the blessed Virgin, the Saviour himself, manifested their glorious nature by the sympathetic movements of their mortal frame- work. So far as concerns the entire compass of our feelings or emotions, it is the universal testimony of mankind that these have no independent spiritual "physical media theory." 51 subsistence, but are in every case embodied in our jleshly formr^ Strange as it may appear, the facts above stated, strong and convincing as they are, have been usually unnoticed in the almost endless discus- sions regarding the mind. Apparent as they are to the common mind, and intently studied as they have been by artists and poets, they have been disregarded both by metaphysicians and by theologians when en- gaged in defining the boundaries of body and mind. " Now the facts that connect the mind with the brain are numerous and irresistible. Let us rehearse a few of them under the two aspects already stated, — brain changes affecting the mind, mental changes affecting the brain. Under the first topic the commonest ob- servation is the effect of a blow on the head, which suspends for the time consciousness and thought ; at a certain pitch of severity it produces a permanent in- jury of the faculties, impairing the memory, or occa- sioning some form of mental derangement. It may also remedy derangement ; there are cases on record where a blow on the head has cured idiocy. . . . Many instances of imbecility of mind are distinctly traced to causes affecting the nutrition of the brain. ^ Bain, Mind and Body, p. 8. (The italics are mine. — Author.) 52 MEDICO-LEGAL KELATIONS OF INSANITY. " The more careful and studied observations of physiologists have shown beyond question that the brain as a whole is indispensable to thought, to feel- ing, and to volitio7i;^ while they have further dis- criminated the functions of its different parts." ^ § 18. Were this work intended only for physicians, it would be superfluous to refer to such evidence as they have in every-day practice of the effects of mental impressions on the physical organs and their functions in disease and health, and, per contra, the effect produced on the mind b}'- the different conditions of the body. Such as the well-known fact that a sud- den severe mental shock will for a time arrest diges- tion and remove the desire for food in persons who just before the shock were suffering from hunger; the inability of some persons to retain certain medi- cines if they know that they have been administered, while if the medicine is taken unwittingly, no discom- fort is experienced ; the expectation of a chill to re- turn at stated intervals ; the exalted mental condition almost pathognomonic of general paresis, or the almost total loss of the power of thought ; and the dull, heavy, ^ The italics are mine. — Author. ' Bain, Mind and Body, pp. 12, 13. "physical media theory." 53 absent, puzzled expression of the features, which indi- cate with certainty the presence of typhus fever. The list might be extended indefinitely. Not only is the mind influenced by the physical condition, but in many diseases and disorders it is entirely subordi- nated. In severe cases of our ordinary fevers there are the insane ravings, delirium, etc., which mark the loss of control of reason and judgment, and so well known are these symptoms that, given a certain fever, the physician will tell you the character of the mental aberrations,— the boisterous ravings of the sthenic, and the low, muttering delirium of asthenic fevers. In inflammation of the brain or of its menin- ges the wild delirium is so well understood, even by non-professional people, that any physician would be esteemed almost, if not quite, a lunatic who should advise such a patient to be sent to an insane asylum ; common observation having taught them that the in- sane ravings and delirium were the result of the in- flammatio]}, and that as soon as the cause, the inflam- mation, was removed, the effect, the insane ravings, would cease. In the absence of generally hnown causes, most people would pronounce the raving, delirious persons insane, and treat them accordingly, simply because 54 MEDICO-LEGAL EELATIONS OF INSANITY. the symptoms of fever and inflammation respec- tively were absent, and there was no physical cause present which the non-professional observer could detect or understand. It does not follow, however, because the physical cause of the mental disorder has eluded the observation of the unskilled, that it does not exist, or that it would not be readily recognized by an expert, as it is well known that many differen- tial indications, too subtile for the non-professional eye, guide with unerring certainty the expert in de- termining the exact nature of disease. That fevers and inflammations during certain stages of those dis- eases subordinate the mind, producing insane ravings and maniacal delusions, is a fact established beyond question. No person thinks of the delirium of fever as evidence of insanity, experience for thousands of. years having taught that with the abatement of the fever there will be a return of the reason ; hence the lesson taught by those diseases is of the highest im- portance in studying the nature of insanity, showing conclusively as it does, that at least some forms of men- tal alienation are the result of purely physical causes ; and, it being established that even a single class of mental derangements is the result of physical and not mental disease, it necessarily follows that all "PHYSICAL MEDIA THEORY. Oo others may be and are likely to be similarly produced, unless they can be accounted for more rationally by some other established theory, and that more rational theory is ivanthig. But strong as is the presumption, from what we know of some, that all forms of mental aberration are the result of physical disease or dis- order, " ab uno disce oimies" yet we do not rest the case upon that evidence alone. It may be claimed by some that the insane ravings and delirium of fevers are different from similar insane ravings and delirium which they allege to be evidence of diseased mind, because the other indications of fever are wantin cure of the insane. If any evidence were wanting to show the fact that the superintendents of asylums for 70 MEDICO-LEGAL EELATIONS OF INSAIS^TY. tlie insane are believed to have a sujDerior special knowledge of insanity, we know of no stronger prac- tical proof than the fact that there are such State Asy- lums; and that those gentlemen are the superinten- dents thereof. The present is an eminently practical age, consequently not disposed to take much trouble, or to expend much treasure on speculative, abstract hypotheses. What are the facts regarding insane asylums ? Are the millions of dollars spent on their erection a-nd equipment and the large annual outlay for their maintenance evidences of reckless folly on the part of the several States, or are they the highest evidences of enlightenment of a humane peoj^le in their rational care of, and j)rovision for, a sorely afflicted class of citizens? The confidence with which all classes regard the asylums as places where the in- sane will receive the best care and the most scientific professional treatment from the medical superinten- dents and their assistants, together with the large sums voted year after year for their support, proves at once the beneficence of such institutions, and furnishes the strongest practical proof of the high estimation in which medical superintendents of insane asylums, as a class in their specialty, are held by the people. 24. It may be urged that while strong proof has e "physical media theory." 71 been offered in support of tlie tlieory that the mind is not diseased in the insane, yet the proof has not amounted to a positive demonstration. That objec- tion is admitted ; as we believe a demonstration in the premises to be impossible, because it implies proving a negative, of the subject of which proposition we have not and cannot have any 'primary evidence. It is not, however, always necessary to demonstrate a proposition before we can accept it as true. A propo- sition must be accepted as true wlien the mind cannot conceive of its negation by facts or science. It may not be susceptible, from its very nature, of demonstra- tion, and yet be an admitted truth to our conscious- ness. We cannot demonstrate the existence of the chemical atom, yet we firmly believe the atomic the- ory based upon it. We cannot demonstrate the origin of either matter or mind, nor what they are, and yet a man would be accounted insane who should deny the existence of either ; in fact, the propositions which can be demonstrated are few indeed, compared to our beliefs. All men accept many such undemonstrable, but nevertheless irrefutable, truths, and we respect- fully submit that the proofs offered, showing that in- sanity is not a disease of the mind, could not be stronger, unless by absolute demonstration. 72 MEDICO-LEGAL EELATIONS OF INSANITY. It has been shown from the physical evidence of the feelings and emotions ; from the effects of fevers and inflammations on the mind ; from the effects of medicines given, in producing and preventing insane delusions and maniacal ravings ; from the effect of material remedies on, and their power in curing, some forms of pronounced insanity ; from post-mortem evi- dences; from the impossibility of reconciling partial insanity ; and from the unanimous opinion of alien- ists, that the psychical or metaphysical theory of in- sanity cannot he maintained; and from such showing ive claim that the '^physical media theory"""* has been fully established, and the following is offered as a definition of insanity : A diseased oe. disokdeked CONDITION, OR MALFORMATION, OF THE PHYSICAL ORGANS THROUGH WHICH THE MIND RECEIVES IM- PRESSIONS, OR MANIFESTS ITS OPERATIONS, BY WHICH THE WILL AND JUDGMENT ARE IMPAIRED, AND THE CONDUCT RENDERED IRRATIONAL. And aS a COrol- lary we offer : Insanity being the result of physical disease, it is a matter of fact to be determined by medical experts, not a matter of law to be decided by legal tests and maxims. CHAPTER III. THE SOMATIC THEOKY. In considering Insanity a Physical Disease the " Somatic and Physi- cal Media Theories" are in Accord — Important Points of Differ- ence between the Theories — Mind not necessarily a Brain Func- tion, because it is obliged to use the Brain in its Manifestations — ■ Which is Precedent and which Consequent — Somatists deny the Existence of Free "Will — Heredity determines irresistibly the Character — Cannot even will against it — There can be no Crime ■where there is no Free Will — If the Effect of Hereditary Neuroses, Crime is not Guilt to the Perpetrator — Heredity considered — ^Ef- forts to obtain Trustworthy Data — Heredity supported by the " Evolution Theory" — Evolution Theory defective — Defects con- sidered — Physical Development of Thought Hypothesis examined — Scientific Demonstrations not always Trustworthy — Conclusions reached. § 25. The "somatic theory" will now be briefly discussed ; briefly, not because it is intrinsically un- worthy of consideration at greater length, but because, like the " physical media theory," it treats insanity as a physical disease ; hence in that most important re- spect, in their "medico-legal relations," there is no practical difierence between them. In following the two theories, however, to their ultimate conclusions, there are difierences, and some of the more important of them, chiefly the " freedom of the will" and " moral 73 74 MEDICO-LEGAL RELATIONS OF IlS^SAlSriTY. insanity," will be considered, as those questions di- rectly and most importantly affect the jurisprudence of insanity. § 26. It does not necessarily follow because the mind is indebted to the body for the media of mani- festing its operations, whether the manifestations are normal or abnormal, that the mind must therefore be a product or function of the body, or of any part of it. Granted that cerebral disintegration is as much a condition of mental manifestations as muscular decay is of muscular contraction ; that does not determine which is the precedent and which the consequent; does not, in other words, determine whether the cere- bral disintegration is the cause, the accompani7nent, or the effect of the mental manifestations, or, from the fact of its intimate association with matter, does not prove that " mind is a function of matter," or that " matter is a realization of mind." The products of retrograde metamorphosis or cere- bral disintegration, are lactic acid, kreatin, uric acid, hypoxanthin, formic and acetic acids. These mate- rial products are not the constituents or attributes of mind, and therefore do not, as an analysis, prove that nerve change precedes mental action. Kegarding mind as a function of the brain neces- THE SOMATIC THEORY. 75 sarily precludes the possibility of an independent will. In the following discussion of the will, reference will be made almost exclusively to the works of Dr. Maudsley, whom we regard as the best exponent of the somatic view of that subject, as well as the ablest writer of the age on psycho-physiology. He says,^ " The history of a man is plainly the truest revelation of his character, for what he has done indicates what he has willed ; what he has willed marks what he has thought and felt, or the character of his delib- erations and feelings ; what he has thought and felt has been the result of his nature then existing as the developmental product of a certain original construc- tion and a definite life experience. . . . The fashion- ing of the will is the fashioning of the character, and this can only be done indirectly by fashioning the circumstances which determine the manner of its for- mation. But however formed, it is the character which determines what the inclination shall prompt as most desirable, the judgment decide to be most eligible, and the will carry into effect. If it were possible for any one to enter thoroughly into the inmost character of another person, and to become * Physiology of Mind, p. 449. 76 MEDICO-LEGAL EELATIOIfS OF INSANITY. exactly acquainted with the moving springs of his conduct in his particular relations of life, it would be possible not only to predict his line of action on every occasion, but even to work him, free will notwith- standing, like an automaton, by playing on his pre- dominant passions, interests, or principles." Again : ^ " There is a destiny made for a man by his ancestors, and no one can elude, ivere he able to attempt it, the tyranny of his organization." Again :^ "At the end of all the most subtile and elaborate disquisitions concerning moral freedom and responsibility, the stern fact remains that the inherit- ance of a man's descent weighs on him through life as a good or a bad fate. How can he escape from his ancestors? Stored up* mysteriously in the nature which they transmit to him, he inherits not only the organized results of the acquisitions and evolution of generations of men, but he inherits also certain in- dividual peculiarities or proclivities which determine irresistibly the general aim of his career. While he fancies that he is steering himself, and determining his course at will, his character is his destiny.^ The laws ^ Maudsley, Responsibility in Mental Diseases, p. 22. * Maudsley, Body and Mind, pp. 164-65. ' The italics in the above quotations are mine. — Aitthor. THE SOMATIC THEORY. 77 of liereditary transmission are cliarged with tlie des- tinies of mankind — of the race, and of the individual." § 27. To what practical conclusion does this doc- trine tend, if not to absolute irresponsibility ? If it is true that a man has no free will, no ability to " steer himself or determine his course," is not even able to attempt to elude the " tyranny of his organization," is " wrought like an automaton" by a force that he can- not even attempt to control, then he cannot commit any crime ; be he sane or insane, he is irresponsible for his every act, because no man can be held respon- sible, either morally or legally, for any act or deed perpetrated which he was wholly unable to prevent. There can be no crime in any act done which is the result of an all-powerful coercion. Responsibility for, presupposes ability to avoid committing, the crime. It may be true in a general sense that '^ There's a divin- ity that shapes our ends," but in the same general sense it is quite as true that " every man is the archi- tect of his own fortune," that man botli modifies and is modified by his organization. If a person has no " free will," by which he is able to choose the good and reject the evil ; if his choice is predetermined for him by " hereditary transmission of character," or by any other irresistible force, which for the individual 78 MEDICO-LEGAL RELATIONS OF INSANITY. ^' is his destiny," then the irresistible force or tlie destiny, not the individual, is responsible. If the co- ercion is absolute, the kind of force employed is un- important ; it is also immaterial whether the coercion is from within or from without — whether the coercing power is the irresistible strength of a giant guiding and impelling the hand and dagger, or the equally irresistible force of hereditary taint; which, for the individual is said to constitute his destiny, against the power of which he is unable even to attemj^t resist- ance; in either case (if the latter is admitted) the irresponsibility must be as absolute as the coercing power. Should the doctrine ever be generally believed that our " free will" is entirely subordinated to our charac- ters hereditarily transmitted to us, which character is to each individual a destiny, against which he cannot even attempt resistance, then our jails and State prisons should be changed to hospitals, and instead of thinking or speaking of the commission of crimes, and the punishment of the perpetrators, criminal acts will be considered as symptoms of a disease called criminal neurosis; our courts of justice will have to be abolished, as instead of being tried and punished for di.^lionesty or crime, the person would be sent to THE SOMATIC THEOEY. 79 the hospital for incurables, suffering from the grievous disease known to the profession of that day as " he- reditarily transmitted dishonest or criminal character." These conclusions appear to approach the reductio ad absurdum, and yet we claim for the deductions that they are legitimate ; that if the premises be granted, the conclusion is inevitable. § 28. The important question is here forced upon us, "Is it really true that the character and destiny of every person is irrevocably made for him by his ancestors?" Has that proposition ever been demon- strated, or, if undemonstrable, has such proof been offered that the " mind cannot think of its negation by facts or science" ? Neither of these questions can be answered in the affirmative. That there is hereditary transmission to some extent all physiologists and pathologists admit, but the point of limitation is an open question. The great body of physiological observers, however, and among them some of the ablest and most earnest workers, do not claim for it any such limitless power over character and conduct. In the extreme views under considera- tion the dominating influence of heredity is, we think, vastly overrated, while its correctives — association, education, and training — are either quite ignored, or 80 MEDICO-LEGAL RELATIONS OF INSANITY. as mucli underrated ; and the facts, as far as we have been able to collate them from foundling hos^Ditals and kindred institutions, prove the correctness of our opinion. It is much to be regretted that fuller rec- ords are not kept of the parentage and character i7i after-life of the waifs and foundlings that receive care, instruction, and training in children's hospitals and juvenile reformatories, as such carefully kept rec- ords would go far to settle the vexed question of how far proper surroundings, education, and moral train- ing will counteract an hereditarily vicious disposition ; and we confidently expected to present here tabulated returns of the after-lives of all classes of parentage, good, bad, and indifferent, from a sufficient number of "homes," "orphan asylums," "foundling hospitals," etc., that at least an approximate reliability might have been secured as to the power of education and moral influence in infancy and youth to correct an- cestral tendency to vice and crime, but as we have not yet received a sufficiently large number of fully authenticated cases to warrant our drawing positive conclusions from them, we have decided to postpone the tabulation for the present. There are, unfortu- nately, comparatively few among the benevolent soci- eties and institutions for the care of foundlings, THE SOMATIC THEORY. 81 orphans, etc., that keep their records with sufficient accuracy and fuhiess to furnish trustworthy informa- tion of the kind required, while many, some of them very extensive ones, such as that under the care of the Rev. George Miiller, of Bristol, England, have no records of the kind required at all. Many such in- stitutions have promised to adopt such regulations as will for the future enable them to speak with certainty of the conduct of many of their wards after they shall have been removed from their guardianship (the j)art most deficient at present), and therefore in the not distant future we hope to be able to offer some- thing more satisfactory than opinion against opinion; on this most important subject. § 29. The "theory of evolution" is also largely taxed to prove the correctness of the somatic theory.. The world is unquestionably largely indebted to the- patient, laborious, painstaking scientific investigators- who have been interrogating nature, determined on- solving the problem of evolution. While, however, we thankfully acknowledge the advancement of sci- ence from their indefatigable exertions, and while we receive their verified facts with gratitude, we know of no reason why we should be obliged to accept their- deductions, assumptions, and speculations as a part of 6 82 MEDICO-LEGAL EELATIOISrS OF USTSANITY. the new gospel, and of these the theory of evolution, is as yet largely composed ; neither are we required to accept the theory of evolution, nor any other theory, as proof of any proposition until that theory shall have been fully established. No attempt will be made here to consider the theory of evolution further than to state briefly what is claimed for it, and one or two objections from among many which, while they remain, are fatal to its being considered an established theory. Briefly stated, the believers in the theory of evolu- tion claim that there was a time when " the existing world lay potentially in the cosmic vapor," After the lapse of an indefinite time, protoplasm was formed, which gradually evolved the higher forms of vegetable life, and from vegetable life the lower forms of animal life, and by natural selection, or " the survival of the fittest," man, the highest form of evolutional develop- ment, came into existence. Professor Huxley, one of the ablest and most astute champions of evolution, in his " Lay Sermons," says, " The man of science has learned to believe in justifi- cation, not by faith, but by verification." And with this opinion Professor Tyndall agrees: "Without verification a theoretic conception is a mere figment THE SOMATIC THEORY. 83 of the intellect." Now, it will be at once seen that two of the most important dogmas of this theory, the two pillars on which it chiefly rests, — " Spontaneous Generation" and "Transmutation of Species," have neither of them been verified by facts. These are not by any means the only missing links in the chain of evolution, but reference here will be confined to them as all that is necessary for our purpose, for without them the theory of evolution cannot be estab- lished, either of them being a sine qua non. Taking into account the aggressive positiveness with which many of the apostles of evolution hurl its con- clusions, as if they were infallible, against all and sundry who do not espouse the new doctrine, it would hardly be suj^posed that for those conclusions tliey were so largely indebted to the hypothetical. Let it be remembered that every conclusion, accord- ing to the theory of evolution, in which man is in any way affected is largely made up of assumptions, many of which assumptions are ivholly unsupported by facts. Among the assumptions embraced in every conclusion there must be (1) that at some period of the world's history, we know not when, and by some process, we know not what, dead matter became living matter ; (2) that at times and by processes equally unknown, 84 MEDICO-LEGAL RELATIOjSTS OF INSANITY. there was " transmutation of species" ; and (3) that many missing links in the species-chain now extinct, once existed ; but without a shadow of proof of such existence, geology being profoundly silent on the subject. These must all be shown, because all are included in man's origin according to evolution. § 30. Assumptions of the same character, and inge- nious speculations conspicuous for their lack of verifi- cation, are also observable in the processes accounting for the physical origin of thought, judgment, will, etc. Kef erring to it, Mr. Lewes says,^ " Let me only warn the reader who has to rely on second-hand instruction that the assignment of even Thinking to the cerebral hemispheres is purely hy|)othetical. Whatever may be the evidence on which it rests, it must still be ac- knowledged to be an hypothesis awaiting verification. This may seem incredible to some readers accustomed to expositions which do not suggest a doubt — exposi- tions where the course of an impression is described from the sensitive surface, along the sensory nerve to its ganglion, from thence to a particular s2:>ot in the Optic Thalamus (where the impression is said to be- come a sensation) ; from that sj^ot to cells in the ^ Problems of Life and Mind (Third Series), pp. 65-66. THE SOMATIC THEORY. 85 upper layer of tlie cerebral convolutions (Avliere tlie sensation becomes an idea) ; from thence downwards to a lower layer of cells (where the idea is changed into a volitional imj)ulse) ; and from thence to the motor- ganglia in the spinal cord, where it is reflected on the motor-nerves and muscles. " Nothing is w^anting to the 2^'^ecision of this de- scription. Everything is wanting to its proof. The reader might suppose that the course had been fol- lowed Btej) by step, at least as the trajectory of a can- non-ball or the path of a planet is followed ; and that where the actual observation is at fault calculation is ready to fill up the gap. Yet what is the fact ? It is that not a single step of this involved process has ever been observed ; the description is imaginary from beginning to end. I do not say that imagination has had no inductions to work uj^on, but I say that all the evidence we at present have goes no nearer than showing that the integrity of the nervous sys- tem is necessary for the manifestation of its mental phenomena ; and that although specialization of func- tion demands specialization of organ, we have not yet discovered the special parts played by particular por- tions of the central nervous mass." Again, we shall be indebted to Professor Tyndall, 86 MEDICO-LEGAL RELATIONS OF INSANITY. who says/ "The j)assage from the physics of the brain to the corresponding facts of consciousness is unthinkable. Granted that a definite thought and a definite molecular action in the brain occur simulta- neously ; we do not possess the intellectual organ, nor apparently any rudiment of the organ, which would enable us to pass, by a process of reasoning, from the one to the other. They appear together, but we do not know why. Were our minds and senses so expanded, strengthened, and illuminated as to enable us to see and feel the very molecules of the brain; were we capable of following all their motions, all their group- ings, all their electric discharges, if such there be; and were we intimately acquainted with the corre- sponding states of thought and feeling, we should be as far as ever from the solution of the problem, ' How are these physical processes connected with the facts of consciousness ?' " § 31. If scientific theories are to receive the un- qualified approval and support of thinking men, it is all-important that those theories should be established by verified facts. In the " somatic" and " evolution" theories it is admitted that there are many verified facts used, and much reasoning that appears to be ^ Fragments of Science, pp. 119-120. THE SOMATIC THEORY. 87 irrefutable were the 'premises granted, but there is also so mucb taken for granted, so many facts, so called, that are not verified, and which are essentials in the establishment of the theories, that until those postulates give place to verifications, would it not be better, less likely to mislead, to designate them, as they are, hypo- theses, instead of theories ? Besides, even the demon- strations of some of our exactest sciences will sometimes mislead, unless corrected by observation, experience, and common sense. Take chemistry, for example. By it we demonstrate that diamond, plumbago, and charcoal all = C (carbon) ; that oils of bergamot, pepper, and valerian (and many others) all = QoHie. Now exactly the same mathemat'cal reasoning which we use to demonstrate that the three sides of an equi- lateral triangle are equal, alike, identical, demonstrates that diamond, plumbago, and charcoal, being each equal to " C," are " each equal to one another," and as things that are equal to the same thing are equal to one another, therefore diamond, plumbago, and char- coal are alike, identical ; and by the same process of demonstration, so are the oils of bergamot, pepper, and valerian alike, each equal to the other ; and it remains for observation, experience, and common sense to cor- rect the demonstrations of that exact science, chemis- 88 MEDICO-LEGAL RELATIONS OF INSANITY. try; and the illustrations given by no means exhaust the list, as what is true of them is true of all isomers and allotropes. We attempt to account for the actual differ- ence between isomeric bodies by supposing a different molecular arrangement, but that is simply an inference, a supposition, without any support from verified facts. We are self-conscious that we think, that thought exists, but we know nothing as a matter of observa- tion or of fact of even the existence of the thought molecule, if such a thing exists, on which so largely depends the theory, or rather hyj^othesis, of mind being a function of the brain or nerve-centres accord- ing to the " somatic theory." Further objections might be urged from the consid- eration of volition, reason, and judgment, but we think our purpose already accomplished. We have no in- tention at present to discuss the "somatic" or any other theory otherwise than as we apprehend it may affect the medico-legal relations of insanity. We are not required to disprove the "somatic theory," but only to point out such important defects that it cannot be considered an established theory, as then, nothing can be proved by it any more than by an unverified rule. The other objection, " moral insanity," will be considered in the chapter on " Experts" (§ 69) . CHAPTER IV. THE INTERMEDIATE THEORY. What Messrs. Wharton and Stille claim for it — A Theory must be es- tablished to have any Authority — Claims of the "Intermediate" to be regarded as a Theory considered — Want of Clearness and Pre- cision of Language deprecated — Definition of " Theory" and " Hy- pothesis" — Designation "Intermediate" a Misnomer — Physical Origin and Growth of Mental Disease considered — System of Therapeutics — Obviation of Difficulties by "Intermediate" consid- ered — Position assumed by Messrs. Wharton and Stille considered — Legal Tests cannot define or determine Physical Diseases — Conclusion. § 32. The " intermediate theory" of Messrs. Whar- ton and Stille will now be considered ; in introducing which they say/ " To those who have examined that portion of the preceding pages which treats of the legal relation of mental unsoundness, it will be ob- vious that no hypothesis can be constructed which will meet with exactness every possible future case. "No general definition has therefore been at- tempted, and it is siifficient at present to notice the three prominent hypotheses by which the cause, 1 Med. Juris., 3d Ed., vol. i. I 318. 90 MEDICO-LEGAL KELATIONS OF INSANITY. 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 doctrine of insanity must depend." It will be readily admitted that if the " philosophy of the common law doctrine of insanity must depend" upon some hypothesis, or, what would be much better, upon some established theory, it is of the utmost im- portance that that hypothesis or theory should be ex- amined with the most exacting scrutiny, so as to verify its correctness and reliability beyond peradventure. The 2)sychical and somatic theories are discussed, and their defects and inconsistencies very forcibly pointed out, by Messrs. Wharton and Stille, and they conclude that both are impracticable ; then they in- troduce the intermediate theory, to which they give the weight of their authority, and, while they very effectively criticise the former theories, they apj)ear to think the enunciation of their favored theory amply sufficient, as, with the exception of a few inconclusive arguments, they have offered nothing in its support. Let it be borne in mind that a theory must be fully established before it can be used as authority, or as evidence in the discussion of any proposition. No THE IXTEEMEDIATE THEORY. 91 proposition can be rationally explained by a simple reference to an assumed criterion wliich itself requires explanation to render it intelligible, or proved by a similar reference where the criterion is unverified. Thus, the atomic theory may now be properly invoked in explanation or proof of any chemical problem, but it could not have been so used until established as a theory by Dalton at the beginning of the present centurv. Considering the intermediate theory as the basis on vrhicli the " philosophy of the common law doc- trine of insanity must depend," as claimed by Messrs. T\Tiarton and Stille, surely the vastness of the respon- sibility resting upon it should have induced the emi- nent authors to enunciate theu' criterion in language so clear and exact that a misaj^prehension of its mean- ing would be almost, if not quite, impossible, and to have established its trustworthiness by the strongest proofs and the most convincing arguments at their command. These are reasonable, nay, imperative, re- quirements, yet, incredible as it may seem, these writers of acknowledo-ed abilitv have neither furnished the one, nor offered the other. The omission is so re- markable that, fearing a charge of misrepresenting them, Sections 329-337, inclusive, which is all they 92 MEDICO-LEGAL RELATIONS OF INSANITY. offer in sujDport of tlie intermediate theory, will be found below.^ ^ Intermediate Theory. Its Basis. I 329. This view attributes to the body and soul alike originative influence, in the grovrth of mental diseases. The theory is the one best sustained by modern induction, and is that which is most consistent, as will presently be seen, with the Christian standard. Independently of the pathological difficulties in the way of the so- matic theory, psychological research testifies most strongly against it. The mental and moral functions are the immediate products of an in- dependent sphere of organism, and not to be explained by anything lying outside of that sphere. The brain and nerves have only the physical part of perception and motion, and to some extent the regula- tion 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, be- tween sensuous hallucinations and insanity. This theory, therefore, fails in affording support to any practical system of therapeutics. ^ 330. The psychological theory, at its first inception, split upon the opposite rock in denying the influence of the physical processes upon mental diseases in the face of experience. In opposition to the soma- tists, it was thought necessary to exclude all natural causes from the explanation of the origin of mental aflfections, and to ascribe them to an act of voluntary self-inthralraent, which in all cases was to be attributed to some prior moral excess or delinquency incurred with a knowledge of the consequences. But a derangement of mind is not identical with sin. For, though every vice, every sin, is an abnor- mity of the soul, yet every abnormity of the soul is not sin. A lunatic may be, in a human sense, innocent of positive guilt ; and, on the otlier 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 punish- THE INTERMEDIATE THEORY. 93 § 33. Probably some parts of tbe following brief analysis may at first sight appear hypercritical; but ments ; and the vagueness of the idea of freedom and constraint, the impossibility of distinguishing between the moral thraldom of the criminal and that of the sick man, will throw into confusion the entire system of forensic psychology. It is equally wrong to derive all dis- eases of the mind from the passions, although the latter may be im- portant 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 which, though differ- ent from that imposed on the sane, will yet be accompanied with a cor- rective as well as a preventive discipline. ^ 331. The intermediate theory is that to which the soundest psychol- ogists now tend. "In the first place," says Sir William Hamilton, " there is no good ground to suppose that the mind is situated solely in the brain, or exclusively in any one part of the body. On the con- trary, 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 im- mortality 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 diffi- culty. 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 diflferent 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 94 MEDICO-LEGAL RELATIONS OF INSANITY. when the momentous importance of the subject, from the incalculable interests at stake, is considered, the universally ramified throughout the body ; and we have no more right to deny that the mind feels at the finger-points, as consciousness assures us, than to assert that it thinks exclusively in the brain. The sum of our knowledge of the connection of the mind and body is, therefore, this: that the mental modifications are dependent on certain corporal conditions ; but of the nature of these conditions we know nothing. For example, we know by experience that the mind perceives only through certain organs of sense, and that through these difierent organs it perceives in a diSerent manner. But whether the senses be instru- ments, whether they be media, or whether they be only partial outlets to the mind incarcerated in the body, on all this we can only theorize and conjecture. ^ 332. The intermediate theory has at least not been rejected by standard Christian theologians. " The resurrection," says Bishop Pearson, " is not only in itself possible, so that no man with any reason can absolutely deny it, but it is also upon many considerations highly probable, so that all men may very rationally expect it. If we con- sider the principles of humanity, the parts of which we all consist, we cannot conceive this present life to be proportionable to our compo- sition. The souls of men, as they are immaterial, so they are immor- tal ; 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 consisteth 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 constitu- tion, and outlive tlie 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 sliniid be joined unto flesh so subject to corruption, so suddenly THE INTERMEDIATE THEORY. 95 imperative necessity for tlie utmost perspicuity in language, and exactness and precision in reasoning, dissolvable, were it not that they lived but ouce, 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 sons of men, and so the soul may at a shorter warning leave the body which it shall resume again." I 333. To this may be added the authority of Isaac Taylor, who, in his "Physical Theory of Another Life," after pointing out how com- pletely the question whether the human soul is ever actually or entirely separated from matter is passed over by St. Paul as an inquiry alto- gether irrelevant 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 the cor- poreal life, may well be considered as tacitly implied in the Christian's scheme, yet that an actual incorporeal state of the human soul, at any period of its course, is not involved in the principles of our faith any more than is explicitly asserted." § 334. " We are unable," says Pascal, " to conceive what is mind ; we are unable to perceive what is matter ; still less are we able to con- ceive how these are united ; yet this is our proper nature." ? 335. " Such," says President Edwards, the first metaphysician of his country, and perhaps the first of his age, " seems to be our nature, and such the laws of the union of soul and body, that there never is in any case whatsoever, any lively and vigorous exercise of the will or inclination of the soul without some effect 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 96 MEDICO-LEGAL EELATIONS OF INSANITY. will be obvious ; hence nothing can be unimportant which could by any possibility lead to incorrect con- the body, but the mind only that is the proper seat of the affections. 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 or understanding. 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 affec- tions, 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." Effects of Intermediate Theory on ResponsiMlity. I 336. The intermediate theory, as above stated, relieves the doctrine of criminal responsibility of some of its chief difficulties. If the so- matic theory be correct, then a criminal propensity is a physical mal- formation, for which the defendant is no more responsible than he is for a malformation of the limbs. A squint in morals, to carry out a meta- phor of Chief-Justice Gibson, would in this view be no more a fault than a squint of the eyes. Such a criminal may be prevented from future misconduct ; but, logically, neither punitive nor reformatory dis- cipline can be applied to him; the first because it is unjust, the sec- ond 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 Mr. THE INTEEMEDIATE THEORY. 97 elusions. An unwarranted assumption, a deduetion not strictly legitimate, an ambiguous expression, of no Bain is a modified representative, punishment is vindicated as having a necessary moral eflFect in reforming the criminal. On the other hand, if the psychological theory be correct, insanity, by becoming an organic intellectual lesion, is as much withdrawn, it may be argued, from the casual power of the will as it is on the somatic basis. It cannot be reached by penal discipline, for by the very hy- pothesis 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 organic types) is (1) in a large measure the result of nervous and physical causes, often voluntarily induced, 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 re- strained. 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 mania apotu 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 complex fraud. Thus when the fatal assault is conceived by a party when intoxicated, he is not presumed to act with that premedi- tation or that specific intention to take life which is necessary to sub- ject 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 particular issue, relieves him from criminal responsi- bility. But a mere " monomania," unaccompanied by intellectual le- sion, cannot, for penal purposes, be considered else than voluntary passion. It may be invoked to lower the grade from murder in the 7 98 MEDICO-LEGAL RELATIONS OF INSANITY. seeming importance in the connections in wliicli it may sometimes occur, may in a different connection so change a proposition as to be the direct cause of error; therefore every a^Dpearance of inexactness should be carefully examined. In the section just quoted " the three prominent hypotheses" are referred to, and immediately follows " the psychical theory," after defining which follows "the somatic theory," which they discuss at some length, then comes the "intermediate theory." What, then, are these; hypotheses or theories? or, are the terms synonymous? " A theory is founded on infer- ences drawn from principles which have been estab- lished by evidenced "An hypothesis is a mere suppo- sition, or a proposition or priiiciple assumed or taken for y ranted, to account for certain phenomena."^ While not irrevocably wedded to Dr. Taylor's definitions, we think them very good, and we re- spectfully submit that " hypothesis" and " theory" are not synonymous terms, and that as a basis on which to rest the "philosophy of the common law 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 acquittal on the ground of irresponsibility. ^ Tavlov, Elements of Thoiiclit. THE INTEEMEDIATE THEORY. 99 doctrine of insanity" something more stable than an hypothesis — "a mere supposition, or proposition or principle assumed, or taken for granted" — is impera- tively required. We want something at least as fixed and permanent as an established theory, " founded on inferences drawn from principles which have been established by evidence." Whether the definitions quoted are received or not, we purpose showing that the "intermediate theory" of Messrs. Wharton and Stille is an hypothesis, " a principle assumed or taken for granted to account for certain phenomena." Is not the 7iame itself an ambiguity, a misnomer ? § 34. If the term " intermediate" is used simply as a name, a designation, without attaching any meaning to the phrase, then it is a new theory and must be es- tablished ah initio, which has not been done ; there- fore it must be assumed that the name of the theory carried its ordinary meaning, and that the theory was intended to hold a position intermediate between the " somatic" and the psychological. But does it hold, is it possible for it to hold, such a position? Granted that it occupies a less extreme position than either of the theories named, that does not necessarily, and does not in fact, in this connection constitute it iyitermediate, as that term postulates con^ 100 MEDICO-LEGAL EELATIONS OF INSANITY. nected extremes : — " noting the terms of a progression between the first and the last." ^ " Those general natures which stand between the nearest and most remote." Intermediate cannot, therefore, be properly used between unconnected subjects. We cannot speak of anything being intermediate between love and colic, or between veneration and jaundice. Nor can we with any proj)riety speak of an intermediate between o^oposites. An intermediate between good and evil is unthinkable. We cannot take a little from each, say prayer and almsgiving from piety, and theft and mur- der from wickedness, and call the compound interme- diate between sin and holiness. Observe, the term is not used as referring to the connection between body and mind, but between the psychical and " somatic'.' theories, which, from their bases, are simply affirma- tion and negation. The one theory affirms that mind is a distinct, self-existent entity, the other denies it. The whole sujDerstructure of psychology is based upon the consideration of the mind as a distinct entity, a unit, indivisible, complete in itself, and for its exist- ence independent of our j^hysical organization; per ^ Worcester. THE INTERMEDIATE THEORY. lOl contra, tlie "somatic theory" holds that the mind is not a distinct entity, but is a function of the brain or nerve-centres, hence incapable of existing apart from the physical structure of which it is a function ; there- fore the two theories being opposites, there can be no inter medius relation between them, consequently the name is a misnomer. § 35. Passing over the peculiar construction and ambiguity of the first sentence of § 329, "Origina- tive" (an act) "influence in the growth" (a gradual development in which time is an indispensable factor) "of mental diseases," the section furnishes a large amount of assertion, but not one particle of proof. Surely so strange a position as that of the body origi- nating disease of the mind calls for some explanation of the modus operandi, or for some verified proof of the fact, if fact it be; but, strange to say, there is none there, nor is there any anywhere else in their worh. Bear in mind that they explicitly repudiate the " so- matic theory" in the same section. "The mental and moral functions are the immediate products of an independent sphere of organism, and not to be ex- plained by anything lying outside of that sphere ; . . . the soul cannot but be considered as distinct from this activity of the nerves." According to the " psychical 102 MEDICO-LEGAL KELATIONS OF INSANITY. tlieory" the mind may be diseased, and according to the " somatic" and " physical media" theories, certain physical organs may be diseased, disordering the mind, but, according to the "intermediate theory," how unfortunate the poor mind, for instead of one general source of disease it has two, as both body and mind may originate mental diseases. Is it not a necessary sequence that if the body can originate and influence the growth of mental diseases, the mind must be dependent upon the body for its health, and if for its health, why not for its existence? Does not this approach the somatic view very closely, notwithstanding their disclaimer to the contrary ? Just what the intermediate theory embraces we do not know, as the authors have not thought it neces- sary to furnish any definition by which its scope may be limited, further than by it to claim for " body and soul alike originative influence in the growth of mental diseases," and in support of that claim not a scintilla of verified proof is furnished by them. If the "intermediate" be regarded as a modification of the psychical and somatic theories, it might have been admissible to assume that in as far as either of those theories was adopted as a j)art of the " inter- mediate," so far its claims would be admitted without THE INTEEMEDIATE THEORY. 103 verification, but tliose parts which were new, just introduced, ought certainly to have been explicitly defined, and fully authenticated by verified proofs. The ipse dixit of any author, however eminent, if unsupported by conclusive reasoning or strong proof, is not sufiicient to successfully launch a new theory, or even a modification of an old one, more especially on a subject so important, and one on which men of the most highly -gifted minds have written volumes almost without number. The assertion that " psychological research testifies most strongly against it" (the somatic theory) is doubt- less true in the estimation of some psychologists, but it is quite as true that the terms are reversed in the estimation of somatists. Two very eminent authors and investigators say, "On all hands it is admitted that the manifestations of mind take place through the nervous system; and that its derangements are the result of nervous disease, amenable to the same method of investigation as other nervous diseases. Insanity has accordingly become a strictly medical study, and its treatment a branch of medical practice."^ "On this point the controversies of philosophers ^ Maudsley, Body and Mind, pp. 12, 13. 104 MEDICO-LEGAL EELATIONS OF INSANITY. and metaphysicians, whicli have been taking place from time immemorial, have succeeded in arriving at but one thing — the expression in sonorous language of their ignorance, more or less complete, of the fundamental characters of j)sychical life. " We must, indeed, penetrate into the inmost essence of the activity of cerebral life, into the complex phe- nomena in which it reveals itself, to arrive at a com- prehension of the evolution of any voluntary act whatsoever, and the natural manner in which it expresses itself through the organism."^ In the next two sentences, Wharton and Stille in- form us that " 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."^ These two propositions are denied not only by somatists, but also by many psychologists.^ ^ Luys, The Brain and its Functions, p. 322. « Med. Juris., ^ 329. ' Bain, Mind and Body ; Calderwood, Mind and Brain, et al. THE IXTEKMEDIATE THEORY. 105 The last sentence of § 329 is unique : " Tliis theory (somatic), therefore, fails in affording support to any practical system of therax3eutics." A system, being all the known truths of some department of knowl- edge, the whole of any science, art, or doctrine, cer- tainly ought to be self-supporting ; but whether a sys- tem of therapeutics is, or is not, or whether the somatic or any other theory of mind or of insanity affords it any support, is entirely foreign to the subject. But it may be, and is, important whether any "practical system of therapeutics" supports any of the theories of mind or of insanity. According to the somatic and physical media theories, the administration of medi- cine to the insane is rational and scientific, and the therapeutics, id est, the explanation of the modus operandi of the remedies, is understood, because it is the operation of a material remedy on a physical dis- ease ; but the psychological and intermediate theories, both holding insanity to be a disease of that incorporeal entity, the mind, the exhibition of any medicine for the purpose of curing such immaterial disease would be unscientific, irrational, and absurd ; as we assert, with- out fear of contradiction, that no physician, alive or dead, knows, or did know, anything whatever of the therapeutic action of any medicine in any disease 106 MEDICO-LEGAL KELATIONS OF INSANITY. of the mind whatever, if that entity can be diseased. While from the well-estabHshed effects of medicines, intelligently administered, in many forms of insanity, very strong evidence is furnished against the psycho- logical and ijitei^mediate, and in favor of the somatic and 'physical media theories. § 36. That "the intermediate theory is that to which the soundest psychologists now tend" may or may not be true, as it rests on a bare assertion that it does so. The quotation from the works of Sir Wil- liam Hamilton indicates the fact that he does not be- long to the extreme school of metaphysicians, who deny the reciprocal influences of mind and body, but he does not "attribute to the body and soul alike originative influence in the growth of mental diseases," which, as far as we are informed, is the distinguishing feature of the "intermediate theory." Being some- what familiar with Sir William's admirable works, we afiirm that no such doctrine is taught in his system of metaj^hysics. After the assertion in § 329 that the " intermediate theory is most consistent . . . with the Christian standard," we are surprised to find in § 332 that " the intermediate theory has at least not been rejected by standard Christian theologians." " O, what a fall THE INTERMEDIATE THEORY. 107 was there, my countrymen!" Further comment is unnecessary, especially as the quotations from Bishop Pearson, Isaac Taylor, Pascal, and President Ed- wards (§§ 332-335) do not furnish any evidence either that the body can originate mental disease, that " the intermediate theory is that to which the sound- est psychologists now tend," or that it is the " most consistent with the Christian standard," and, as we have given below the whole of the authors' claims in support of the intermediate theory, we leave our readers to judge of the correctness of our conclu- sions. § 37. Against the conclusions reached in § 336 we have nothing to urge, in so far as they refer to the somatic and psychical theories, as the conclusions are, that both are found to be impracticable in their apj^li- cation to the jurisprudence of insanity. We are at a loss, however, to understand how the " intermediate theory" relieves "the doctrine of criminal responsi- bility of some of its chief difficulties." As before stated, it is impossible to determine just ivhat Messrs. Wharton and Stille claim for the intermediate theory, but for the present that is unimportant, as they must regard insanity as either a physical or a mental disease. If the former, in what do they differ from somatists ? 108 MEDICO-LEGAL KELATIONS OF INSANITY. If the disease is physical, " tlien a criminal propensity is a physical malformation, for which the defendant is no more responsible than he is for a malformation of the limbs." If the latter, then " insanity, by becom- ing an intellectual lesion, is as much withdrawn, it may be argued, from the casual power of the will as it is on the somatic basis." Observe, the allegation " that body and soul alike (have) originative influence in the growth of mental diseases" does not relieve them, because it is the mind, the incorporeal entity, that is diseased. How originated, or by what influ- enced, is immaterial. The disease is " an intellectual lesion," and therefore " it cannot be reached by penal discipline; ... it rises above the nervous and cor- poreal systems," and, as they say in § 329, is not to be explained by anything lying outside the independent sphere of its organism. Therefore invoking the in- termediate, even were it an established theory, would not, " as above stated, relieve the doctrine of criminal responsibility of some of its chief difficulties." How easily and completely are those grave difficulties re- solved in passing through the alembic of the physical media theory ! § 38. Passing over the peculiarity that § 329 begins and § 335 closes the discussion under the heading THE IXTERMEDIATE THEOEY. 109 "Intermediate Theoey. Its Basis," and that under tlie next heading, " JEffect of Intermediate Theory on Responsibility," the first sentence begins, "The in- termediate theory, as above stated, ..." leading the reader to sujjpose that the discussion of the principles and scope of the "theory" had been closed, a new claim is set w^ in § 337, which is as peculiar as its mode of introduction. We are told that " The inter- mediate theory, however, teaches us that insanity (with the exception of idiocy and certain hereditary and or- ganic types) is (1) in a large measure the result of ner- vous and physical causes. . . ." The vagueness and want of persjoicuity in enunciating and defining its scope is the only reason for supposing that the " inter- mediate theory" may so teach, as it is nowhere so stated in, nor is it reasonably implied from, the discussion of its basis. But as the authors claim that it does so teach, (without any verified authority), let us consider the reasonableness, the consistency, of such teaching from their stand-point. It is unfortunate that so large a class should be outside the benign operation of their " theory." Just how large the class " idiocy and certain hereditary and organic types" is, we do not know, as the term "organic type," as applied to diseases of the MIND, is inexplicable. If the mind in insanity is HO MEDICO-LEGAL RELATIONS OF INSANITY. diseased, as taught by psychologists and by tlie "in- termediate theory" (§ 329), then the mind, being a unit, indivisible, must be organically diseased in all cases, as to think o? functional disorde?' necessarily implies parts, divisibility, extension, and place.^ If the terms were, however, interpreted by the somatic or physical media theories, — disease of the physical organism, — they are rational and easily compre- hended. But if "insanity is in large measure the result of nervous and physical causes, ^^ in what does that view differ from that of the somatist ? The stu- dent certainly ought to have been furnished with at least an hypothesis to which the how, the where, and the wherefore might have been referred, and which might have attempted a reconciliation with their pre- vious statement (§ 329) . " The mental and moral functions are the immediate products of an in- dependent sphere of organism, and not to he ex- 'plained by anything lying outside of that sphere. ^ " It has not been always noticed, even by those who deem them- selves 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 exaggerate the difficulty." — Sir William HamiltoiVs Lectures on Metaphysics, p. 356. THE INTERMEDIATE THEORY. Ill . . . the soul cannot hut he considered as distinct from this activity of the nerves." We verily believe t£at sometimes the misconduct which induces insanity may be prevented or restrained by penal discipline, but how that view can be received by those believing that the mi7id is diseased is the question Messrs. Wharton and Stille will be allowed to answer. If insanity is the result of " nervous and physical causes," "then a criminal" (or an insane) " propensity is a physical malformation, for which the defendant is no more responsible than he is for a mal- formation of the limbs. A squint in morals ... is no more a fault than a squint of the eyes," . . . and, " logically, neittier punitive nor reformatory discij)line can be applied to him, — the first, because it is unjust, the second, because it is hopeless" (§ 336). Nor is the dilemma less embarrassing for the " intermediate" than for the psychological theory, as both claim in- sanity to be a mental disease " distinct from the activ- ity of the nerves," and the " product of an independ- ent sphere of organism," as (§ 336) "insanity, by becoming an organic intellectual lesion, is as much withdrawn . . . from the casual power of the will as it is on the somatic basis. It cannot be reached by penal discipline. ... It cannot be reformed by bodily 112 MEDICO-LEGAL EELATIONS OF IISrSANITY. correction ; and to attempt, therefore, by such correc- tion to reach it would be both unjust and nugatory." § 39. Mmiia a potu, or delirium from protracted drunkenness, is given as an exam2Dle of voluntarily induced insanity. They say, " Where mania a potu results from drink, the party becomes irrresponsible. Where, however, he commits a crime in a voluntary drunken fit, this drunkenness avails him nothing," except to relieve him from implied " jDremeditated malice or complex fraud." This view has frequently had high official recognition, yet we think it illogical, unjust, and dangerous to the best interests of the people. Doubtless there may be cases in which the application of those criteria might serve the ends of justice, but standing unqualified, and unlimited, as they do, their effects are sometimes most unjust and pernicious. When a person drinks to excess, the act itself an immorality, and continues that excess for a few hours, or it may be a few days, and in his drunken orgies commits a crime, he is justly held responsible for his criminal act. Is he less guilty or less responsible if he voluntarily continues that excessive drinking, thereby increasing the primary immorality, which forms the basis of crime in both cases; until that THE INTERMEDIATE THEORY. 113 drunkenness becomes mania a potu f The position is surely a marvel of logic and consistency. Declaring the j)erpetrator of the greater offence irresponsible, absolutely, without any qualification, appears to be a somewhat erratic mode of "restraining, if not pre- venting," the immorality which is the potential cause of crime in both instances. Would it not be much more rational to restrain the habitual drunkard, and, by preventing the first immorality, destroy the cause of crime in either condition ? It cannot be held that crime committed in the de- lirium of a drunken fit is punishable on the ground that the inebriate was rational at the time he perpe- trated the crime; but on the ground that getting drunk was his own voluntary act, he knowing, when he began to drink, that drunkenness would deprive him of his reason and judgment, and that any casual exciting cause, when irrational, would probably induce him to commit some act of folly or crime. Hence his temporary insanity does not save him from the penal consequences of his act ; not because of the transient nature of his madness, but because he voluntarily de- prived himself of reason and judgment. Were the inebriation not his voluntary act, were he compelled against his will to swallow the intoxicating draught, 114 MEDICO-LEGAL EELATIONS OF INSANITY. there could no responsibility attach to him for any act done under drunkenness so induced, any more than there coukl be for acts done in the delirium of fever, because in neither case could the person prevent the loss of his self-control; therefore, as a general rule, voluntarily induced mania a potu should no more relieve from responsibility than voluntarily induced drunkenness. The argument supporting non-respon- sibility in mania a potu is based on the fact that con- tinued inebriation produces organic disease, and while he is the subject of that disease the patient has not the ability to control himself, owing to the presence of that pathological condition. At first his drinking was his own voluntary act, but continued indulgence changed the disorder of drunkenness to the organic disease of mania a potu, by which the will, reason, and judgment were subordinated, through diseased condition of the brain, and desire and appetite intensified, so that the ultimate result was not a voluntary act, but the result of the tyranny of a diseased organization, and, the dis- ease being a progressive one, the law or society should have interfered and prevented its culmination. Where a person drinks excessively and continuously for a long time, steadily becoming more and more debased, until the end can be predicated almost with certainty, both THE INTERMEDIATE THEORY. 115 the officers of the law and society being cognizant of the fact, and neither interposing to prevent the con- summation which is ahnost inevitable ; are not both morally almost accessories before the fact to any crime committed by the inebriate after the loss of his reason? Inasmuch as they did not prevent him from depriv- ing himself of reason when they could, and should, and when they knew that he could not or would not restrain himself, did they not virtually waive all moral right to inflict punishment upon him ? And for this reason the law humanely relieves the maniac from responsibility. Such is the line of defence for the law as it stands, and while we acknowledge the cogency and force of the reasoning, yet we think the original objection much stronger, — strong enough at least to warrant the question of responsibility or non-respon- sibility being made an open one, each case to be decided upon its merits as testified to by competent experts without the interposition of fallacious legal tests. We differ toto coelo from any authority which holds that mania a potu, or any disease which is " the result of nervous or physical causes," can be determined by " tests" from " the analogies of the English common," or any other common, or statutory, " law," or by any system of " tests," except where such tests are applied 116 MEDICO-LEGAL RELATIONS OF INSA^TY. by experts, — tests not of responsibility, but of disease. As this view of the province of exj^erts is fully dis- cussed in the next chapter, we dismiss the question, after indicating the way in which the unqualified statement, that " where mania a jpotu results from drink the party becomes irresponsible," may be made a source of danger to the community. One source of danger arises from the transitory nature of the disease, which usually lasts but a few days. A good actor, well informed as to his part, feigning mania, may/, Perley, C. J., and Doe, J., instructed the jury that " whether there w^as such a mental disease as * dipsomania' " (which was the defence urged) , "and whether the defendant had that disease, and whether the killing of Brown was the product of such disease, were questions of fact for the jury,"^ which ^ Wharton and Stille, Med. Juris., I 108. « Ibid., § 190. APPENDIX. 245 was affirmed in tlae Supreme Court, Smith, J., say- ing,^ " This was correct. If there are any diseases whose existence is so much a matter of history and general knowledge that the court may properly as- sume it in charging a jury, dij^somania 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." Supporting the same view. Doe, J., said, "... Whether it is a possible condition in nature for a man, knowmg the wrongful- ness of an act to be rendered by mental disease inca- pable 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 testifies that there may be such a condition, and that upon personal examination he thinks the defendant is, or was, in such a condition — that his disease has overcome, or suspended, or tem- porarily or permanently obliterated his capacity of choosing between a known right and a known wrong — and the judge says that knowledge is the test of 1 Wharton and Still6, Med. Juris., ^ 191. 246 MEDICO-LEGAL EELATIONS OF INSANITY. capacity, the judge flatly contradicts the expert. Either the expert testifies to law, or the judge testifies to fact. From this dilemma the authorities afibrd no escape. The whole difiiculty is, that courts have undertaken to declare that to be law which is a matter of fact." And in Messrs. Wharton and Stille, § 108, the same judge is reported to have charged the jury, that " if the de- fendant 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 men- tal 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 ac- quaintances, or to labor, or transact business, or man- age affairs is as matter of law a test of mental dis- ease ; but all symptoms and all tests of mental disease are purely matters of fact to be determined by the jury." § 88. Medical Opinions claiming Insanity to be a Disease declared vicious. Lord Chancellor West- bury, in the House of Lords, declared on the 11th day of March, 1862, that " the introduction of medi- cal opinions and medical theories into this subject has APPENDIX. 247 proceeded upon the vicious principle of considering insanity as a disease."^ § 89. Legal Gentlemen 'profoundly ignorant of Mental Disease. Doe, J., said/ " The legal profession, in profound ignorance of mental disease, have assailed the superintendents of asylums, who knew all that was known on the subject, and to whom the world owes an incalculable debt, as visionary theorists and sentimental philosophers, attempting to overturn set- tled principles of law ; whereas, in fact, the legal pro- fession were invading the province of medicine and attempting to install old exploded medical theories in the place of facts established in the progress of scien- tific knowledge." § 90. Expert Testimony valueless. In Regina v. Leander (Cent. Crim. Court, June, 1864), Bram- well, B., said,^ "Although medical men were often heard in courts of justice to define insanity, he thought ordinary men of the world were just as well qualified to form an opinion on these matters as they were." 1 Hansard, clxv. 1297. 2 State V. Pike, 49 N. II., 399. ' Taylor, Med. Juris., vol. ii. p. 477. 248 MEDICO-LEGAL KELATIONS OF INSANITY. Expert Testimony not only valueless, bat worse than that. Davis, J., of tlie 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." § 91. Expert Testimony of great value. Ladd, J., in State v. Jones, in 1871, said,^ " I may add that it confirms me in the belief that we are right, or at least have taken a step in the right direction, to know that the view embodied in this charge meets the approval of men who, from great experience in the treatment of the insane, as well as careful and long study of the phenomena of mental disease, are infinitely better 1 Wharton and Still6, Med. Juris., g 294. 2 Ibid., p. 192. APPENDIX. 249 qualified to judge in tlie matter than any court or lawyer can be." Testimony of Experts Competent Evidence and en- titled to great respect. In the Commonwealth v. Eogers, 1844, Shaw, C. J., said,^ " The opinions of professional men on a question of this description are competent evidence, and in many cases are entitled to great consideration and respect. The rule of law on which this proof of the opinion of witnesses, who know nothing of the actual facts of the case, is founded, is not peculiar to medical testimony, but is a general rule, ajDplicable to all cases where the question is one depending on skill and science in any particular department. In gen- eral, it is the opinion of the jury which is to govern, and this is to be formed upon the proof of facts laid before them. But some questions lie beyond the scope of the observation and experience of men in general, but are quite within the observation and ex- perience of those whose peculiar pursuits and profes- sion have brought that class of facts frequently and habitually under their consideration. ... A familiar "^ ^ Bennett and Heard, Leading Criminal Cases, pp. 98, 99. 250 MEDICO-LEGAL KELATIONS OF INSANITY. instance of the application of this principle occurs very often in cases of homicide, when, upon certain facts being testified to by other witnesses, medical per- sons are asked whether, in their opinion, a particular wound described would be an adequate cause, or whether such wound was, in their opinion, the actual cause of the death in the particular case. Such question is commonly asked without objection ; and the judi- cial proof of the fact of killing often depends wholly or mainly upon such testing of opinion. It is upon this ground that the opinions of witnesses who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons, are received as competent evidence, even though they have not had oj^portunity to ex- amine the particular patient, and observe the sym|)- toms and indications of disease at the time of its supposed existence. It is designed to aid the judg- ment of the jury in regard to the influence and effects of certain facts which lie out of the observation and experience of persons in general. And such opinions, when they come from persons of great experience, and in whose correctness and sobriety of judgment just confidence can be had, are of great weight, and de- serve the respectful consideration of the jury." INDEX. Acquittal or conviction a matter of chance (Maudsley), 13. Acquittal or conviction a matter of accident (Taylor), 14 Allotropes and isomers, 88. Ambiguity in defining the "intermediate theory," 91. Amendments to the law recommended, 171. (a) appointment of State examining boards, 171. (b) appointment of United States examining boards, 172. (c) experts not to receive pay for giving evidence, 172. (d) an expert to be considered amicus curice, 172. (e) United States and States relative to experts' services, 173. (/) plea of insanity, 173, 174, 175. benefits expected from the "amendments," 175, et seq. Antidotes to deliriauts restore reason, 56. B. Belief in "spiritualism" not evidence of insanity, 213. may be regarded as undue influence, 213. Beliefs undemonstrable, the existence of the chemical atom, 71. the origin of mind or matter, 71. Benefits expected from proposed "amendments" : thoroughly competent and trustworthy experts, 175. much greater certainty of just verdicts, 175. (1) experts impartial — rich and poor equally served, 176. (2) large saving of time and expense, 176. (3) experts free from local bias, 177. (4) official responsibility a guarantee of expert's fidelity, 177. the expert being unpaid, and amicus curice, would be impartial, 177. uniformity of expert opinions, 191. Body and mind, connection of (Bain), 49. Body, the importance of, 39. Brain, average weight of, 65. if less than thirty ounces, the person an imbecile, 64. indispensable to thought, feeling, and volition (Bain), 52. inflammation of, subordinates the mind, 53. 251 252 INDEX. Brain, post-mortem examination of, 56, 57, 58, 59. the largest recorded weight of, 65. the organ of mind, 63, 66. Brothers, twin, judge and expert, 204. C. Calderwood, Professor, on hrain the organ of mind, 06, 67, 68. Cause of death not always revealed by post-mortem examination, 68. Causes of uncertainty of verdicts in insanity trials, 15. allowing unskilled persons to testify as experts, 25. defective definitions of insanity, 16, 17, 18. defective and contradictory legal tests, 19-24. introduction of "hypothetical cases," 150. nature of insanity misapprehended, 16. want of uniformity in the rulings of courts, 221, et seq. Cerebral disintegration not proof that mind is a function of the brain, 74. does not determine which is " precedent" or " consequent," 74. the product of, 74. Changes in the law, those opposed to, 197. Chapman, C. J., disparages expert testimony, 124, 125. who is to blame ? 124. Character, how much depends on heredity ? 40. (Maudsley), 40. Christianity, the truth of, depends on the resurrection of the body, 39. Colleges, medical, give little or no instruction in insanity, 126, 127. Conclusion, 217. theoretically admitted, hut practically denied, 129. Consciousness, our own, no proof to others, 39. Contradictory ruling of courts, summary of, 24. Corollary arising from the physical nature of insanity, 72. Courts, admirably constituted, why uncertainty of verdict ? 15, Criteria should be stable, fixed quantities, 27. of insanity, contradictory, cannot all be right, 180, 188. D. Define, they can best, who best understand the subject, 186. Definition of disease, 45. hypothesis, 98. theory, 98. insanity, Webster, Worcester, 16. Cullen, Abernethy, Combe, Connoly, Locke, 17. Guislam, Lelut, Marc, Morel, 17. Copland, Taylor, 18. Buckham, 72. INDEX. 253 Deliriants, effect of, on the mind, 55. Delusions, insane, removable only by medical treatment, 68. Depositions, experts', to be a part of the records of trials, 176. Design and scope of this work, 15, 16. Disease, definition of, 45. how does it affect the mind ? 46. of the brain affects the mind, 53. media, Dr. Luys' view of, 46. mind, so-called, really physical, 67. a misnomer, 66. medication of, absurd and irrational, 44. optic nerve, 42. organs of sensation cause disordered ideas, 42. our ideas of, derived from decay in the physical world, 46. Disgrace, insanity formerly considered to be a, 25, 133. Drunkenness does not relieve from responsibility, 112. E. Effects of variable legal criteria, 29, 218. Established, " intermediate theory" should have been, 91. Eucharist, evidence furnished by the, 31. Evidence, conclusive test of its trustworthiness, 71. direct, of insanity by experts, reasons against, 141, 192, et seq. reasons for, 140, et seq., 192, et seq. no direct or primary, that we have a mind. 38. of antidotes to deliriants, 56. of deliriants administered, 55. of long-continued use of deliriants, 56. of physical diseases producing insane ravings, etc., 51-55. of the dead, 56-66. of the physical manifestation of mental emotions, 49. prima facie, not conclusive proof, 48. unifurmity of expert, confidently expected, 195, 215, 217. unskilled expert, necessarily untrustworthy, 25, 123. Experience the aggregation of sensations, 42. Expert and judge, twin brothers, 204. an, may differ from the body of experts, 215. definition of, 121. methods of harmonizing, 196, 213, 215, 217. opinions, methods for obtaining, 192, 206. or judge, who shall decide? 165, et seq. special, not general knowledge constitutes an, 123, 127. Experts, argitmentum ab inconvenienti of Wharton and Stille consid- ered, 164. 254 INDEX. Experts, as by the amended law herein recommended, 171, 195. are worthy of any trust within their sphere, 199. best mode of deposing or giving testimony, 207. can only determine by continued personal observation, 149, 156, 160. cannot be criticised, after testifying, by other experts, 168. contradictory rulings of courts concerning, 222-250. court assuming the province of, dangerous, 166-169. detect with certainty, 54. do not determine responsibility, 147, 161. double explanation by judge and, 193. eminent, know all that is known of the subject, 128. general medical practitioners are not, 25, 123, 125. generally required to trace relations of effects, 192. have often testified that legal tests are untrustworthy, 137. how remunerated, 172. ignored when unskilled evidence is allowed, 160. in insanity not graduated from medical colleges, 126. medical superintendents of insane asylums are, 137. no necessity now for using unskilled, 122. of what use are, if legal tests decide the matter? 148, 206. only, can determine some forms of insanity, 149. plan for always securing reliable, 171. properly qualified, should be exclusively used, 123, 126. proposed changes in the law regarding, 171, 172. should be required to furnish proof of qualifications, 131. should depose directly to prisoner's mental condition, 156, 175. so-called, their opinions irreconcilable, 208. their duty to the court and jury, 193. to attend court for examination and cross-examination, 175. to be used as interpreters, 178. unotEcial persons should not be, in insanity, 170. unskilled, cannot give trustworthy evidence, 125. using unskilled, pernicious, 124, 130, 138, 160. what they say will have to be explained by the court ("Wharton and Stille), 192. who are? 121, 126,171. who are i-espousible for using unskilled ? 123, 129, 130. E. False imprisonment, actions would be frequent if legal tests were in- voked, 188. by some rulings of courts, conviction almost impossible, 189. Eevers and inflammations subordinate the mind, 53. INDEX. 255 Freedom of will denied by somatists, 40, 75-79. somatic view examined, 77, et seq, G. Galileo lived in advance of his time, 28. Guiteau trial, reference to, 157, et seq. H. Hamilton, Sir "William, mind materialized when assigned place and ex- tension, 110. Harmonizing opinions of a small number easier than that of a large number, 209. courts and experts, importance of, 208. courts, if there is a mode, its enforcement has been neglected, 185. experts easier than of non-experts, 209. experts, no coH7't for, but there is an organizatioji for, 209, 212, 213. experts, without cost or trouble to suitors or the State, 212, 214. Harmony, conspicuous want of, in rulings of courts, 181, et seq., 221- 250. want of, between civil and criminal law, 194, 195. Heredity charged with the destinies of mankind (Maudsley), 75, 76. eflbrts to obtain reliable data concerning, 80, 81. its absolute control of character denied, 77, et seq. its influence on the formation of character (Maudsley), 75, 76. somatic view of, examined, 77, 78, 79, 84, et seq. weighs on a man through life as a . . . fate (Maudsley)', 76. Homceopathy, American Institute of, 212. Hypothetical cases do not furnish data for positive expert opinions, 153. misleading and absurd, 149, et seq. prepared by lawyers who are interested, 154. prepared by lawyers who are not experts, 151. prepared delibej'ately, and sprung on the other side, 155. prepared on unskilled observation, 151. prepared, sometimes adroitly, by aid of experts, 154. utter worthlessness of, shown in Guiteau trial, 159, 160. Ideas, our, dependent on our organs of sensation, 41. disordered, due to disorder of the sensorium, 42. Identity and resemblance are not alike, 150. Inconsistency of Wharton and Stille's position on "uniformity," 179- 196, 208-217. 256 INDEX. Insane asylums, practical evidence of their value, 70. thousands improperly kept in, if legal tests are trustworthy, 187. Insane persons would be protected, 220. Insanity, all degrees and phases of, affirmed and denied by the courts as relieving from responsibility, 221-250. a manifestation or effect of physical disease, 35, et seq., 72, 147. a matter of science and of fact, not of law, 193, 244r-246. a physical disease, no legal tests possible, 185. a specialty on any theory, 199. all degrees of, between slight aberrations and maniacal ravings, 149. belief in spiritualism not evidence of, 213. can courts and lawyers diagnose? 187. cannot be demonstrated a physical disease, 71. considered a demoniacal possession, hence a disgrace, 25, 133. defences, in criminal trials, 155, 173, et seq. definitions of, by Webster, Worcester, 16. Locke, Cullen, Abernethy, Combe, Connoly, Guislam, Lelut, Marc, Morel, 17. Copland, Taylor, 18. Buckham, 72. disordered mental manifestations caused by physical disease, 43. former view of, 25, 133. Guiteau trial, reference to, 157, et seq. if a matter of fact in civil, why not in criminal trials? 190. if cured, it is by removing disease from the " jDhysical media," 45. if legal tests determine, of what use are experts ? 148, 206. legal tests of, 221-250. legal tests, summary of, 19-24. lucid intervals in some forms of, 156. "moral." See "Moral insanity." must be either a physical or mental disease, 107. partial, cannot be reconciled with metaphysical theory, 46, 48. plea of, would not be Improperly used, 219. prima facie evidence of diseased mind, 48. some forms of, can be determined only by experts, 149. some forms cannot be easily mistaken, 148. the most complex of medical specialties, 128. those who cannot diagnose, ought not to treat a case, 187. those who determine, diagnose the case, 186. those who know most of a subject should define it, 186. what is it? 16, 72. who know most of, lawyers or experts ? 186. Intermediate theory. See "Theory, intermediate." Isomers and allotropes, 88. INDEX. 257 J. Judges' opinions, extracts from : Must know no more than an infant, a brute, or a wild beast (Tra- cey, J.), 222. The disorder must amount to absolute alienation of reason (Lord Justice Clerk Hope), 223. Not sure that it is uot more necessary to punish a madman than a sane man, as a warning to others (Bramwell, B.), 223. The execution of a madman is of extreme inhumanity and cruelty, and can be no warning to others (Sir Edward Coke), 224. The "right and wrong" test affirmed (English judges in confer- ence), 224. The English judges' opinion condemned and declared to be exquis- itely inhumane, and absurdly impracticable (Ladd, J.), 225. The total alienation test discarded ; the act must be an insane act, not merely the act of an insane person (Beardsley, C. J.), 228. The test lies in the word power ; could he distinguish right from wrong, and had he power to do right and avoid wrong ? (Brews- ter, J.), 230. > Did he know that the act was forbidden by the law? (Lord Brougham), 230. Did he know it was an offence against God and nature ? (Lord Lyndhurst), 231. Burden of proof on the accused, and insanity must be proved be- yond a doubt (Sir James Mansfield), 231. The "right and wrong" test affirmed, but restricted to the act in question (Tindal, C. J.), 232. The "right and wrong' test further modified to the time the crime was committed (Parke, B.), 233. " Uncontrollable impulse" does not relieve from responsibility (Alderson, B.), 233. "Uncontrollable impulse" does not relieve from responsibility (Wightman, J.), 234. " Uncontrollable impulse" does relieve from responsibility (Gib- son, C. J.), 234. If the act was done under " uncontrollable impulse," it was not his act, and he is not responsible (Shaw, C. J.), 235. " Moral insanity" relieves from responsibility (Robertson, J.), 237. " Moral insanity" does not relieve from responsibility (Williams, C. J.), 238. " Moral insanity" does not relieve from responsibility (Thurman, J.), 239. Burden of proof on the accused, and insanity must be established beyond a reasonable doubt (Rolph, B.), 239. 17 258 INDEX. Judges' opinions, extracts from (continued) : Proof of insanity to acquit should be as strong as that of guilt to convict (Hornblower, C. J.), 240. Burden of proof on the State, and sanity must be proved beyond a reasonable doubt (Illinois Supreme Court), 240. Burden of proof on the State, and sanity must bo proved as well as guilt, after a presumption of insanity has been raised (Cooley, C.J.), 241. Preponderance of evidence of insanity will acquit (Shaw, C. J.), 242. A reasonable doubt as to insanitj- ought to acquit (Crawford, J.), 242. If there be a doubt as to the prisoner's sanity, you cannot say he is in a fit state to be put on trial (HuUock, B.), 243. Acquit on the ground of insanity unless satisfied that the killing was not produced by mental disease (Doe, J.), 244. Insanity a question of fact to be determined by the jury, not a ques- tion of law to be decided by judges (Perley, C. J.), 244. All tests of mental disease are purely matters of fact to be deter- mined by the jury (Doe, J.), 246. Medical opinions claiming insanity to be a disease declared vicious (Lord Chancellor Westbury), 246. Legal gentlemen profoundly ignorant of mental diseases ; medical experts know all that is known on the subject (Doe, J.), 247. Expert testimony valueless (Bramwell, B.), 247. Expert testimony not only valueless, but worse than that (Davis, J.), 248. Expert testimony of great value (Ladd, J.), 248. Expert testimony competent evidence, and entitled to great respect (Shaw, C. J.), 249. summary of, 19-24. Judges should not testify regarding insanity if it is a question of fact, 138. their probity and ability unquestioned, 15. Judiciary, general satisfaction with (excepting insanity trials), 15. loss of confidence in, a nation's greatest calamity, 14. possibly to some extent unintentionally misrepresented, 180. Junius on precedents, 132. sarcasm worthy of, 182, 227. Jurors, none more intelligent than American citizens, 15. L. Ladd, Judge, review of "opinion" of English judges in conference, 181, 225. Law, apology for existing ("Wharton and Stille), 162, INDEX. 259 Law, brouglit into conflict with itself, 138, 246. change of the pe>-sonnel of a State Supreme Court may change the, 184. changes in the, recommended, 170, et seq. if insanity be a question of, experts should not testify to it, 138. necessary amendments to the, should be made promptly, 164. relating to, has not kept pace with the growth in knowledge of, in- sanity, 25. that cannot be health in, which is disease in fact, 180. the, has declared the insane irresponsible, 147, 161, 162. the principles of, eternal, but may have been misunderstood, 163. urgent reasons for changing the, 163, 218, et seq. why not amend the ? 162. Lawyers able, judges upright, jurors trustworthy, why are verdicts un- certain ? 15. have given as legal tests exploded medical theories, 136, 247. have no proper qualifications for preparing " hj-pothetical cases," 151. may not desire "the whole truth" from experts, 206. profoundly ignorant of insanity, have invaded the domain of ex- perts, 247. Lewes, examination of "physical theory" of thought, judgment, etc., 84. Liberty of citizens outraged if legal tests of insanity are true, 187, 188. Ligament pressing on the mind ? {foot-note), 235. Lucid intervals in insane persons, 156. Luys, Dr., minute examination of the brain, 60, 61. on skilled observation, 152. M. Mania a potu, the law relating to, discussed, 112, et f^eq. Mania, general, in, the assumptions, not the reasoning defective, 48, 156. Media, diseased, produce disordered mental manifestations, 42. part healthy and part diseased, in partial insanity, 46. Physical, Theory, 35, et seq. Medical Association, American, design of, and how constituted, 210, et seq. reference to, of " expert testimony," 128, 213. "moral insanity," 212. "physical media theory," 213. "spiritualism," 213. Medical experts know all that is known of insanity, 128, 247. proposed plan for always obtaining trustworthy, 171, et s&q. 260 INDEX. " Medical Superintendents of American Institutions for the Insane, Association of," 216. Men live before, with, or after their own times, 28. Mental disease, so-called, as truly physical as disease of the eye or ear 67. when applied to insanity, a misnomer, 66. Mental manifestations conditioned upon cerebral disintegration, 74. Dr. Luys's opinion concerning, 104. Dr. Maudsley's opinion concerning, 103. Mental power, all degrees of, from imbecility to that of a Newton, 149. none, when there is less than thirty ounces of brain, 64, 65. Mind and body must be united to be legally responsible, 36. a sound, in a sound body, 45. a unit, indivisible, therefore must be all sane or all insane, 45, 110. disease, so-called, removable only by medical treatment, 68. diseased, a misnomer, 44. disordered manifestations of, are called diseases of the mind, 44. how is it aftected by disease ? 46. if a function of the brain, free will is impossible, 75, 76. if dependent on the body for health, why not for existence? 102, if diseased, medication of it irrational and absurd, 44. if it can be diseased, under certain circumstances it must die, 44. if independent of the body, weight of brain of no importance, 66. influenced by disease of the body, 51, 52. knowing nothing of, per se, how ascertain its disorders ? 126. no direct or primary evidence that we have a, 38. no evidence that it ever is, or can be, diseased, 45. per se, we know nothing of, 37. psychical or metaphysical view of, 35, 93, 110. somatic or materialistic view of, 39. subordinated by physical diseases, 53, et seq. Moral insanity, authoritative opinion regarding, 212. Mutability of the " ordinary rule of society test," 27, et seq. N. No unreasonableness of belief, nor extravagance in conduct or behavior, is alone conclusive evidence of insanity, 31, 38. O. Observation, defective, of the past classed insanity as a mental disease, 133, 247. Opinions respecting definitions of insanity (Taylor, and Wharton and Stille), 26. unsound, will not be rendered sound by repetition, 133. INDEX. 261 Opposites, between, there can be no intermediate, 100. Opposition to innovations so called (Drs. Harvey, Jenner, and Simp- son), 197, 198. Ordinary rule of society test examined, 27, et seq. Partial insanity due to dissociation of vital forces of cerebral activity, 46. impossible if the mind is a unit, 46, 48. People, the, have little confidence in verdicts in insanity trials, 15. Physicians are not usually " society men," 30. do not make dlfl'erential diagnoses from prominent symptoms, 153. general, are not experts in insanity, 123-128. knowledge necessary to graduation, 125. their qualifications, duties, responsibilities, etc., 200-204. Post-mortem examinations do not always reveal the cause of death, 68, methods employed, 57-62. not satisfactory sometimes from lack of knowledge, 68. of the brains of insane persons, 62, 63. Precedents as afl^ecting experts, 196. and legal maxims with reference to insanity incorrect, 198. legal, how developed, 132, 136. some of, are obsolete medical hypotheses, 133, 136. study of, instead of the principles that underlie them, 133. President of the United States, who might have been ? 184. Probate, judges of, practice in insanity cases, 194. may be ignorant of both law and insanity, 195. Profession, difficulty of one fairly representing the views of another, 180. Professional portals, those who guard against innovations, 197. Psychological view of mind, 35, 92, 110. Q. Qualification of medical superintendents of insane asylums, 137. Quotations from "Wharton and Stillo's Medical Jurisprudence {foot of pages), 92-98, 139-146. K. Keasons for considering "psychical" and "physical media" theories together, 34. examining chiefly "Wharton and Stille's Medical Jurisprudence, 33. quoting, chiefly from Maudsley's works, when considering the "so- matic theory," 75. Remuneration to State for experts' services, 173. 262 INDEX. Eesearclies of Clarte, Van der Kolk, Luys, et al., 58-62. Eesponsibility, what constitutes ? See " Judges' opinions." gravity of the, the strongest reason for transferring it to experts 200. if there were no, who would decide questions of sanity ? 144. may be safely imposed upon experts, 199. none, without a mind to will and a body to execute, 36. not created by the changes recommended, 199. on whom rests the, of allowing non-experts to testify ? 130. the expert in testifying does not directly include the question of, 147. there are no trustworthy legal tests of insanity with regard to, 72, 246. what phase or degree of insanity has not been held to relieve from ? 24. S. Science has proved that insanity is a physical, not a mental disease, 42, 43. that which is false in, cannot be true in law, 180. Scientific demonstrations may sometimes mislead, 87. Scope and design of this work, 15. Sensations, Professor Calderwood's view of, 41. organs of transmission must be healthy to convey normal, 42. Skilled observation necessary to a correct diagnosis, 150, et seq. mental processes involved in, 152. Soldier, exempted from serving as, indirectly by surgeon's testimony, 162. Somatic theory denies the freedom of the will, 75, 76. diifers from physical media theory, 73, 74. general principles of, considered, 73, et seq. its view of free will examined, 77, et seq. more properly called an hypothesis than a theory, 87, 88. Wharton and Stille's view of {foot-note^, 92, 96. Some forms of mental disorder unquestionably produced by physical disease, 54. Some persons improperly acquitted on the plea of insanity, others un- justly executed, 14. Sometimes the less insane person escapes, while the more insane person is hanged, 14. Spencer, Herbert, on the constitution of mind, 37. Special, not general knowledge constitutes the expert, 123, 127. Specialists, eminent, know all that is known of their specialty, 128. Specialties, why necessary in the medical profession, 127, 128. Specialty of insanity the most complex, 127. Spiritualism, belief in, not evidence of insanity, 213. INDEX. 263 Summary of contradictory rulings of courts in insanity trials, 19-24. Superintendents of insane asylums, their qualifications, etc., 69, 177. Supreme Courts, changing one number of, might change the law, 184. System, not the individual or the office, that is censured, 179. T. Test for determining the truth of an undemonstrable proposition, 71. " ordinary rule of society," examined, 27-33. Testator, proposed plan for determining sanity of, 177. Tests, legal, moral, or intellectual, cannot be framed of a physical dis- ease, 26, 179, 227, 228. Tests of insanity, if any were possible, judges would have found them ere now, 185. prejudge the facts, and partially withdraw them from the jury, 190. there are none that have not been affirmed and denied by courts, 183. there cannot be two contradictory, and both correct, 180, 194. should in the law substitute the test for the term "insanity," 148. why not invoked in civil cases ? 190. Theory, an unverified, cannot be used to prove any proposition, 82, 83, 90. atomic, 91. cast-off medical, of the past should not now be a legal maxim, 136. definition of, 98. physical, of the origin of thought examined, 84, 85, 86. Theory of evolution, assumptions necessary, 83. objections to its being considered a " theory," 82. should properly be designated an " hypothesis," not a " theory," 87. " spontaneous generation" and " transmutation of species" unveri- fied, 83. used to prove the somatic theory, 81. Theory, intermediate, what its authors claim for it {foot-note), 92-98. The claims examined : ambiguity of enunciation and definition, 101, et seq. conclusions reached, 106, 107, 118. danger from inexactness in enunciating, 97. deficient in certainty and stability, 99. does not remove the chief difficulties from criminal responsibil- ity, 108. if insanity is a mental disease, then at variance with their § 336, 108. if insanity is a physical disease, it accords with the "somatic theory," 107, 108. insanity must be either a mental or a physical disease, 107. 264 INDEX. Theory, intermediate, its claims examined (continued) , name a misnomer, 99, et seq. no "intermediate" between opposite or unconnected extremes, 100. no proof that the body can originate mental disease, 101. "organic type" of disease applied to an indivisible unit inex- plicable, 109, remarkable claims, unexplained and unverified, 101, 102. the mind made dependent upon the body for health and exist- ence, 102. uncertainty of scope, 102, 107, 109. Theory, physical media, evidence in favor of, 35, et seq. adaptability for removing medico-legal difficulties, 49, 108. brain changes affecting the mind, 51. ^ subordinating the mind, 53. medical superintendents of insane asylums, 69, mental impressions affecting the body, 52. partial insanity, 46, 48. physical expression of mental emotions, 49, 50, 51. recapitulation, 72. the brain, weight of, 64-66. the dead, 56-66. . the effects of antidotes to deliriants, 56. the effects of deliriants, 55. the fact that we know of mind only by its manifestations, 38. the medication of the insane, 44. Theory, psychical or metaphysical, 35, 92, 110. its conception of mind, 100. impracticable when applied to insanity, 107. Therapeutics, practical system of, somatic theory fails in supporting (Wharton and Stllle), 92, proposition examined, 105, et seq. supports ])hysical media theory, 106. Tuke and Kutherford, report of post-mortem examinations, 63. U. Uncertainty of verdicts. See " Causes of uncertainty." Unconnected subjects have no intermediate, 100. Unskilled observers note only prominent symptoms, 151, et seq. Van der Kolk, report of post-mortem examinations, 62. Yerdicts, " a matter of chance" (Maudsley), 13 INDEX. 265 Verdicts, "a mere matter of accident" (Taylor), 14. uncertainty of, in insanity trials. See " Causes of uncertainty." uncertainty of, in insanity trials, may be removed, 220. W. Why are physicians required to testify as experts if insanity is not a disease ? 30. Witchcraft, trials for, 29. Witnesses, an array of, on either side of a case, 130. Witnesses, experts. See "Experts." THE END. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. ■W APR 2411982 LU6 05 m i£o DEC a . .MED UB. DEC 7 RtCU 7 '83 Torm L9-62m-7,'61(C1437s4)444