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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<r:
if so, to them we leave the task of explaining what
has never yet been explained — viz., in what the dif-
ference consists, and how the increased temperature
and other physical symptoms of fever affect that in-
corporeal entity, the mind.
§ 19. Disease has been shown to furnish strong
proof of the physical origin of insanity ; but the evi-
dence from our remedies for disease is still stronger,
because by the use of certain drugs known to the pro-
fession as deliriants, such as alcohol, opium and its
alkaloids, hyoscyamus, haschisch, etc., we can at will
produce the maudlin imbecility, the hallucinations, the
boisterous maniacal ravings, and the wildest delirium,
56 MEDICO-LEGAL RELATIONS OF INSANITY.
the complete subordination of reason and judgment ;
and not only can these mental phenomena be produced
at will, and continued at pleasure, by the exhibition of
one or more of the deliriants, but the abnormal mental
manifestations may also be controlled at will by the
administration of the antidote to the drug used, while
long-continued habitual use of deliriants invariably
results in the impairment of the mental faculties ; of
which fact we have, unfortunately, proof too abundant
and convincing in the persons of drunkards and
opium-eaters. Again we ask, " Will any sane person
affirm that the material drugs directly affect the 171-
corporeal, immaterial mind ?" If so, to such persons
we leave the task of explaining the therapeutic action
of deliriants.
§ 20. Having referred to some of the evidences
furnished by disease and by drugs of the physical
causes of insanity, the dead will now be interrogated.
Many forms of insanity can now be at once recog-
nized by the expeit on 'post-mortem examination of
the nerve-centres of a deceased insane person. It is
not generally claimed that the pathological condition
of every case in all forms of insanity could now be
confidently predicated. It should be borne in mind
that systematic investigation of the post-mortem evi-
"physical media theory." 57
dences of insanity is yet comparatively in its infancy.
Bueknill and Tuke say/ "It is only since the first
edition of this Manual was published, fifteen years
ago, that the old belief in the spiritual nature of In-
sanity has utterly died out. It is only within this
recent period that trustworthy observations have been
made on the morbid histology of the brain, and even
now [1874] next to nothing is known of its chemical
pathology. But ... if the authors should live to
issue another edition, they confidently hope to record
that the veil of ignorance has been rent in many direc-
tions, and that the genesis of mind and its diseases is
no longer perceived as a general fact, but in its detail
as a great and growing science." And the same emi-
nent authors have admirably portrayed the difficulties
in the way of such investigation, many of which,
however, by patient labor and indefatigable energy,
have already been overcome. They say,^ " The dif-
ficulties arising out of the peculiarly delicate structure
of the brain, which for so long stood in the way of the
anatomist, preventing him from arriving at a definite
knowledge of the histology of the organ, were of ne-
cessity even greater stumbling-blocks in the path of
' Psychological Medicine, 3d ed., p. 610. ^ Ibid., p. 612.
58 MEDICO-LEGAL EELATIONS OF INSANITY.
the pathologist. The double-bladed knife of Valen-
tine, which had aided in the elucidation of the healthy
and unhealthy conditions of other organs of the body,
failed in producing sections of brain sufficiently thin
for submission to the microscope, and it was not
until chemical agency was employed that any accu-
racy was obtained in our knowdedge of the relations
of its complex elements. As soon, however, as it was
discovered that chemical solutions could be employed,
which, whilst hardening the nervous tissue, did not
interfere with its relative structure, a host of observers
broke ground in this yet untrodden field of anatomi-
cal research. In Germany the researches of Arndt,
Jacubowitsch, Meynert, Bischoff, Stilling, Schroeder
van der Kolk, Kolliker, and others have served to
place the anatomy of the brain on almost as definite a
footing as that of any other organ of the body, whilst
in England the splendid demonstrations of Lockhart
Clarke stand pre-eminent. The pathologist soon fol-
lowed in the track of the anatomist, and although it
cannot be said that his results have been so imme-
diately brilliant, it cannot be denied that he has done
most important work, which must, when further pros-
ecuted, react on physiology and anatomy."
" The thorough performance of a post-mortem ex-
"physical media theory." 59
amination of a case of nervous disease is a long and
arduous task ; we can no longer depend on the pound
weight, the foot rule, or the naked eye as guides to a
knowledge of the condition of the unhealthy brain,
and unless the microscope is brought into play the
autopsy must be considered imperfect." ^
While some of the difficulties attendant upon the
minute examination of the brain and spinal cord
have thus been suggested, there are many very grave
ones that have not even been hinted at, known only
to those who have themselves made systematic in-
vestigations of the subject, or who have carefully fol-
lowed the reports of those who have. To afford a
faint idea of the painstaking care, the varied scien-
tific aids, the delicacy of manipulation, the unwearied
patience, and the indomitable perseverance required
in the investigations, in order that the utmost ac-
curacy might be obtained, we quote from the recent
work (American reprint, 1882) of Dr. Luys, Phy-
sician to the Hospice de la SaljDetriere, which quo-
tation reports but a small portion of tlie difficulties
overcome and the labor which he actually performed.
Speaking of the method he employed for studying the
^ Psychological Medicine, 3d ed., p. 613.
60 MEDICO-LEGAL RELATIONS OF INSANITY.
brain and spinal cord, he says/ " It essentially con-
sists in the preparation of a series of sections made
methodically, millimetre by millimetre, vertically,
horizontally, and antero-posteriorly ; and these sec-
tions being thus made according to the three dimen-
sions of the solid mass which was to be studied, — in
reproducing them photographically, I set myself, then,
to make a series of successive horizontal sections of the
brain, previously hardened in a chromic acid solution,
from apex to base, at intervals of about one milli-
metre,'^ as perfect as possible ; each being in its turn
reproduced by photography. I made similar sections
of the brain in a vertical and antero-posterior direction,
and at regular intervals from behind forwards. These
operations having been thus regularly conducted, this
method enabled me to have representations of the
reality as exact as possible ; to keep the natural rela-
tions of the most delicate portions of the nervous cen-
tres each by each according to their normal connec-
tions, and, in fact, without deranging anything. Thus,
by comparing the sections, horizontal or vertical, one
with another, I could follow a given order of nerve-
^ The Brain and its Functions, Luys, pp. 6, 7, 8.
2 = .03937 of an inch.
" PHYSICAL MEDIA THEORY.'' 61
fibres in its progress, see its point of origin and its point
of termination, study the natural increase in complex-
ity of the different kinds of nerve-fibrils, millimetre by
millimetre, changing nothing, lacerating nothing, and
leaving everything pretty much in its normal position.
By means of these new photographic methods of re-
production" (previously described), " which are all the
more j^recise because impersonal, I had only, then,
to register the details the sun himself had printed, to
place the prints in juxtaposition, to compare them or.e
with another, and thus to make a single synthesis of
the multiple elements of analysis I had thus obtained
by the automatic co-operati?)n of the light. The gen-
eral view of cerebral topography having thus been
fixed by these processes, the regions of more delicate
texture, the special points which it was necessary to
study in their minute elements, were further suffi-
ciently magnified and reproduced, with successively
increasing powers. I could thus render visible to the
naked eye, and exhibit on a plan, details of structure
which up to that time had only been seen in isolation
under the tube of the microscope. By this means the
mind of the observer, penetrating successively from
the known to the unknown, from well-defined regions
to those which are not so as yet, can easily make itself
62 MEDICO-LEGAL RELATIONS OF INSANITY.
familiar with the details of the minute structure of the
final nerve-elements."
The intention here is simply to direct attention
to the methods of observation, as those researches,
being of recent date, are not so commonly known
as the more prominent indications of the origin of
disordered mental manifestations, disease, drunkenness,
etc.
The limits of this work will not permit any ap-
j^roach to a detailed report in the successive stages in
the chain of investigation by which the conclusions
have been reached, pointing out the characteristic
changes which unerringly indicate that the brain be-
longed to an insane person, and not only the generic
fact, but, with few exceptions, the class, as well as the
family ; therefore reference will be made to a few
well-authenticated conclusions.
§ 21. Dr. Maudsley says,^ "Let it suffice here to
say that Schroeder van der Kolk could venture to
assert that he nevei' failed to discover morbid changes
of structure in insanity, and that, when intellectual
disorder especially had existed he had found the
cortical layers under the frontal bones to be darker
^ Physiology of Mind, p. 124.
"physical media theory." 63
colored, more firmly connected witli tlie pia mater,
or softened ; in melancholia, on the other hand, where
the feelings mainly were excited or depressed, the
pathological changes were found principally in the
convolutions of the upper and hind lobes. In old
age, when the memory fails, he found the cells of
the cortical layers visibly atrophied."
Professor Bain, who, as before stated, is not in ac-
cord with the somatic theory, says,^ " The association
of brain-derangement with mind-derangement is all
but a perfectly-established induction. In the great
mass of insane patients the alteration of the brain
is visible and pronounced. I may quote as evidence
on this head a pamphlet by Drs. J. B. Tuke and
Rutherford ' On the Morbid Appearances met with in
the Brains of Thirty Insane Persons.' The brains
examined were those of patients whose deaths occurred
consecutively, and were in no way picked on account
of any peculiarity. The forms of disease exemplified ^^
were general paralysis, dementia with paralysis,
chronic dementia, epileptic insanity. In every case
there was noticed a marked departure in one form
or another from the healthy structure of the brain,
^ Bain, Mind and Body, p. 14.
64 MEDICO-LEGAL RELATIONS OF INSANITY.
The authors enumerate nine species of morbid changes
discovered by microscopical examination. The occur-
rence of a case that presented no visible derangement
would not be a conclusive exception, inasmuch as
there may be alterations of substance that are not
visible. It is believed, however, that in all cases of
pronounced mental aberration disease of the brain is
present in a marked form."
That recent research in the pathology of the nerve-
centres is of great importance, and that among other
uses it has furnished strong proof of the physical
cause of insanity, cannot be denied; and we think
there is little hazarded in predicting that in the near
future the classification of the pathological conditions
on which every form of insanity depends will be as
complete and as well known to experts as are now
the indications of the various diseases of the kidneys,
and by the same agencies, chemistry and the micro-
scope.
But in " interrogating the dead," to have evidence
of a most conclusive character we are under no neces-
sity whatever to use obscure, partial derangements of
the brain, however strong the proof may be that is
furnished by them, as, if an adult human brain weighs
less than thirty ounces, it is prima facie evidence that
"physical media theoey." 65
the person was an imbecile} To this rule, we believe,
there has been no exception observed}
The average weight of a male (European) brain is
about forty-nine and one-half ounces, that of females
about forty-four ounces, while the maximum we be-
lieve is sixty-four and one-half ounces (that of Baron
Cuvier). Daniel Webster's was fifty-three and one-
half ounces, while the minimum, those of imbeciles,,
range from thirty ounces to eight and one-half ounces^.
To have a little less than half the weight of Cuvier's,
or a little more than half the weight of Webster's
brains, is to be hopelessly an imbecile. Mark the as-
tounding difference, the immeasurable distance, be-
tween the intellectual power of a Cuvier or a Webster
and the total lack of intellectual power of an imbecile,
and the only reason for the difference of which we
have any knowledge is the lack of a few ounces of
brain ! It matters not that the cerebral light-weight
grows and develops physically ; that his vocal cords
are in order — he can speak ; that his senses are all
^ Turner's Anatomy, vol. i. p. 298,
* The nearest approach to an exception is the marvellous case re-
ported by Professor Cardona, that of Antonia Grandoni, who died at
the age of forty-two years, whose brain weighed only two hundred and
eighty-nine grammes (a little more than nine ounces), and yet in her
lifetime she exhibited some mental power.
66 MEDICO-LEGAL EELATIONS OF INSANITY.
present ; if his brain weighs less than thirty ounces,
intellectual growth or development is impossible. It
will be observed that whether the maximum brain of
the imbecile is thirty, or, three ounces, would not at
all affect the argument, if it be granted that there is a
fixed weight, below which there can be no intellectual
ability. Will those who hold that the mind is superior
to, and wholly independent of, the body, that the body
is an " incumbrance," a " clog," a " hindrance," to its
empyrean soaring, please explain what possible differ-
ence it can make whether that body, of which it is
entirely independent, has six ounces or sixty ounces
of a merely material substance called the brain ?
§ 22. Many of the ablest psychologists of the day
admit that the brain is the organ of mind, that the
mind operates only through physical media. Profes-
sor Calderwood, one of the most astute and determined
opponents of the somatic theory, in his work written
expressly to refute the materialistic theory of mind,
says,^ " We have come even systematically to speak
of 'mental diseases' and their treatment, as if the
phrase were the apj)ropriate designation in the cir-
cumstances. Yet it is singularly inappropriate, ex-
-■ Pvelations of Mind and Brain (London, 1879), p. 363.
"physical media theory." 67
cept in the vocabulary of those with whom brain dis-
order and disorder of mind are synonymous. The
closeness of relation between mind and brain — the
admitted fact that disturbance of the one, as a rule,
involves disturbance of the other — may sufficiently ac-
count for conventional usage. But the power of con-
ventionalism is the only explanation of the persistence
of the phrase ' mental diseases' to describe a class of dis-
orders as ti'uly physical as disorders of the eye or ear"
The same author quotes approvingly Dr. Ferrier's
statement,^ " That the brain is the organ of mind no
one doubts; and that, when mental aberrations, of
whatever nature, are manifested, the brain is diseased
organically or functionally, we take as an axiom."
The same distinguished writer gives the post-mortem
evidences in five cases, and draws the following con-
clusions:^ "These five cases may be taken as
marked illustrations of the condition of brain in
persons said to be suffering under mental derange-
ment. Disease has been established in that orsfan"
(the brain) " by means of which alone it is possible
for the mind to control and govern bodily actions and
tendencies." Again,^ " The sufferer under delusion
^ Relations of Mind and Brain (London, 1879), p. 364.
2 Ibid., p. 378. 3 Ibid., p. 385.
68 MEDICO-LEGAL EELATIOISTS OF INSANITY.
reasons accurately on tlie suppositions adopted by
him to account for his experience. No one would
propose to deal argumentatively with his case. His
whole intellectual process is in harmony with intel-
lectual law as recognized and applied by others ; the
delusion is a product of brain state, and can be influ-
enced or removed only by medical treatment." Many
other authorities might be quoted to prove the patho-
logical character of the so-called diseases of the mind
by post-mortem evidence, but we think those already
referred to sufficient;- and more of the same import
would probably fail to satisfy those, if any, who are
yet unconvinced.
Let it, however, be assumed that there may be a
few cases of insanity which could not at present be
detected by post-mortem examination, that would not
necessarily show the proposition to be untrustworthy,
— viz., that insanity is a disease physical in its origin
and character, — but instead would show our lack of
investigating ability. There are a few causes of death
unconnected with insanity that leave no morbid anat-
omy, so far as the pathologist has yet been able to
discover, — no post-mortem evidence which would ac-
count for the loss of life. In those cases, which would
be the more reasonable conclusion, that the j^erson
""physical media theory." 69
did not die of any disease, or, that disease had been
present, but its traces were so faint as to elude our
powers of detection ?
§ 23. We think sufi&cient evidence has ah*eady\
been educed to show that insanity is a physical, not a
mental, disease, and yet the proof par excellence re-
mains to be offered. We have taken considerable
trouble to acquaint ourselves with the facts, and we
believe that there is not an Alienist in the United
States who believes that i?isanity is a disease of the
mind. The medical superintendents of asylums for
the insane, so admirably prepared by education and
professional knowledge, and from the large numbers
of insane persons under their care, having the best
possible opportunities for the study of their specialty,
both theoretically and j)ractically, ouglit to be consid-
ered as speaking ex cathedra on the question. If they
do not know all that is to be known, they do know
all that is knoion of the subject, and therefore their
united testimony ought to be regarded as conclusive.
These gentlemen all believe insanity to be physical,
not mental, disease, and depend lar^^ely upon the ju-
dicious administration of material remedies for the >
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/<?r
a few days so successfully perform his assumed role
as to deceive the most experienced expert, but, who
would be unmasked were he to attempt the same im-
position for months or even weeks. Again, suppose
a bad man, desirous of revenge for some real or
supposed grievance, knowing that the law would hold
him irresponsible for any and every act while he was
the subject of mania a 'potu ; might he not drink
excessively for the very purpose of inducing the
mania which would effectually shield him from pun-
ishment were he to gratify his malignant bent by the
perpetration of any crime however enormous ? After
a few days of hard drinking, not necessarily to pro-
found intoxication, he finds phantoms occasionally
flit athwart his vision ; he takes one more drink, the
THE INTERMEDIATE THEOEY. 117
first effect of whicli is to brace up liis shaky condi-
tion and dispel the phantom forms, then he commits
the intended crime to avoid the responsibihty for
which he has been preparing by a deliberate course
of dissipation ; his crime committed with its attend-
ant excitement, his arrest, and the abrupt stoppage
of his stimulants, he becomes in a few hours the un-
feigned subject of a severe attack of mania a potu;
by such a course, requiring much less cunning in plan-
ning and much less judgment and ability in execution
than are often exhibited by criminals, he goes un-
whipped of justice for a crime perpetrated with
coolness and deliberation, because " the analogies of
English common law give as a safe test" that " where
mania a potu results from drink the party becomes
irresponsible."^ Where a person, not an habitual
drunkard, suddenly commences a course of inebria-
tion and continues it until crime and mania a 'potu
supervene, all the circumstances and all the motives
ought to receive the most rigid scrutiny, and in some
cases the whole course of conduct will be found to
^ The above supposed case is not a draft upon the imagination, but,
rather substantially a report of what I am morally certain, actually
occurred in two cases which transpired under my personal observa-
tion. — Author.
118 MEDICO-LEGAL RELATIONS OF INSANITY.
have been one of deliberate design tlirougliout. Who
dares to say that such a person is less f esponsible than
if the crime had been committed by him in a drunken
fit ? May not the " legal test," which is intended to
protect society and punish crime, be thus easily con-
verted into a cloak, under cover of which the most
horrible crimes may be perpetrated with impunity ?
§ 40, Ilania a potu being an organic disease, must,
with all of its class, take its place with " idiocy and
certain hereditary and organic types." What, then,
remains of insanity to be benefited by the application
of the " intermediate theory," as the exce^Dtions, even
according to Messrs. Wharton and Stille, cover nearly
the whole range of disordered mental manifestations ?
Having somewhat closely followed the "interme-
diate theory" from the statement of " its basis" to the
close of its "effects" on "responsibility," the following
conclusions are, we think, correctly reached :
§ 41. {a) That the name " intermediate" is a mis-
nomer, {b) That it cannot correctly be considered a
theory, because (1) no exjDlanation of its modus ope-
randi has been offered ; (2) because no verified facts or
conclusive arguments have been furnished to establish
the chief factor of its basis, — id est, that the body origi-
nates diseases of the mind, ic) That, considering the
THE INTERMEDIATE THEORY. 119
intermediate as a modification of the somatic and psy-
chological theories, the modifications should have been
as expHcitly stated, as fully explained, and as com-
pletely authenticated as should be an original theory ;
which has not been done, nay, has scarcely been at-
tempted, id) That, waiving the hare assertion that
the " intermediate" is a " theory," there appears to be
no reason for considering it anything more than an
hypothesis, "a proposition or princijDle assumed or
taken for granted," to harmonize some of the phe-
nomena of insanity with the common law ; and that
(e), as almost all the classes of insanity are among the
"exceptions," even assuming the "intermediate" to be
an established theory (which is not the fact), Messrs.
Wharton and Stille have failed to show how it to any
appreciable extent " relieves the doctrine of criminal
responsibility of some of its chief difficulties." And
(/), finally, that an hypothesis or unauthenticated
theory such as the "intermediate" does not possess
the necessary stability or scientific accuracy to be
with any propriety used as a basis for " the philoso-
phy of the common law doctrine of insanity."
CHAPTER V.
EXPERTS.
Definition of Experts in Insanity — General Medical Practitioners are
not Experts in Insanity — Non-Experts ought not to be allowed to
give Evidence as Experts — Result pernicious when so allowed —
Precedent — Many Legal "Precedents" discarded Medical Opin-
ions — Importance of studying the Reasons which underlie Judicial
Decisions — Conflict between Expert Opinions and Legal Tests —
The Question of Responsibility considered — Crime cannot be com-
mitted by an Insane Person — Insanity a Question of Fact for the
Jury, not of Law for the Judges — Only Experts can diagnose In-
sanity — Hypothetical Cases — How prepared — Want of Opportu-
nity and Skilled Observation — Prepared by Interested Parties —
Deceptive and Untrustworthy — Alleged Insane Prisoners should
be sent to Insane Asylums, and Superintendents after Examina-
tion should depose directly to the Question of Insanity — Sanity or
Insanity of Testators — Guiteau Trial — Responsibility already fixed
by Law — Necessity for Amendments in the Law — Judges' Re-
sponsibility — Experts' Irresponsibility — Remedy — Insane Prisons
should be provided — Scheme for securing Responsible, Trustwor-
thy Experts — Benefits that would accrue — Contradictory Legal
and Expert Tests of Insanity cannot both be correct — Judges vs.
Judges — No settled Legal Criteria of Insanity — Criminal Legal
Tests, if applied, would turn Thousands of Lunatics loose from
Insane Asylums — Mode of examining Expert Witnesses criticised
— Probate Insanity Trials — Important Discoveries and Improve-
ments hindered by Excessive Fear of Innovation — Harvey, Jen-
ner, Simpson — Qualification of Experts — Medical Profession — Re-
sponsibility and Services — Brothers, Expert and Judge — Official
Reconciliation of Conflicting Expert Opinions — "xVmerican Medi-
120
EXPEKTS. 121
cal Association" — Vexed Questions settled — " Association of Med-
ical Superintendents of American Institutions for the Insane" —
Experts worthy of Trust — Conclusions.
§ 42. " Experts, wlio are they, and what are their
qualifications ?" ask Messrs. Wharton and Stille, and
they reply, " Here emerges the first difiiculty in this
vexed question. Experts are to have a certain degree
of credit attached to their testimony, and, indeed, ac-
cording to views expressed in 1871 in New Hamp-
shire, are to declare what irresponsibility is ; but who
are experts ? Forensic-psychological medicine is the
specialty, and an exj)ert in this specialty must be
skilled in three departments of science, — (1) law suf-
ficient to determine what is the responsibility which
is to be the object of the contested capacity ; (2) psy-
chology, so as to be able to speak analytically as to
the properties of the human mind ; (3) medicine, so
far as concerns the treatment of the insane, so as to
speak inductively on the same subject. If either
of these factors is wanting, a witness cannot be tech-
nically an expert."^ " But while such, on pure
rules of law, is strictly the case, the courts have modi-
fied first one and then another of these requisites,
1 Wharton and Still6, Med. Juris., ^ 275.
122 MEDICO-LEGAL EELATIONS OF INSANITY.
until it is difficult to see what special qualifications
are still to be viewed as constituting experts." ^
The last clause quite explains why the subject of
expert testimony is such a " vexed question." Doubt-
less, in the earlier trials, where the element of insan-
ity was a constituent, it was very difficult, if not quite
impossible, to find persons having the necessary qual-
ifications required by the " pure rule of law," and of
necessity judges had to dispense with " first one and
then another of the requisites" of those whose testi-
mony they were obliged to receive and, to some ex-
tent, depend upon in insanity trials.
But whatever may have been the necessity for
modifying, or rather obliterating, the standard of the
qualifications of experts in the past, there is none
now, as there are to be found in every State of the
Union those who are well skilled in the "three de-
2)artments of science," and when there are such gen-
tlemen, experts in the correct use of the term, to be
had, it is passing strange that they are not exclusively
used by the courts, where expert testimony in insanity
cases is required. We cannot too strongly condemn
the reprehensible practice which now generally ob-
1 Wharton and Stills, Med. Juris., § 276.
EXPERTS. 123
tains, of requiring any person who writes M.D. after
his name (and even the right to do that, often a self-
constituted one) to go into court and give evidence as
an ex^^ert, while he knows nothing that in a strict,
nay, even in a general, sense could be called the
special qualification which must be possessed by the
individual to make him worthy the designation, ex-
pert in insanity.
§ 43. Judges ought to know, lawyers ought to
know, and the public ought to know, that general
medical practitioners, however able and deserving of
confidence they may be as such, are not experts in
insanity ; that no amount of general, will compensate
for the want of special, knowledge ; that they know no
more respecting insanity than any equally well edu-
cated person outside the profession of medicine ; and
to the practice of using such physicians as experts is
due largely the disgraceful uncertainty of the verdict
in every trial in which insanity is an element. Is
it strange that witnesses who have only vague, unde-
fined ideas of a subject so complex, should give un-
scientific and absurdly incorrect and contradictory
evidence respecting it? Are those who j)erpetuate
the practice of requiring or allowing such persons
to give testimony as experts, when experts in the
124 MEDICO-LEGAL KELATIONS OF INSANITY.
proper sense of the term may be had, free from the
grave responsibility of materially aiding the uncer-
tainty of insanity trials? If the evidence on which
juries are obliged to form their opinions of the facts
on which their verdicts are based is unscientific and
untrustworthy, it necessarily follows that, in giving a
true verdict, according to the evidence, that verdict
must be as unreliable and untrustworthy as is the
evidence on which it is based, and the punishment of
insane persons or the escape of criminals becomes a
matter of hap-hazard. The statement of Chief-Jus-
tice Chapman, of Massachusetts, in the trial of An-
drews, in 1868, was in one sense undoubtedly correct :
" . . .it often appears that experts can be found to
testify to any theory, however absurd." His honor,
however, appears to have ignored the fact that the
court was possibly more blamable than were those
whom he was censuring, because the court, knowing
that the witnesses had not, or not knowing that they
had, the necessary qualifications to constitute them
experts, compelled or allowed them to testify as such.
After receiving the testimony of persons who had no
special knowledge, who, in a critical sense, were utterly
ignorant of the subject on which they gave evidence as
experts, the taste and justice might be questioned in the
EXPERTS. 125
remark, by the same judge, "I think the opinions
of experts are not so highly regarded now as they
formerly were." The true expert (the qualification
appears to be necessary from common usage) should,
nay, must, know law, psychology, and medicine. The
general medical jDractitioner, on whom the courts
generally depend for expert testimony in insanity
cases, knows medicine, but nothing of law or psycho-
logy, and yet is expected to give correct evidence
where a knowledge of all three sciences is neces-
sary, a proposition about as reasonable as requiring
from one known, to find the values of two unknown
quantities.
§ 44. When graduating, general medical practi-
tioners are required to know something of chem-
istry, gynaecology, microscopy, surgery, including
surgical operations of the eye and ear, and yet they
are not considered experts in any of these departments,
would not, for example, be employed to make a quanti-
tative chemical analysis or microscopic examination of
the viscera and their contents for the detection of
poison, nor would they usually be allowed to testify in
a suit for malpractice where surgical operations of the
eye or ear had been performed, unless they could show
sufficient special study and training, nor would they be
126 MEDICO-LEGAL EELATIONS OF INSANITY.
as chemists, microscopists, oculists, or aurists. Those,
and those only, who could show that by special study
and training they had acquired the necessary exact
knowledge in their several specialties to constitute
them experts, would be permitted to testify as such.
It may be urged here, that as the expert has no knowl-
edge as to what the mind is jper se, therefore, not
knowing its normal condition, he cannot understand
its abnormalities. But let it be borne in mind that
the physician does not know what either fever or
inflammation is per se, yet the symptoms of these dis-
eases point unerringly to the pathological condition,
which he does understand, and so in like manner do
the symptoms — the mental manifestations, point un-
erringly to the pathological condition of the "physical
media" on which they depend.
Without a general knowledge in all of the above
departments a student of medicine would not be per-
mitted to graduate, yet in such cases he is properly not
considered an expert, while in insanity cases, in which
the student in medicine received no instruction, was
asked no questions at graduation, he is permitted, nay,
compelled, to give evidence as an expert. There is not
a medical college in the United States that in its reg-
ular curriculum ever graduated an expert in insanity
EXPERTS. 127
INIany colleges have not even a chair of medical juris-
prudence ; many that have, require only half the time
to be devoted to that branch that is required in chem-
istry, anatomy, surgery, midwifery, and practice of
medicine ; and even in those colleges in which medical
jurisprudence receives the largest amount of consider-
ation and attention, the instruction is chiefly directed
to the detection of poisons, the evidences of criminal
abortions, infanticides, malpractice, the method of
making post-mortem examinations, giving testimony
in court, etc., while the subject of insanity is very
briefly, if at all, discussed, for the sufiicient reason
that the professor has not the necessary time at his
command to give more than, at most, a cursory glance
at that most complex of all the specialties of our pro-
fession, as any person must be well aware who has
made any proficiency in the study of " medico-legal
relations of insanity."
§ 45. The question may be asked, "Why is it neces-
sary to have specialties in the medical profession?
For the same reason that they exist in all professions.
The field of investigation in scientific medicine is too
large, too extensive, to be fully occupied by any one
man, even in a long lifetime of close study and appli-
cation. By peculiar adaptability, or by the force of
128 MEDICO-LEGAL RELATIONS OF INSANITY.
circumstances, one person devotes his time and ability
to an exhaustive study of one branch of the great
tree, to the comparative neglect of the other branches,
and, pari passu, knows more of the subject of his
special study than does the general practitioner or
the specialist in any other department ; hence, if our
eminent specialists do not know all that is to be
known in their several departments, they certainly
do know all that is known, and therefore if their
conclusions are not always entirely accurate, they
are the nearest to accuracy that can by any possi-
bility be obtained. The specialty of insanity requires
more varied and more extensive study than any
other specialty in our profession, and yet those in
our profession who have never given it any special
study, who in a critical sense know nothing about it,
are the experts, so called, on whose testimony ques-
tions of the most momentous importance are usually
determined.
§ 46. At the meeting of the American Medical
Association, held at Chicago in 1877, the writer
read a paper before the " Section on lledical Juris-
prudence," in which it was stated, "... And yet,
because a gentleman has the right to add M.D. to
his name, he is compelled to go to court and give
EXPERTS. 129
opinions as an expert (on insanity) on a subject that
lie was not required to study when acquiring his
medical education, and probably has not had any fit-
ting opportunity for studying since his graduation ; in
fact, a subject of which he knows no more than any
other educated gentleman who has given the matter
no special study whatever ; and on such evidence the
most important of all earthly interests, life, liberty,
and property, are determined."^ And that paper,
after thorough discussion, was unanimously received
and directed to be printed in the proceedings of the
Association, the highest commendation of that repre-
sentative body, which authoritatively declares the
opinions of the medical profession of the United States.
(Reference is here made to what is generally known
as " Regular Medicine^)
§ 47. Probably some of my readers may think that
there is a waste of energy in proving that which ap-
pears so reasonable, that few, if any, will doubt the
propriety or correctness of the position advocated.
Theoretically, the conclusions here arrived at are ad-
mitted by almost all the members of both professions,
law and medicine ; but, strange as it may seem, both
^ Vide Transactions Am. Med. Assoc, vol. xxviii. p. 366.
130 MEDICO-LEGAL EELATIONS OF INSANITY.
professions practically deny them. Lawyers still com-
pel by subpoena or warrant the attendance at court of
general medical practitioners to testify as experts in
insanity cases as heretofore, and, as of old, the M.D.,
instead of stating to the court and jury that he is not
an expert in insanity, as required, gives his crude,
unscientific, and hence untrustworthy testimony, and
such opinions are received by juries as the authoritative
conclusions of experts, when the witness on the stand
often does not know enoui^h of the subject to be aware
of the profound deaths of his own ignorance, or how
much more a specialist in that department must know
before he would be properly entitled to give expert
testimony in such cases. Very often three, four, or
half a dozen such witnesses are called for the prosecu-
tion, and as many for the defence, all testifying as
experts, when there is not a single expert among
them, — not one whose testimony ought to have been
received by the court, because none of them, in a sci-
entific sense, knew anything of the subject regarding
which he testified. Who is responsible for the contin-
uation of this pernicious practice ? Both lawyers and
doctors are to blame, and both professions ai-e respon-
sible, because both know better, and it is sometimes
difficult to suppose them free from improper motives
EXPERTS. • 131
while perpetuating this baleful practice. Medical
witnesses in insanity cases are often allowed to testify
as experts without even being asked whether they
consider themselves experts or not. "Were that ques-
tion put directly to them, few would answer in the
affirmative ; but a simple answer in the affirmative is
not enough; they ought to be required to state the
course of study pursued, opportunities had, and length
of time devoted to acquiring a knowledge of their
sjpecialty, just as surgeons, oculists, aurists, architects,
engineers, etc., are required to show that they have a
special knowledge in their several departments before
they are permitted to testify as experts. It is not a
matter of surprise that unskilled persons testifying as
experts in insanity cases, where the gravest interests
of humanity are at stake, should mislead, instead of
instructing, the court and jury, but it almost passes
belief that the courts will permit such testimony to be
given or received ; and to that practice is largely due
the opprobrium attached to the uncertainty of verdicts
in insanity cases.
§ 48. When one of the ablest medico-forensic
writers of the age declares, referring to such uncer-
tainty in verdicts, that " Were the issue to be decided
by tossing up a shilling, ... it could hardly be
132 MEDICO-LEGAL EELATIOI^S OF INSANITY.
more uncertain,"^ there is surely sufficient reason
for judges, and all persons in any way influencing
the administration of justice, to change from the
mode of procedure which has brought them so much
obloquy, esj)ecially as the system is unsound in theory
as well as most pernicious in practice, derogatory
to the dignity of the courts, unjust to the science
of medicine and experts j)roper, demoralizing to ex-
perts falsely so called, eminently unjust to litigants
and unsatisfactory to the people ; and " the practice"
is adhered to for no better reason of which we are
aware than that of following ^^ 'precedent P Junius
says, " One precedent creates another. They soon
accumulate, and constitute law. What yesterday was
fact, to-day is doctrine. Examples are supposed to
justify the most dangerous measures; and where
they do not suit exactly, the defect is supplied by
analogy." ^
§ 49. How many of the "precedents" and legal
maxims referring to insanity have had their origin
and development as described by Junius ? All that
we now deem ancient was at one time new, and what
we now defend by examples on a future day will stand
^ Maudsley, Responsibility in Mental Diseases, p. 101.
* Junius, Dedication, p. vi.
EXPEKTS. 133
as precedents.^ On examination these "precedents"
will be found to be largely based on tlie opinions of
physicians, and that, too, of an age when the study of
medicine included the occult and marvellous; when
superstition and vain speculation occupied the time
noAV devoted to reason and scientific observation ; when
mstead of rational treatment, spells and incantations
were among the most potent remedial agents in their
pharmacopoeia ; when the then medical profession had
no rational views on insanity, but considered it a
special visitation of the Deity in his anger, or attrib-
uted it directly to demoniacal possession. Reiteration
of false medical opinions of past ages, even by the
most distinguished judges and medical jurists, will not
make them correct, nor will designating them " pre-
cedents" and "legal maxims" make them a whit more
trustworthy; being scientifically unsound when first
uttered, unsound they remain ; and are most per-
nicious when used to override the scientific evidence
of reliable experts.
Judge Cooley, the distinguished ex-chief-justice of
Michigan, eminent for his legal ability, deprecates the
study of "precedents" and "decisions," instead of "en-
1 " Omnia quae nunc vetustissima creduntur, nova fuere : et quod
hodie exemplis tuemur, inter exempla erit." — Tacitus.
134 MEDICO-LEGAL EELATIONS OF INSANITY.
deavoring to get right clown to the reasons" which un-
derlie all correct decisions. He says, " I suppose your
worthy chancellor has long before this said to you that
the principal thing in giving instruction in the law is
to teach young men how best to employ their reason-
ing faculties — how to think — and that this is the main
thing in the practical administration of the law. To
be a good lawyer is not so much to have a knowledge
of what is in the books — that particular judges have
decided so and so; it is not even to have the faculty
of bringing together the decisions that have been
made from time to time with a view to using them.
A faculty of making ready use of decisions is of
course worth a great deal to us ; but there is always
danger that it may prove unfortunate, in that it
teaches us to rely too much on what courts have
said, instead of endeavoring to get right down to the
reason of things upon w^J^ich all judicial decisions, if
they be of any value, must rest.
"And now I believe that the main thins; that is
to be taught in schools or in lawyers' offices, where
young men are trained, the way to receive any valu-
able training at all, is to reach the reason of things
that underlie the rules of law which are laid down for
our guidance; and that the most unfortunate thing
EXPERTS. 135
that can ever happen to a young man as he starts
out to fit himself for the profession of the law is to
learn to rely upon rules without reaching under these
rules, to see upon what they are based. If, stand-
ing here for the moment to look into these eager
faces I can impress that one idea upon you, that you
should give your principal time, thought, and atten-
tion, while you are in this school, or while engaged in
the practice of the law, to reaching the reasons that
underlie the law, it will give me great pleasure to
have been here ; and to anticipate the time when you
shall be in successful practice, that you will remember
that in this informal talk I endeavored to impress
upon you the transcendent importance of a study of
principles." ^
Judge Doe says,^ " When the authorities of the com-
mon law began to deal with insanity, they adopted the
prevailing medical theories. The distinction between
the duty of the court to decide questions of law, and
the duty of the jury to decide questions of fact, was
not appreciated and observed as it is now in this State.
. . . Without any conspicuous or material partition
between law and fact, without a plain demarcation
^ Informal Address to Law Students, St, Louis, Mo., May 10, 1882.
^ State vs. Pike, 49 N. IL, 399.
136 MEDICO-LEGAL RELATIONS OF INSANITY.
between a circumscribed province of the court and an
independent province of the jury, the judges gave to
juries, on questions of insanity, the best opinions
which the times afforded. In this manner, opinions
purely medical and pathological in their character,
relating entirely to questions of fact, and full of error
as medical experts now testify, passed into books of
law, and acquired the force of judicial decisions. De-
fective medical theories" (hypotheses ?) " usurped the
position of common law principles. The usurpation,
when detected, should cease. The manifest imposture
of an extinct medical theory pretending to be legal
authority, cannot appeal for support to our reason or
even to our sympathy."
As time rolled onward, and the touchstone of
science was applied, false theories, hypotheses, and
superstitions, that had formed a considerable part of
" leech-craft," were discarded by the medical jirofes-
sion; many of them are doubtless forgotten; but,
strange as it may seem, some of the worst of these dis-
carded erroneous views have been crystallized into
immortality by a sister j)i'ofession under the digni-
fied titles of " precedents" and " legal maxims."
Until a comparatively recent date there was no
rational care taken of the insane. Now there are
EXPERTS. 137
many large asylums, where skilled specialists watch
with scientific eye the many phases in which insanity
is presented, and from the large numbers under their
care these experts have ample opportunity for the
investigation of the pathological conditions, and their
comparison with the mental phenomena of the insane.
§ 50. The medical superintendents and their assist-
ants in asylums for the insane (excepting a few cases
in which political considerations prevail over personal
fitness in their appointment) are gentlemen of high
culture, mature judgment, and eminent for their med-
ical knowledge and scientific attainments, and possess-
ing all these qualifications and advantages, they have
been, and are, devoting their whole time to the study
of insanity in every form in which it presents itself.
Many of these gentlemen have also studied the " legal
relations of insanity," and are, therefore, experts in
the proper use of that term, as they possess all the
qualifications required by Messrs. Wharton and Stille,
quoted at the beginning of this chapter. Such experts
have time and again testified that many of the so-called
legal tests of insanity are unsound and untrustworthy ;
that the " right and wrong" test is unscientific and
contrary to fact; and yet, with no special knowledge
of the subject, judges have often charged juries, in the
138 3IEDIC0-LEGAL RELATIONS OF IXSAXITY.
face of such expert testimony, that knowledge of "right
and wrong" is the test of insanity. As remarked by
Judge Doe, in the very able opinion referred to, " In
these cases, the testimony of the experts negatived the
idea that knowledge of right and wrong is the test.
And the admission of this evidence, coupled witli the
rule given by the court to the jury that knowledge
is the test, brought the law into conflict with itself.
Either the experts testified on a question of law, or
the court testified on a question of fact. ... It is the
common practice for experts, under the oath of a wit-
ness, to inform tlie jury, in substance, that knowledge
is not the test, and for the judge, not under the oath
of a witness, to inform the jury that knowledge is the
test. And the situation is still more impressive when
the judge is forced by an impulse of humanity, as he
often is, to substantially advise the jury to acquit the
accused on the testimony of the exjDcrts, in violation
of the test asserted by himself ... If the tests of
insanity are matters of law, the practice of allowing
experts to testify what they are, should be discon-
tinued; if they are matters of fact, the judge should
no longer testify without being sworn as a witness
and showing himself qualified to testify as an exj^ert.
To say that the expert testifies to the tests of mental
EXPERTS. 139
disease as a fact, and tlie judge declares tlie test of
criminal responsibility as a rule of law, is only to
state the dilemma in another for:n "
In answer to the able reasoning of Judge Doe, whose
elaborate opinion they quote at length, Messrs. Whar-
ton and Stille rej)ly, " Is, then, responsibility a question
of fact, to be determined by the jury on the testimony
of exp)erts? Is the judge, on issues of insanity, to leave
the whole question, including that of responsibility,
to experts to decide, telling the jury that they are to
accept the experts' rendering? Is, in other words,
the test of criminal responsibility a matter of fact, to
be deposed to by experts, and found by the jury on
their testimony? Such are the questions that are
involved in the position just stated, and which are now
to be discussed."^ That no injustice may be done to
the learned authors, we quote below their reasoning
against the opinion of Judge Doe.^
1 Wharton and Stille, Med. Juris., § 192.
' ^ 193. It is conceded by the learned judge who delivered the
opinion which has last been quoted, and which maintains the affirmative
of the points just stated, that the views he advances are in conflict with
the great body of Anglo-American decisions on the game topic. This,
in fact, will be abundantly verified by an inspection of the preceding
pages, where the course of English and American judicial precedent
in this relation is exhibited. It is proposed now to pass the question
of authority, therefore, as one that does not admit of dispute, and to
140 MEDICO-LEGAL RELATIONS OF INSANITY.
§ 51. If the phrase, leaving " the whole question,"
means simply the question as to the sanity of the in-
adduce some general reasons to show vrhy, so far from accepting the
positions which have been so ably maintained by the New Hampshire
judges, we must reaffirm the view already announced — that, while
experts may be called to testify as to states of mind and conditions of
health, it is for the court to declare whether such states and conditions
constitute irresponsibility.
§ 194. First, let it be remembered that American common law courts
have no process for the collectionof the opinions of experts on litigated
questions of criminal responsibility. A case comes on to be tried in
one of our criminal courts. In the great majority of our jurisdictions
there is no law by which a commission can issue to take the deposition
of witnesses out of the reach of local process. Even in those jurisdictions
where such a law exists there is no reported case of a witness, residing
at a distance being examined by deposition. Indeed, even where this is
technically legal, the step is one which parties would be very unlikely
to take. An expert, in order to give an opinion to which the jury will
attach weight, must visit the patient personally. Hence it is that
practically, in seeking for experts, the parties are limited to those
whom they can produce on trial. Of course, when there is wealth, or
when the State makes, as it very rarely does, suitable provision, experts
may be brought from a distance. But, whether brought fi-om a distance
or taken from the immediate neighborhood, they are open to the very
serious objection that they are unofficial persons selected by the party
calling them, because their pre-ascertained views will serve that party's
necessities. For we have in none of our States governmental boards
of experts, chosen as independent arbiters, on the same 'basis as our
courts of law. Hence it is that the experts, whose testimony the jury
are to take, are simply voluntary theorists. So far as concerns the
defendant, they are called by him because, from their opinions already
advanced, their views favor his defence. It is by the defence, indeed,
that testimony of experts in issues of insanity is mainly produced. It
is natural that it should be so, for not only is the burden of proof on
EXPERTS. 141
dividual, the answer ought, unquestionably, to be in
the aflSrmative. Whether that practically includes
the defence, but the interest the defendant has at stake is so enormous,
that his whole energies, and his entire estate, as "well as the full pro-
fessional nerve and pride of his counsel, will be exhausted in bringing
his case fully before the court. Just so far as the prosecution takes an
interest in the case — -just so far as it believes in the baselessness of the
defence — is it liable to be influenced by the same zeal. But there is
here a difference between the position of the defence and that of the
prosecution. The defence springs its witnesses, if not its particular
point of reliance, on the prosecution. The prosecution has generally
to reply, as best it can, with any testimony which, at the moment ancl
spot, it can catch up.
I 195. But, be this as it may, each party has certain theories to be
proved, and each party looks around for experts to prove such theories.
Now, it so happens, that there is scarcely a single hypothesis as to re-
sponsibility, no matter how wild, which, among the large number of
experts who have concerned themselves with this branch of study, has
not its advocate. Some particular hypothesis is a convenient one for
the emergencies of the case, and consequently the expert who believes
it is sought out and summoned. But he, and the few, as it may be,
who agree with him, are summoned alone. The great mass of experts,
embracing ninety-nine hundredths of the entire body, are left uncalled.
There is undoubtedly one good physical reason for this. No court-
room, though as large as the Roman amphitheatre, could hold all those
who on this topic have fair claims to be considered experts. No State
treasury would attempt the expense of their maintenance and remu-
neration during the very protracted investigations that would ensue.
No court would have time for such trials ; and, indeed, it would be im-
possible to tell how long such a suit would continue. No humane gov-
ernment would permit a course which, by thus confining all the experts
of the land (even if we stopped here) in one spot, for an indefinite pe-
riod, would leave their innumerable patients and wards for so long a
time without guidance. But, independently of this objection, reason
142 MEDICO-LEGAL EELATIOJCS OF INSANITY.
the question of responsibility will be discussed here-
after. If it is not the province of the expert to de-
enough for a narrow selection is found in the fact that each party calls
only the experts that will prove his case, and no more.
^ 196. Now, how has this practically resulted? We believe that the
reports of our criminal trials show that there is not a case in which it
was necessary to rely on some extravagant and unique psychological the-
ory to make out a defence, in which such theory was not sustained by
experts. Thus, in a remai-kable Kentucky case, hereafter to be more
fully noticed, it was testified by experts, and apparently without con-
tradiction, that all persons committing suicide are insane, and that
consequently (a conclusion in which fortunately the court did not co-
incide), the exception of suicide in life-insurance policies is a nullity.
So in the case of Arthur O'Connor, who was tried in London in April,
1872, for an assault on the Queen, Dr. Tuke testified to the prisoner's
insanity, because he had no sense of his situation, and because he
"argued in a circle," which facts were declared by an opposite medi-
cal expert to prove just the conti'ary, while Dr. Sheppard, Professor
of Psychological Medicine in King's College, and head of the Colney
Hatch Asylum, announced, in an article in the Lancet, that Dr. Tuke's
position was "monstrous." So also in Andrew's case, where the de-
fence was mania travisiioria [transitoria?), one physician (a gentle-
man highly respectable, but standing almost alone in this respect) was
bi'ought to testify to the psychological soundness of the defence ; while
the prosecution limited itself to but one expert in reply, though it
could have found a thousand to endorse what that expert said. So in
the case now immediately before us, " dipsomania" is spoken of as
proved by medical experts; and it is said to be the law that if these
experts declare that there is such a disease as " dipsomania," and that
"dipsomania" confers irresponsibility, then the defendant is irrespon-
sible. But what experts? Who are to declare this? Those selected
by the defendant out of that small knot of psychological physicians who
hold to this theory? And is the court to be bound by the views of
those experts, supposing the prosecution declines to reply, or replies
EXPERTS. 143
clare whetlier the individual is or is not insane, for
what purpose was he called ? The accused either is
imperfectly? Is the judge to shut his eye to the fact that by almost
all modern psychologists — by all the governmental forensico-legal ex-
perts of Germany, by whom such great breadth and ability of diag-
nosis is exhibited, and by whom such unparalleled patience and com-
pass of induction exercised — by at least a preponderating weight of
opinion among English and American alienists — the theory of distinct
moral mono-mania, the mind remaining sane, is not only repudiated but
denounced? But how is this fact to be shown? The prosecution has
not the means or time, even if it has the desire, to bring these emi-
nent men to the witness-stand. There is no process in other words,
in which the true sense of experts, taking them as a body, can be ob-
tained. The test, therefore, is one which, from the inadequacy of our
judicial machinery, we cannot apply.
§ 197. But, again, even supposing experts of conflicting views could
be fairly and liberally summoned, so as to give the jury the full ren-
ditions of science on the questions in litigation, there is no court of
experts, who can harmonize antagonistic views, and give to the jury in
a concrete shape a positive and final judgment. In legal practice, from
tlie fact that in each State there is a final court of appeal, this difliculty
is obviated. "We all know what the law is ; or, if we do not, we have
the means, in each litigated case, of ascertaining such law. And in
this certainty, at least as much as in the wisdom of the opinions pro-
mulgated, lies our safety. Take, for instance, to repeat a prior illus-
tration, the question of moral insanity. If moral insanity be estab-
lished by the courts, then the legislature can take measures to have all
persons "morally insane" placed in insane asylums, so that no injury
to the community can ensue from their running at large. Or, if the
courts hold that "moral insanity" is not a defence, then persons of
this class will be held responsible penally for their misdoings, or placed
under bonds to keep the peace. But if the rule is to be laid down by
experts called freshly in each particular case, with no court of appeal,
it will be impossible to have any settled law. The experts selected in
144 MEDICO-LEGAL RELATIONS OF INSANITY.
or is not insaue. Assume that no responsibility at-
tached to the question, but simply as a matter of
one case will prove entirely a different law from the experts selected in
another case. For instance, in those cases in which the State takes
the prosecution in its own hands, and calls, as is the practice in some
jurisdictions, men of high station as psychologists, the testimony will
be that there is no such thing as either monomania or "moral insanity"
as a distinct insane affection. On the other hand, in a case in which
the defendant's mental sanity is indisputable, and his life may depend
on his proving that "moral insanity" is a good defence, experts who
hold to " moral insanity" are called to prove it exists; and " moral in-
sanity" is so far established. From neither of these decisions is thero
any appeal. There is no mode of harmonizing them. Nor is it pos-
sible to tell what the future may bring forth, except that each party
will call such experts as are most favorable to his views. Now, to
speak of the opinions of such special experts as the opinions of experts
in general, and declare it to constitute the rule of insanity, is about as
reasonable as it would be to speak of the arguments of counsel em-
ployed to argue on a series of isolated cases, as constituting the law of
the land. The fact is there is no settled and final opinion of experts,
to supply the test which is here invoked, because there is no final court
by whom conflicts among experts can be reconciled and a settled law
pronounced.
§ 198. But, after all, we must next observe that the proposed submis-
sion of the tests to experts for decision is an illusion, for the court
will have to explain what it is that the experts say. No court can
abdicate its functions of weighing testimony and of declaring what tes-
timony means. It is, indeed, a fundamental maxim of the law that
witnesses are not to be counted, but weighed. Let us take, as illus-
ti-ating this necessity, the celebrated Windham case, elsewhere more
fully noticed. A petition of lunacy was taken out against Mr. Wind-
ham, his nearest relatives being the petitioners. His course was
shown to have been since his boyhood — at the time of the inquisition
he was not much older than twenty-one — one of reckless and imbecile
EXPERTS. 145
information it was desirable that it should be deter-
mined, who would be called upon to decide the
profligacy ; and some of the most eminent experts, called for the peti-
tioners, declared that he was wanting in capacity to manage his own-i-,
affairs. But the testimony thus produced was overborne, as to num-
bers, by a mass of other experts, who, on examination f\xr more super-
ficial, and on tests far less thorough, pronounced for the respondent's
competency. Of course, in such cases, there was but one course open
to the master in lunacy by whom the inquisition was held. His duty
was to say where the weight of the testimony was, and by what tests
it was to be proved. So it must always be in cases of conflict of
evidence. Yet to declare, supposing the testimony of experts to be
"law," where the weight of this testimony lies, is really to declare
what the law itself is.
I 199. Nor can harmony be by any other course adjusted between
civil and criminal law. In many classes of probate cases the question
of a testator's sanity is taken from the jury and determined exclu-
sively by the court. In all civil issues this is forced by demurrers
either to the pleading or to the evidence. Even on jury trials, the
legal relation of the testimony of experts can be removed, by bills of
exceptions, or by appeal, to the Superior Court. To declare that in
criminal cases such questions are solely for the jury, guided by experts,
would be to introduce not merely clashing of courts, but failure of jus-
tice. A man would be sane by one class of proceeding, and be insane by
another. After being declared responsible by an inquisition of lunacy,
he might be declared irresponsible by a jury on an indictment for crime ;
and thus would he be too irresponsible to be punished as a criminal,
and yet not irresponsible enough to be placed in an insane asylum.
Or, under the direction of experts of opposite views, a man who, in a
civil court would be held insane, might be convicted by a jury as sane,
without any right, on the hypothesis here combated, of appealing to
the court for redress.
^ 199a. But, finally, we must fall back on the position already fully
argued, that the question of irresponsibility is one that cannot, con-
10
146 MEDICO-LEGAL RELATIONS OF INSANITY.
question, experts or judges? Would the decision be
considered a question of law or a matter of fact?
Let it be remembered that the expert does not in any
case declare directly as to his opinion of responsibility.
His only province is to J'eclare whether or not the
sistently with public justice, be surrendered by the courts. Responsi-
bility is a judicial question. It is of the highest grade. It touches the
most cherished prerogatives of citizen and state. It involves in its
criminal relations two topics, both of which are in the range of juridical
philosophy, and both of which should be decided, in each case that
arises, by officers of the state, appointed by the state, bound by fixed
rules, and advised, before they decide, liy counsel who will present both
sides of the question at large. One of these topics is the relation of
responsibility to reason, and here arises the principle heretofore dis-
cussed on grounds purely juridical, that wherever there is reason there
is responsibility. The other topic is that of the divisibility of the Ego
into distinct factors, one of which can become insane while the other
is sane ; and in this is involved the position hereafter to be vindicated,
that there is no such thing as moral insanity coexistent with mental
sanity. These points are not to be finally adjudicated by experts, who
are neither appointed by the state, so as to be independent of party
choice, nor are selected from their general judicial fitness, nor are bound
by precedent, nor are advised before they come to a decision, by counsel
presenting fully both sides. Experts are no doubt to give facts, though
their exploration of facts should not be made without notice to the op-
posite side. But questions of high philosophical jurisprudence such as
these, bearing as they do most closely on the liberty of the citizen and
the safety of the state, should be decided by judges, who, appointed by
the state, independent of the parties, and advised by counsel, remem-
ber that their decision is to be part of a harmonious and equal system
of public law, and that for their rendering of it they are responsible
to the state, from which their appointment proceeds.
EXPEETS. 147
accused is insane. If the judge can determine that
point, why go through the farce of calling experts
at all ? It will be observed that it is only because
the law says an insane person is irresponsible for his
acts that even indirectly the expert touches the ques-
tion of responsibility. Were the law so changed that
insanity would be no bar to responsibility, then the
declaration of the expert that the accused was insane
would have no legal significance. Insanity has been
shown to be a manifestation of physical disease, and
whether a person is diseased or not is certainly a ques-
tion of fact for a medical expert to determine, and
the law, whether the lex scrlpta or the lex non seripia
is immaterial, in declaring that certain responsibili-
ties shall or shall not follow the absence or pres-
ence of certain forms of disease, does not change the "
relative positions of the patient and physician, nor
confer a right upon the judge, who is not an expert
to invade the domain of those whom the courts,
as well as the people, recognize as medical exj)erts ;
therefore the fact of sanity or insanity in the accused
ought to be determined by the jury from the testi-
mony of the medical experts.
§ 52. If it is considered imperatively necessary that
the judges should determine the question of insanity
148 MEDICO-LEGAL EELATIONS OF INSANITY.
by some " precedent" or " legal maxim," so as legally
to control responsibility, then, in the name of con-
sistency, change the law so that the expensive farce
of calling experts shall be abolished. Expunge the
words insane and insanity from the law, and have in
their stead some of the many legal tests of insanity
now in use, as a knowledge of " right and wrong,"
"complete or limited alienation," or any other term
that may be considered in accordance with the legal
view of responsibility ; but while the question is " san-
ity or insanity," let it be determined by medical ex-
perts, who alone are competent judges of that fact.
It is not claimed that there are no cases of insanity
which can be determined by those who are not experts
according to the ''j)ure rule of law." The raving
maniac with no lucid interval, the drivelling idiot, or
the confirmed melancholic needs no special knowledge
to determine his or her deplorable condition ; unfor-
tunately for them, they are so far removed from ra-
tionality that any person of ordinary intelligence could
not well be mistaken as to their condition ; about such
there is no dispute. Judges, lawyers, doctors, juries,
neighbors, and friends, all agree respecting such un-
fortunates, and when they are required to attend
courts it is simply j9?^o forma. But, as against these
EXPERTS. 149
extreme cases, there are all degrees of mental power,
from the imbecile, who cannot be taught that two and
two make four, to the genius of a Newton, and all
grades of mental disturbance, from the raving maniac
to the person who is popularly known as " a little off
his balance." The extremes of both these conditions
are easily determined with certainty, but between
these there is a whole chromatic spectrum of mental
conditions, in which the tints are so closely blended
as to be almost indistinguishable, and when the case
is a mean between the two extremes — lies close to the
indistinct, wavy line of demarcation which divides
sanity from insanity, then who but the skilled expert
can determine to which class he belongs ? Nay, even
to experienced experts such cases are very perplexing,
especially where the person has a motive for being
considered insane, as in the case of criminals whose
only defence is insanity, and the exact condition in
such cases can only be positively ascertained by hav-
ing the suspected party under the surveillance of an
expert continuously for a sufficient length of time,
where he may be carefully watched when he supposes
himself alone and unobserved.
§ 53. Another pregnant factor in the uncertainty
of verdicts is the prevailing practice of presenting
150 MEDICO-LEGAL RELATIONS OF INSANITY.
cases hypothetically to the expert. It is notorious
that there are many cases in which it is impossible
for one eminent physician to report to another equally
eminent a case under his daily care, so exactly and
clearly, that the latter would be justified in giving an
opinion as to treatment without a personal examina-
tion of the case.
There is much to be learned by skilled observation
that cannot be transferred to jDaper with sufiScient ac-
curacy to enable the reader to form an opinion as to
the precise condition ; hence the universal custom of
having medical consultations at the patients' bedsides.
What are the hypothetical cases presented in court
from which an expert is expected to decide correctly
as to the exact mental condition of a prisoner ? The
cases thus presented in court, even if honestly pre-
pared, consist of a number of symptoms, manifesta-
tions, and aj)pearances that are believed to closely
resemble the symptoms, manifestations, and appear-
ances exhibited by the accused. By whom have
these observations been made, and by whom are the
hypothetical cases prepared ? Even if by an experi-
enced expert, they might mislead, because those things
which closely resemble are not identical. But hypo-
thetical cases are not supposed to be prepared by ex-
EXPERTS. 151
perts. Tliey are prepared and presented by lawyers
who are not skilled observers, and generally not from
extended observation, two or three visits of short du-
ration being the usual limit, and frequently not from
personal observation at all, but from the reports of
friends or attendants who also are not skilled observers.
With no intention to do injustice to eminent members
of a sister profession, we say that they have no quali-
fications whatever that fit them for preparing a hypo-
thetical case of a physical disease. They know
nothing of iDathological conditions, nor are they quali-
fied to report accurately symptoms or indications of
disease. This may probably be denied by lawyers,
but it is true nevertheless. Any ordinary observer
could notice that a person had a bad cough and ex-
pectorated freely, but an ordinary observer could not
determine whether that cough and expectoration were
the result of irritation of the fauces, influenza, bron-
chitis, or tubercular consumption. Diseases so widely
different in their origin, location, pathology, and ter-
minations have two prominent symptoms common to
all of them. The ordinary observer notes and reports
only those prominent symptoms and appearances.
Dr. Luys has admirably shown the absolute neces-
sity for skilled observation. He says, " Thus, for
152 MEDICO-LEGAL RELATIONS OF INSANITY.
instance, when I auscultate tlie chest of a patient, and
perceiving the existence of tubular resj)iration, declare
that the patieiit is in the second stage of pneumonia,
I give utterance to a judgihent that has many ramifi-
cations in my mind, and is made up of a great number
of different materials.
" Starting from this blowing noise that has struck
my ear, I represent to myself what, under similar
circumstances, I have perceived on previous occasions.
I have observed, for instance, that this blowing noise
corresponds to a hypersemia of the pulmonary tissue,
with concomitant induration, that it depends upon
an induration of tissue, not upon the presence of
effused fluid. At the same time I perceive with my
eyes the general condition of the patient, I note his
countenance, his external habit, the state of his tongue,
etc., and a new series of notions acquired by the exer-
cise of optic impressions, is awakened in my mind and
becomes associated with the process already begun by
the auditory impressions. I percuss, moreover ; I feel
the pulse ; I palpate ; and once more, starting from
a new series of sensorial impressions that come into
play, new regions of the sensorium are associated, set
in vibration, and take their part in the complex opera-
tion that is taking place. The different regions of my
EXPERTS. 153
brain are successively affected. Notions formerly ac-
quired are laid under contribution ; tbey come forward
of their own accord on the occurrence of the excitation
with which they are methodically connected as con-
temporary memories ; and thus the personality, re-
minded of the primordial impression, and enlightened
by the total product of the related notions that spring
up automatically, pronounces its judgment with a suf-
ficient number of materials, and expresses the manner
in which it is effected in a verbal form which is the
index of its present condition. Thus it is that in
pronouncing the words ' pneumonia — second stage,' I
epitomize a whole series of former notions, methodi-
cally grouped, which have made their appearance in
my mind, motu proprio."^
No expert could with certainty determine from a
non-exjDert's report the existing disease, because the
trained eye, ear, and touch were wanting in the ob-
server. The subtile symptoms unnoticed, or not un-
derstood, by the common observer, being just the
symptoms that enable the expert to determine with
certainty the character of the disease, while the
prominent symptoms, which alone were noticed by
^ Luys, Brain and its Functions, pp. 294-95.
154 MEDICO-LEGAL EELATiONS OF INSANITY.
the unskilled observer, furnish no clue whatever as to
the exact nature of the malady or cause which pro-
duced the symptoms or manifestations.
§ 54. The above illustration, which is only one of a
score that might be used, shows that unskilled obser-
vation would be necessarily fatal to a recognition of
common, ordinary diseases; and diseases of the nervous
system, especially of the nerve-centres, being generally
much more obscure, would therefore require more
special training to enable the observer to note and in-
terpret their indications correctly than would be re-
quired in determining any of the above-mentioned
common diseases. Another grave objection to the use
of hypothetical cases arises from the fact that they
are prepared by lawyers, who, on one side at least, are
the paid agents of their clients and therefore inter-
ested, and whose zeal for the interest of their clients is
at least as prominently manifested as is their faithful-
ness in representing the actual facts of the case to the
court and jury. Besides, they are often assisted by
skilled observers (who are not witnesses at the trial,
and consequently not under oath) in the preparation
of their hypothetical cases for one-sided presentation.
Obscure yet highly important symptoms are entirely
omitted, or, if noticed at all, touched so lightly that
EXPERTS. 155
attention is not aroused to their importance, while
other symptoms or apj^earances which favor their side
are brought into prominent notice — are urged again
and again uj^on the attention of the court and jury.
The judge and jury, not being experts, and therefore
being unacquainted with the importance of the symp-
toms lightly touched, or uninformed as to those
omitted, necessarily arrive at incorrect conclusions,
however correct and logical their conclusions may be
as to the symptoms actually presented to them.
Again, in preparing his hypothetical case the lawyer
has plenty of time and skilled assistance if he de-
sires it, so that he can adroitly choose his words and
dexterously combine the symjDtoms and their se-
quences. Not so the opposite side. It is sprung upon
them and upon the experts, and both may fail to de-
tect the subtleties which tend to, and often do mislead.
By such manipulation, wherever the evidence, if fairly
brought out, would leave nearly an equipoise between
'pro and con. the case may be turned to whichever side
exhibits the greater skill in prej)aring its hypothesis;
hence such cases are generally decided not on their
merits, but on the adroitness and skill of the counsel
employed. In every case where insanity is to be the
defence for crime perpetrated, the prisoner ought to be
156 MEDICO-LEGAL EELATIONS OF INSANITY.
committed to an insane asylum, and be tliere kept until
by observation and direct examinations made, tlie med-
ical experts are fully satisfied as to his mental condition,
and then require them to give their opinion and the
reasons for such opinion, directly to the court and
jury in the form of a deposition. Were that method
adopted, at least one grave source of uncertainty
would be obviated.
§ b5. It is unquestionably a fact that in some
forms of insanity there are intervals when the mind
is clear, or when there are what are commonly known
as ^^ lucid intervals." There is also the condition
known as " irresistible" or " uncontrollable impulse."
It is not inconsistent with occasional attacks of " irre-
sistible impulse" that there should be lucid intervals
of longer or shorter duration, during which periods
the insane individual may conduct himself with ordi-
nary propriety. He can reason correctly and forcibly
on subjects with which he is familiar. 'Nay, one of
the distinctive features of general mania is that the
" reasoning . . . does not so much fail in the force
and logic of its arguments as in the incorrectness of
its assumptions." ^ From information obtained through
^ Ray, Med. Juris, of Insanity, I 346.
EXPERTS. 157
a few visits made by unskilled observers, it would be
impossible to represent such cases hypotlietically with
that accuracy which would be indispensably necessary
to warrant an expert in giving a positive opinion as
to the mental condition of the prisoner. In the trial of
Guiteau for assassinating President Garfield, the utter
worthlessness of " hypothetical cases" was practically
demonstrated. It was alleged, during the trial, that
unless extraordinary license were given to Guiteau to
enable the experts, then and there, to study his men-
tal condition, grave doubts existed as to whether the
assassin could be convicted. We do not vouch for the
truth of the allegation, but it is charitable to believe
that either that or some other equally cogent and
weighty reason induced the learned judge to waive,
during the trial, the usually severe decorum of a court
of justice, engaged in determining the guilt or inno-
cence, sanity or insanity, of a j)risoner charged with
the commission of a crime the most heinous known to
the law. The proceedings during that memorable trial
were characterized by the conspicuous absence of grav-
ity, dignity, and order, and had, to the eyes of those
who did not divine the intention of the court, the ap-
pearance of a burlesque or the enactment of a farce,
rather than of a solemn trial for the deliberate, uu-
158 MEDICO-LEGAL RELATIONS OF INSANITY.
provoked murder of an innocent person (waiving all
mention of tlie exalted rank and responsible official
position of that individual) . It is not creditable to the
United States that its judicial machinery is so defect-
ive that, for the purpose of securing justice in the case
of the murderer of its chief executive, the judge had
to allow the prisoner such license as brought the court
to the verge of contempt. Few trials in the history
of civilization have more loudly proclaimed the
urgent necessity for amending the law and judicial
modes of procedure, especially as the abrogation of
dignity and decorum does not in any way arise ex
necessitate rei. Had Guiteau been sent to an insane
asylum for a sufficient length of time before his trial,
to enable the medical experts to study him thor-
oughly, at such times and under such circumstances
as in their ripe experience they considered the best
suited to disclose exactly his mental condition, does
any sane person suppose those exj^erts would have
been less likely to arrive at the truth in that way
than by the undignified, disorderly, and irritating
method which was adopted ? A crowded court-room,
with the gravest of personal interests pending, and
the consequent excitement arising therefrom, does not
by any means furnish the best opportunity for study-
EXPEETS. 159
ing the mental condition. It is well known tliat
undue responsibility or excitement, in some individ-
uals, would induce mental perturbations, whicli, if
alone observed, would mislead as to the general
mental state. In all cases where there is doubt as
to the sanity of a person it is of great importance
that he should be observed under different circum-
stances, and at different times, and by far the most
important of these is when he supposes himself secure
from human observation. In feigning insanity the
mental strain is so tense that it cannot be kept up in-
definitely ; hence, when the person supposes himself
entirely unobserved, the mask will be thrown off and
he will appear as he really is.
In this trial there were two "hypothetical cases"
presented, one each by the prosecution and by the
defence. If these were sufficient, why were so many
experts kept so long away from their homes and
those under their professional care, in Washington'
at such great expense to the government? If it
was necessary that they should be kept, so that
they could make daily personal observation of the
prisoner, then the "hypothetical cases" failed to
represent the case intelligibly to the experts, hence
were valueless. One of the expert witnesses in giv-
160 MEDICO-LEGAL RELATIONS OF INSANITY.
ing his testimony stated tliat lie had changed his
opinion since he had observed directly the manifes-
tations of Guiteau's mental condition. Would he
have changed his opinion from studying the "hypo-
thetical cases" presented ? In no other way than by
direct observation and examination can imposition be
with certainty detected. When the proof of guilt is
so clear that no other plea is tenable, insanity is
often relied on by criminals as their only defence,
and, either from previous observation or under in-
struction, insanity is feigned, and sometimes so
adroitly is the assumption maintained, that for
months eminent experts have been baffled in de-
tecting it, even when under their immediate, daily
care in asylums. Unfortunately, the practice gen-
erally followed in such cases ignores those who
alone are capable of detecting the imposition, and
in consequence many of the worst criminals go
"unwhipt of justice." And to add to the uncer-
tainty caused by the lack of competent witnesses,
the "hypothetical case" is introduced, which, as has
been shown, is almost certain to mislead; and as a
means of arriving at facts in any given case is un-
reliable and untrustworthy.
§ 56. The question is forced u^^on us, is there a
EXPERTS. 161
necessity for continuing tlie inexact, uncertain cir-
cumlocution of having "hypothetical cases"? The
desideratum is to have the facts of the case clearly and
concisely j^resented to the court and jury, so that they
may be readily and fully apprehended. Why use
inexact, uncertain, cumbrous methods to reach exact
conclusions ? It is urged that direct evidence is not
admissible, because it would take the question of re-
sponsibility from the court and transfer it to the wit-
ness. How much of this is strictly true? As shown
before {ante, p. 147), it is the law that declares the
irresponsibility of the insane, not the expert, who
simply declares that the accused is or is not insane ;
for were the law changed so that insanity would not
void responsibility, then the statement by the expert
that the person was insane would not at all affect that
question. Under any and all circumstances, if the
testimony of the witness is believed by the court and
jury, whether as to facts or theories, the witness largely
takes the responsibility of the decision of the case upon
his shoulders, and of that responsibihty he cannot
practically be divested; hence the general usage of
providing for the punishment of the witness who tes-
tifies falsely. Suppose a suit for alleged malpractice
in setting a broken thigh to have occurred during the
11
162 MEDICO-LEGAL EELATIONS OF INSANITY.
late war, the law declaring that a weakened, short-
ened, and deformed leg would exempt the subject
from serving as a soldier. The expert witness in tes-
tifying that the leg had been broken, was unskilfully
set, was weakened, shortened, and deformed, would as
directly testify to the liability of the person so injured
to be drafted as would the expert who testified to the
insanity of a criminal be to his irresponsibility ; be-
cause in the one case the law declared the negation of
liability to enlistment, and in the other the negation
of responsibility, and in neither case did the expert
testify as to the liability or responsibility. All the
sections quoted from Messrs. Yfharton and Stille's
work will not be considered seriatim, as that course
would be unnecessarily tedious, but the principles
involved will be freely discussed and frequent refer-
ence made to them. The sections referred to, collec-
tively, appear to constitute a fair apology for the
uncertainty of verdicts, owing to defective laws or
modes of legal procedure. Are our laws of Medo-
Persian inflexibility? Are we, Mongolian-like, to
adhere to an erroneous system of procedure simply
because the " precedents" and " maxims" therefor are
hoary with age ; when, by the advancement of science,
many of those "precedents" and "maxims" have been
EXPERTS. 163
shown, time and again, to be scientifically incorrect
and false in fact, therefore utterly untrustworthy ? It
ought to be borne in mind that uncertainty of verdicts
in any class of cases through defective laws or legal
machinery is necessarily a source of the grossest
injustice. There cannot but be injustice often done
" where the conviction or acquittal of a prisoner is a
matter of chance . . . the less insane person some-
times escapes, while the more "insane person is some-
times hanged."^ Why make courts the seeming
authors of injustice ? Why not amend the laws and
change the legal modes of procedure, giving to the
courts the necessary authority to make their verdicts
reasonably certain, and therefore respected ? Because
the principles of law are immutable and eternal, it
does not necessarily follow that those principles have
been always understood and correctly applied ; and
when science furnishes conclusive proof that they
have been misunderstood or misapplied, then it is
time to amend, not the principles, but the erroneous
practice based on a misconception or misapplication
of those principles. In § 194, and again in § 196, we
are informed that there are a number of legal pro-
Maudsley, see ante, I 1.
164 MEDICO-LEGAI^ EELATIOIv'S OF INSANITY.
visions necessary if any departure is to be made from
the usual routine of practice; at least such would
appear to be the inference, as, if they were not con-
sidered necessary, why refer to them ? We are told
that there is no legal process for the collection of ex-
pert opinions ; there is no general law for issuing com-
missions to take depositions of experts residing at a
distance; experts are unofficial persons, as we have
no governmental boards of experts. Considering the
paramount importance of criminal jurisprudence, if
these or any other provisions are necessary to the
administration of justice, they ought to be promptly
provided ; and as it is the interest of all respectable
parties to have justice done, if proper representations
of the desiderata were made to Congress or to State
Legislatures, there would be no difficulty in securing
the necessary legal enactments, as no party would
oppose such legislation.
In § 195 the many objections to experts, so called,
have their climax in the want of room. " No court-
room, though as large as the Koman Amphitheatre,
could hold all those who on this topic have fair claims
to be considered experts." In penning the argumen-
tum ah inconvenienti just referred to, Messrs. Whar-
ton and Stille evidently forgot, or disregarded, their
EXPERTS. 165
own definition of expert (see § 275). Had tliey ad-
hered to that definition the}'- would not have found so
many who have fair claims to be considered experts
as to inconveniently crowd a court-house much
smaller than the Roman Amphitheatre. A strict en-
forcement of that definition would remove all the ob-
jections urged in that section. In § 196 the question
is asked, " Is the judge to shut his eye to the fact that
by almost all modern psychologists . . . the theory
of distinct moral monomania, the mind (intellect ?) re-
maining sane, is not only repudiated, but denounced ?
But how is this fact to be shown ? The prosecution
has not the means or time, even if it has the desire, to
bring these eminent men to the witness-stand." We
think the answer unquestionably should be in the
affirmative. Even should the case be made much
stronger by supposing the judge to be an eminent
psychologist and physician who had spent many years
as superintendent of an asylum for the insane, so that
he, in the strict use of the term, was an expert in in-
sanity, the answer ought still to be in the affirmative.
Whether the matter in variance exists between in-
dividuals or between the State and individuals, the
judge is supposed to hold a strictly impartial position
between them, and to apply the principles of law to
166 MEDICO-LEGAL KELATIONS OF IISTSANITY.
the evidence furnished in all cases brought before him
for adjudication. Is he then expected or permitted to
furnish the " means," " time," or " desire" to the pros-
ecution, so that the cases may be brought in complete
form before his court, or shall he suj)ply their defects
from his own knowledge? Suppose the prosecution
to be equally remiss in presenting the facts, say, in a
case for murder, — had no witnesses in court who could
testify that a murder had been committed and that
the prisoner at the bar had committed that murder ;
would the judge be warranted in directing the jury to
assume both that the murder had been committed and
that the prisoner had committed it, because he himself
believed, or even well knew, such to be the fact, when
no evidence had been offered in court in support of
the indictment? The want of "means," "time," and
" desire" would be excellent reasons for blaming the
prosecution with incapacity or negligence, in which
culpability the State might possibly be included, if it
had not furnished the j)rosecuting officer with the
necessary means. But the judge would place himself
in a dangerously false position were he to undertake
to supply their lack of evidence from his own knowl-
edge.
Again, the jury are sworn to render " a true verdict
EXPERTS. 167
according to the evidenced How could tliey render a
verdict of guilty against a prisoner when no ]yrooi of
his guilt had been offered ? Still, assuming the judge
to be an eminent expert in insanity, and that the pros-
ecution had neither the " means," " time," nor " de-
sire" to place eminent experts on the witness-stand,
and that the judge permitted men, not eminent, to
testify as experts, men who in fact, were not experts,
and these witnesses testified in behalf of the defence
to the existence of moral, separate from intellectual
insanity, as a distinct form of mania, and that the
prisoner at the- bar was the subject of that form of
mania ; and, through the incompetence or negligence
of the prosecution no rebutting testimony was offered,
would the judge be warranted in utterly ignoring all
the testimony that had been presented, directing the
jury to find for the prosecution, because he himself
believed that there could be no moral without intel-
lectual insanity ? One of the facts to be determined
by the jury is the credibility of the witnesses. Now,
assume that the witnesses who gave testimony were
reputable physicians, men of good standing for integ-
rity and veracity, but really unskilled as experts in
insanity, could the judge direct the jury that however
reputable and trustworthy they, the witnesses were as
168 MEDICO-LEGAL EELATIONS OF INSANITY.
men, yet as experts their evidence was false, viewed
from a scientific stand-point, and therefore utterly
unreliable ? Are not the conclusions of science, testi-
fied to by witnesses, matters for consideration and de-
termination by the jury ? Besides, the judge had
permitted the witnesses to testify as experts, knowing
that they were not, or not knowing that they were,
experts in insanity, and according to Messrs. Whar-
ton and Stille (§ 277a), on the authority of TuUis vs.
Kidd, 12 Ala., 648, "After a witness has been ad-
mitted to testify as an expert, evidence cannot be
given to the jury of the opinions of other experts in
the same science as to whether the witness was quali-
fied to draw correct conclusions in the science on
which he had been examined, though such testimony
might have been properly offered to the court to show
the competency of the witness before he was admitted
to testify." In the foregoing illustrations it has been
assumed that the judge was also an eminent expert,
and that the witnesses who testified were not; but
change . the assumption by supposing that the wit-
nesses were eminent experts, and uncontradicted by
any other expert testimony, would the judge be justi-
fied in directing the jury to ignore their united testi-
mony on his own supposed superior individual knowl-
EXPERTS. 169
edge? But change the assumption again, and this
time to what is generally the fact id est, that the
judge was not an expert in insanity. With what
propriety could he direct the jury to ignore testimony
on the ground that it was scientifically incorrect,
hence untrustworthy, when in fact he had no knowl-
edge in the premises more correct or reliable than the
improperly so-called expert witnesses ? Therefore, in
any view, the interrogatory of Messrs. Wharton and
Stille ought to be answered in the afiirmative ; other-
wise, why keep up the expensive practice of having
witnesses and juries ? Why not have every case de-
cided by the ipse dixit of the judge, and not on the
testimony of witnesses, but on his own knowledge?
The arguments of Messrs. Wharton and Stille are
strong ones against the present mode of conducting
insanity trials. They admit the many and grave de-
fects of the system, but as a remedy they appear to ad-
vise the judges to assume a dangerous authority and
unwarranted responsibility utterly inconsistent with
the genius of our free institutions. That grave defects
exist few will deny, but are they necessarily irremedi-
able, or remediable only by adopting other modes of
procedure, perhaps not less objectionable? We think
not. When expert testimony is required, let it be given
170 MEDICO-LEGAL EELATIONS OF I:N^SANITY.
only by experts. Let the judges imperatively enforce
the rule that in insanity cases none but those emi-
nent for their ability, knowledge, and experience in
their specialty be permitted to testify as experts, and
give such experts full opportunity for informing them-
selves of the actual condition of the alleged insane per-
son, and then require them to depose directly to the
court and jury as to his sanity or insanity, and their
leasons for such opinion.
§ 57. This, of course, would bring prominently
forward the question of the propriety or safety to the
public of intrusting private persons — id est, persons not
oflficers of the State — with so grave a responsibility.
While, as has been shown, theoretically the law, not
the expert, fixes the responsibility, yet, since the law
says that the insane are irresponsible, the determining
of the fact of sanity or insanity practically may be
said to fix the responsibility, and we think it would be
unwise to intrust such responsibility to any person,
however well qualified, who is not directly accounta-
ble to the State as its ofiicer; and therefore we would
consider it advisable not only that none but experts
be allowed to testify as such, but, further, that none
but eminent experts, who are also ofiicers of the State,
be eligible to be called upon to give expert testimony
EXPERTS. 171
in insanity trials, and we can generally have in the
medical superintendents and their first assistants of
insane asylums, just such experts as are required.
§ 58. But where so grave a responsibility is im-
posed upon any particular class of officers, it is not
enough that they are generally competent and trust-
worthy ; they ought always to be so ; and to secure
that desideratum we make the following suggestions :
(a) Let every State appoint a board of examiners,
to be composed of one or more eminent lawyers, phy-
sicians, and psychologists, and hereafter require every
j)erson, before he can be appointed to hold the office
of medical superintendent or first assistant superin-
tendent of any State asylum for the insane, to furnish
satisfactory evidence of being a graduate of some
reputable medical college, and to produce a certificate
of having passed an examination before that board,
and that he is well skilled in each of the three depart-
ments of science, — " law, sufficient to determine what
is the responsibility which is to be the object of the
contested capacity ; medicine, and psychology, so as
to speak analytically of the properties" (or attributes)
" of the human mind," — and that medical superin-
tendents and their first assistants, qualified as above
required, and who have been in the active discharge
172 MEDICO-LEGAL EELATIOJSTS OF INSA^NTITY.
of their duties as such superintendents or assistant su-
perintendents in State insane asylums for years,
shall be the only persons hereafter eligible to give
evidence as experts in insanity before any State court.
(b) I^et a similar board be appointed by the United
States, or let the general government accept the State
experts as the onl'i/ experts who will be permitted to
give evidence in insanity trials in the United States
courts, or vice versa.
(c) Let it be a part of the official duty of such
medical superintendents and their first assistants to
give testimony as experts whenever so required by
competent authority, receiving no remuneration for
'preparing depositions or attending court to give evi-
dence as experts. (Let it be made a misdemeanor for
such officers to receive any compensation, directly or
indirectly, for service as experts.)
{d) As an expert can only be called when the
premises upon which he founds his conclusions cannot
be understood by the court or jury without study or
knowledge on that special subject, or to inform the
court and jury on a subject which can only be under-
stood by special study, the expert should be consid-
ered amicus curice, and as such should be subpoenaed
not "on behalf of the prosecution" or "of the
EXPERTS. 173
defence," but on behalf of the court, regardless as to
which of the parties to the trial desired his services.
(e) Let the several States, interchangeably with
each other and with the general government, make
arrangements for the remuneration to the State for
the services of such experts, when used otherwise or
elsewhere than by the State of which they are officers.
And until the necessary legislation shall have given
effect to the foregoing provisions, let the courts im-
peratively require of all persons giving testimony as
experts in insanity trials that they be, or have been,
medical superintendents or first assistant medical su-
perintendents of insane asylums, and that they have
held such positions respectively for a period of not
less than five consecutive years, as those, and those
only, who have had such experience can be properly
considered experts in insanity.
(/) Let there be established, near to, but separate
from, some State insane asylum, an insane prison, to
which shall be committed (1) all who are known to
be dangerous lunatics ; (2) all who have been relieved
by competent courts from responsibility for crimes
committed by being declared insane. (3) Let it be
required of all persons accused of crime, who may
hereafter interpose the defence of insanity, that they
174 MEDICO-LEGAL EELATIONS OF INSANITY.
shall, at the option of the prosecuting officer, be com-
mitted to the insane prison pending the trial, or
for such time as shall be deemed necessary for the
satisfactory examination of their mental condition by
the experts in charge thereof. Persons in classes
" 1" and " 2" to be committed to the insane j)rison for
the term of tlieir natural lives, and to be released
only by the clemency of the governor of the State,
he acting on a certificate from a commission to be
composed of the superintendent of the insane prison,
and of the superintendents of two State insane asy-
lums, which certificate shall certify that the insane
person has been cured of his malady and may be set
at liberty without danger to the community; and any
persons so in confinement shall have the right at any
time, but not oftener than once in six months, to
demand an examination by such commission in re-
spect to their mental condition, and a notification
to the superintendent of the insane prison of their
desire shall be deemed a sufficient demand. All per-
sons belonging to class " 3" to be committed by the
magistrate or police justice to the insane prison, there
to remain for such time as may be reasonably neces-
sary to enable the superintendents of said prison and
of the contiguous insane asylum to satisfy them-
EXPERTS. 175
selves as to the mental condition of the prisoner, and
when so satisfied, the said superintendents shall de-
pose directly to the prisoner's sanity or insanity to
the court having jurisdiction, they giving the reasons
for the conclusion or opinion at which they have
arrived, which depositions shall form a part of the
record, and on which, the said superintendents shall
be liable to examination and cross-examination at
the instance of either the prosecution or defence, and
the question of sanity shall be determined by the
court before proceeding to try the question of guilt.
Were the foregoing, or some such provisions ren-
dered operative, both prosecution and defence could
always alike command the services of thoroughly
qualified, responsible experts, and none other, and the
experts, having ample opportunity for the most
careful examination, could speak positively of the
mental condition of the prisoner ; and the accumu-
lated depositions would, in process of time, furnish
experts' opinions on every phase of insanity, which
would greatly conduce to the uniformity and cer-
tainty of verdicts in insanity trials. The deside-
ratum, par excellence, is certainty, uniformity, and
justice of verdicts, but in addition to the major
benefit a number of minor ones would follow as neces-
376 MEDICO-LEGAL EELATIONS OF INSANITY.
sary sequences: (1) The experts being required
to give their services, free of charge, ahke to the
State and to defendants, a large item of expense
would be obviated, and the rich, in that important
particular, would have no advantage over the poor,
and the disgraceful scenes too often enacted would
be ]3revented — that of having an array of doctors
on each side of a case, conducting themselves, while
giving testimony under the sanctity of an oath, as
if they were counsel for the j)arties, instead of wit-
nesses, each side trying to aid those by whom they
were subpoenaed and paid, often, ap23arently, regard-
less alike of scientific truths, and good conscience.
(2) The time occupied in trials would be materially
shortened, as the long array of so-called expert wit-
nesses, testifying to any number of absurdities and
vague speculative theories, or rather hypotheses,
would give place to two or three experts who, on
behalf of the court, would give positive and trust-
worthy testimony in the premises, obviating the great
length of time now usually occuj)ied in cross-examin-
ing the so-called experts, with the view of exposing
their lack of knowledge and breaking down their evi-
dence. The cross-examination of the two or three
experts would generally be of short duration, as few
EXPERTS. 177
lawyers would expect to render nugatory the testimony
of those thoroughly skilled in their specialty. (3) The
experts would not be subject to the local bias which is
so often an influence highly prejudicial to the ends of
justice. (4) The duties of medical superintendents
of State insane asylums are now of great responsi-
bility, for the proper discharge of which they are
directly accountable to the State, and if giving testi-
mony as experts were made a part of their ofiicial
functions, they would reasonably be expected to be as
careful and conscientious in the discharge of the most
public part of their duty, — that part which would pro-
voke the most criticism, as they would of any other
obligation pertaining to their ofiicial position, and,
their official standing being dependent upon the sat-
isfactory performance of their duties would be a suf-
ficient guarantee of their faithfulness and probity,
especially as, being witnesses for the court, unpaid by
either party, there would be no inducement to favor
either prosecution or defence.
In determining the sanity of testators, when that is
called in question before the courts, the same prin-
ciples may be applied as in criminal trials, but not
with equal certainty, unless, indeed, an ante-mortem
examination of the testator, at the time the will was
12
178 MEDICO-LEGAL RELATIONS OF INSANITY.
executed, was made by. experts. When such examina-
tion has not been made, experts may be used by the
courts in the character of interpreters. A witness
unacquainted with our language uses words and sym-
bols that are not understood, hence the necessity for
the employment of an interpreter, who shall inform
the court and jury what the foreigner's words and
symbols mean ; so, in like manner, assuming the tes-
tator's words and actions to have been somewhat inco-
herent and irrational, if these symptoms of mental
disorder are not understood, there arises a similar
necessity for the employment of experts who shall
interpret, for the information of the court and jury,
the meaning of the symptoms as testified to, and
explain what relation these manifestations of mental
perturbations have to intellectual disorder or insanity.
§ 59. Another objection strongly urged by Messrs.
"Wharton and Stille is the want of any ultimate court
where the opinions of medical experts can be harmo-
nized, " There is no process ... in which the true
sense of experts, taking them as a body, can be ob-
tained. The test, therefore, is one which, from the
inadequacy of our judicial machinery, we cannot
apply." § 196. If this is all true, we again ask, why
not change the "judicial machinery" ? Is the ojDpro-
EXPERTS. 179
brium attaching to insanity trials to go on increas-
ingly forever, because, to prevent it, some change in
our "judicial machinery" is found to be necessary?
When the teaching or practice of any science is found
to be defective by or through the advancement of
knowledge, it ought to be changed, and it is only a
question of time when it will be changed, and defec-
tive modes or "judicial machinery" are not excepted
from the operation of that general law. It will be
found, however, that there is a process by which the
opinions of true experts, taking them as a body, can
be, and have been, harmonized.^
§ 60. At present, however, we shall consider the
harmony of tests and rulings that obtain in the courts.
And here we desire to state, distinctly, that in animad-
verting on the rulings of courts we disavow any disre-
spect to the individual or to the office ; it is the system,
not the individual or the office, which we censure. As
has been shown, insanity is a symptom or result of
physical disease. How, then, can a judge give a legial
test for the symptom or result of a physical disease ?
It is absurd to attempt it, and the absurdity is conclu-
sively proved in practice by the contradictory rulings
1 Vide post, U 68, 69, 70.
180 MEDICO-LEGAL EELATIONS OF IN^SANITY.
and tests promulgated by the various courts. How
could it be otherwise ? There cannot be two criteria
of insanity, a legal and a medical, the one contradic-
tory of the other, and both be correct. That which
is false in science, cannot be true in law ; and that
•cannot be health in law, which is disease in fact.
When the law says that for an insane act the perpe-
trator is irresponsible, and the court announces to the
jury as the true test of the insanity of the individual,
a test or criterion which the expert on oath testifies is
not a true test or criterion — a test which is scientifi-
cally false, and offers another test or criterion which
the court directs the jury to ignore ; obviously either
the court or the expert is in error, for both cannot
be right. It has been well remarked by Dr. Elwell,^
himself both lawyer and doctor, in his excellent work,
that it is exceedingly difiicult, if not impossible, for a
member of one profession to comj)rehend clearly the
necessities or modes of thought of another profession
upon any subject which may be viewed from the
stand-point of either profession; and in offering the
different and contradictory rulings of the courts as
proof of the great want of uniformity or harmony
^ Elwell, Miilpractice, Medical Evidence, and Insanity, pp. 370, 371.
EXPERTS. 181
existing among tliem as to the criteria of insanity,
possibly injustice may be unintentionally done them,
in considering the proceedings from the medical in-
stead of from the legal point of observation; some
of the rulings were probably based upon a particular
class of facts, and were not intended to be applied to
cases in general ; but, after making all due allowance
for such, there remain sufficient, where the broad gen-
eral principles are laid down, and which are directly
contradictory, one of the other, showing that a deplor-
able want of uniformity exists; and some of the judges
have taken trouble to make those contradictory opin-
ions conspicuous. When Ladd,^ J., in referring to
the opinion of the English judges in conference as-
sembled, remarks, " It is probable that no ingenious
student of the law ever read it for the first time with-
out being shocked by its exquisite inhumanity. It
practically holds a man confessed to be insane, ac-
countable for the exercise of the same reason, judg-
ment, and controlling mental power that is required
in perfect mental health. It is in effect saying to
the jury the prisoner was mad when he committed
the act, but he did not use sufficient reason in his
^ State V. Jones, N. H., p. 388.
182 MEDICO-LEGAL RELATIONS OF IXSAJv'ITY.
madness." The learned judge certainly does not en-
dorse tlie opinion of the English judges, which will
hardly be claimed to be based upon a particular class
of facts; and, animadverting more pointedly, he,
with a sarcasm worthy of Junius, continues : " It may
he. that mental disease sometimes takes a shape to
meet the provisions of this ingenious formula; or, if
no such case has ever yet existed, it is doubtless within
the scope of Omnipotent power hereafter to strike with
disease some human mind in such a peculiar manner
that the conditions will be fulfilled ; and when that is
done, when it is certainly known that such a case has
arisen, the rule may be applied without punishing a
man for disease. That is, when we can certainly know
that although the false belief on which the prisoner
acted was the product of mental disease, still that the
. . . motive to the act did certainly take its rise in some
portion of the mind that was yet in perfect health, the
rule may be applied without any apparent wrong.
But it is a rule which can safely be applied in prac-
tice that we are seeking ; and to say that an act which
grows wholly out of an insane belief that some great
wrong has been inflicted is at the same time produced
by a spirit of revenge springing from some portion or
corner of the mind that has not been reached by the
EXPERTS. 183
disease, is laying down a pathological and psychologi-
cal fact which no human intelligence can ever know to
be true, and which, if it were true, would not be laWy
but pure matter oi fact. No such distinction ever can
or ever will be drawn into practice ; and the absurdity
as well as the inhumanity of the rule, seems to me
suflQciently apparent without further comment." We
think further quotations of courts vs. courts unneces-
sary here, as a reference to the few opinions reported
in the Appendix will show that there is scarcely a con-
ceivable view of the jurisprudence of insanity that has
not been authoritatively affirmed and authoritatively
denied from the bench, so that to speak of uniformity
or harmony of opinion existing among courts on the
subject has at least, the appearance of sarcasm ; and
yet, after quoting many more contradictory opinions
of courts than are to be found in this work, Messrs.
Wharton & Stille strenuously argue against allowing
experts to testify directly to the sanity or insanity
of prisoners, on the ground of want of uniformity
or harmony among experts, and gravely assert that
"in legal practice, from the fact that in each State
there is a final court of appeal, this difficulty" (want
of harmony in the rulings of courts) " is obviated.
We all know what the law is ; or, if we do not, we
184 MEDICO-LEGAL EELATIOXS OF INSANITY.
have the means, in each Htigated case, of ascertaining
such law."^ From the cases reported it will be seen
that " the dijBficulty is" not " obviated," and while we
may all know what the law is at prese7it, we are not
certain of what it will be a year hence. When the
Supreme Court of a State has declared what the law
is, we know what it is in that State, at that tiine, but
from that ruling, we do not know what the law is in
any other State, nor what it will be should there be a
change in the personnel of the court by death or vol-
untary retirement of some of its members. Sometimes
the change of a single member would be sufficient to
alter the law, as it frequently happens that the court
is almost equally divided, as, for instance, in a recent
case in the Supreme Court of the United States at
Washington, if for any cause one of the judges had
retired from the bench, who can tell whether Mr.
Hayes or Mr. Tilden would have been President from
1876 to 1880? So, when the personnel of a State Su-
preme Court has been changed, who can tell whether
the dictum of the English judges or that of Judge
Ladd would be affirmed? Would "uncontrollable
impulse" or " moral insanity" be affirmed or denied
^ AVharton and Stille, Med. Juris., I 197.
EXPERTS. 185
as relieving from responsibility ? Would the defence
have to make the insanity clear beyond a reasonable
doubt, or would the prosecution have to prove sanity
after a presumption of insanity was raised ? Would
it be held that as an insane person cannot commit
a crime, if the jury had any doubt of the prisoner's
sanity they could not convict, as they were not certain
that a sane man committed the act; or, would the
" wild beast" theory of Judge Tracey be affirmed ?
It would appear, at least, to persons outside the legal
profession, that if there :s a mode of harmonizing the
rulings of courts on insanity, those whose duty it
was to have enforced that mode, have sadly neglected
their duty.
§ 61. If, as is claimed for it; the ^^ physical media
theory''' has been establislieil, it necessarily follows
that, insanity being 2')roduced by, and being a symp-
tom of, physical disease or disorder, there can be no
legal test that will meet the requirements of the thou-
sand and one forms and symptoms of the diseases
"that flesh is heir to;" therefore to expect a legal defi-
nition from the courts which will meet the exigencies
of every case would be to expect from the courts an.
impossibility. Had it been possible, the presumption
amounts almost to a certainty, that the many judges
186 MEDICO-LEGAL EELATIONS OF IJiTSAlSriTY.
and psychologists, so eminent and so profoundly
learned in tlieir respective departments, that their
knowledge has enriched and adorned humanity for
all time, would have made the discovery so much
needed, and which they so much desired to make, as
has been evinced by the almost numberless tests and
definitions which they have from time to time fur-
nished ; not one of which, however, will bear the test
of universal practical application. Those lolio hnow
most of any subject are the best able to define it.
Who know most of insanity, the legal profession or
medical experts ? Are lawyers or judges examined as
expert witnesses in insanity trials? The legal pro-
fession concede their lack of skilled knowledge by
requiring medical experts to testify, so as to inform
the court and jury on a subject which can only be
understood by a course of special study ; as by such
a course only can any j)erson have the necessary
knowledge to make a diagnosis of the case, and a
proper diagnosis of the case is, in other words, pro-
nouncing whether the person is sane or insane, and
the reverse is quite as true, that he who presumes to
determine the question of sanity or insanity presumes
to diagnose the disease on which the insanity depends ;
and in this connection it would make no difference
EXPERTS. 187
whether the disease were considered mental or physi-
cal. Have members of the legal profession the special
knowledge which would warrant them to make a di-
agnosis of either mental or physical disease ? If not,
let those who have the necessary knowledge determine
it, and if the medical experts are considered incompe-
tent to perform that part of their duty, then, in the
name of reason and common sense, relieve them from
the responsibility of treating and taking care of luna-
tics; as, on the correctness of the diagnosis must
depend the approj^riateness of the treatment; hence
those who cannot be depended upon to correctly de-
termine the nature of, ought not to be permitted to
treat, insanity or any other disease ; and, in the name
of humanity, relieve the doubly unfortunate insane
from the care and supervision of those who are
incompetent.
§ 62. In America and Britain there are few inter-
ests more jealously guarded and few rights held more
sacred than the liberty of the citizen, and yet in al-
most every State of the Union there are hundreds of
persons forcibly deprived of their liberty and held in
durance in insane asylums. These persons are re-
ceived in asylums generally at the- request of their
next of kin, and on the certificates of two or more
188 MEDICO-LEGAL RELATIONS OF INSANITY.
physicians that they are insane. The ablest experts,
the medical superintendents of the asylums, also pro-
nounce them insane, many of them dangerously so,
hut tried by the ordinary legal tests many of them
would be pronounced not insane. To improperly
deprive a citizen of his liberty is a grave offence
which the law is usually very prompt to j^unish.
Now, if the legal tests of insanity are believed to be
true and reliable by courts and lawyers, why is the
law not invoked in behalf of the thousands improp-
erly held in confinement in asylums, who would
without doubt be declared not insane if tried by
the " right and wrong" test as ordinarily apphed in
criminal cases ? If these unfortunates are improp-
erly deprived of liberty, as they must be if the legal
tests are true (as the only question to be primarily
decided is, what is the jDerson's mental condition, is
he sane or insane?), then why not ajDply those legal
tests to their sad condition, and restore them at once
to the sweets of liberty, home, and their families ? If
these " tests" of insanity were so used, it would be ex-
tremely hazardous for any person to send his friend,
however dangerous to the community he might be, to
an asylum, unless he were a raving maniac with no
lucid intervals ; and no person would take the position
EXPERTS. 189
of sujDerintendent of an insane asylum, unless, indeed,
he himself was insane, as verdict after verdict might
be obtained against such officer for false imprisonment
were the "knowledge" test of Justice Tracy, or the
"right and wrong" test commonly used in criminal
cases, made the criterion of such trials. The law says
an insane person may be sent to, and confined in, an
insane asylum ; hence, if the person is insane, no ac-
tion would lie for false imprisonment for his detention
there ; the law also says that an insane person cannot
commit a crime, that he is irresponsible for his acts ;
therefore, to determine respectively the questions of
" false imprisonment" and " responsibility," the one
thing necessary in both cases is to decide whether or
not the person was insane. Per contra, were the
rulings of Hallock, B., and Crawford, J., to be
authoritatively invoked in such cases as have been
the subject of discussion, it would be almost impos-
sible for a person to obtain damages, however wrong-
fully he might have been sent to, and kept in, an
insane asylum, as all doubts, by their rulings, sus-
tain the plea of insanity ; and probably few sane
persons forcibly taken to an asylum and kept there,
suffering under the immediate smart of so gross an
outrage, would conduct themselves with that calm-
190 MEDICO-LEGAL KELATIONS OF INSANITY.
ness and temperance which would leave no doubt of
tlieh^ sanity in the minds of the witnesses who saw
them forcibly deprived of their liberty.
§ 63. Again the question arises, if in civil cases
the question of sanity or insanity is a question of fact
to be testified to by the expert witnesses and submitted
to the court and jury, how can it be a question of
law to be decided by the court in criminal cases? "It
is plain that, under the present system, the judge does
actually withdraw from the consideration of the jury
some of the essential facts, by laying down authorita-
tively a rule of law which prejudges them ; the medi-
cal men testify to facts of their observation in a mat-
ter in which they alone have adequate opportunities
of observation ; the judge, instead of submitting these
facts to the jury for them to come to a verdict upon,
repudiates them by the authority of a so-called rule
of law, which is not rightly law, but is really false
inference founded on insufiicient observation," ^ which
"insufficient observation," be it remarked, was made
by medical men of past ages; and Judge Doe very
felicitously remarks,^ "If it is necessary that the law
^ Maudsley, Responsibility in Mental Diseases, p. 102.
* BoarJman v. Woodman.
EXPERTS. 191
should entertain a single medical opinion concerning
a single disease, it is not necessary that that opinion
should be a cast-off theory of physicians of a former
generation."
The dire confusion, should experts be permitted
to testify directly to the question of insanity, fore-
shadowed by Messrs. Wharton and Stille in § 197, if
well founded, would be a grave, if not fatal, objection to
the method herein recommended, but we think there is
much greater danger of that confusion occurring under
the present system of trial. While complete uniform-
ity will probably not be obtained so long as science is
progressive and medical experts have the right of
freedom of judgment, yet we believe that a near
approach to uniformity would obtain, were experts,
qualified and commissioned as here recommended,
required by the courts to testify directly to the all-
important question in such cases, — "Is the prisoner
sane or insane ?" Be it remembered that the experts
have been thoroughly taught and instructed in the
view of legal responsibility in such cases (assuming
that the eminent legal gentlemen on the board of ex-
aminers had done their duty), and that they testify
directly to the mental condition of the accused, after
due personal examinations had, and not to misleading
192 MEDICO-LEGAL EELATIONS OF INSANITY.
hypothetical cases or speculative distinctions. The
untrustworthiness of hypothetical cases has already
been shown/ and not only are they likely to mislead,
but the usual method of interrogating witnesses is also
open to a similar objection, or, at least, to the objec-
tion, that it is not the method best calculated to
secure the exact opinion of the expert witness.
Medical experts are usually required to trace the
connection between the delusion and the act, when
both are alike symptoms of the pathological con-
dition in which they have a common origin. The
rational problem propounded should be to trace the
symptoms and effects to their cause or causes, as
nothing can be gained by tracing the relation be-
tween symptoms, except as together they may aid
in diagnosing the exact nature of the disease, of
which the symptoms are the characteristics.
§ 64. In § 198, Messrs. Wharton and Stille say,
" But, after all, we must next observe that the proposed
submission of the tests to experts for decision is an
illusion, for the court will have to explain what it is
that the experts say. No court can abdicate its func-
tions of weighing testimony and of declaring what
» Ante, U 53-56.
EXPEKTS. 193
testimony means. ... So it must always be in cases
of conflict of evidence. Yet to declare, supposing the
testimony of experts to be ' law,' where the weight of
this testimony lies, is really to declare what the law
itself is." We were under the impression that " to
declare what the law itself is" was peculiarly the
province of the judge, but we did not suppose it was
his duty to determine questions oi fact, and the sanity
or insanity of a person being a question of fact, and
the experts are called only " when the premises upon
which he founds his conclusions cannot be understood
by the court or jury without study or knowledge on
that special subject, or without the aid of the knowl-
edge of persons whose skill is superior to their own." ^
The expert is called expressly to explain a special
subject not understood by the court and jury, and yet
the judge " will have to explain what the experts say ;"
a marvellously lucid and consistent arrangement, but
not more unreasonable than for the court to " submit
tests to experts for decision." The expert is called
to determine whether or not a person is insane. He
understands his specialty if he is an expert, the judge
confessedly does not understand it, notwithstanding
1 Elwell, p. 275.
13
194 MEDICO-LEGAL EELATIONS OF INSANITY.
"^hicli the latter assumes superior knowledge of tlie
subject by directing the expert as to what are the tests
or criteria on which his judgment must be based. As
has been stated before, there cannot be two tests of
insanity, a medical and a legal, the one contradictory
of the other, and both be correct. And, if so, the in-
sisting upon certain legal tests by courts, contrary to
the opinions of experts, is only less absurd than it is
pernicious. In § 199, Messrs. Wharton and Still^ say,
" Nor can harmony be by any other course adjusted
between civil and criminal law. In many classes of
probate cases, the question of a testator's sanity is
taken from the jury and determined exclusively by
the court." If such is the practice, then there is now
a grave want of harmony between the modes of pro-
cedure in the administration of the civil and criminal
laws. In the one the judge sometimes determines the
matter on his own judgment, and in the other it must
be determined by the judge, assisted by a jury. Is it
by lawyers and legislators who are in favor of " trial
by jury" considered entirely safe to allow a judge,
who may be profoundly ignorant on the question of
insanity, to take a case from the jury and determine
it exclusively himself? But the judge of probate
may be profoundly ignorant of both law and insanity,
EXPERTS. 195
as in some States, Michigan for instance, men who are
not lawyers are eligible to be, and have been elected,
judges of probate. Under such a system it is not
wonderful that there is a lack of harmony between
civil and criminal courts in insanity cases, or that the
people have little confidence in the courts when in-
sanity is an element in the trial. In § 199a, Messrs.
Wharton and Stille most eloquently urge the danger
of any infraction of the responsibility of judges.
They say, " These points are not to be finally adjudi-
cated by experts, who are neither appointed by the
State, so as to be independent of party choice, nor are
selected from their general judicial fitness, nor are
bound by precedent, nor are advised before they
come to a decision by counsel presenting fully both
sides." In a categorical answer to these objections
it might be urged that 4)y the scheme hereinbefore
suggested, the experts would be appointed by the
State, and therefore would be as independent of party
choice as are the judges, and would necessarily have
the judicial and medico-psychological fitness. So far,
the objections are fully met ; as to precedent, it is ex-
pected that each one, being fully aware of the views
of the whole, would give those views, except when
occasionally the witness might entertain some views
196 MEDICO-LEGAL EELATIONS OF INSANITY.
at variance with those generally held, in which case,
should it arise, he should give the views sanctioned
by expei'ts as a body, and then give his individual
opinions, stating them to be such, awd his reasons for
differing from the authoritative exposition of expert
opinions on the subject. While, however, this much
would be reasonably expected from every expert wit-
ness, as only by that means could he give expression
to the opinions of the body of which he was a single
member, yet it is to be hoped that the body of experts
would not yield such a slavish adherence to " prece-
dent" as to ignore well-established facts, should such
be presented in the progress of scientific investigation,
even though they might conflict with a previously-
held erroneous conclusion. The last of the series
of objections does not appear to be important, as a
free discussion of the subject among themselves would
be much more likely to lead to a correct decision than
would the advice of any number of counsel, confes-
sedly uninformed on that subject, however eminent
they might be as lawyers.
§ 65. Having, as we think, fully answered all the
objections that have l.een urged against such changes
as are here proposed, except that of harmonizing ex-
pert opinions, which will hereafter receive attention,
EXPEKTS. 197
we would consider any further discussion of tlie sub-
ject as supererogatory w^ere it not that we know that
there are those in every profession who dread change,
— who regard all departure from usages sanctioned
by age as dangerous innovations, — and therefore con-
sider it an imperative duty to keep strict guard at the
professional portals. Such persons are useful, and
their services are in frequent requisition and are of
great value, through their careful examination of the
basis and reasoning on which new projoositions are
sought to be established ; but objecting to everything
new is not an unalloyed good, as the objector some-
times, through fear of admitting error, fails to perceive
the truth, or, if he perceives, fears to acknowledge it.
Dr. William Harvey's theory of the circulation of the
blood, although established " on the most solid and
convincing proofs," ^ was not generally received during
his lifetime ; nay, such was the opposition to it that
his practice declined after the publication of his trea-
tise, and the world was practically deprived of the
• benefits of that most important discovery, through the
objections of Parisanus, Riolanus, and others, for over
a quarter of a century. In like manner the world
^ Hume, History of England, chapter Ixii.
198 MEDICO-LEGAL EELATIONS OF INSANITY.
lost the incalculable benefits arising from tlie im-
portant discoveries of Dr. Jenner and Sir James Y. .
Simpson for many years through the same obstructive
blindness, or, worse, — a refusal to acknowledge the
truth when convinced. It is expected that objections
will be urged, especially by some members of the legal
profession, wlio will resist as dangerous innovations
the changes herein urged as necessary, more particu-
larly that of giving what may be considered as a
quasi-judicial position to any person outside their own
fraternity, and that of adopting any method not in
accordance with "precedent," or sanctioned by "legal
maxims" venerable at least by age. But would such
objections Le well taken ? Many of the " precedents"
and " legal maxims" regarding insanity have been
shown time and again to be incorrect by experts, and,
as before observed, that which is scientifically false
cannot be legally true, nor can that be health in law
which is disease in fact. Is it right to continue the
use of any " test," " precedent," or " maxim" that is
known to be scientifically false, when the application
of the false tests, precedents, or maxims to cases in
controversy must result in injustice being done, so far
as they are depended upon in forming the verdict?
Would it not be better to discard them at once and
EXPERTS. 199
leave tlie experts, who alone understand the subject,
to apply criteria which they know to be correct, and
testify to the result, giving their reasons therefor for
the information of the court and jury? Let it be
borne in mind that whatever views may be entertained
of the nature and causes of insanity, it must be ad-
mitted to be a special malady, that is u7iderstood only^
and can be explained only, by skilled experts iyi that
specialty, and as such the expert witness, not the court,
should explain to the jury what it is.
§ 66. This proposition again raises the question,
Would it be safe to impose the responsibility of deter-
mining directly, so far as a witness can, tlie question
of the sanity of a defendant, upon experts qualified
and appointed as we have recommended? We un-
hesitatingly answer in the affirmative. In behalf of
the medical superintendents of State insane asylums,
and the profession of which they are members, we
believe that they may as safely be intrusted with any
responsibility for which they are professionally quali-
fied as any other class of men. Let it be remembered
that the responsibility, however grave and important,
is not created by the recommendations here made ; it
already exists, and will continue to exist, irrespective
of the question as to the individuals or classes on whom
200 MEDICO-LEGAL EELATIONS OF INSANITY.
it may rest. Tlie gravity of the responsibility is un-
doubtedly great, and because of its greatness we earn-
estly urge that it be transferred from courts who
confessedly do not, to experts who confessedly do,
know all that is known of that most complex subject
whence arises the responsibility. We think the phy-
sicians' duties as important, their usefulness as great,
and their responsibilities as grave as tliose of any other
profession, and as a class, in the discharge of those
arduous duties and obligations, they bring to bear
as much intBlligence and as high educational and
scientific attainments as do legal gentlemen in the
discharge of their duties. True, physicians seldom
occupy the high official positions which are so fre-
quently attained to by members of the legal fraternity.
Their training and habits of thought do not fit them
for such positions, but their professional work is none
the less important or useful on that account. Judges
and lawyers have occasionally cases in which the issue*
to be decided is life or death. Medical men in large
practice have the responsibility of cases in which life
or death, health or disease, are in the balance, not
occasionally but daily, nay, many times a day, and
that for rulers of nations, gallant officers, learned
judges, right reverend prelates, wise legislators, and
EXPERTS. 201
all grades between those classes, and the most obscure,
wretched, and debased, all trusting their lives un-
conditionally to the probity and knowledge of phy-
sicians. If it is true that " all that a man hath will
he give for his life,"^ there cannot be a more grave
responsibility laid upon any class than is imposed upon
the medical profession by every civilized community.
How that most important trust is administered will
be properly answered by reference to the trust re-
posed in old, tried, family physicians. Bat their
responsibilities are not restricted to their ordinary
daily duties of healing the sick, and caring for
the wounded. In courts of justice their services
are important : as proof of this we need only men-
tion the fact that many murderers would escape
detection and punishment were it not for the chem-
ical and pathological knowledge of physicians. Their
disinterested usefulness is also conspicuously shown
in their vast unrequited labors in the domain of
sanitary science and hygiene, — the j^revention of
disease which they would be paid for curing, — in
their demonstrating that insanity, the plague, scrofula
on shipboard, and kindred maladies are not the
^ Satan, Job ii. 4.
202 MEDICO-LEGAL EELATIONS OF INSANITY.
visitations in anger of an offended Deity, but are
due to natural causes wliicli might often be pre-
vented. In epidemics of cholera, smallpox, yellow
fever, etc., with a courage and philanthropy worthy
of a Howard, physicians are always found at the post
of danger, regardless of personal risk, and often with-
out fee or pecuniary reward. It matters not to them
how many people are stricken down by the dread
disease, nor how many of themselves fall victims to
the fell destroyer ; when one dies another is ready to
take his place — ready to breathe the noxious air of
the pest-houses, where the contagion is so appalling
that legal gentlemen often cannot be induced by any
consideration, to visit patients in extremis who desire
to make testamentary disposition of property; and,
where the gallant soldier, who has perchance led a
"forlorn hope" or "stormed a battery" with the utmost
coolness and intrepidity, would blanch and tremble
before " the pestilence that walketh in darkness" ; yet,
fully conscious of their danger, in the interest of
suffering humanity physicians unflinchingly meet the
terrible enemy, and by night and by day try to
" Foil his wild rage by steady skill,"
and in trying to save the lives of others they volun-
EXPEETS. 203
tarily sacrifice their own. The patriotic soldier offers
his life in defence of the liberties of his country. If
he lives, fame and renown may be his. If he dies, his
memory is kept green by a grateful country, and his
widow and children are cared for by the government.
Not so the physician, who at such fearful personal
hazard braves death, that others may live. JSTo memo-
rial day is set apart to keep the memory of his heroic
self-devotion before the people whom he died to save.
His last hours are not spent in the bosom of his family.
No loving hands smooth his pillow. He suffers the
agonies of dissolution in the pest-house among stran-
gers, who cannot, if they would, help him. Death
closes his career. His body, taken by the common
dead-cart, is laid by strangers irreverently in his last
resting-place. No funeral cortege; nay, so great is the
terror of the dread contagion that not even his rela-
tions dare follow his sometimes cofiinless remains to the
grave. Thus fall, in every severe epidemic, men among
the noblest of the race, in a cause as holy and with a
courage as heroic as ever actuated martyr or patriot.
How do States and nations recognize and reward such
services?
" Is the spot mark'd with no colossal bust?
Nor column trophied for triumphal show ?
None."
204 MEDICO-LEGAL EELATIONS OF INSANITY.
No record is made by tlie State of their "faith-
fulness even to the death," and no pensions are
bestowed upon their widows and fatherless children.
" Homines ad Deos nulla re propius accedunt, quam
salutem hominibus dando." — Cicero. The gentlemen
recommended to be exclusively used as experts in
insanity cases are members selected for their special
qualifications from the j)rofession to which reference
has just been made. Would they, a priori, be con-
sidered improper persons to intrust with any respon-
sibility, however great, provided the duties imposed
were of the class for which they were specially j^re-
pared by education and training ?
§ 67. Suppose a case. Twin brothers, as nearly
alike as possible in every respect, having pursued,
with equal ability and industry, the same course
of preparatory study. The one, after matriculation,
studied law, the other, medicine. In process of time,
after examination as recommended herein, the phy-
sician was declared eligible, and received the appoint-
ment of medical superintendent of a State asylum for
the insane, at the same time his brother, the lawyer,
was elevated to the bench. After, say, ten years, a
murder case was tried before the judge, the only de-
fence being insanity, and the only exj^ert witness
EXPERTS. 205
called was the judge's brother. Which of the
brothers would be able, most lucidly and scientifically,
to instruct the jury as to whether or not the prisoner
at the bar was or "was not insane? The medical
brother was called to instruct his brother the judge,
as well as the jury, regarding a subject on which both
judge and jury needed information of a special char-
acter. Is there any reason for supposing the physician
would be less honest or trustworthy than his brother
the judge? In several important respects they are
equal. Both are public officers to whom have b^n
committed grave trusts; both are responsible to the
State or people for the administration of their trust;
both are alike independent of the parties to the suit
pending; and each is assumed to have been desirous
of doing only that which was right. There is, how-
ever, an important difference between them. The one
understands the subject, and the other does not. Sup-
pose, still further, that the expert, in his examination,
testified that the " right and wrong," or some other
of the so-called legal tests of insanity, was erroneous
and untrustworthy. What would be thought of
the assumption, or rather presum^Dtion, of the judge
were he to direct the jury that they must accept the
"knowledge of right and wrong" as the true test.
206 MEDICO-LEGAL EELATIONS OF INSANITY.
notwithstanding his expert brother's testimony to the
contrary ? Leave out the consanguinity ; and there
remains what has occurred time and again, and must
continue to happen for all time, unless the system
undergoes a change. If the court "after all must
explain what the expert says" to the jury, nay, must
flatly contradict the expert witness, on the authority
of some "precedent" or "maxim;" instructing the jury
to decide as a question of law that which is a matter
of fact, which the jury instructed by the expert witness
ought to determine, we again ask, for what purpose was
the expert called ?
The method of taking expert testimony is open to
another objection. An expert, being amicus curice,
and expected to explain matters " not within the
knowledge of the court and jury," should be per-
mitted to arrange and present his explanations in
the manner in which he can most accurately give a
transcript of his views, whether orally or by deposi-
tion (but in either case to be subject thereafter to
examination and cross-examination) ; as, in answering
questions adroitly put, the necessary logical sequences
are interrupted, and counsel interested on one side or
the other may not always design that their questions
shall expiscate the whole truth, but only so much of
EXPERTS. 207
it as will benefit their client; hence it often happens
that the expert can only convey a part of his views to
the court ; and, a partial statement of a truth always
misleads. As has been urged before, the expert wit-
ness should not be, even nominally, subpoenaed "on
the part of the prosecution" or " of the' defence," he
should be " in behalf of the court." The bare sup-
position that his scientific knowledge is intended to
be used for the advantage of either side is most
pernicious; and, as he is expected to furnish infor-
mation, not in the possession of either of the parties
to the suit, for the benefit of the court and jury, he
should be permitted to arrange and state his views in
the manner he himself may think will most clearly
convey his ideas and conclusions ; as, by that method
all parties who desire to know " the truth, the whole
truth, and nothing but the truth," would be much
better served than by the practice of having the ex-
perts answer only such questions as are put to them.
§ 68. The objection that " American common law
courts have no process for the collection of the opinions
of experts on litigated questions of criminal responsi-
bility"^ will now be considered. The distinguished
^ Wharton and Still6, Med. Juris., § 194.
208 MEDICO-LEGAL EELATIONS OF INSAmTY.
authors just quoted in several succeeding sections des-
cant very earnestly on the confusion that would fol-
low for want of such a process, and declare that there
is " no court of experts who can harmonize antago-
nistic views" of experts. The objection is an impor-
tant one. All must admit the paramount importance
of uniformity of procedure. We have shown that one
important element in the uncertainty of the conviction
or acquittal of a prisoner, where insanity is alleged, is
the want of uniformity in the rulings of courts. An-
other element is the legal presumption that every
physician is necessarily an expert in insanity. We
have shown elsewhere in this chapter that that pre-
sumption is not according to fact, and we here frankly
admit there is no hope for uniformity in the opinions
of 8uch so-called experts should the courts continue
the practice of allowing them to give testimony in in-
sanity trials. But while the oj^inions of irresponsible
non-experts will probably continue to be contradictory
one of another, quite beyond the hope of reconcilia-
tion, such would not, we believe, be the case if only
experts in the correct use of the term were exclusively
used by the courts, and if to the necessary professional
qualification were added the official responsibility in
the employment only of medical superintendents and
EXPERTS. 209
their first assistants of "State Asylums for the Insane,"
we have no doubt that almost, if not quite entire har-
mony of opinion would be reached with reference to
all points affecting the mental condition of alleged
insane criminals or testators.
It will be readily understood that it would be a
much' less difficult task to harmonize the opinions of
one hundred and fifty to two hundred experts thor-
oughly acquainted both theoretically and practically
with their specialty than it would be to reconcile the
crude, absurd notions of seventy-five thousand to one
hundred thousand physicians on an abstruse subject
to which they had given no special attention. Inde-
pendently of the vast difference in the number of
opinions to be harmonized, a very important element
in the problem is that those who are the least well
informed on any professional subject are usually the
most positive and dogmatic, while those whose knowl-
edge is extensive and varied are generally more ready
to hear and carefully examine, in the spirit of philo-
sophical inquiry, all opinions on any subject under
discussion, when fairly presented and reasonably sup-
ported.
§ 69. According to the letter, it is true that there
is no " court of experts who can harmonize antago-
14
210 MEDICO-LEGAL EELATIONS OF INSANITY.
nistic views ;" but substitute tlie word " organization,"
or " association/' for " court" in the sentence, and it is
not true ; as wdll be seen by a reference to the organ-
ization known as the American Medical Association.
The existence of this important Association being
ignored by Messrs. Wharton and Stills, a brief refer-
ence to its aims, organization, and work, appears to
be necessary. In the plan of the Association's or-
ganization (May, 1846) it is " declared expedient for
the medical profession of the United States to institute
a National Medical Association," and its first aim is
declared to be "to give frequent, united, and emphatic
expression to the views and aims of the niedical
profession in this country." The Association is
eminently a representative one, as, with a few un-
important exceptions, the only way to obtain mem-
bership is by being elected a delegate by any State
or county medical society in the United States, pro-
vided the standard of admission to membership in
such State or county society is in accordance with the
requirements of the American Medical Association.
Permanent membership in the Association may be
had by any member who has been a delegate, on
payment of yearly dues and by conforming to the
rules, by-laws, and code of ethics. The Association
EXPERTS. 211
meets annually, tlie convention lasting four days.
Usual attendaiuce of members, eight hundred to one
thousand. There are two sessions daily. The fore-
noon session is occupied by the reading of essays on
subjects of general interest to the profession as a
whole, discussion, etc. For convenience in the dis-
cussion of special subjects, the body is divided, in the
afternoon, into five sections, to wi»t :
1. Practical Medicine, Materia Medica, and Phys-
iology ; '
2. Obstetrics and Diseases of Women and Children ;
3. Surgery and Anatomy ;
4. Medical Jurisprudence, Chemistry, and Psy-
chology ;
5. State Medicine and Public Hygiene ;
and essays on special subjects are referred to the
appropriate section, where, after being read and the
subject fully discussed, a vote is taken, which vote
announces the opinion of the section ; and if unchal-
lenged by the full convention, declares the opinion of
the " Association ;" which is the authoritative exj^res-
sion of the profession in the United States. (I refer
exclusively to Allopathic, or what is commonly known
^ Trans. Amer. Med. Assoc, vol. sxviii. p. 654.
212 MEDICO-LEGAL RELATIONS OF INSANITY.
as "regular medicine," but am informed that the Ho-
moeopaths have a similar organization, — the Amer-
ican Institute of Homoeopathy.) It will be seen how
readily every subject in dispute in any department
of medicine can be brought before the specialists
of the appropriate sections and there be authorita-
tively disposed of. To illustrate: Dr. R. J. Patterson,
of Batavia, Illinois, was requested to prepare a paper
on the following subject: "Do the facts justify the
recognition of ' moral insanity' as a distinct form of
disease?" and to report to the next meeting of the
American Medical Association. Accordingly, at the
meeting held at Chicago, Illinois, in 1877, Dr. Pat-
terson reported in a very able paper, reference of the
subject having been made to the superintendents of
" twenty-seven hospitals for the insane" for facts on
which to base his conclusions, and his answer to the
proposition is in the negative.^ During the free dis-
cussion had on the paper not a single expert of this
country then present (and the attendance in the section
was large) tooh the affirmative side of the proposition.
Dr. Bucke, superintendent of the insane asylum at
London, Canada, alone favoring the affirmative (he
^ Trans. Amer. Med. Assoc, vol. xxviii. pp. 359-64.
EXPEETS. 213
having an ex gratia standing in the Association) ; hence
it was unanimously decided by the vote then and there
taken that the experts on insanity of this country do
not recognize the existence of " moraV^ without " intel-
lectuaV insanity (the mania sine delirio of Pinel).
At the same meeting, and in a similar manner, " the
relations of spiritualism to medical jurisprudence"
were also considered in a carefully-prepared paper
by Dr. John P. Gray, of Utica, New York; and after
discussion had thereon, the conclusion was unani-
mously reached " that a belief in spiritualism is not
evidence of insanity, but in some cases it might be
shown to be undue influence."^ At the same meeting
the writer read a paper on " Medical Testimony with
Special Reference to Cases of Insanity,"^ in which it
was held that general medical practitioners are not
experts in insanity, and ought not to be required or
permitted to give testimony as such. The paper also
introduced the " physical media theory of insanity ;"
and after discussion the paper was received and
adopted. Now observe, that at a single meeting of
the " American Medical Association" four " vexed
questions" received their quietus, — id est, the opinion
^ Trans. Amer. Med. Assoc, vol. xxviii. p. 353.'
2 Ibid., pp. 365-70.
214 MEDICO-LEGAL EELATIOIfS OF INSANITY.
of the medical profession was authoritatively pro-
nounced. In justice to Messrs. Wharton and Stille,
we desire to say that these decisions had not been
reached when they wrote that " the fact is there is no
settled opinion of experts, because there is no final
court by whom conflicts among experts can be recon-
ciled and a settled law pronounced" (I use the edition
of 1873 of their work), but the American Medical
Association had at that time existed for over a quar-
ter of a century, with all its capabilities and facilities
for "giving united and emphatic expression to the
views ... of the medical profession of this coun-
try." It is also worthy of notice that the settled
opinion of experts, confirmed by the medical profes-
sion, is reached and promulgated without cost or
trouble either to the State or to suitors ; whereas, in
the law, to obtain the opinion of the Supreme Court,
the usual procedure would be by appeal from the
Circuit Courts, with the attendant trouble and ex-
pense. True, the decision of the " American Medical
Association" would not bind the individual member,
just as one of a bench of judges may dissent from the
rulings of that body, but the declared opinion of the
majority would, nevertheless, constitute the law, the
dissenting minority to the contrary notwithstanding.
EXPERTS. 215
§ 70. The expert who conscientiously differed from
the opinion of the majority would necessarily, when
under the oath of a witness, testify to his own opin-
ions, even if contradictory of the declared views which
had received the imprimatur of the court of experts
and of the medical profession, but his opinion would
be as impotent as would be that of the dissenting
judge, simply having whatever weight his individual
ability or re^Dutation could confer upon it. Even if
no other expert were called upon to testify, his state-
ments that those were his individual views, and were
not suj^ported, nay, were antagonized by experts gen-
erally, would carry their own refutation, as far as the
particular views in which he was not in harmony
with experts generally were concerned; because every
expert would, if properly questioned, state what the
views of experts as a whole were on every topic that
had been brought before that body, and on which an
authoritative conclusion had been reached.
Should the suggestions herein urged be adopted and
become law, we think there is not the slightest doubt
that the experts, in the interest of justice, and of their
own reputations, would see to it that their views on all
medico-legal questions which might properly occupy
them before the courts would be thorouglily har-
216 MEDICO-LEGAL RELATIONS OF INSANITY.
monized. Give tliem to understand that tlie whole
responsibility of testifying as to who are and who are
not insane would rest with them ; that they would be
held to strict accountability for the manner in which
tliey discharged their duty; and we venture to pre-
dict that they would be found to be eminently worthy
of the trust. Being comparatively few in number and
all familiar with the subject, if disinterestedness and
ordinary probity are granted to them, they appear to
have all the requisites for efficiently discharging that
duty. It may be mentioned that in 1844 there was
formed the "Association of Medical Supeein-
TENDENTS OF AMERICAN INSTITUTIONS FOE THE IN-
SANE," the prominent design of which was, "by a
comparison of views and a careful study of what has
already been done for the insane to secure for the fu-
ture a higher standard for lios2)itals and a more liberal
and enlightened treatment for all classes who are suf-
fering from mental disorders."^ This "Association"
is composed of the chief medical officers of all the
regularly organized institutions for the insane on the
American continent, and holds its meetings annually.
It has already done incalculable good by discussing
the various plans, and adopting the best methods for
' Preface to "Propositions and Resolutions," p. 7, 1876,
EXPEETS. 217
treating tliat most unfortunate class, tlie insane. It
may be rem-arked that the "Association" has not taken
special notice of the duties of medical experts in in-
sanity trials ; but, should giving expert testimony be
made their duty, and theirs exclusively, a slight
change in their organization would afford them every
facility for securing complete uniformity in opinion
on almost every subject within their province; and,
if complete harmony of belief could not be secured on
some particular point, an authoritative statement of
the views of the " Association" could be made by the
majority; and the very remarkable unanimity (al-
most without exception) with which the large number
of propositions and resolutions on all subjects con-
nected with the insane have been received and
adopted during the thirty-eight years the Association
has existed, affords the strongest assurance that all its
members would thoroughly harmonize their views, as
experts, and thus it would "give to the jury the full
renditions of science on the questions in litigation."
§ 71. In conclusion, we have shown that a misap-
prehension of the nature of insanity as a primary
cause underlies the uncertainty of verdicts, and conse-
quently the frequent miscarriage of justice in insanity
trials.
♦ 218 MEDICO-LEGAL RELATIONS OF IN^SANITY.
From the extracts of " rulings of courts," to be found
in tlie Appendix, whicli liave been culled from an
almost limitless number on record, it will be seen tliat
"legal tests" have not in the past harmonized, and
never can in the future harmonize, the questions of
responsibility in insanity cases, as such "tests" are
at variance with science ; and that verdicts cannot be
otherwise than uncertain will be readily apprehended
when to these erroneous " legal tests" are added fal-
lacious, misleading "hypothetical cases," untrust-
worthy testimony of unskilled witnesses impro23erly
called experts, and last, but not least, having the
"philosophy of the common law doctrine of insanity"
depend ujDon an unverified theory.^
If it is true, as asserted by Messrs. Wharton and
Stille,^ that in the " certainty at least as much as in
the wisdom of the opinions promulgated lies our
safety," the converse of the proposition must be
equally true, viz. : that in the want of certainty of
opinion and in the irrationality of procedure lie inse-
curity and danger. Where the law is uncertain there
is no law.^ Notwithstanding all our enlightenment,
1 Wharton and Still6, Med. Juris., | 318.
2 Ibid., I 197.
' " Ubi jus incertum, ibi jus nullum." — Legal Maxim.
EXPERTS. 219
and despite the unparalleled provisions that have been
made for the care of the needy and unfortunate, the
de^jlorable fact is continually forced upon our atten-
tion that there is a large class of cases in which it
is a mere matter of haphazard whether the criminal
shall be declared innocent, or the innocent person be
executed ! Surely the urgent necessity existing, for
immediate and radical changes in the law and in the
modes of procedure of the courts, which have for so
long a time anomalously disgraced our civilization,
justifies a demand in tones so earnest and peremptory
that few will wish or dare to oppose the necessary
amendments. All these elements of uncertainty, we
believe, can be removed by the adoption of some such
system as is herein proposed. The causes of uncer-
tainty being removed, insanity trials would cease to be
an opprobrium to the courts and to the medical pro-
fession, and verdicts would be as uniformly certain in
criminal insanity trials as they are in any other class
of cases, "a consummation devoutly to be wished."
The plea of insanity would cease to be urged in
defence of sane criminals as a der-nier ressort, when
the proof of guilt was irrefragable and no other de-
fence tenable, as such prisoners could not then hope
to escape the j)enalties due to their crimes through the
220 MEDICO-LEGAL EELATIOJ^S OF INSANITY.
many acknowledged causes of uncertainty now exist-
ing, and tlie same certainty whicli would prevent the
sane criminal escaping deserved punishment would,
ccdteris paribus, protect really insane persons. Baron
Bramwell's dictum to the contrary notwithstanding.
Changes so radical in their nature and sweeping
in their scope as those we have recommended could
hardly be made without disturbing for a time some
department of the legal machinery ; but if the phys-
ical nature of insanity is admitted to have been estab-
lished as a true principle, and we think it has, these
laws can be amended and modes of procedure changed
to accord with that principle, and the amended laws
would ultimately be administered not only without
friction, but with uniformity and harmony. That
such changes will be made in the not distant future
we believe; and then, students will look back upon
the insanity trials of the present, with as much amaze-
ment as that with which we now regard witchcraft trials
in the past; and we confidently believe these most
important desiderata may be reached through the
permanent establishment on a scientific basis of the
medico-legal relations of insanity.
APPENDIX.
judges' opinions.
(The figures refer to the sections.)
""Wild-Beast Test" — Absolute Alienation of Keason 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 impracticable, 75 — Total In-
sanity 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 on the Accused, and must be Un-
questionable, 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" — "Uncontrol-
lable Impulse" no Defence, 79 — Uncontrollable Impulse a good
Defence — Under " Uncontrollable Impulse" the Act was not his
Act, and he is rot Guilty, 80 — " Moral Insanity" relieves from
Responsibility, 81 — " Moral Insanity" affords no Relief from Re-
sponsibility — " Moral Insanity does not relieve from Responsi-
bility, 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
Sanity as well as Guilt — After the Presumption of Sanity has been
removed, the State must prove Sanity as well as Guilt, 84 — Pre-
ponderance of Evidence of Insanity ought to acquit, 85 — A Rea-
sonable Doubt as to Sanity ought to acquit — A Doiibt whether
221
222 MEDICO-LEGAL EELATIONS OF INSANITY.
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 Ex-
pert testifies to one Test of Insanity and the Judge gives another,
either the Expert testifies to a Question 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 Superin-
tendents know all that is known of Mental Diseases, 89— Medical
Expert Testimony of no Value — Medical Testimony not only value-
less, but worse than that, 90 — Medical Experts much better ac-
quainted with Insanity than either Courts or Lawyers — Medical
Expert Opinions Competent Evidence and entitled to great respect,
91.
INSANITY MUST BE ABSOLUTE.
{Wild-Beast Test.)
§ 72. In tlie trial of Arnold, an undoubted lunatic,
for sliooting at Lord Onslow, in 1723, Mr. Justice
Tracey said, " It is not every kind of frantic humor,
or something unaccountable in a man's actions, that
points him out to be such a madman as is exempted
from punishment ; it must be a man that is totally de-
prived of his understanding and memory, and doth
not know what he is doing, no more than an infant,
than a brute or wild beast ; such a one is never the
object of punishment."^
* Maudsley, Responsibility in Mental Diseases, p. 90.
APPENDIX. 223
In R. V. James Gibson, tried in Edinburgh, De-
cember 23, 1844, Lord Justice Clerk Hope directed
the jury that . . . "the disorder must amount to an
absolute alienation of reason."^
§ 73. iVb^ sure that it is not more necessary to
punish a madman than a sane man.
In Reg. V. Roberts, 1860, the prisoner pleaded
guilty, and Baron Bramwell, addressing him, said,
" That you are of unsound mind I believe, but that is
no reason why you should not be punished. I address
the explanation of the reasons why I pass upon you
the sentence which I am about to pronounce, not so
much to your understanding as to those around who
hear me, and to those whose duty it is to notice them.
The law makes unsoundness of mind no excuse for
offences, except it were such that you did not at the
same time know the nature of what you were doing,
and that it was wrong and unlawful. No doubt it is
very unfortunate that persons of unsound mind should
become by that affliction less under the influence of
moral restraints and of the restraints of law ; but it
would be sad indeed for the public if, when those re-
straints are weakened, the protection of the law were to
* Taylor, Med. Juris., vol. ii. p. 592.
224 MEDICO-LEGAL KELATIONS OF INSANITY.
be withdrawn by tbe extension of impunity to crime.
I am not sure that it is not more necessary to punish
a madman than a sane man, so far as the protection
of the public is concerned. I feel bound to sentence
you to the same punishment as if you were sane." ^
Punishment of the Insane, can he no Warning to
Others.
" The execution of an offender is, for example, ut
poena ad paucos, metus ad omnes perveniat; but so it
is not when a madman is executed, but should be a
miserable spectacle, both against law, and of extreme
inhumanity and cruelty, and can be no example to
others." ^
§ 74. The "Bight and Wrong" Test affirmed. This
legal test was exphcitly stated in the following terms
by the whole of the (English) judges in conference,
in answer to queries put by the House of Lords in the
case of McNaughton, who was tried and acquitted on
the ground of insanity (June 19, 1843) : " Notwith-
standing a party commits a wrong act while laboring
under the idea that he was redressing a supposed
grievance or injury, or under the impression of obtain-
1 Taylor, Med. Juris., vol. ii. p. 593. ' 4 Bl. Com., 24.
APPENDIX. 225
ing some public or private benefit, he is liable to pun-
ishment. The jury ought in all cases to be told that
every man should be considered of sane mind until
the contrary was clearly proved in evidence ; that, be-
fore a plea of insanity should be allowed undoubted
evidence ought to be adduced that the accused was
of diseased mind, and that at the time he committed
the act he was not conscious of right or wrong.
Every person was supposed to know what the law
was, and therefore nothing could justify a wrong act,
except it was clearly proved that the party did not
know right from wrong ; if that was not satisfactorily
proved, the accused was liable to punishment. If the
delusion under which a person labored were only par-
tial, the party accused was equally liable with a person
of sane mind. If the accused killed another in self-
defence, he would be entitled to an acquittal; but if
the crime were committed for any supposed injury, he
would then be liable to the punishment awarded by
the laws to his crime." ^
§ 75. The English Judged Opinion condemned.
After reviewing the answers of the English judges,
Judge Ladd remarks,^ " The doctrine thus promul-
^ Taylor, Med. Juris., vol. ii. p. 571.
* State V. Jones, N. II., p. 388.
15
226 MEDICO-LEGAL RELATIONS OF INSANITY.
gated as law has found its way into the text-books,
and has doubtless been largely received as the enun-
ciation of a sound legal principle since that day. Yet
it is probable that no ingenious student of the law
ever read it for the first time without being shocked
by its exquisite inhumanity. It practically holds a
man confessed to be insane, accountable for the exer-
cise of the same reason, judgment, and controlling
mental power that is required in perfect mental health.
It is, in effect, saying to the jury, the prisoner was
mad when he committed the act, but he did not use
sufficient reason in his madness. He killed a man
because, under an insane delusion, he falsely believed
the man had done him a great wrong, which was
giving rein to a motive of revenge, and the act is
murder. If he had killed a man only because, under
an insane delusion, he falsely believed the man would
kill him if he did not do so, that would have been
giving the rein to an instinct of self-preservation, and
would not be crime. It is true in words the judges
attempt to guard against a consequence so shocking
as that a man may be punished for an act which is
purely the offspring and product of insanity, by intro-
ducing the qualifying phrase, ' and is not in other re-
spects insane.' That is, if insanity produces the false
APPENDIX. 227
belief, which is the prime cause of the act, but goes no
further, then the accused is to be judged according to
the character of motives which are presumed to spring
up out of that part of the mind which has not been
reached or affected by the delusion or the disease.
This is very refined. It may be that mental disease
sometimes takes a shape to meet the provisions of this
ingenious formula; or, if no such case has ever yet
existed, it is doubtless within the scope of Omnipotent
power hereafter to strike with disease some human
mind in such peculiar manner that the conditions will
be fulfilled ; and when that is done, when it is certainly
known that such a case has arisen, the rule may be ap-
plied without punishing a man for disease. That is,
when we can certainly know that although the false
belief on which the prisoner acted was the product of
mental disease, still that the mind was in no other way
impaired or affected, and that the motive to the act did
certainly take its rise in some portion of the mind that
was yet in perfect health, the rule may be applied with-
out any apparent wrong. But it is a rule which can
safely be applied in practice that we are seeking; and
to say that an act which grows wholly out of an insane
belief that some great wrong has been inflicted, is at the
same time produced by a spirit of revenge springing
228 MEDICO-LEGAL KELATION"S OF INSANITY.
from some portion or corner of the mind that has not
been reached by the disease, is laying down a patho-
logical and psychological fact which no human intelli-
gence can ever know to be true, and which, if it were
true, would not be laiv, but pure matter of fact. No
such distinction ever can or ever will be drawn into
practice; and the absurdity as well as the inhumanity
of the rule seems to be sufficiently apparent without
further comment. . . . It is a question of fact whether
any universal test exists, and it is also a question of
fact what that test is, if any there be."
§ 76. The Total Alienation Test is discarded.
Beardsley, C. J., said,^ " A state of general insanity,
the mental powers being wholly perverted or obliterated,
would necessarily preclude a trial ; for a being in that
deplorable condition can make no defence whatever.
Not so, however, where the disease is partial, and con-
fined to one subject, other than the imputed crime and
contemplated trial. ... In the case at bar the court
professed to furnish a single criterion of sanity, that
is, a capacity to distinguish between right and wrong.
This, as a test of insanity, is by no means invariably
correct; for, while a person has a very just perception
^ Freeman v. People, 4 Denio, p. 27.
APPENDIX. 229
of the moral qualities of most actions, lie may at the
same time, as to some one in particular, be absolutely
insane, and consequently as to this be incapable of
judging accurately between right and wrong. If the
delusion extends to the alleged crime or the contem-
plated trial, the party manifestly is not in a fit condi-
tion to make his defence, however sound his mind
may be in other respects ; still the insanity of such a
person being only partial, not general, a jury, under a
charge like that given by the court below on this case,
might find the prisoner sane, for in some respects he
would be capable of distinguishing between right and
wrong. Had the instruction been, that the prisoner
was to be deemed sane, if he had a knowledge of right
and wrong in respect to the crime with which he stood
charged, there would have been but little fear that the
jury could be misled, for a person who justly appre-
hends the nature of a charge made against him, can
hardly be supposed to be incapable of defending him-
self in regard to it in a rational way. . . . Where in-
sanity is interposed as a defence to an indictment for
an alleged crime, the inquiry is always brought down
to the single question of a capacity to distinguish
between right and wrong at the time when the act
was done. . . . The act, in my judgment, must be
230 MEDICO-LEGAL RELATIONS OF INSANITY.
an insane act, and not merely the act of an insane
person."
Tlie Word "Power" comprises the True Test.
Judge Brewster, speaking for the judges of the
Philadelphia Common Pleas, said, in 1868,^ "The
true test in all these cases lies in the word ' power.'
Has the defendant in a criminal case the power to
distinguish right from wrong, and the power to ad-^
here to the right and avoid the wrong ?"
Did He hiow that the Act was forbidden by the
Lawf
§ 77. Lord Brougham said,^ " If the perpetrator
knew what he was doing ; if he had taken the precau-
tion to accomj^lish his purpose; if he knew at the time
of doing the desperate act, that it was forbidden by the
law, that was his test of sanity ; he cared not what
judge gave another test; he should go to his grave in
the belief that it was the real, sound, and consistent
test."
1 Wharton and Still6, Med. Juris., § 159.
» Bennett and Heard, Leading Criminal Cases, 2d Ed., pp. 101-2.
APPENDIX. 231
3Iusi know the Offence to be contrary to the Laws of
God a\id Nature.
Lord Lyndliurst, in 1831, said/ " Tlie question
was, did he know it was an offence against the laws
of God and nature ?"
Burden of Proof on the Accused, and Insanity must
be proved beyond a Doubt.
Sir James Mansfield (not Lord Mansfield), in Bel-
lingham's case, 5 Carrington and Payne, 169, note,
applied this test in the most general form to a pris-
oner indicted for murder. " In order to support such
a defence," said he,^ " it ought to be proved by the
most distinct and unquestionable evidence that the
prisoner was incapable of judging between right and
wrong ; in fact, it must be proved beyond all doubt,
that at the time he committed the atrocious act with
which he stood charged, he did not consider that mur-
der was a crime against the laws of God and nature ;
and that there was no other proof of insanity luhich
would excuse murder or any other crime ; that in the
^ Bennett and Heard, Leading Criminal Cases, 2d Ed., p. 102.
2 Ibid., p. 102.
232 MEDICO-LEGAL RELATIONS OF INSANITY.
species of madness called ' lunacy' persons are subject
to temporary paroxysms, in which they are guilty of
acts of extravagance ; such persons committing crimes
when they are not affected by the malady, would be,
to all intents and j)urposes, amenable to justice ; and
that so long as they could distinguish good from evil,
they would be answerable for their conduct ; and that
in the sj^ecies of insanity in which the patient fancies
the existence of injury, and seeks an opportunity of
gratifying revenge by some hostile act, if such a per-
son is capable in other respects of distinguishing right
from wrong, there would be no excuse for any act of
atrocity which he might commit under this description
of derangement."
§ 78. The ''Eight and Wrong Test'' modified.
Tindal, C. J., affirms the " right and wrong" test, but
restricts it to the act in question. In "Regina v.
Yaughan," 1 Cox, C. C, 80, he said,^ "It was not
mere eccentricity or singularity of manner that will
suffice to establish tlie plea of insanity ; it must be
shown that the prisoner had no competent use of his
understanding, so as to know that he was doing a
wrong tiling in the particular act in question."
^ Bennett and Heard, Leading Criminal Cases, 2d Ed., p. 103.
APPENDIX. 233
" Right and Wrong''' Test further modified.
Parke, B., in Kegina v. Barton, 3 Cox, C. C, 275,
told tlie jury "there was but one question for their
consideration, viz. : Whether at the time the prisoner
inflicted the wounds which caused the death of his
wife, he was in a state of mind to be made responsible
to the law for her murder. That would depend upon
the question whether he, at the time, knew the nature
and character of the deed he was committing, and
if so, whether he knew he was doing wrong in so
acting."^
§ 79. " Uncontrollable Impulse''^ does not relieve
from Responsibility. In "Regina v. Pate," tried
before Baron Alderson, in 1850, the learned judge
said,^ " It is not because a man is insane that he is
unpunishable ; and I must say that upon this point
there exists a very grievous delusion in the minds of
medical men. The only insanity which excuses a
man for his acts, is that species of delusion which
conduced to, and drove him to commit the act alleged
against him. The jury ought to have clear proof of
a formed disease of the mind, a disease existing before
^ Bennett and Heard, Leading Criminal Cases, 2d Ed., p. 104.
* Ibid., pp. 104-5.
234 MEDICO-LEGAL EELATIONS OF INSANITY.
tlie act was committed, and wliicli made tlie accused
incaj^able of knowing at tlie time that it was a wrong
act for him to do. The law does not acknowledge
the doctrine of an uncontrollable impulse, if the p)er-
S071 was aware it was a wrong act he was about to
commit."
In Regina v. Burton, 3 Foster and Finlayson, 780,
Wightman, J., said,^ " A man is responsible for his
actions if he knows the difference between right and
wrong. A state of mind under which a man, per-
fectly aware that it was wrong to do so, kills another
under an uncontrollable imj)ulse is no defence for a
crime."
§ 80. Uncontrollable Impulse does relieve from
Responsibility. In the Supreme Court of Pennsyl-
vania, 1846, Gibson, C. J., said,^ " But there is a moral
or homicidal insanity, consisting of an irresistible in-
clination to kill or to commit some particular offence.
There may be an unseen ligament pressing on the
mind, drawing it to consequences which it sees but
cannot avoid, and placing it under a coercion which,
while its results are clearly perceived, is incaj^able
of resistance. The doctrine which acknowledges this
^ Bennett and Heard, Leading Criminal Cases, 2d Ed., p. 105.
* Wharton and StilI6, Med. Juris., vol. i. § 157.
APPENDIX. 235
mania is dangerous in its relations, and can be recog-
nized only in the clearest cases." ^
If the Act was done under " Uncontrollable Im-
pulsCj^ it was not his Act, and he is not responsible.
In tlie Commonwealth v. Rogers, tried in 1844,
Shaw, C. J., said,^ " In order to constitute a crime a
person must have intelligence and capacity enough to
have a criminal intent and purpose ; and if his reason
and mental powers are either so deficient that he has
no will, no conscience, or controlling mental power, or
if, through the overwhelming violence of mental dis-
ease, his intellectual power is for the time obliterated,
he is not a responsible moral agent, and is not j^unish-
able for criminal acts.
" But these are extremes easily distinguished and
^ If the learned judge is correctly reported, it is to be presumed that
his legal, was much more accurate than either his psychical, or anatom-
ical knowledge. A ligament pressing on the mind, id est, a physical
pressure on that which has neither extension nor place,* and is an
incorporeal, intangible entity, requires explanation ; and if the brain,
the sometimes reputed seat of the mind, is intended, an explanation
la still required, as there are no ligaments in the brain.
^ Bennett and Ileard, Leading Criminal Cases, 2d Ed., pp. 96, 97.
* Sir William Hamilton's Lectures on Metaphysics, p. 356.
236 MEDICO-LEGAL RELATIONS OF INSANITY.
not to be mistaken. The difficulty lies between these
extremes in the cases of partial insanity, where the
mind may be clouded and weakened, but not incapa-
ble of remembering, reasoning, and judging, or so
perverted by insane delusion, as to act under false
impressions and influences. In these cases the rule
of law, as we understand it, is this : a man is not to
be excused from responsibility if he has capacity and
reason sufficient to enable him to distinguish between
right and wrong as to the particular act he is then
doing ; a knowledge and consciousness that the act he
is doing is wrong and criminal, and will subject him
to punishment. In order to be responsible he must
have sufficient power of memory to recollect the rela-
tion in which he stands to others, and in which others
stand to him ; that the act he is doing is contrary to
the plain dictates of justice and right, injurious to
others, and a violation of the dictates of duty. On
the contrary, although he may be laboring under j)ar-
tial insanity, if he still understands the nature and
character of his act and its consequences ; if he has a
knowledge that it is wrong and criminal, and a men-
tal power sufficient to apply that knowledge to his
own case, and to know that if he does the act he will
do wrong and receive punishment; such partial in-
APPENDIX. 237
sanity is not sufficient to exempt liim from responsi-
bility for criminal acts. If, then, it is proved, to the
satisfaction of tlie jury that the mind of the accused
was in a diseased and unsound state, the question will
be, whether the disease existed to so high a degree
that for the time being it overwhelmed the reason,
conscience, and judgment, and whether the prisoner,
in committing the homicide, acted from an irresistible
and uncontrollable impulse. If so, then the act was
not the act of a voluntary agent, but the involuntary
act of the body, without the concurrence of a mind
directing it."
§ 81. Moral Insanity {mania sine delirio) relieves
from Responsibility. In the Court of Appeals of
Kentucky, 1864, Robertson, J., said,^ "Moral insanity
is now as well understood by medico-jurists, and almost
as well established by judicial recognition, as the in-
tellectual form. Mentally, man is a dualism, consist-
ing of an intellectual and a moral nature. . . . No
enlightened jurist now doubts the existence of such a
type of moral, contradistinguished from intellectual
insanity as homicidal mania, or morbid and uncon-
trollable appetite for man-killing ; and pyromania, or
^ "Wharton and Still6, Med. Juris., g 175,
238 MEDICO-LEGAL EELATIONS OF INSANITY.
tlie like passion for Louse-burning ; kleptomania, or
an irresistible inclination to kill" (steal ?)...." But
if liis insanity extend no further than a morbid per-
version and preternatural power of insane passion, or
emotion, he not • only knows ' right from wrong,' but
knows also that the act he is impelled to do is forbid-
den by both moral and human law." And in 1869
the same judge took occasion further to enforce these
views : ^ " According to matured philosophy and the
corroborating authority of elementary writers, such as
Prichard and Esquirol and Kay and Taylor, and of
many modern adjudications, both British and Ameri-
can, there may be moral as well as intellectual insan-
ity, and essentially distinguished from it. . . . While
the senses are apparently sound and true, the affections
may be perverted, or the moral sentiments unhinged
in such a degree as to subjugate the ivill to some
morbid appetite or ungovernable passion, and thus pre-
cipitate against the will insane but conscious wrong.
This is contradistinctively called moral insanity."
§ 82. Moral Insanity {mania sine delirio) does not
relieve from Responsibility. Against the above opinion
Williams, C. J., said,^ "In all the vague, uncertain,
1 Wharton and Still6, Med. Juris., § 177. ^ Ibid., § 178.
APPENDIX. 239
intangible, and undefined theories of the most imprac-
ticable metaphysician in psychology or moral insanity,
no court of last resort in England, or America, so far
as has been brought to our knowledge, ever before
announced such startling, irresponsible, and danger-
ous propositions of law as that laid down in the infe-
rior court. For if this be law, then no longer is there
any responsibility for homicide, unless it be perpetrated
in calm, cool, considerate condition of mind."
"Moral Inmnity'^ does not relieve from Responsi-
bility.
Thurman, J.,^ " There is no authority for holding A
that mere moral insanity, as it is sometimes called, J
exonerates from resj3onsibility."
§ 83. Burden of Proof of Insanity on the Accused,
and must be established beyond Reasonable Doubt,
Rolph, B., in " Kegina v. Stokes," 3 Carrington and
Kirwan, 188, says,^ " If the prisoner seeks to excuse
himself upon the plea of insanity, it is for him to
make it clear that he was insane at the time of com-
* Wharton and Still6, Med. Juris., vol. i. p. 158.
* Bennett and Heard, Leading Criminal Cases, p. 129.
240 MEDICO-LEGAL BELATIONS OF INSANITY.
mitting the offence cliarged. The onus rests on him,
and the jury must be satisfied that he was actually
insane. If the matter be left in doubt it will be their
duty to convict."
The Proof of Insanity to acquit ought to be as strong
as that of Guilt to convict.
In the State v. Spencer, 1 Zabriskie, 202, Horn-
blower, C. J., said, with some emphasis,^ " Where it
is admitted, or clearly proved, that the prisoner com-
mitted the act, but it is insisted that he was insane,
and the evidence leaves the question of insanity in
doubt, the jury ought to find against him. The j)roof
of insanity at the time of committing the act, ought to
be as clear and satisfactory, in order to acquit a pris-
oner on the ground of insanity, as proof of commit-
ting the act ought to be, in order to find a sane man
guilty."
§ 84. Burden of Proof on the State, and the State
must prove Sanity beyond a Reasonable Doubt. In
the Illinois Supreme Court, 1863, Fisher v. People,
23 111., 283, it was held that^ "sound mind is pre-
^ Bennett and Heard, Leading Criminal Cases, p. 130.
2 Wharton and Still6, Med. Juris., I 159.
APPENDIX. 241
sumed if tJie accused is neither an idiot, lunatic, nor
affected with insanity. If he be insane, sound mind
is wanting and the crime is not established, therefore
the burden is on the state to establish sanity, and not
upon the prisoner to show insanity."
TJie Ingredients of an Offence cannot be separated^
therefore, after a Presumption of Insanity has been
raised, Sanity must be proved by the State.
In the People v. Garbutt, 1868, 17 Mich., 9,
Cooley, C. J., said, "The prosecution takes upon itself
the burden of establishing not only the killing, but also
the malicious intent in every case. There is no such
thing in the law as a separation of the ingredients
of the offence, so as to leave a part to be established
by the prosecution, while as to the rest the defendant ■
takes upon himself the burden of proving a negative.
The idea that the burden of proof shifts in these cases
is unphilosophical, and at war with fundamental prin-
ciples of criminal law. The presumption of innocence
is a shield to the defendant throughout the proceed-
ings, until the verdict of the jury establishes the fact
. that beyond a reasonable doubt he not only committed
the act, but that he did so with malicious intent. . . .
16
242 MEDICO-LEGAL KELATIONS OF INSANITY.
Tliey (the prosecution) are at liberty to rest upon the
presumption of sanity until 2:)roof of the contrary
condition is given by the defence. But when any
evide;ice is given which tends to overthrow that pre-
sumption, the jury are to examine, weigh and pass
upon it with the understanding that although the
initiative in presenting the evidence is taken by the
defence, the burden of proof upon this part of the
case, as well as upon the other, is upon the prosecution
to establish the conditions of guilt."
§ 85. Preponderance of Evidence of Insanity will
acquit. In the Commonwealth v. Rogers, referred
to, § 80, in answer to a question by the jury, the
learned judge stated^ " that if the preponderance of
the evidence was in favor of the insanity of the pris-
oner, the jury would be authorized to find him insane."
§ 86. A Reasonable Doubt as to Insanity ought to
acquit. In the trial of Daniel E. Sickles, United
States Court for the District of Columbia, 1859, for
the murder of Philip B. Key, Crawford, J., said,'^
"Whether a man is insane or not is a matter of fact;
Avhat degree of insanity will relieve him from respon-
^ Bennett and Heard, Leading Criminal Cases, p. 100.
* Wliarton and Stills, Med. Juris., vol. i. pp. 144-45.
APPENDIX. 243
sibility is a matter of law, tlie jury finding the fact
of tlie degree too. Under the instruction of the court
murder can be committed only by a sane man. Every-
body is presumed to be sane who is charged with a
crime, but when evidence is adduced that a prisoner
is insane, and conflicting testimony makes a question
for the jury, they are to decide it like every other
matter of fact, and if they should say, or conclude
that there is uncertainty, that they cannot determine
whether the defendant was or is not so insane as to
protect him, how can they render a verdict that a sane
man perpetrated this crime and that no other can ?
Nor is this plain view of the question unsupported by
authority. In the case of the Queen v. Ley, in 1840,
Lewins, C. C, p. 239, on a preliminary trial to ascer-
tain whether a defendant was sufficiently sane to go
before a petit jury on an indictment, Hullock, B.,
said to the jury, ' If there be a doubt as to the pris-
oner's sanity, and the surgeon says it is doubtful, you
cannot say he is in a fit state to be put on trial.' This
opinion was approved in The People v. Freeman, vol.
iv., Denio's Keport, p. 9. This is a strong case, for
the witness did not say the prisoner was insane, but
only that it was doubtful whether it was so or not.
The humane and, I will add, just doctrine that a rea-
244 MEDICO-LEGAL RELATIONS OF INSANITY.
sonable doubt should avail a prisoner, belongs to a
defence of insanity as mucli, in my opinion, as to any
otlier matter of fact."
Doe, J., says,^ " Whether in this case the de-
fendant had an insane impulse to kill his wife, and
whether he could resist it, are questions of fact.
Whether an act may be produced by partial in-
sanity when no connection can be discovered between
the act and the disease, is a question of fact. The
defendant is to be acquitted on the ground of insanity
unless the jury are satisfied beyond a reasonable
doubt that the killing was not produced by mental
disease."
§ 87. Insanity a Question of Fact to be determined
by the Jury, not a Question of Law to be decided by
Judges. In the State v. Pike, 49 N. H., 399, tried
in 187' >, 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.
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